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Question 1

In this case there are areas that must be considered prior to making any conclusions.

• Kevin v Dave – is Kevin liable in the tort of nuisance is there an unreasonable interference with the use of their land.
• What is the relevance of Don’s malice?
• What is the nature of the locality?
• Is the interference excessive etc?
• Is there liability in the tort of negligence?
• Has there been physical damage?

As defined by Lord Lloyd in Hunter v Canary Wharf, a private nuisance is a continual, unlawful and indirect interference with the use and enjoyment of land, or of some right over or in connection with it. Private nuisances are of 3 kinds, they are:

• Nuisance by encroachment on a neighbours land.
• Nuisance by direct physical injury to a neighbours land.
• Nuisance by interference with a neighbour’s quiet enjoyment of his land.

Kevin has caused a nuisance to Dave by the use of his printing machinery,(Rushmer v Polsue,) which has clearly interfered with the use and enjoyment of his land, but the main issue to consider is whether the interference is unreasonable. I consider that the nuisance has become tortuous as the frequency has increased. It is unusual for a single act to be considered a nuisance, but in this case there has been a case history built up, as Dave has made a complaint to the council. The complaint has been made after several weeks of a couple of afternoons printing to an increase to 7 days a week. Following the complaint to the council Kevin has increased the frequency of his printing and started earlier since discovering that Dave had complained. Kevin has deliberately responded to Dave’s complaint by increasing the interference, and this would mean that his claim would probably be successful based on Christie v Davey. Kevin could argue that Dave would have known about the nuisance when he moved to the house. But, Sturges v Bridgman suggests that the noise is actionable nuisance as the area consists largely of private residences and not industrial or in this case printing companies.

Secondly the leaking of chemicals into Dave’s garden, which has subsequently contaminated the soil and ruined the plants and vegetables growing, can be added to the tortuous nuisance. As stated by Lord Lloyd this condition fulfils the requirement of nuisance by direct physical injury to a neighbours land. The main issue with the contamination relates to how Kevin is liable. What is the relationship between private nuisance and negligence? Is he liable under Ryland v Fletcher, which is a strict liability, which is committed even though the defendant has not been negligent. In this case I think that Kevin is liable to Dave. As in Rylands and Fletcher, “the thing” was such that it was likely to and did in this case did harm Daves land after it had escaped from Kevin’s premises. Furthermore, to strengthen this argument, Kevin had also brought “the thing” onto his land and it did not naturally occur there as in Davey v Harrow Corporation. He would however, still be liable if “the thing” was natural and he failed to take reasonable steps to prevent the escape of things naturally on his land as in Goldman v Hargrave.

In the circumstances described in this scenario, I would advise Dave that Kevin is liable for nuisance and he could pursue the claim if he wished. In making this decision the following factors have been considered:

• The duration of the interference as the machinery is operated 7 days/week)
• The locality in that it is not normal for this type of business to operate in a residential area as in Christy v Davey.
• Has Kevin taken any steps to minimise the interference? In this case it would seem not as the interference increased after a complaint had been attributed to Dave.
• The fact that Dave was “coming to the nuisance is no defence ie it is no excuse for Kevin to argue that Dave knew of the nuisance before he moved into the house.
• Does the accumulation and storage of the printing products that leaked oil constitute a “non-natural” use of land?

Dave would probably succeed in this claim on the ground of material damage nuisance. Substantial physical damage has been caused to his property. This has occurred due to a dangerous state of affairs on Kevin’s land. The damage is caused by leakages from his land ie Davey v Harrow Corporation and St Helens Smelting Co v Tipping)

In the second part of this question, the occupier of the land is open to liability under the Occupiers Liability Act 1957 (OLA1957). There are however, several questions to consider before making a decision in relation to the amount if any liability the land holder has. There are 2 main parts to this act, firstly the OLA 1957, which relates to the occupiers duty to visitors, those persons who are legally entitled to enter the land. Secondly the OLA 1984 relates to the owners duty to trespassers, those who are not legally entitled to enter the land. In this particular case there are 2 interested parties, Ali who is a 13 year old who is injured playing football inside the warehouse, and John who is employed by Tom to demolish the warehouse. John is injured removing a stair case. Ali is a trespasser as he entered Tom’s warehouse illegally. He is however still protected by OLA 1984. To decide if Tom is liable we have to ask if he has taken reasonable steps to protect trespassers. Tom owes a duty to a trespasser in respect of a danger in the condition of the premises if:

• The occupier knows that a danger exists on his land or has reasonable grounds to believe that it exists
• The occupier knows or has reasonable grounds to believe that a trespasser is in the vicinity of the danger in question, or that he may come into the vicinity of danger.
• The danger is one against which in all circumstances the occupier may reasonably be expected to offer the trespasser some protection.

