FACULTY OF ARCHITECTURE, PLANNING AND SURVEYING

Comparison and Contrast

between Negligence,
Nuisance and Trespass
LAW 381

NOR HANISAH BTE BAHRUDIN

2010415664
LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

Chapter 1 Introduction

Negligence, nuisance and trespass are some of tort types. Tort is not a crime, not the breach of
the contract and not necessarily concerned with property right or government’s problem, but it is
the occupant of a large residuary field if these are taken out of the law (Prosser and Keeton).
The tort law is about the constitutes of legal injuries and established the circumstances under
which one person may be held liable for another’s injury [ CITATION Out111 \l 1033 ] and usually,
the punishment from the tort law is the compensation which is the victim (e.g., plaintiff) generally
seeks money from some person, or some corporation, who harm the victim [ CITATION Sta99 \l
1033 ] and the deterrence which is prevent the wrongdoer and public to prevent continuing the
wrongful conduct.

There have two categories of torts which is action per se and non actionable per se. The action
per se is actions that do not require the allegation or proof of additional facts to constitute
neither a cause of action nor any allegation or proof that damages were suffered [ CITATION
Joh10 \l 1033 ] such as the trespass and the forcible injury while the non actionable per se is the
victim need to show the damages that he need to suffered from the tort such as the nuisance
and negligence. The tort will cover all the area which is the personal security, reputation, the
property and economic interest.

There have four interests that were protected by law of torts which are personal injuries,
reputation, property and economic interest. All the interest will be protected in all the types of
the tort law.

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

Chapter 2 Negligence, nuisance and trespass

2.1 Negligence

Negligence is a failure to exercise a degree of care that reasonable person would give; the idea
of the ‘neighbor principle’ [ CITATION Bri06 \l 1033 ]. ‘The rule that you are to love your neighbor
becomes in law, you must not injure your neighbour; and lawyer question, who is my
neighbour? receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbour.’
[ CITATION Don32 \l 1033 ]. In an easy word, it is more heedless or careless conduct, whether in
omission; it properly connotes the complex concept of duty, breach and damage thereby
suffered by the person to whom the duty was owing [ CITATION Loc34 \l 1033 ].

However, before someone makes the negligence tort case in the court, he/ she need to present
all the four elements before get the remedy. The elements that need to be show to the court
according to [ CITATION Eng11 \l 1033 ] are the duty of care, breach of duty, breach
causation harm in fact and injury. The duty is a legal enforceable obligation or which is who
have the duty of care of the problem. Then, when the defendant was breach the duty that
he/she have. However, the liability will be in the responsibilities of the certain person because if
he/she have the vicarious liability. The vicarious liability in tort law refers to the idea of one
person being liable for the harm caused by another, because of some legally relevant
relationship [ CITATION Tor11 \l 1033 ]. Another liability in this tort is occupier’s liability which
is the liability of an occupier of premises for any damage suffered by visitors to the premises
[ CITATION Lee05 \l 1033 ].

Once the defendant was breach his/her duty, the action make the victim have the injuries so it
called as the causation. The causation can be indirect such as the causation from the principle
of neighbor. Then, the injury can be either in physical, emotional distress, embarrassment or
dignitary harm. There have three types of damages which is the general damages which is
difficult to determine, specific damages which is the damages can be calculate like the bill that
need to pay and the pneumatiff damages which is damages by the judgment.

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

The remedies that can be claim in the negligence cases are damages and injunction. The
damages just can be claim not over than the damages that had been suffered for the victim and
the injunction will be held by the court if needed.

2.2 Nuisance

Nuisance word come from the Latin (nocere) which is meaning by to do harm, to inflict injury
[ CITATION Tim99 \l 1033 ] , or a broad legal concept including anything that disturbs the
reasonable use of your property or endangers life and health or is offensive [ CITATION
Far09 \l 1033 ]. In a simple word, nuisance is a situation where one’s rights have been
vindicated and where damages can be offered for compensation; risks must be protected even
if no damage was suffered and no fault committed; generally only compensable if due to a fault
of some kind (ie. noise infringing on one’s ability to sleep) [ CITATION Bri06 \l 1033 ] .
Nuisance law is the law that protects someone’s right to use and enjoyment of their real
property [ CITATION Jas11 \l 1033 ] . Nuisances have three types which is public nuisance,
private nuisance and statutory nuisance.

A public nuisance is an unreasonable interference with the public’s right to property while the
private nuisance is simply a violation of one’s use of quiet enjoyment of land (tenants or
hereditaments of another) but it does not include trespass [ CITATION Nui11 \l 1033 ]. To
constitute a Public nuisance, there must be such a number of person annoyed, that the offence
can no longer be considered a private nuisance: this is a fact to be judge of by the
jury[ CITATION Nui111 \l 1033 ] . The plaintiff must also show that he suffered damage
peculiar to him that was not shared by the rest of the public [ CITATION Edw09 \l 1033 ].

Same as the negligence, there are the elements that need to be show to state a claim for
private nuisance which is like the Lafarge’s case [ CITATION Old01 \l 1033 ]. The court want
the resident show that: (1) a physical invasion interfered with property right; 92) significant harm
occurred as a result of that invasion; 93) LaFarge caused the invasion; and (4) LaFarge’s
conduct was either (a) intentional and unreasonable or (b) negligent, reckless or ultra
hazardous.

