Civil Liability for Animals
The answers depend on the relationship between private nuisance and its younger, more energetic,cousin, negligence. Surprisingly, the exact nature of that . the relationship between nuisance and negligence too often sees the former emulate, particularly in relation to liability for omissions: a topic on which. A person is guilty of committing private nuisance who does any act, or is . and inter-relationship between the torts of nuisance and negligence.
In the tort of negligence the term used is duty of care  The case of Donoghue v Stevenson   established the modern law of negligence, laying the foundations of the duty of care and the fault principle which, through the Privy Councilhave been adopted throughout the Commonwealth. The friend bought Mrs Donoghue a ginger beer float.
She drank some of the beer and later poured the remainder over her ice-cream and was horrified to see the decomposed remains of a snail exit the bottle. Donoghue suffered nervous shock and gastro-enteritis, but did not sue the cafe owner, instead suing the manufacturer, Stevenson.
As Mrs Donoghue had not herself bought the ginger beer, the doctrine of privity precluded a contractual action against Stevenson. The Scottish judge, Lord MacMillan, considered the case to fall within a new category of delict the Scots law nearest equivalent of tort. The case proceeded to the House of Lordswhere Lord Atkin interpreted the biblical ordinance to 'love thy neighbour' as a legal requirement to 'not harm thy neighbour.
Harm must be 1 reasonably foreseeable 2 there must be a relationship of proximity between the plaintiff and defendant and 3 it must be 'fair, just and reasonable' to impose liability.
However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges. The test is both subjective and objective. There is a reduced threshold for the standard of care owed by children.
In the Australian case of McHale v Watson,  McHale, a 9-year-old girl was blinded in one eye after being hit by the ricochet of a sharp metal rod thrown by a year-old boy, Watson. The defendant child was held not to have the level of care to the standard of an adult, but of a year-old child with similar experience and intelligence.
Kitto J explained that a child's lack of foresight is a characteristic they share with others at that stage of development. Certain jurisdictions, also provide for breaches where professionals, such as doctors, fail to warn of risks associated with medical treatments or procedures. Doctors owe both objective and subjective duties to warn; and breach of either is sufficient to satisfy this element in a court of law. For example, the Civil Liability Act in Queensland outlines a statutory test incorporating both objective and subjective elements.
In Donoghue v Stevenson, Lord Atkin declared that "the categories of negligence are never closed"; and in Dorset Yacht v Home Office it was held that the government had no immunity from suit when they negligently failed to prevent the escape of juvenile offenders who subsequently vandalise a boatyard.
In other words, all members of society have a duty to exercise reasonable care toward others and their property. Stone the House of Lords held that a defendant was not negligent if the damage to the plaintiff were not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside a cricket ground. Finding that no batsman would normally be able hit a cricket ball far enough to reach a person standing as far away as was Miss Stone, the court held her claim would fail because the danger was not reasonably or sufficiently foreseeable.
As stated in the opinion, 'reasonable risk' cannot be judged with the benefit of hindsight. Causation law In order for liability to result from a negligent act or omission, it is necessary to prove not only that the injury was caused by that negligence, but also that there is a legally sufficient connection between the act and the negligence.
Factual causation actual cause [ edit ] See also: Causation in English law and Breaking the chain For a defendant to be held liableit must be shown that the particular acts or omissions were the cause of the loss or damage sustained. The basic test is to ask whether the injury would have occurred 'but for', or without, the accused party's breach of the duty owed to the injured party.
The Law of Private Nuisance
Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business. Legal causation proximate cause [ edit ] Negligence can lead to this sort of collision: Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo, J.
We say that one's negligence is 'too remote' in England or not a ' proximate cause ' in the U. Note that a 'proximate cause' in U.
The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?
For instance, in Palsgraf v. Long Island Rail Road Co. The plaintiff, Palsgraf, was hit by coin-operated scale which toppled because of fireworks explosion that fell on her as she waited on a train platform.
The scales fell because of a far-away commotion but it was not clear that what type of commotion caused the scale to fall,either it was the explosion's effect or the confused movement of the terrified people.
A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall.
Tort, negligence and nuisance claims - Claims and remedies - Dispute R
The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. On appeal, the majority of the court agreed, with four judges adopting the reasons, written by Judge Cardozo, that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. Three judges dissented, arguing, as written by Judge Andrews, that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently.
Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts that follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury.
Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury. Remoteness takes another form, seen in The Wagon Mound No.
The ship leaked oil creating a slick in part of the harbour.
The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. Campaigners hold that established lawful activity continuing with planning permission and local residents' support should be accepted as part of the character of the area by any new residents coming to the locality.
United States[ edit ] There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance. There is general agreement that it is incapable of any exact or comprehensive definition.
Page ; Keeton, W. Prosser and Keeton on Torts 5th ed. Many states have limited instances where a claim of nuisance may be brought.
Such limitation often became necessary as the sensibilities of urban dwellers were offended by smells of agricultural waste when they moved to rural locations. There are two classes of nuisance under the American law: The classification determines whether the claim goes to the jury, or gets decided by the judge.
An alleged nuisance in fact is an issue of fact to be determined by the jury, who will decide whether the thing or act in question created a nuisance, by examining its location and surroundings, the manner of its conduct, and other circumstances. Most nuisance claims allege a nuisance in fact, for the simple reason that not many actions or structures have been deemed to be nuisances per se.
In general, if an act, or use of property, is lawful, or authorized by competent authority, it cannot be a nuisance per se. Few activities or structures, in and of themselves and under any and all circumstances, are a nuisance; which is how courts determine whether or not an action or structure is a nuisance per se.
Donald Gifford  argues that civil liability has always been an "incidental aspect of public nuisance".
- Nuisance in English law
In recent decades, however, governments blurred the lines between public and private nuisance causes of action. William Prosser noted this in and warned courts and scholars against confusing and merging the substantive laws of the two torts. In some states, his warning went unheeded and some courts and legislatures have created vague and ill-defined definitions to describe what constitutes a public nuisance. For example, Florida's Supreme Court has held that a public nuisance is any thing that causes "annoyance to the community or harm to public health.
The law is voted on by members of the town at town meetings. When determining the appropriate response, the officer may take many factors into consideration, such as the severity of the noise, the time of day, whether the residents have been warned before, the cooperation of the residents to address the problem.
A lawsuit may be described as a "nuisance suit", and a settlement a "nuisance settlement", if the defendant pays money to the plaintiff to drop the case primarily to spare the cost of litigation, rather than because the suit would have a significant likelihood of winning. Environmental nuisance[ edit ] In the field of environmental science, there are a number of phenomena which are considered nuisances under the law, including most notably noise, water and light pollution.
Moreover there are some issues that are not necessarily legal matters that are termed environmental nuisance; for example, an excess population of insects or other vectors may be termed a "nuisance population" in an ecological sense.
In modern times, many of the old common law nuisances have been the subject of legislation. It's no defence for a master or employer that a nuisance is caused by the acts of his servants, if such acts are within the scope of their employment, even though such acts are done without his knowledge, and contrary to his orders. Nor is it a defence that the nuisance has been in existence for a great length of time, for no lapse of time will legitimate a public nuisance. There must be some sensible diminution of these rights affecting the value or convenience of the property.
A private nuisance, differing in this respect from a public nuisance, may be legalized by uninterrupted use for twenty years. It used to be thought that, if a man knew there was a nuisance and went and lived near it, he couldn't recover, because, it was said, it is he that goes to the nuisance, and not the nuisance to him.
But this has long ceased to be law, as regards both the remedy by damages, and the remedy by injunction. An information lies in cases of great public importance, such as the obstruction of a navigable river by piers. In some matters, the law allows the party to take the remedy into his own hands, and to "abate" the nuisance. Thus; if a gate be placed across a highway, any person lawfully using the highway may remove the obstruction, provided that no breach of the peace is caused thereby.
The remedy for a private nuisance is by injunction, action for damages or abatement. An action lies in every case for a private nuisance; it also lies where the nuisance is public, provided that the plaintiff can prove that he has sustained some special injury.
This document is available in the following Practice Areas
In such a case, the civil is in addition to the criminal remedy. In abating a private nuisance, care must be taken not to do more damage than is necessary for the removal of the nuisance.
The law as to what constitutes a nuisance is substantially the same as in England. A list of statutory nuisances will be found in the Public Health Scotland Actand amending acts.