The occupier owes a duty to a trespasser to take reasonable care to see that the trespasser does not suffer from injury on the premises by reason of danger. The duty may, but not necessarily be discharged by the occupier giving reasonable warning of the danger, or by taking reasonable steps to discourage persons from incurring risk. Lastly no duty is owed by an occupier to a trespasser in respect of damage to the trespassers property. The occupier is only liable for personal injury or death. This act has 2 main problems. Firstly what are reasonable grounds to believe and what are all circumstances that an occupier may reasonably be expected to offer the trespasser protection. Reasonable standard is considered to be the standard of care that a reasonable person would observe when given a set of circumstances. The reasonable person would be suitable, just, proper, fair and ordinary. Also worth consideration in this case is Ali’s age. At 13 years old, OLA 1957 states that an occupier must be prepared for children to be less careful than adults. In choosing what advice to give to Tom I will consider Swain v Natui Ram Puri as this case considers the age of the injured party who was trespassing and if there were reasonable grounds to believe that a incident of this kind may occur. Furthermore a review of Scott v Associated British Ports again considers age and circumstances. The main argument here is before deciding to demolish the warehouse, could Tom have reasonably expected that children would trespass on his property. He had taken reasonable steps to prevent access by boarding various entrances and placing warning signs in prominent places. I consider that in this case there is an amount of contributory negligence and I would advise Tom that he should apply volenti in this case. The signs and blockages could be considered reasonable, but he had been aware that youths played football there in the evenings. I would use Keown v Coventry NHS Trust and Tomlinson v Congleton BC as the basis of my defence and proportion blame to the trespasser. However, this does not mean that Tom will escape from all liability in this case.

In relation to Tom’s liability to John the OLA 1957 will be used to consider the case. The main aspect of the act that is relevant here is Section 2(3) (b). Tom must show a common duty of care to any visitors to the premises. In the scenario here John has been invited onto Tom premises to conduct demolition work, therefore he is a visitor. However the section of the act highlighted above state that an occupier may expect that a person in the exercise of a calling will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do. The case that illustrates this aspect of OLA 1957 is Roles v Nathan. I think that it was reasonable for Tom to expect John to take reasonable steps to protect him and as such I would advise Tom that he has no liability to John. However, I would further advise him that if the danger was deemed to not be an ordinary incident to the expert involved, then he as the occupier would be liable to the specialist visitor.

Question 2

This question involves the contractual liability of all those persons involved. A contract can be made wholly in writing, orally or a combination of both. In all aspects of this question the following principles are used to decide if a contract exists or not. In order for the contract to be legally binding, the following essential elements must be present:

• The parties must make an arrangement
• The parties must intend to create legal relations
• There must be consideration furnished by both parties
• The agreement must be certain and complete in all essential aspects

