In this scenario the three claimants, David, Rooney and Serena state that they have all been affected by the construction work being carried out close to their flat near Leeds Beckett University by Harrington and Nephew Ltd on behalf of their clients PL. In order to determine if the claimants have the right sue in tort it must be established if there is any liability and if there is, who is liable. There are multiple issues to be addressed and these differ across the claimants therefore each will be assessed individually to determine is a claim in torts can be made.
All three parties claim to be affected by the increased noise levels coming from the construction site with Harrington & Nephew working all day and night to meet their clients’ (PL) deadline.
David and Rooney both claim that the noise levels coming from the construction site is affecting their ability to sleep properly at night and due to this they have both been diagnosed with fatigue. Serena claims the impact on her is that she is unable to sleep during the day and as a result of this an existing aliment which had previously been in remission has re-occurred.
When assessing the validity of the claims there are three areas of tort that must may be considered and assessed; these are Nuisance, both private and public and Negligence. For each it must be established if there is a liability, who is liable and what, if any remedies can be sort through tort.
Private Nuisance
A private nuisance is defined on page 233 Osborn’s Concise Law Dictionary 8th Edition as; “An inconvenience materially with the ordinary comfort physically of human existences, not merely according to elegant or dainty modes and habits of living, but according to plain and sober, simple notions amongst English people…”.
Private nuisance relates to interference which may or may not cause actual damage to property or land. While of level of tolerance is expected as people have to harmoniously co-exist, the over-riding principle should be ‘Sic utere tuo alienum non laedas – so use your property as not to injure your neighbours’.
The interference experienced must result in the loss of enjoyment of the land and where no physical damage has occurred the onus is on the claimant to prove that substantial interference is impacting their comfort and convenience i.e. their comfort of the land. Any damages claimed will can include actual damage that has occurred or inconvenience experienced but will not physical injury or economic loss.
While the interference experienced relates to noise and no the express impact of land precedent has been established through Andreae V Selfridge & Co Ltd (1938) that this is acceptable cause for a nuisance tort.
As the occupiers of the land, therefore having an interest in it, and as they are the ones who have suffered as a consequence of the interference David, Rooney and Serena are protected by nuisance tort.
When establishing if liability in nuisance exists and whether damages could be awarded to David, Rooney and Serena the key factors to be considered are whether the level of nuisance caused was reasonable and if reasonable care was taken to avoid or minimise the level of nuisance.
For private nuisance liability to be established the inconvenience caused must be unreasonable, as Lord Denning stated “The very essence of a private nuisance…is the unreasonable use by a man of his land to the detriment of his neighbour.” Miller and Jackson (1977) QB966.
There is no specific measure or test to determine what is reasonable to this is measured against what would be tolerated by a ‘reasonable man’ and so influencing factors must be considered collectively to determine if there has been a loss of enjoyment of land.
In this scenario, the key influencing factors of whether there is a liability relate specifically to the length of time over which the building work has been undertaken, and is scheduled to continue, the working hours and whether there was a lack of care for the claimants by the defendant. Although consideration will be given to location and the fact that the claimants live in a city centre so should therefore should reasonably expect a higher level of ambient noise than a those who live in the country, this should not influence the fact of liability as the claim relates to extraordinary causes not ambient volumes see Halsey V Esso Petroleum (1).
While there are always exceptions, see De Keyser’s Royal Hotel V Spicer Brothers (2), interference is not usually actionable unless it occurs or reoccurs over a period of time. The duration of the interference is significant in determining both the liability of tort and the level of damages awarded in relation to it.
The timing of the works must also be considered, there is an expectation that work that is likely to cause significant interference will be conducted during ‘reasonable hours’, usually determined by the local authority and managed via permit or building conditions. De Keyser’s Royal Hotel V Spicer Brothers (2), supports this with a ruling relating to building works being undertaken during the night and the establishment of unreasonable working hours shows that if it can be established that when working through the night an unreasonable level of noise was caused liability can be determined. However, it is not the place of the law to determine when a person can or should sleep. The law protects an individual’s right but cannot and does not dictate specifically when this must happen. On this basis the ‘reasonable hours’ consideration should not be assumed to be restricted to daytime hours or considered in isolation or override the individual rights that would be considered ‘reasonable’.
To determine liability due to lack of care it must be considered if the defendant could have reasonably identified the potential nuisance and adopted measures to prevent it or taken action to stop the nuisance once it was identified see the previously mentioned Andreae V Selfridge & Co Ltd (1938) (3).
In relation to David, Rooney and Serena liability in tort for private nuisance can be established against Harrington and Nephew across multiple factors; the fact that the interference (the unreasonable level of noise) was on-going through September and scheduled to continue to at least January, the deadline for completion, confirms the level of continuity and that the interference was not a one-off incident. The nature of the work being undertaken and the fact that the work is being completed over continuous shifts 24hrs a day this not be considered reasonable by a reasonable man and as PL is a leading developer of student accommodation are Harrington and Nephew Ltd are the main contractor it is fair to expect that they could have foreseen the nuisance their actions in relation to the working pattern, 24hrs a day, and the proximity to other residential dwellings would have caused and taken steps to limit the damage but did not, therefore they have shown a lack of care to the claimants.
