TORT LAW Dr.

Megan Rae Blakely

WEEK 9 m.blakely@lancaster.ac.uk
SIGNPOSTS
- Rylands continued
- Property-related torts summation
- Issue spotting and coursework advice
 RYLANDS: ELEMENTS
OF THE TORT
•1. D brought onto land or allowed an accumulation
of;

•2. a dangerous thing likely to do mischief if it

escapes (+ actual escape);

•3. foreseeability of the TYPE of [legally recognised]

damage (likelihood of occurrence irrelevant);

•4. a ‘non-natural’ use of land.

DISTINGUISHING RYLANDS
Different foci: Rylands has no requirement for proprietary
interest; control also works.

Non-natural v reasonableness: non-natural use is a required

element for Rylands; reasonable use is a factor only for nuisance.

Repetition: isolated incident v ongoing

Other distinctions may be discerned

KEEP RYLANDS?

Rylands provides a limited but important cause of action where statutory

remedies are not available and no relief would be found under negligence.
In the interest of justice to keep a common law ‘back up’ in case of lack of
foresight or inaction in legislation.
Flexible enough to accommodate changing circumstances and societal
expectations.
Rylands is an extension of nuisance, relating to isolated incidents, not
continuing problems. 

This ‘wins’ for now.

 EXAMPLE 1
D runs a travelling carnival, including a
‘chair-o-plane’. A bar securing several
of the chairs came loose, sending
several chairs into a neighbouring home
breaking a window, damaging the
siding, and tearing up the garden. An
inspector determined the incident was
due to no fault of the D, and further, she
had not seen this type of accident Source: Mindmatrix, CC 2.0 BY-SA

before. The homeowner C brought

forward a claim. Is there an actionable
claim here under Rylands?
 IDENTIFYING THE CAUSE
OF ACTION (SUMMARY)
Trespass to Land:
- direct interference with land
- actionable per se

OLAs:
- Occupier duty and breach (for lawful visitors [1957] and trespassers [1984])
- Personal injury

Public Nuisance:
- public body, special and particular damage
- common injury to the public (personal or property)

Private Nuisance:
- indirect interference with land, physical or amenity (proprietary interest, property
injury)
- continuous and unreasonable
 How the rule in Rylands v Fletcher, Negligence, Private nuisance and Trespass to land relate to each other. [1]
Table taken from V Bermingham and C Brennan, Tort Law: Directions (Oxford University Press,
[1]

Oxford: 2008)

  Rylands v Fletcher Private Nuisance Negligence Trespass to land Keep in mind

when dealing
with land:
Does the Indirect Indirect Indirect/Direct Direct - Public
nuisance
interference have - OLAs

to be direct or does
an indirect suffice?

Does damage have Damage Damage Damage Actionable per se

to be
demonstrated or is
the tort actionable
‘per se’?
Is personal injury No[*] No Yes No
recoverable?

Who can sue? Interest in land Interest in land Anyone to whom a Interest in land
required required duty of care is owed required
 NUISANCE AND RYLANDS…
Rylands v Fletcher
Private Nuisance
Public Nuisance
1. D brought onto land or allowed an
*Prerequisites:
accumulation of;
C capacity to sue Act or omission;
D capacity to be sued
2. a dangerous thing likely to do
Threshold of ‘inconvenience’ Affecting the rights of the
mischief if it escapes (+ actual escape);
public as a whole…
Elements:
3. foreseeability of the TYPE of [legally
1) (substantial) interference by D with  Any special damage?
recognised] damage (likelihood of
C’s use and enjoyment of land
occurrence irrelevant);
2) D: unreasonable user  Defences?
3) causation/remoteness  Remedies?
4. a ‘non-natural’ use of land.
Defences
Remedies
OLA CODIFICATION
SUMMARY
 Duty:
 Visitors: s 2(1) OLA 1957
 Trespassers: s 1(3) OLA 1984
 Breach:
 Visitors: establish standard of care s2(3)(a); prove breach; consider any mitigations,
specialist visitors s2(3)(b), warnings s2(4)(a); and/or independent contractors s2(b)(b)
 Trespassers: standard of care, breach, but only warnings s1(5)
 Causation: common law
 Remoteness: common law
EXAMPLE 2
Use the same facts in Rylands, set in
present day.
Would C have any basis for recovery in
tort related to land aside from Rylands?
Presume no statutory remedy
specifically related to reservoirs
(although there is)
EXAMPLE 3:
AH Hunt stored long strips of metal on premises for manufacturing electrical
conductors. AH did not keep them covered and safe, and during a storm, the wind
picked up the strips and blew them onto an electricity substation, causing a power
failure at BC’s factory. This halted the machines, causing damage and loss of
production time. The metal strips had blown away and caused an electricity outage
one time previously.

Does BC have a claim under nuisance?