In the first Part of the question the problem here is quite complex as what is and isn’t a contract is not always clear. It is also important to differentiate between an offer and an invitation to treat. An offer is a firm proposal, while an invitation to treat is an invitation to make another offer. Pete approached Klaus with the intent to purchase the tiles. Both parties were intending to make legal relations too. However, no contract was made when Pete said that he would buy the tiles for £5000 (invitation to treat). Klaus made an offer saying that he would sell the tiles for £5500. When Pete offered to pay £5250 for the tiles he had made a counter offer. In effect they had agreed to continue discussions, which is too vague to form a contract (Walford v Miles). When Klaus telephoned 20 days later to accept the offer of £5250, in theory a contract was made. The general rule is that acceptance occurs only when it is communicated to the offeror, in this case by telephone. However the validity of this ‘contract’ is questionable because of the amount of time that had elapsed between the original offer and acceptance. An offer even when not given a stipulated time frame for reply will expire. If an offer does not have a time-limit for its acceptance, it terminates after the expiry of a reasonable time period. The question is should the 20 days delay be considered as a reasonable time period? In this instance the contract could very well be valid as there was not a stipulation of time for the offer to be accepted as in Ramsgate Victoria Hotel v Montefiore. In relation to the letter that Pete sent to Klaus, this may or may not terminate the contract. In English law, the general rule that has been adopted hails from Adams v Lindsell, which is now considered the preposition that acceptance takes place when the offeree posts the letter. However, when using the postal rule, acceptance takes place as soon as the letter is posted Household Fire Insurance v Grant, this may well be the case when cancelling a previous offer. Although Pete had sent a letter to Klaus the contract may not stands as Klaus had not received it until after he had agreed to Pete’s terms of sale. The revocation of an offer can only be communicated by the offeror or by a third party whom an objective observer would consider reliable (Dickinson v Dobbs). Had the letter arrived before acceptance of the offer, the contract would not have been binding. A court however may choose to consider this contract not agreed to as the amount of time that has passed is such that it is reasonable to consider that the silence from Klaus was a non acceptance of the contract, but again the silence was not stipulated a condition of contract. I would advise Pete that he may have a legitimate claim that a contract as not formed, but he may find a court will decide that as his letter had not been received by Klaus a contract a contract was formed and that he was legally bound into that contract. In this case the outcome would depend very much on the judge’s views on the timing of the letter and the phone call from Klaus.

In the second part of this question the relationship between the parties must be considered. Again in this scenario there are several key points to consider:

• The fact that Vic is Pete’s brother in law
• The offer from Vic to sell 20 bathroom suites for £1500
• The agreement to deliver the suites in the next 3 weeks
• Pete’s decision to “keep the offer in mind” and look elsewhere before committing to the purchase
• The time period of 6 months that passed before Pete accepted Vic’s offer

This part of the question has very similar outcome to the previous part. Since the men were brothers in law the relationship between them is more distant and as a result there would be a greater argument that they intended to form legal relations. Vic made an offer to treat (£15000 for the bathroom suites); whilst Pete had not accepted the offer as he had said that he would keep it in mind. Even though there were conditions of contract that the suites should be delivered in 3 weeks and Vic had agreed to that condition acceptance had not taken place. The request for delivery in a specific time period was negotiations. The agreement was not certain and complete in all essential aspects. After a period of 6 months had passed and Pete accepted the offer, it was reasonable for Klaus to say the bathroom suites were no longer available. If an offer does not have a time-limit for its acceptance, it terminates after the expiry of a reasonable time period. A reasonable person would consider 6 months a reasonable time period, as there is no indication that any contact took place between the parties during that period. I do not consider that a contract of any sort had been agreed in this particular case.

In the third part of this question the factors relating to this case are far more straight forward. This particular question is one part relevant to the information in the first paragraph of this question and in the other part governed by the Sale of Goods and Services Act 1982. In the first instance Pete received an offer to treat from Andy, in that he could buy the carpet at £20 per square metre. Pete made a counter offer, saying that he would buy 500 square metres of carpet at £17 per square metre. These negotiations took place on 1 Nov. At this point a contract has not been created as all the element of a contract has not been met. On 3 Nov, Andy posted a letter of acceptance to Pete’s regarding the offer. In this case I think that the postal rule applies. I would consider that the Howell Securities v Hughes is pertinent to this scenario. The letter had been properly stamped addressed and posted. Although Pete telephoned Andy to say that he no longer wanted the carpet, there had been intent earlier to set up a legal binding contract. The parties had made an arrangement, they had intended to create legal relations and consideration was furnished by both parties. The only real question is whether the letter being sent would be considered as the agreement being certain and complete in all essential aspects. In my opinion the letter was sent prior to the phone call being made and therefore the contract had been completed, thus giving Pete a legal obligation to Andy. There has not been a misrepresentation of the goods available for supply (Atwood v Small), and there has not been a change in circumstances (With v Flanagan). Andy has the option to accept the repudiation of the contract or not, which will have the effect of terminating the contract. Alternatively he may press Pete to fulfil the contractual obligations. Andy may be able to claim damages, (Hochester v De La Tour). In this case I think that Pete does have a binding contract with Andy.

