Q. 1
Ali wants a block of flats build
on the acre of land he owns which adjoins his land. He discusses it with many
builders and then finally chooses B to do the work. Ali gives him the
specifications and a JCT contract to look at. Ali then goes on holidays. B starts work.
When Ali comes back a month later he notices a new block of flats on his
property and B waiting at his door wanting his lump sum payment for the work. Ali
denies that he has to pay Bob anything.
Does he? Justify your answer with
to the relevant elements of a contract.
Q.2
Explain what is private nuisance and public nuisance and give examples
of each type of nuisance.
Q.3
Rihannan employs Tuff Developers
Ltd to build a twenty floor highrise nightclub on her property, without waiting
for the plans to be approved by the Local Council. The day after it is built, Rihannon
is running with her leopard and the nightclub collapses. Debris hits Rihannan
and kills her leopard. She suffers serious facial injuries and a broken toe. This
means that she cannot carry out her high profile, global public relations job
for a year.
Explain whether or not Rihannan may have a successful cause of
action in negligence against Tuff Developers Ltd and why.
What loss may Rihannan recover from Tuff developers and why.
***************************************************************************************************
Answer Guidelines for Law Questions
PART
A- Law
How
to answer the question
1.what is/are
the legal issue/s?
2.what are the
relevant principles of law?
3.apply
the law to the facts
4.brief
conclusion- you don’t need to reach a definite answer, e.g., you can say it is likely given the facts or more facts needed
Set
out below are relevant legal principles for each question, but application of
the law to the facts is also required, as stated above
Q. 1
Identify
thatthe
main legal issues concern whether or not there was an offer and acceptance.
These are part of what is required to have a valid contract. The following
elements must be present and briefly explain them:
1. An
intention to enter legal relationsrequired
for both offer and an acceptance
2. An
offer
3. An
acceptance
4. The
capacity to contract
5.
Consideration (simple contracts)
For example-
1.For
a contract to be binding both parties have to intend to enter into a legally binding contract at the time they
make an offer and at the time it is accepted. An intention is normally presumed
where the terms are certain. The
court will look at all the circumstances in which the offer was made objectively
to see whether there was an intention to create legal relations. The court
presumes that in the absence of evidence to the contrary, that parties in
commercial circumstances normally intend to make their promises legally
binding, but this can be rebutted by the evidence
Was
there an offer?
The relevant law should be identified- consider whether the
following apply
•
1. An offer- A definite promise to be legally
bound provided certain specified essential terms are accepted.
•
Whether it is an offer depends on the intentionof the party
making the offer to be bound by his offer.
Consider the terms used and all circumstances.
•
2.An offer induces a party to enter into a contract
3. It is not an answer to an enquiry Harvey v Facey or an invitation to
treat.
•
4.It must be communicated to the ‘offeree’.
•
5.It can be withdrawn at any time before it has been accepted.
Student
should show some application of law to the facts
Was thereAcceptance?
Relevant law should be identified
A bare agreement to
negotiate lacks certainty and is unenforceable: Walford v Miles
•
1. ‘An
acceptance is a final and
unqualified expression of assent to theexact essentialterms of the offerButler Machine Tool Co v Ex-Cell –o Corp. Ltd ‘
•
2. If
anyessential
terms aremissing are or arechanged there is no acceptance.
•
3. An attempt to accept an offer but adding
new /deleting terms is a rejection of the offer accompanied by the
counter-offer.A
counter offer will revoke an offer.
•
A counter offer introduces new material
terms to the contract
•
4. The
offer must be communicated to the person who made you the offer or his agent so that he/she does not become bound by an acceptance of which he/she
is unaware: Entores Ltd v Miles Far
East Corporation[1955] 2 QB 327.
5. made with the intention of entering into
legal relations
Student
should show some application of law to the facts
Q.2
Nuisance
Lord
Wright in Sedleigh – Denfield v
O’Callaghan [1940] AC 880 defines nuisance as a ‘wrongfulinterference with another’s enjoyment of his
land or premises’.
Private nuisance concerns a continuous, unlawful and indirect ‘unreasonable’
interference with a person’s use and enjoyment of the land or some right in
connection with it’.Give examples of private nuisance such as interference
with enjoyment of the land through smells smoke or dust or noise, or physical
damage to the claimant’s land.
There is a need to
occupy the land or have proprietory rightse.g., an interest in land to sue. A licensee,
for example a lodger or member of the owner’s family has no interest in land
and therefore cannot bring an action.