EXAMPLE 4:
O’Callahan owned a ditch that ran parallel to Sheona’s property. As rainfall was
becoming particularly heavy, the council installed a drainage pipe in the ditch
without O’Callahan’s permission. The pipe was connected to a manhole and sewer,
but the mouth was not fitted with a grid, allowing debris and leaves to build up in the
pipe. Even though O’Callahan did not give permission for the installation, he
continued to use the pipe over several years for draining his own property. After a
very heavy rain one year, the pipe became blocked, and water flooded Sheona’s
property. She wants to bring an action to recover for the damage.
Whom can she bring an action against?
EXAMPLE 5:
John provided singing lessons in his home during the day and occasionally held
parties on the weekend nights, wrapping up around midnight. His neighbour, Mike,
was so irritated by the noise that he began to intentionally make as much noise as he
could with pots and pans and turning music up as loud as possible when he heard the
singing lessons happening and sometimes in the middle of the night, for good
measure. John brought an action for private nuisance.
(both are homeowners.)

Does John have a claim?

Any defence for Mike?
 ASSESSMENT ADVICE: Tort Law
COURSEWORK AND ISSUE Megan Blakely

SPOTTING m.blakely@lancaster.ac.uk
GENERAL
Follow all instructions on submission regarding:
cover sheet
student ID
and format required by the Law School
TERMINOLOGY REMINDER
Tortious [not tortuous!]
Tortfeasor
Claimant (not plaintiff) and defendant
Pursuer and defender (in Scottish cases)
Appellant and respondent (in appeal cases)
Judgment (not judgement) for judicial opinions
LAST YEAR’S REVISION
QUERIES…
Advice on how to improve exam technique in regards to problem and essay questions…

Scholarly work or “just” a detailed discussion of the law…?

 How to approach revision? Aside from lecture/textbook notes, case law etc what else should we particularly be focusing on to
consolidate our knowledge? Anything specific?

Is textbook reading for each of the topics studied also tested for the MCQ or is it solely based on the lectures and the
seminars?

Are some topics only tested as essay questions, or as problem questions?

Can one problem scenario be tested as 2 topics (e.g. nuisance and negligence)?
WHAT ARE THE QUALITIES OF A
GOOD LAW ESSAY?
Contains evaluation and analysis
Provides evidence of wide reading/research
Has well-supported arguments (case law and articles)
Contains original ideas
Has proper, accurate referencing & bibliography
Answers the question
Shows an understanding of the area/issues
Shows clarity of thought
Has a clear structure
Has a good written style
Good presentation (courtesy: Law 101)
COMMON FEEDBACK WE’VE
GIVEN
(ISSUES THAT ARE AVOIDABLE)
- Follow OSCOLA.
- You have omitted the lead case on this subject.
- This essay contains a noticeable number of grammatical and spelling mistakes.
- Where is your bibliography!
- Be sure to follow your argument through to a logical conclusion.
- You need to properly state the elements of this tort and the rule from the case.
- Use academic, formal language.
- Try using subheadings to organise your argument.*
SIMPLE TIPS TO IMPROVE
CRITICAL ANALYSIS
- Rewrite the construction ‘This means…’
- Don’t use the words ‘arguable’ or ‘arguably’.
- Use ‘connector’ and transition words.
- Use subheadings (wisely).
- Avoid or minimise first person.*
- Present and address a counter argument.
- Be judicious with your use of rhetorical questions.
- Use a good selection of primary and secondary sources for the relevant jurisdiction.
- Be sure you have an introduction (with thesis statement), body, and conclusion that ties to your
thesis and summarises your arguments.
- When you are ready to submit, print your essay and read line by line for a final proof.
ISSUES WITH FIRST PERSON
IN LEGAL WRITING
- Tense as an analytical tool
- “I think this decision was wrong.”
- “I argue that the decision in Letang v Cooper was wrong.”
- “The decision in Letang v Cooper was wrong.”
- “The decision in Letang v Cooper [relied incorrectly upon ____] [relied upon a poor
analogy by _____] [failed to distinguish ____] ….”

-DISCLAIMER: You are allowed by the law school to use first person without penalty…
but…
ISSUE SPOTTING CHECKLIST
WHEN YOU RECEIVE YOUR
MARK AND FEEDBACK
- Keep your feedback sheets and review when preparing your future coursework.
- If you’re not clear on what the feedback means or didn’t get the result you hoped for
and you’d like to meet with the marker:
 - Put the essay aside for 24 hours and then reread your essay and the comments.
 - Reread the module outline for intended learning outcomes and expectations.
 - Review the lecture materials, seminar sheets and cases, and textbook on the
subject.
 - Review the grading standards criteria.
 - Go carefully through your essay and try to locate the instances that are referred to
in the comments (feel free to mark up your own essay to flag these instances).
 - If you are then still not clear, make a list of specific questions you’d like the
marker to answer, and bring this to office hours or make an appointment.
UP NEXT…
- Trespass to the Person with Prof. Murphy

- Enjoy your break!