Question 3

Steve the owner of the cafe had engaged into a contract with Artu for the construction of an extension. This part of the question is clear as all the required elements of a contract had been fulfilled. The first area for consideration are the clauses (express terms) that Steve placed into the contract and Artu’s claim that he had not read clause 6; £1000 damages per day over the agreed completion date. Artu is unable to use as a defence the fact that he had not read it, (

I would advise Artu as follows. He must consider what damages are recoverable following the breach of contract (late completion). The first consideration here is whether the £1000 per day is a penalty or liquidated damages? The court will need to decide this. If it is a penalty, is the £1000/day enforceable, if not Steve can only recover his actual loss. If it is liquidated damages, Steve can recover 10 x £1000, no more and no less as a loss for the late completion. The main point here is that if it is a penalty, Steve can only recover loss occured from the late completion, which is not too remote (Hadley v Baxendale). He could claim only if the loss is normal or unusual but made known to Artu before the contract was made. In this case the lost revenue whilst the cafe was closed or unable to accommodate the customers who would have used the extension. This must have been communicated to Artu before the contract was signed. Using Dunlop v New Garage as a guide the Liquidated Damages clause would apply if it was a reasonable attempt to estimate in advance the likely loss caused by the late completion. If this is a penalty clause is the sum stipulated extortionate, can Steve really justify £1000/day as reasonable? The fundamental rule here is that the “clause in the contract will be liquidated damages clause if the intentions of the parties, at the time the contract was made, was to try and genuinely estimate the damage likely to be caused by a breach of the contract. If the purpose was not to make such a genuine pre-estimate, but, as it were, to attempt to terrorise a party into performing, the clause is a penalty clause”. Depending on the courts view, he may be liable to pay £10000 penalty or he may have to pay proportional damages to Steve, ie lost revenue.

Part 2 of this question relates to Steve’s liability to the contractors that he has employed. The scenario consists of 3 component parts:

• Aziz and the supply of “dark bluish” tiles, when he used black tiles
• Mick was employed to paint the walls and ceiling for £2000, but only painted the walls before abandoning the job
• Tom fitted installed 6 radiators, 2 of which did not work at a cost of £5000

This question will be answered using the Supply of Goods and Services Act 1982 as a guideline. There are 2 main parts to this, the quality of the goods and the quality of the service. In the case concerning Aziz, he has obligations to comply with express and implied terms of the contract that he made with Steve. In this case we are unsure what the express terms are and as such must focus on the implied terms. There is an implied obligation in this contract that Aziz should supply materials which are of satisfactory quality and reasonable fit for their purpose. This is in relation to Section 4 Supply of Goods and Services Act 1982. He should also carry out the work with reasonable care and skill, without negligence, this is stated in Section 13 of the act. The problem here is that Steve’s description is unclear. The workmanship is not defective, but the tiles are not “dark bluish”, but black. Apart from the colour, there is nothing wrong with AZIZ’s job, so he is not liable under Section 13 of the act. His liability under Section 4 of the act is difficult to answer given the lack of clarity in the direction from Steve. Aziz may have liability for the colour of the tiles, but this is unlikely. The tiles were fit for purpose and of merchantable quality; his workmanship was not an issue, and he is unlikely to be in breach of contract.

Since Mick has completely abandoned the job, there is a major breach in the contract. This gives Steve 2 courses of action. He can if he wishes accept Mick’s repudiation and resultantly terminate the contract. He may choose to recover any loss he suffers through damages. Alternatively he can pressurise Mick to complete the job, which will mean the contract remains in force. Mick’s claim for the sum of £2000 is unlikely to succeed, but he may claim part of the payment. The general rule is the doctrine of complete and perfect performance. Steve has agreed with Mick that he will perform a task for a fee. In general Mick would be unable to recover any of part of the fee unless he has perfectly and completely performed the task. In this case he has failed to complete the task by not painting the ceiling. There are however, exceptions to the general rule. If Mick performed the task substantially, but not perfectly, he could recover the £2000 less the amount of money required to finish the job off. If the job is badly done he may lose an addition amount of money to rectify what he has done. In this case there is nothing to indicate that the work he has completed is not of a suitable standard. There is also not a reason why he failed to complete the job and there may be mitigation that can be used in his claim. He may be able to discharge the contract by frustration. Unfortunately there is insufficient information in this scenario to draw any conclusions in this matter. The likelihood with this case is that Mick would be able to claim payment for the work he has completed, but he will not be legally entitled to the whole £2000 payment.