Public nuisanceconcerns something you do- or do not do, which materially affects the
life health morals or property of the public in use of or enjoyment of rights
common to all.
Who can sue in private nuisance?
To be able to sue one must have a Legal
interest in the land- freehold or leasehold interest.
A licensee for example, a lodger or a member
of the owner’s family has no interest in land and cannot therefore bring an
action:Malone v Laskey [1907] 2 QB 141
Who can be sued?
The creator of the
nuisance
need not have an interest in the land on which the activity takes place. Generally
the occupier of the premises from which the nuisance comes will be
liable for the nuisance. The occupier
may be responsible for:-
1.independent contractors,
2. previous owners
3.persons under his control,
4.trespassers and
5.acts of nature.
In cases of (2), (4) and (5) the occupier will
only be liable if he adopted the nuisance-if he makes use of it and continues
the nuisance if he knows or ought reasonably to have known of its existence and
fails to take reasonable steps to abate (stop) it.
Locality-what is nuisance in a residential area is not
necessarily in an industrial area.
Public Nuisance
1.the tort of public nuisance does not require that the claimant have a
property interest in land.
2. Also, unlike
the case of private nuisance, a private individual can normally take
action only if he has suffered loss, damage, or inconvenience above and beyond
that of the public at large.
3. An action is usually brought by the
Attorney General on behalf of a class of people.
4.To succeed special damage must be proved, i.e.,
damage ‘particular, direct and substantial beyond that suffered by others
affected. It must be particular, direct and substantial
beyond that suffered by others affected.
e.g., Benjamin v Stor – Claimant ran a coffee
house. The light to the windows was obstructed by the defendant’s horse-drawn
vans which stood outside the coffee-house. As a result the claimant had to use
gas lamps all day, his customers had problems reaching the coffee house and
they complained about the smell from the horses. The court had little
difficulty in finding that the claimant had suffered more than others affected
by the defendant’s actions.
Same facts may give
rise to private and public nuisance:- Halsey
v Esso Petroleum Co Ltd [1961] 1 WLR 683- The claimant lived on a house
adjoining Fulham Rd a very busy area near
a depot. The claimant and his neighbours all suffered from the use of
the depot but claimant alleged that he suffered more than most-his washing,
hung out to dry, and his car parked on the road outside his house was damaged
by acid smuts. Noise of tankers turning into and out of depots kept him awake
at night. The court held that damage to the washing and the consequences of the
smell interfered with the claimant’s use and enjoyment of the land. So it was
held that there was liability in private nuisance.
(Give examples of public nuisance:
e.g.,-obstruction of roads and waterways;
Statutory nuisance–Pt III
Environmental Protection Act 1991 emission of soot or noxious substances from
industrial plant).
Q.3
Identify the elements of negligence, viz.,
for a successful action in negligence, it must be shown that
1.the defendant owes a duty of care to the
claimant.
2.there is a breach of the duty of care
3.this was the cause of loss ( there must
be loss for a successful action)
4.the kind of loss was reasonably
foreseeable at the time of the act/omission
Discuss each element one at a time mentioning
relevant case law for each element, for example, the Lord Atkins obiter dictum
statement in Donoghue v Stevenson [1932]
AC 562 which concerns the method of determining the existence of a duty of
care-who is my neighbour -as it was a guiding principle leading to the ratio,
i.e., the decision in that case.
Apply the tests in Caparo Industries Plc v Dickman [1990] 2 AC 605 viz., 1.was the
harm or physical damage reasonably
foreseeable and 2. were the claimant and defendant in a relationship of proximity (can the
injured party be reasonably contemplated, and 3. where 1 and 2 are satisfied is
it just and reasonable to impose a
duty?
Identify that a breach of the standard of care occurs where a person
falls below the standard of care appropriate to the duty he owes.The standard of care is that of the builder exercising reasonable skill and care in his position would have acted in this way;
and cite case law authority such as Bolam
v Friern Hospital Management Committee [1957] 1 WLR 583.
Apply the law to the facts and consider a whether athere
was a breach of that duty.
It must be shown that the breach of duty caused
injuries and that the damage is not too remote- Wagon Mound No. 1 [1961] AC 388. The rule is that the person owing
a duty of care need only forsee the kind of injuries not the extent of them –Smith v Leech Brain Co. Ltd.
[1962] 2 QB 405.Apply this to
the facts and consider the loss that may be recovered.
