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Read pages 115-117 of Year 2 book.  Complete the A4 template below.

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Read the '3 part test' article and answer the questions below on the word document.

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The questions below go with the 'three part test' article.

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Law Review April 2017 - prep questions.docx

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Read pages 250-254 of your textbook.  Complete the worksheet attached below.

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Tort Special Duty Situations - Occupiers Liability Trespassers and Lawful Visitors

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This is an opportunity for you to do some independent research.  Find a case/newspaper article that reports on a recent case of an injury under the 1984 Act.

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Tort Special Duty Situations - Occupiers Liability Trespassers and Lawful Visitors

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Read pages 118-121 and page 124 of Year 2 book and complete the A4 template below.

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Cases. Elements. Explanations.

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Cases. Elements. Explanations.

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'Living opposite Tate Modern is like living in a goldfish bowl'.

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'Living opposite Tate Modern is like living in a goldfish bowl'.

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It is fair to say that most people will not be too concerned about the recently reported claim being brought be owners of very expensive flats in London who happen to live near to the Tate Modern gallery.

It has been reported that the residents of some flats are bringing a nuisance claim against the owners of the gallery due to the fact that a new viewing platform has recently been opened at the gallery which directly overlooks the flats. The residents are reported to have said that it is like living 'in a goldfish bowl'. They have brought legal proceedings on the basis that the 'viewing platform is unreasonably interfering with the claimants' enjoyment of their flats, so as to be a nuisance'.

Many people would not have too much sympathy for people living in multi-million pound flats, but it is a case which reminds us that the law of nuisance is alive and kicking.

In law, a private nuisance may occur where someone does something on their own land which is lawful but that action interferes with their neighbour's ability to enjoy their own land. If nuisance affects the general public more widely this is known as a 'public nuisance'.

Whilst most people will not have to worry about possible nuisance from viewing galleries, it is important to remember that much more commonly occurring situations might constitute a private nuisance.

There are many examples but these could include:

Tree roots on land which cause damage to the neighbour's land

Water or flooding which runs on to neighbour's land

Oil leaking from a tank which contaminates neighbours soil

Noise nuisance

It is important therefore for you to consider what happens on your property to minimise the risk of a nuisance claim. A court will look at the entire set of facts when considering a nuisance case in an attempt to come to a solution based on reasonableness. Unsurprisingly therefore each nuisance case will turn on its own facts.

However, a court would look at such issues as location of the properties, the time of day that a nuisance is alleged to be happening, how often the nuisance may take place or how long it lasts and whether the person against whom is being brought is acting maliciously.

If a person loses a nuisance claim, damages will usually be payable based on the reduction in value of the neighbouring property as a result of the nuisance. Accordingly, this could be a very expensive problem.

If you would like to discuss this or any other litigation matter affecting your property contact us.

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It is fair to say that most people will not be too concerned about the recently reported claim being brought be owners of very expensive flats in London who happen to live near to the Tate Modern gallery.

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Police have been called to McDonald's outlets in Kent 4,814 times in just two-and-a-half-years.

Canterbury is the worst offender with the city's high street restaurant getting more 999 calls than any other branch in the county.

Officers have been alerted to 379 incidents at the St George's Street outlet since the start of 2016 - an average of three per week.

The alarming figures have prompted calls for the fast food chain to be stripped of its licence to open 24 hours a day.

John Ellaby was among those who objected to the controversial decision to grant the all-day hours in 2014, fearing late-night revellers would emerge from bars and clubs and cause a nuisance in the busy restaurant.

He said: "I am concerned that police have to deal with this level of calls when they have other, more important, things to do.

"Police time is very valuable and should not be wasted in this way.

"I don't have a problem with McDonald's being open late, say until 3am, but to be open 24 hours is an issue.

"This sort of thing gives Canterbury a bad name."

Security outside a McDonald's branch in Canterbury

The branch - which employs security staff at night - has been the scene of many unsavoury incidents, including a trainee beautician breaking a young woman's elbow during a violent bust-up over queue-jumping.