Steve’s liability to Tom is very similar to that with Mick. The act that is relevant here is the Supply of Goods and Services Act 1982 as Tom is installing radiators into the cafe. There is an implied obligation that Mick should supply materials which are of satisfactory quality and reasonable fit for their purpose. This is again stated in Section 4 Supply of Goods and Services Act 1982. He should also carry out the work with reasonable care and skill, without negligence, this is stated in Section 13 of the act. By fitting 2 radiators that do not work, does this mean that Tom has carried out a substantial performance? It appears that the defect here is major and is possibly non-substantial. If it can be proven that the performance is non-substantial, Tom will be entitled to nothing. This will relieve Steve of any liability to Tom. However, if Tom can prove that he has performed the task substantially, but not perfectly, he could recover some of the fee less the amount of money required to rectify what he has done. If the case was judged on Viking Grain v TH White, Tom would be liable to Steve as the installation is unfit for purpose. If Steve can prove that Tom has been negligent, and as a member of a trade failed to display the skill and care which would be displayed by a reasonably competent member of that profession, he would have failed the Bolam test. However, a mistake would not be considered negligence if a reasonably competent person of that trade may have made that mistake, then this rule would not apply.

Question 4

Question 5

The tort of negligence would apply in the scenario described here. In the tort of negligence for someone to be found liable, the claimant must establish 3 matters:

• That they were owed a duty of care
• That other party acted in breach of their duty
• That the claimant received damage in consequence of that breach of duty.

For legal purposes, harm in the tort of negligence comes in 2 types, physical and economic loss. In this case economic loss is clearly relevant as no one has been injured or had their property damaged. This case falls into consideration using the doctrine of Hedley Byrne v Heller. John owed a contractual duty of care to Tony to take care in giving his advice. His advice was negligent as he had not done sufficient preparatory or research work to allow him to give that advice. He had breached an implied term that he would exercise reasonable care. After Tony had received the advice from John and decided to communicate that advice to Pam, the question of proximity arose. This question comes due to the reconsideration of Hedley Byrne in Caparo v Dickman. The House of Lords stated that there must be sufficient proximity between the second and third parties. In this case there is as Tony and Pam are neighbours. This proximity gives John a duty of care to Pam.

In relation to Pam who received the advice from Tony, John owed a duty of care to her as a third party when making the statement. When Tony passed on the advice, Pam relied on the advice and as such can also be a claimant. The doctrine of Hedley Byrne does however state that the defendant owes a duty of care to the claimant if there is a special relationship, or proximity between them. In this case it is fair to say that Tony knew or ought to have reasonably foreseen that Tony would communicate the advice to Pam. That Pam would rely on the advice and because of this reliance she would suffer loss. And lastly, that it would be reasonable for Pam to rely on the advice. The liability that John has to both Tony and Pam is covered in the reliance on a statement, as in Lennon v Metropolitan Police. Lennon showed that there can be liability even when there is no contract between the 2 parties. Under this tort it is not necessary for the ‘advisor’ to be a professional in order to be liable. Ultimately, the main aspect of this question is was John advising Tony and indirectly Pam in a professional capacity. The fact that he was a friend and did not receive a payment for the advice he gave, I think relieves him from responsibility under the Sale of Goods and Services Act. Also the information that he gave was not completely inaccurate. This is because the work that was carried out was not in any way detrimental to the building’s structural integrity. Ultimately, the amount of work completed was far more than was needed, but did the question Tony posed divulge sufficient information for John to make a more considered and accurate judgement. Arguably the information from John was correct, but more than the minimum requirement for the loft conversion. When all the aspects are considered it is unlikely that John will be liable to either parties as the advice was given in a social setting. This would mean that the reliance on statement would most likely become invalid.