Formative Assessment

Tort law Answer and Feedback

Indicative Classification: First

STUDENT ANSWER
Gregory and Siri v Zoe
In the case of Gregory and Siri, they might want to bring an action against Zoe for the damage
they have suffered, i.e. the unbearable smell of chemical fumes released. For Siri, she further suffers
personal injury, i.e. recurring eye infection caused by the chemical fumes. The possible cause of
action against Zoe will be under the tort of private nuisance. According to Read v Lyons, a private
nuisance is any activity that is causing unlawful interference with a claimant’s use or enjoyment of
land, or some rights over, or in connection with it.
Gregory and Siri might want to argue that the smell of the chemical fumes is an interference with
their use and enjoyment of land. To sue under private nuisance, the claimant must first shows that
he has a proprietary interest in the affected land as in Malone v Laskey. Although the fact is silent
whether Gregory is the owner or tenant of the farm, the fact that Gregory occupies the farm
indicates that Gregory is likely to have a proprietary interest and would therefore have a locus to
sue. On the question of who can be sued, the potential defendants include the creator of a
nuisance as in Southport Corporation v Esso Petroleum. On the facts, Zoe is the creator since the
chemical fumes she used created the alleged nuisance in the case.
Another element that the claimant must prove is that the interference is an unreasonable one. As
stated in Sedleigh Denfield v O’Callaghan, the court will take a number of factors in account to
determine if it is an unreasonable interference.
One of the relevant factor is the defendant’s conduct. If the defendant has a malice intent, the
activity is more likely to be held unreasonable as per Hollywood Silver Fox v Emmet. On the facts,
Zoe uses the chemical fumes for the purpose of sterilizing the equipment, therefore no malice
intent is involved. Another factor is the suitability of locality, in which the court will consider
whether the defendant’s use of land in that area is reasonable by taking into account the nature of
the premises as per Hirose Electrical UK v Peak Ingredients. The court will also consider if the
defendant has subjected the property to ordinary or extraordinary use as per Bamford v Turnbey.
On the facts, it is argued that manufacturing herbal remedies in rural farming area is a reasonable
and ordinary use of the land.
Another factor to be considered is public benefit. As per Andrea v Selfridge, the more socially
worthwhile the activity is, the less likely it is to be held unreasonable. The court might consider the
manufacturing activity of Zoe as beneficial to the public as her business creates job opportunities
to the community.

The court will also consider the character of harm and the seriousness of the interference with the
claimant’s use of land. Following Watt v Jamieson, it is important to determine if what the claimant
was exposed to was tolerable by looking at all surrounding circumstances. Courts are reluctant to
protect personal discomfort falling short of any physical damage to the land – Gaunt v Fynney. On
the facts, although the smell of chemical fumes lead to discomfort for Gregory and Siri, it does not
materially damage the land itself.

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Considering all the above factors, it is submitted that although the nuisance produced by Zoe did
cause interference to Gregory and Siri’s enjoyment of their land, it would not be regarded as
unreasonable and constituted an unlawful nuisance. Therefore, a claim under private nuisance will
not be successful.
For Siri, she might want to bring a claim against Zoe under private nuisance for her personal injury
caused by the chemical fumes. The elements that Siri must prove is largely the same as the
discussion above. However, she is advised that her claim will fail for a number of reasons. Firstly,
following Hunter v Canary Wharf, personal injury as a result of private nuisance is not recoverable.
Secondly, there is an issue of whether she is abnormally sensitive. Following Robinson v Kilvert,
court will refuse to take account of any abnormal sensitivity of the claimant or his property. On the
facts, although the chemical fumes lead to the recurring eye infection suffered by Siri, the court is
likely to accept Zoe’s argument that the chemical fumes is not harmful and Siri is overly sensitive.
Therefore, it is submitted that she cannot claim under private nuisance. Alternatively, Siri might
have a claim under tort of negligence provided that she can prove the 4 requirements as stated in
Lochgelly v McMullen, namely duty of care, breach, causation and remoteness.

Zoe v Gregory
Zoe might want to bring an action against Gregory for the damage he has suffered, i.e. the
shattered windows in her house due to the firework explosion. The possible cause of action
against Gregory will be under the tort of private nuisance or alternatively under the rule in Rylands
v Fletcher.
For the action under the tort of private nuisance, Zoe has an proprietary interest in the land since
she is the owner of the house. In relation to who can be sued, it is not clear if Gregory is the creator
of the nuisance (the firework) per se. However, according to Sedleigh Denfield v O’Callaghan and
Goldman v Hargrave, occupier of the land can be held liable for his failure to abate the nuisance if
he knows or ought to have known the existence of the nuisance. On the facts, as the occupier of
the land and the organizer of the rock concert, it is submitted that Gregory ought to have known
the firework display and adopted the activity. Therefore, Gregory can be sued under private
nuisance.
As discussed above, the court will take a number of factors in account to determine if it is an
unreasonable interference. With regards to the suitability of locality, it is argued that holding a
rock concert in a field of his farm is not an ordinary use of land as per Bamford v Turnbey.
Following Sturges v Bridgman, the court is likely to find that having a rock concert with fireworks
and loud music is not compatible with the main use of the premises, i.e. agricultural use. The
activity is not likely be considered to have public benefit as well because it kept all the villagers
awake through the night.
The court will also consider the duration of the interference. In the case of Crown River Cruises v
Kimbolton, it was held that 20 minutes of fireworks may amount to actionable nuisance, as the
claimant is suffering from not mere annoyance but risk of physical injury as a result of the
fireworks. The facts is similar to the present case and although the event might only last for a
night, the court is likely to consider that it is an unreasonable interference.