Drunken mum Emily Gibbs, then 23, had been on a night out with friends in 2016 when tempers flared at the restaurant at about 2am.

The incident, which was caught on CCTV, left two sisters injured and Gibbs was jailed for nine months.

The number of police calls to the city centre restaurant amounts to one in 12 of the 4,814 incidents reported across the county between January 2016 and July this year.

Officers were sent to half of the calls.

The McDonald's with the second highest number of police callouts was its branch in Commercial Road, Strood, which had 368, closely followed by its outlet on Chatham High Street with 336 cases.

Fourth was New Road in Gravesend with 332 callouts, while Maidstone branch in Week Street had 285 crimes.

One of the worst attacks took place in a McDonald's branch in Gravesend

Ashford High Street (196), Bridge Road in Sheerness (194), Tonbridge High Street (189) and Margate High Street (166), make up the rest of the top 10.

The fast good giant's branch in Royal Victoria Place, Tunbridge Wells, had the least callouts with only two.

McDonald's franchisee Paul Crocker - who runs 17 branches in Kent - was contacted by KentOnline but passed us onto the chain's press office.

John Ellaby

We sent it a number of questions, asking whether the change to 24-hour opening had contributed to the increase in police incidents.

But it responded only with a generic comment, saying: "The safety and security of our people and customers is of the utmost importance to us.

"We therefore take a zero tolerance approach when it comes to crime and antisocial behaviour in and around our restaurants.

"Police time is very valuable and should not be wasted in this way" - John Ellaby

"We work very closely with the local police, community and safer towns partnerships to tackle any ongoing issues.

"Our restaurants are involved in the safer towns partnership, which aims to reduce crime on the high street."

A spokesman for Canterbury City Council said: "McDonald's is a well-run operation which employs fully-accredited security staff and is wholly committed to promoting the council's licensing objectives - the prevention of crime and disorder, promoting the safety of the public and the prevention of public nuisance.

"As a good licensee which takes its responsibility extremely seriously and has a very large volume of people passing through its doors, it is no surprise that McDonald's is often called upon to call the police when its staff deem it appropriate even though some incidents do not directly involve its premises.

"The team at McDonald's often go above and beyond the call of duty and clean up after people who are not its customers.

"Residents can ask for a licence to be reviewed and we would help them with that process.

"For a licence to be revoked it would have to be demonstrated that the way a premises is being run is having an adverse impact on the licensing objectives."

One of Kent's most violent incidents involved a sustained attack on a teenager in front of horrified onlookers at the New Road branch in Gravesend.

The victim had been chased into the fast food joint by Aiden St Louis and Mohammed Gedi and was repeatedly stabbed with a kitchen knife.

Another attack at the same branch led to a teenager suffering cuts to his face after he was attacked with a glass bottle.

A 20-year-old customer also suffered head and facial injuries after being attacked in Canterbury's Stour Crescent branch.

Meanwhile, a manager was allegedly assaulted in an Ashford branch when someone man jumped over the counter and threw ice over himself from one of the machines.

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Kent's most crime-plagued McDonald's outlet

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Police have been called to McDonald's outlets in Kent 4,814 times in just two-and-a-half-years. Canterbury is the worst offender with the city's high street restaurant getting more 999 calls than any other branch in the county. Officers have been alerted to 379 incidents at the St George's Street outlet since the start of 2016 - an average of three per week.

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National Rail in a pickle about Japanese Knotweed 

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National Rail in a pickle about Japanese Knotweed 

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A challenge by Network Rail in relation to a private nuisance claim over Japanese Knotweed has been dismissed by the Court of Appeal.

The case dates back to 2015, where a claim was issued against the rail company by Stephen Williams and Robin Waistell, the owners of adjoining semi-detached bungalows.

The pair argued that the presence of the weed on Network Rail's land encroached on their properties, and in turn, interfered with their quiet enjoyment of, and caused a loss of amenity in respect of their properties. This is because it reduced the market value of the property.

The judgment handed down last year found that the rail company's breach of duty had caused both damage and a continuing nuisance.

