Peter and Sue’s neighbours may have a claim against Michael for either trespass to their land or private nuisance. Trespass will occur where a person directly enters onto another’s land without permission, or remains on the land or places objects upon the land. Here an object (the van) has been placed on the neighbouring land. This may be considered a continuing trespass and each day the van is there it may be considered to create a new cause of action[1]. The neighbours will have to demonstrate intention on Michael’s behalf, this is intention for the act and not intention to trespass, thus this can be demonstrated here as lack of knowledge as to trespass is not a defence[2]. If, and it is likely, the neighbours are successful in establishing trespass they may seek an injunction to prevent this happening again or damages if they suffered a loss.
The other action the neighbours may have is that of private nuisance. To amount to a private nuisance the neighbours must demonstrate that there has been a continuous, unlawful and indirect interference with the use or enjoyment of their land or of some right in connection with it. Firstly the neighbours must demonstrate a continuous nuisance, which they are able to demonstrate as this happened over a period of time.[3] They must then demonstrate that the Michael’s conduct was unreasonable, the courts have stressed that as between neighbours there must be some give and take[4]. We are not told if the neighbours complained or asked for the van to be moved, this information would be useful in assessing reasonableness. When considering nuisance the court will take into account factors such as the locality[5], sensitivity of the Claimant[6], utility of the Defendant’s conduct[7], malice[8] and the state of the Defendant’s land[9]. In order for the neighbours to demonstrate use of enjoyment to their land they must show physical damage or injury to their health. It does not appear that the neighbours will be able to prove this. It is unlikely they would be successful in a nuisance action and their better claim will be in trespass.
Peter and Sue may have a claim against the work experience student if it can be demonstrated that he has been negligent[10]. In order to establish negligence it must be shown that the student owed Peter and Sue a duty of care that he was in breach of that duty of care, and that the breach of duty caused Peter and Sue to suffer some measurable loss. Firstly therefore we must first establish whether or not the student owed Peter and Sue a duty to take care. This will be a question of law. It is assumed that the student had a duty to take care whilst carrying out work on Peter and Sue’s premises. If it is established that a duty of care exists then the student will be negligent if the exercise of the duty of care fell below the standards of an ordinary reasonable person in his situation[11]. It will be for the court to determine whether or not conduct has fallen below the requisite standard and this will be an objective test and will not take into account any of the student’s characteristics and weaknesses.
Once the duty of care is present reasonable care must only be taken to avoid acts or omissions that can be reasonably foreseen to be likely to cause physical injury to persons or property[12]. This means that the student must take care to avoid injury to Peter and Sue’s property, this will include their car.
Peter and Sue must next demonstrate that the breach of duty by the Defendant which was reasonably foreseeable caused the damage to their vehicle. This is called causation. There two elements of causation, factual and legal causation. Factual causation is established by asking but for the students negligence would have the damage to the car. If the damage would have been sustained anyway, irrespective of the defendant’s wrong, there will be no liability.[13] Peter and Sue must therefore demonstrate on the balance of probabilities the breach of duty by the student caused the harm which the Claimant has suffered. Finally Peter and Sue must demonstrate that they have suffered some measurable loss and they are able to demonstrate this by the damage that has been caused to their car.
It is unlikely that the student will be able to compensate Peter and Sue for the damage caused to their vehicle, and they therefore may look to Michael as the owner of the company for compensation, this is a concept known as vicarious liability. In order to recover compensation from Michael’s company Peter and Sue must demonstrate that: a tort was committed, the tortfeasor was an employee of the company and that the employee was acting within his course of employment when the tort was committed. The first limb of this test has been satisfied and the next question to be addressed is whether or not the student was an employee of the company. There are various tests used to determine whether or not someone is considered to be an employee of a company. One of these tests is the control test which says that where the master can not only order or require what is to be done but also “how it should be done[14].” Another consideration will be the nature of the employment and this will depend on the wording in the contract[15]. Another factor that could affect whether or not he is an employee is whether or not he has been “lent” to the company or he is employed[16]. We do not know the exact nature of the relationship between the company and the student and it is therefore difficult to ascertain whether or not he will be conclusively considered to be an employee of the company, we will assume however that he is. Finally it must be demonstrated that the student was acting in the course of employment and not on “a frolic of his own[17]”. Michael’s company will be liable for the students acts if they were authorised by him or if he was doing an authorised act but in a way which was forbidden[18]. It would seem that the student was carrying out work authorised by Michael and in all the circumstances therefore Michael is likely to be vicariously liable.
Bibliography
Cases
Adams v Ursell [1913] 1 Ch D 269
Barnett v Chelsea & Kensington Hospital [1968] 1 ALL ER 1068
Cambridge Water Co v Eastern Counties Leather [1994] 1 All ER 53
Collins v Hertfordshire CC [1947] 1 All ER 633
Conway v George Wimpey & Co [1951] 2 KB 266, 273
De Keyser’s Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257
Donoghue v Stevenson [1932] AC 562, HL
Hall v Brooklands Auto Racing Club [1933] 1 KB 205
Holbeck Hall Hotel v Scarborough BC [2000] 2 All ER 705
Holmes v Wilson and others (1839) 10 A&E 503
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468
Joel v Morison (1834) 6 C&P 501
Konskier v Goodman Ltd [1928] 1 KB 421
Limpus v London General Omnibus Co (1862) 1 H&C 526; Rose v Plenty [1976] 1 All ER 97
McKinnon Industries v Walker [1951] 3 DLR 577
Mersey Docks & Harbour Board v Coggins Ltd [1946] 2 All ER 345
Page v Smith [1996] AC 155
Ready Mixed Concrete v Minister of Pensions and NI [1968] 1 All ER 433
Sturges v Bridgman (1879) 11 Ch D 852
Books
Deakin S, Johnstone A & Markesinis B, (2003) “Markesinis and Deakins Tort law”, Fifth Edition, Oxford University Press, Oxford
[1] Holmes v Wilson and others (1839) 10 A&E 503; Konskier v Goodman Ltd [1928] 1 KB 421
[2] Conway v George Wimpey & Co [1951] 2 KB 266, 273
[3] De Keyser’s Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257
[4] Cambridge Water Co v Eastern Counties Leather [1994] 1 All ER 53 at 70
[5] Sturges v Bridgman (1879) 11 Ch D 852
[6] McKinnon Industries v Walker [1951] 3 DLR 577
[7] Adams v Ursell [1913] 1 Ch D 269
[8] Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468
[9] Holbeck Hall Hotel v Scarborough BC [2000] 2 All ER 705
[10] Donoghue v Stevenson [1932] AC 562, HL
[11] Hall v Brooklands Auto Racing Club [1933] 1 KB 205
[12] Page v Smith [1996] AC 155
[13] Barnett v Chelsea & Kensington Hospital [1968] 1 ALL ER 1068
[14] Collins v Hertfordshire CC [1947] 1 All ER 633,
[15]Ready Mixed Concrete v Minister of Pensions and NI [1968] 1 All ER 433
[16] Mersey Docks & Harbour Board v Coggins Ltd [1946] 2 All ER 345
[17] Joel v Morison (1834) 6 C&P 501 at 503
[18] Limpus v London General Omnibus Co (1862) 1 H&C 526; Rose v Plenty [1976] 1 All ER 97