The most important factor is the extent and seriousness of the harm. Following St Helen’s Smelting
v Tipping, a claim under private nuisance is easier to succeed if there is material damage to the
land. On the facts, the firework explosion caused physical damage to Zoe’s property, i.e. the
windows in her house. Therefore, considering all the factors above, it is submitted that the
nuisance would be regarded as unreasonable and constituted an unlawful nuisance. A claim under

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private nuisance against Gregory will be successful and Zoe will be able to claim for damages for
her loss.
Alternatively, Zoe can also sue Gregory under the rule in Rylands v Fletcher by arguing that
Gregory for his own purpose had brought onto his land and accumulated something (on the facts,
the fireworks) likely to do mischief it if escapes. Zoe must therefore keep it at its own peril, and if
he does not do so, he is prima facie liable for all the damage which is the natural consequence of
that escape.
There are several elements to be proved for the claim. Firstly, the thing must have been
accumulated or brought on to the defendant’s land. On the facts, this is satisfied as the fireworks
are brought on to Gregory’s land. The second element is that it is likely to do mischief if it escapes.
In Read v Lyons, escape is defined as escape from the defendant’s land to a place which is outside
his occupation or control. Therefore, on the facts, Zoe must show that the fireworks escape from
Gregory’s land and exploded outside his land causing the windows in Zoe’s house to be shattered.
Another element to prove is that whether it is a non-natural use of the land. According to Lord
Moulton in Rickards v Lothian, it must be some special use bringing with it increase danger to
others and must not merely be the ordinary use of land. Lord Porter in Read v Lyons stated that
non-natural use of land is a question of fact. On the facts, it is submitted that bringing the
fireworks on to the land will definitely increase dangers to others and is not the ordinary use of a
farm land. Zoe must also show that losses she suffered were foreseeable consequence as per
Cambridge Water v Eastern Counties and Transco v Stockport MBC. The question is that whether
Gregory knew or ought to have foreseen that the firework explosion might cause damage to the
windows. If the court accepted that the damage is foreseeable, Zoe’s claim will be successful and
Gregory will be liable for the damage which is the consequence of the fireworks explosion.

Jimmy v Gregory
Jimmy would want to bring an action against Gregory for his injury suffered from the fireworks
explosion. However, he is to be advised that personal injury is not actionable in both Rylands v
Fletcher or private nuisance. The possible cause of action will be under tort of public nuisance.
According to AG v PYA Quarries, the court defined public nuisance as one which materially affects
the reasonable comfort and convenience of life of a class of Her Majesty’s subject. On the facts, the
rock concert organized by Gregory and the firework display did affect the comfort of the a
sufficient class since it cause all villagers awake through the night, so it is likely to amount to a
public nuisance. However, a public nuisance is only privately actionable if the claimant suffered
special damage as per Tate and Lyle v GLC. The damage must be substantial and direct rather than
consequential. Personal injury have been held to constitute special damage – Castle v St
Augustine’s Links. On the facts, Jimmy had suffered special damage over and above that suffered
by other villagers, i.e. his personal injury due to the firework explosion. According to Bolton v
Stone, the likelihood of injury must have been reasonably anticipated. On the facts, it is likely to be
established that it is reasonably foreseeable that a firework explosion will injure Jimmy, a musician
playing on stage. Therefore, it is submitted that the action under public nuisance is likely to
succeed and Jimmy can recover the damages for his personal injury. Alternatively, Jimmy might
have a claim under tort of negligence provided that he can prove the requirements as stated in
Lochgelly v McMullen.

Ngoze v Gregory
Likewise, Ngoze might also want to bring an action against Gregory under public nuisance for his
injury suffered from the fireworks explosion. Similar to the discussion above, Ngoze had suffered
special damage, i.e. personal injury due to the explosion. The question is whether it is reasonably

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anticipated that the explosion is likely to cause injury to a cyclist passing on the road outside the
farm as per Bolton v Stone. On the facts, it is argued that Gregory might not reasonably anticipate
that Ngoze will pass by the road outside the farm when the explosion happened, thus the action
under public nuisance is likely to have failed. Alternatively, Ngoze might have a claim under
negligence if he can prove all the relevant requirements.

STUDENT MARK: 78%

EXAMINER FEEDBACK
Strengths
This is an excellent answer. You made lots of valid points in a clear and succinct manner and
considered all of the main issues. Your use of headings was effective

Areas for improvement

You stated that public benefit is relevant when a court is determining whether an interference is
unreasonable. Although there are some old cases that state this, it isn't the modern approach, as
illustrated by more recent cases such as Miller v Jackson and Dennis v Ministry of Defence.

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