Whilst Network Rail had sought to challenge this ruling in the Court of Appeal, the original judgment, published earlier this week, was upheld.

However, it is worth noting that the Court based this decision on different reasons than those of the recorder from last year.

In fact, master of the rolls Sir Terence Etherton claimed that the recorder had been wrong in principle. This was in regard to the former conclusion that the presence of the plant on Network Rail's land within seven metres of the properties was an actionable nuisance, 'simply because it diminished the market value' due to lender caution.

Drawing on the purpose of the tort of nuisance, Etherton stated that it 'is not to protect the value of the property'; this is neither in the sense of it being a financial asset or investment.

He also disputed the original rejection by the recorder of the nuisance claim founded on the spread of knotweed rhizomes.

A network of roots which the plant develops underground, rhizomes enable Japanese Knotweed to regenerate with very small fragments, increasing its ability to spread quickly.

Etherton said that the rhizomes of the plant can be described as 'natural hazard' and can 'affect the owner's ability to fully use and enjoy the land.'

He went on to say that they are a 'classic example of an interference with the amenity value of the land.'

Representing Stephen Williams on the case was JMP Solicitors. Speaking in relation to the Law Society's TA6 property information form, the firm warns conveyancers: 'If you answer untruthfully "no" or "don't know", your buyer can come back to you and either rescind the contract or get damages from you as the property is now worth a lot less than they thought.'

A Network Rail spokesperson said: 'As many gardeners know, Japanese knotweed is invasive and requires several years of treatment to remove. Once identified, Japanese knotweed growing on our land is entered into a treatment programme. We will continue with this established regime, which complies with legislation and helps us run a safe, reliable railway. Network Rail is aware of today's ruling by the Court of Appeal and is considering its implications.'

Nic Seal, Founder and MD Of Environet, the Japanese Knotweed removal firm said: "Network Rail fought the original case in Cardiff Crown Court thinking they could win and stem the tide of claims against them. They've now scored two spectacular own goals and unwittingly opened the flood-gates for thousands of new claims.

"This judgment should put all owners of land infected with knotweed on notice to take proper action to ensure their knotweed does not encroach onto or threaten other property. Those that continue to ignore the effects of their inaction and affect their neighbour's enjoyment of their property are now fore-warned. The law is clear and substantial damages can be awarded against them.

"It is also worth pointing out that a defence in nuisance is that all reasonable measures are being taken to mitigate the nuisance. A half-hearted or cheap attempt at control is unlikely to meet the 'reasonable measures' test.

"This judgment will have far-reaching implications for owners of land affected by Japanese knotweed. It provides the legal profession with great clarity, which is likely to increase the number of merited claims and settlement of those not worth contesting. This can only be good news for those we would describe as 'victims of encroachment' who up to now have had to put up with bully-boy tactics, inaction and worry while their home is blighted by this invasive and damaging weed."

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Japanese Knotweed judgment upheld by Court of Appeal

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A challenge by Network Rail in relation to a private nuisance claim over Japanese Knotweed has been dismissed by the Court of Appeal. The case dates back to 2015, where a claim was issued against the rail company by Stephen Williams and Robin Waistell, the owners of adjoining semi-detached bungalows.

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Naffed off neighbours following Speedway nose complaint

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Naffed off neighbours following Speedway nose complaint

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Coventry v. Lawrence [2014] UKSC 13, 26 February 2014, read judgment The law of private nuisance is the way of balancing the rights of neighours, the right to be noisy or smelly, and to be free of noise or smells. Hitherto it is has been explicitly a private law remedy, and has slightly odd rules. But it has been struggling with public interests for some years; are they irrelevant, or can they carry the day for claimant or defendant in a private nuisance claim? Fortunately, enough of the big issues bedevilling this area of the law came before the Supreme Court in one fell swoop. And they have led to an important re-balancing of the rules. In particular, public interest is relevant, but not at the first stage of deciding whether someone has a claim, but later - can they get an injunction to stop the noise or should they be confined to damages?
And all this arose in the context of some speedway, stock car, banger and motocross racing in an otherwise fairly rural bit of Suffolk.