Public Nuisance
Public nuisance is a crime and was defined as “..any nuisance ‘which materially affects the reasonable comfort and convenience of life of a class of her majesty’s subjects.’ The sphere of the nuisance may be described generally as the neighbourhood; but the question whether the local community within that sphere compromises a sufficient number of persons to constitute a class of the public is a question of fact in each case” in Att-Gen V PYA Quarries (1957) (4).
This definition suggests that a public nuisance must impact people and not any individual however this is not the case and a litigation in tort for public nuisance can be pursued by an individual. The definition does result in confusion and lack of clarity between this and private nuisance and it is accepted that there is an area of grey between the two. A key difference between public and private nuisance is that in a public nuisance tort damages can be claimed for personal injury and economic loss (Rose V Miles (1815) (5) as well as inconvenience and damage to property.
To establish liability in tort for public nuisance it must be established that there was damage to the general public. Although there is no need to prove a duty of care, the claimant must then show that the defendants conduct was unreasonable and the individual claimant must prove that the damage experienced by them is greater than that experienced by the wider, general public, see the earlier case of Halsey v Esso Petroleum (1). It should also be noted that in Noble V Harrison (1926) (6) it was established that the defendant must have a knowledge of the consequences of their action for liability to be proven.
In considering each of the factors of liability for a public nuisance tort there is no specific test or standard so the definition of ‘reasonable’ is shared with that of a private nuisance, would the actions taken be considered reasonable by a reasonable man.
In the case of David, Rooney and Serena it would be difficult to validate the claim that as a direct result of the working hours, and subsequent level of noise experienced through the night there was an impact on the wider, general public of inconvenience and inability to sleep in the first instance and as a result that the level of damage they experienced was at a more significant level.
Negligence
A tort negligence is defined as “…the breach by the defendant of a legal duty to take care, which results in damage to the claimant.” in Osborns’ Concise Law Dictionary: 8th Ed. Page 227.
In a tort of Negligence, it must first be established if there has been damage caused, without damage there can be no claim of negligence. Once it has been established that there has been damage caused it must be determined if a duty of care exists between the claimant and the defendant, if this has therefore been breached and if, as a result of this, damage has been caused to the claimant (physical, psychological or economical) or their property which could have been foreseen.
Lord Atkins’ ‘neighbour principle’ established in the case of Donoghue V Stevenson, although its boundaries have adapted over time, is considered the cornerstone of the tort of negligence in determining if a duty of care exists, however, this definition has been challenged and refined through the cases of Anns V Merton Borough Council (1977) (7) and by Yuen Kun Yeu V A-G of Hong Kong (1987) (8) where it was concluded that “…such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take the care would know would be directly affected by his careless act”. The proximity could be either physical or legal. These refinements have resulted in the current position which has four determining factors to establish if a duty of care exists these are; If there was reasonable foresight of harm to the claimant, the proximity of the relationship between the parties, whether the imposition of a duty would be just and reasonable and public policy.
Following Hedley Byrne & Co Ltd. V Hellar and Partners Ltd (9) it was established that where the claim of negligence relates to statements the neighbourhood principle does not apply, alternative criteria is required.
To determine if there was a duty of care between Harrington and Nephew and David, Rooney and Serena all factors must be considered;
Could it be reasonably foreseen that the work being completed and the timing of the work would cause harm to the claimants i.e. would it create an unreasonable level of noise. Is reasonable to expect them to understand the level of noise generated by their work and therefore what impact this would have on their neighbours. Would it be reasonable to expect the developers to have a duty of care to those in the neighbourhood of their development?
As developers it would be reasonable to expect that they would understand the level of noise that would be generated by the work being undertaken and the impact of this on the neighbourhood. Given the size of the development and the experience of the developers it would not be unreasonable to assign a duty of care accordingly.
Having established that the duty of care exists it must be determined if this has been beached which is determined by the standard of a reasonable man establish in and unchallenged since Blythe V Birmingham Waterworks (1856) (10). In deciding what standard of care should be expected there are numerous factors which and considered and weighted in terms of relevance and circumstance, including how big was the risk that the damage would occur? How practical would it have been to have taken steps to prevent the damage in terms of both cost and feasibility? What level of expertise and qualification does the defendant claim to possess in relation to the actions being undertaken, where the person is a professional the standard will be set at the level of the profession not the individual?
It would be reasonable to assume that the risk of damage would be high if the building work continued throughout the night. This risk could have been mitigated and the damage prevented easily but the cost of doing so is not understood. Again the experience of the developers is an influencing factor and there is an established level of experience.
When determining if damage has been caused to the claimant it is their responsibility to provide sufficient evidence that this is the case and that the damage is the result of the actions of the defendant. Where this cannot be provided they attempt to shift the burden of proof to the defendant through res ipsa loquitur although this does not guarantee success for the claimant.
Recommendation
A tort of private nuisance can be made against Harrington and Nephew Ltd. to claim compensation for the stress caused by the level of noise and hours of work and request an injunction to limit the hours of work.
A tort of negligence must be made against Harrington and Nephew Ltd. in relation to Serena’s claim for medical expenses as this relates to a personal injury claim, the eggshell rule (her existing ailment) will influence the level of damages but not influence the eligibility for damages (evidenced through the medical reports) and for the damage to David’s car (res ipsa loquitur) as in both cases it can be established that a duty of care existed, was breached and damage resulted.
A tort of negligence is required for Rooney’s claim for the train ticket and subsequent loss of earning, this would be against Harrington and Nephew Ltd. as liability can be established and (evidenced through the feedback from the interview), however no duty of care can be determined against David for this incident.