Speedway has been happening in a stadium near Mildenhall since the mid 1970s, with motorcross following in the early 1990s at a track nearby. There are some neighbouring properties, including one owned by the claimants a little over 500 metres from the stadium. The claimants moved in during 2006, but the property had been occupied since the 1950s. They sued the operators. The judge found for them. There seems to have been more than one noisy event every week for some years before the trial.

The operators said - we have been doing this a long time, and we have planning permission for what we do. Planning permission involves a balancing of public interests, so the courts should not interfere with the balance thus set.

The claimants said - that is all irrelevant, you are making far too much noise, and, on the judge's findings, you could make less noise if you put your mind to it.

Thus were the battle-lines drawn. These relatively simple facts cut across all sorts of rather arcane bits of property law.
Prescription
There is an ancient, and quite frankly, deeply muddy concept that if you have been doing something for 20 years or more you get a prescriptive right to do it. This is the simple version: the more complex is summarised at [30]-[31] of Lord Neuberger's judgment. The easy cases of prescription involve the right to light or similar; if there is a building in the way of your light for 20 years, you cannot sue. But what happens if you have a rather more fluctuating problem like noise or smell or dust? The Supreme Court has decided that this can give rise to a defence - but only if the noise etc has been so bad for 20+ years that it has amounted to a nuisance. One complication: you don't have to show that the nuisance happened throughout the 20 years. Interruptions of some years may not be fatal as long as on all the evidence there is enough continuity about the activity.

The stadium failed to make this out on the facts; they could not prove that the noise throughout the 20 years before the claim was started was sufficiently uniform as to amount to a nuisance.

But the defence may well assist operators who have been carrying on a reasonably uniform industrial activity for more than 20 years. The Supreme Court has given a green light to such defences; previously the law was somewhat unclear on the position.
The claimant coming to the nuisance...
...is no defence, every law student knows. And so it remains, according to the Supreme Court, despite a rearguard action by the operators to dust off some 1590s law and make it fit modern times. But this comes with an important twist. If the claimant not only came to the nuisance but also changed her use of the land (say, putting a house on hitherto unoccupied land) so that the defendant's activities now caused a nuisance whereas they previously had not done so, this does amount to a defence.
A nuisance in Belgravia, not necessarily so in Bermondsey
Still the law, even though Bermondsey has gone considerably upmarket since a Victorian judge came out with this 1st year law apothegm; nuisance may be affected by the character of the locality. But what happens if Belgravia becomes more like Bermondsey because of the activities of the defendant? Obvious answer, you might have thought - a defendant cannot rely upon his own wrong to change the nature of the locality.

The Supreme Court, reversing the Court of Appeal, agreed. A noisy activity or set of activities may now be relevant to the character of the locality, but the principle does not go so far as to justify noises so loud as to amount to a nuisance: [65]. For the latter, the claimant can still sue.
Does planning permission authorise a nuisance?
This was the difficult bit, because there were two sets of previous cases pointing in previous directions. Permissions for small or smallish scale developments (a extended pig farm in Wheeler or - a case of mine- motor racing in have been held not to authorise a nuisance, whereas large infrastructure projects ( Canary Wharf or Gillingham dock)were so held. The Supreme Court, again disagreeing with the CA, thought that this was illogical. Why should something causing a nuisance to lots of people be more readily justified that something causing a nuisance to a few? So it reversed decisions suggesting that a planning permission could authorise a nuisance. That is not to say that a court might not be assisted by the evidence before a local planning authority or planning inspector, but it was no more than evidence. Planning decisions explicitly do not determine private rights.
Injunction or damages?
For the last 120 years, the circumstances have been limited in which a court, finding for a claimant in nuisance, has been able to confine him to damages and refuse an injunction stopping or restricting the activity. The courts should not be in the business of sanctioning wrongs, unless it was oppressive to make an injunction: see the Victorian case of Shelfer discussed at [103]-[104] of the present case.

The Supreme Court has emphatically disapproved of this straight-jacketing of the discretion to make or disallow an injunction. Lord Neuberger, with the majority, would accept that the prima facie position is that an injunction should be granted. Lord Sumption would not even go that far - saying that there was much to be said for the view that damages are ordinarily an adequate remedy for nuisance -Lord Mance disagreed - most people value the right to enjoy their home for reasons largely independent of money.

But the majority agreed that the existence of planning permission may well be of particular relevance to the remedy to be granted. All speeches are well worth reading, though those from Lord Neuberger (a property lawyer in practice) and Lord Carnwath (a planning lawyer in practice) bring particular expertise to the balancing exercise which the courts will have to carry out in future.
But what sort of damages?
Conventionally, if you fail to get an injunction, you are left with damages, for the diminution in value of your property caused by the nuisance, coupled with some annual payments for past nuisance. But Lord Neuberger floated the possibility that damages in these circumstances might be assessed by reference to the benefit to the defendants of not suffering an injunction: [128], and see [173] from Lord Clarke - put shortly, a slice of the (defendant's) action. Lord Carnwath was doubtful about this: [248].

Ultimately, the Court was tentative on this issue. This was because the issue did not directly arise on the appeal. But it will undoubtedly arise in the near future.
So what happened?
The claimants got their damages. The CA had wrongly decided that there was no nuisance. The judge had granted an injunction, but he should now reconsider this in the light of the Supreme Court's change in the law about injunctions. So the balance between noisy living and speedway fun remains in the balance, though the claimants will end up with some damages.
Comment
This is a highly important recalibrating of private and public law arrived at by looking at a host of controversial issues in one case. A number of issues were pronounced upon rather tentatively by the Supreme Court, for understandable reasons, and so there are a number of things to be sorted out in later cases. But the law is a good deal more nuanced and coherent than it has been for a long time.
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Supreme Court brings private nuisance into the 21st century - UK Human Rights Blog

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Coventry v. Lawrence [2014] UKSC 13, 26 February 2014, read judgment The law of private nuisance is the way of balancing the rights of neighours, the right to be noisy or smelly, and to be free of noise or smells. Hitherto it is has been explicitly a private law remedy, and has slightly odd rules.

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Read pages 244-250 of your textbook and the PowerPoint above. Complete the worksheet below.

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https://www.ocr.org.uk/Images/320061-mark-scheme-unit-g157-law-of-torts-june.pdf

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BBC News - Public nuisance charge after Severn Bridge drone incident
http://www.bbc.co.uk/news/uk-england-bristol-46731041

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Task: Please download the template below and complete the table before your next lesson.

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Task: Please download the template below and complete the table before your next lesson.

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Negligence Evaluation - A Level Law (2017 & 2020 SPEC APPROPRIATE)

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revision - Problems with establishing liability in negligence

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Read pages 2-4 of the Tort Booklet uploaded above.

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Create a cover sheet for your folder for this new section of law.  You must include:
- Key terminology
- An explanation of what the 'Law of Tort' is in your own words
- Images to represent this new area of law
- 1 screenshot of a news article which demonstrates an area of tort law
- A comparative table which illustrates the difference between criminal and civil law (different words used to describe people involved; different court system; different outcomes in cases; criminal law discusses sentences where as civil law discusses damages as an outcome for someone making a complaint).

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Common frameworks include:
- advantages and disadvantages
- the fairness or unfairness of a particular area
- the balancing of competing interests
- the extent to which any tort achieves one or more of the aims of tort law (or indeed their own aims)
-comparing and contrasting two similar torts

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1. Define 'vicarious liability'
2. What do you think the characteristics are of an 'employee'?
3. What do you think the characteristics are of an 'employer'?
4. How does an independent contractor/self employed person differ from being an 'employee'?
5. Do you think an employer should be held responsible for the negligent acts of their employees? Give at least 3 reasons for your response.

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For each of the scenarios, decide whether the person in question is an employee. Explain your answer.

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Read the case report cited in the word document and answer teh questions that follow.