Under the common law, the only remedy for nuisance was payment of damages [ CITATION
Nui11 \l 1033 ] which is can be claim to the: (1) the creator of the interference, (2) the occupier
which is when the third parties be in the following situation; (a) servant or employee, (b)

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

independent contractor, (c) trespasser, (d) licensees, (e) natural causes and (f) conduct of
previous occupier and (3) landowner or landlord which be in this condition (a) if he has
authorized the nuisance, (b) if he knew or ought to have known of the nuisance before tenancy
became effective and (c) if he has covenanted to repair or has a right to enter the premises to
conduct repair works.

The statutory nuisance is the certain nuisance that was prohibited by statute like the
Environmental Protection Act. The remedies that cover from the nuisance are the damages and
the injunction.

2.3 Trespass

Trespass is people who commit an unlawful injury to the person, property, or right of another,
with actual or implied force, violence, especially to enter onto another’s land wrongfully
[ CITATION Far00 \l 1033 ] or it can be classified as an intrusion onto land possessed by
another without consent or other privilege [ CITATION Tre96 \l 1033 ]. There have both of
trespassing either in criminal case or civil trespass law. The crime of criminal trespass involves
a person knowingly entering or remaining on a property on which he knows he does not have
permission to be
while civil trespass is a violation of a property owner's right to maintain exclusive control over his
property [ CITATION Rog11 \l 1033 ].

Trespass can be to the land, person or goods. Trespass to the land is when the person who
enters or remains upon the land in the possession of another without privilege to do so created
by possessor’s consent or otherwise... Trespassing has two elements: An actual interference
with the right of exclusive possession (called the ‘entry element’) and intent or negligent
[ CITATION Tre \l 1033 ] which is (a) entering land which is in the plaintiff possession, (b)
remaining on the plaintiff’s land, (c) entering or placing an object on the plaintiff’s land, and (d)
interference to airspace. Land is the surface and all substances forming that surface of the
earth, the below the surface, all vegetations and other product whether on or below the surface,
all things attached to the earth or permanently fastened to anything attached to the earth,
whether on or below the surface and land cover by water [ CITATION Sec10 \l 1033 ].

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

Trespass to person is an anarchic form for a claim of assault, battery and false imprisonment or
it was called as the intentional torts. Assault is put someone in fear immediately and it must be
proved that it was reasonable for claimant to expect an immediate battery. Assault can be
mentality which is the defendant have intention to do his act, physically which is the bodily
movement, and capacity to carry out the threat although the act is not happened and the effect
on the plaintiff. Battery can be intent, harmful or offensive conduct and physical conduct. The
application of direct physical force to the claimant however it is not have the intention to hurt the
claimant can be classified as the battery. The false imprisonment is the unlawful imposition of
constraint upon another’s freedom of movement from a particular place [ CITATION Tre11 \l
1033 ]. This type of the intentional tort do not need proof of damage, need to proof direct
imprisonment and complete restriction of personal liberty either in physical and/or psychological
threat.

Trespass to the goods is the action for trespass to goods, trespass de bonis asportatis, affords
a remedy where there has been a direct interference with goods in the claimant's possession at
the time of the trespass, whether that be by taking the goods from him or damaging the goods
without removing them [ CITATION Win99 \l 1033 ] or an intentional interference with the
possession of personal property...proximately causing injury [ CITATION Thr66 \l 1033 ].

For the trespass, the remedies that cover in this tort are the damages, injunction to prevent
continuance and ejection the person from the area that had been trespass.

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

Chapter 3 Comparison between negligence, nuisance and trespass

Types of tort Negligence Nuisance Trespass

Private negligence Private nuisance Private trespass

When some person who has the duty The person suffer the harm is the When someone trespass another
of care breach the duty and make the owner or occupier. person goods, land and personal.
victim had damage because of More to civil wrong. More to the criminal wrong
his/her action.
Public nuisance
More to civil wrong
Classification When someone does some action
that may harm to the public at large.
Can be crime and civil wrong.

Statutory nuisance
Certain action that in the statue
prohibited.
More to civil wrong.

Time that 1. When the action will be involved

After the action happened and the
action can When the same thing was repeated to the injured to the person.
neighbour had injured by that action.
be sue 2. After the action happened and
give damage to the victim.

Types of loss Personal security Property Reputation

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

- Safety of the individual - Defamation

Property Personal security

- Real/land or personal - Possibly defamation (publish
in permanent form)
and Economic interest
- Land
damages - Remedy of physical damage
- Good
- Personal injury
- Person

Economic loss

1. Damages 1. Damage 1. Damages

Remedies 2. Injunction 2. Injunction 2. Injunction
3. Ejection

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

Chapter 4 Related cases with the interest protected by tort law

1. Negligence

The most popular negligence case is about the Donoghue v Stevenson [1932] which is
elaborate about the element in the negligence. There is the sequence of the story about the
case [ CITATION Don32 \l 1033 ]. 

Donoghue v Stevenson [1932] UKHL 100

On the evening of Sunday 26 August 1928 May Donoghue, née M’Alister, boarded a tram in
Glasgow for the thirty-minute journey to Paisley. At around ten minutes to nine, she and a friend
took their seats in the Wellmeadow Café in the town's Wellmeadow Place. They were
approached by the café owner, Francis Minchella, and Donoghue's friend ordered and paid for a
pear and ice and an ice-cream drink. The owner brought the order and poured part of an
opaque bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the
contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler.
It was claimed that the remains of a snail in a state of decomposition dropped out of the bottle
into the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as
having gastroenteritis and being in a state of severe shock.

On 9 April 1929, Donoghue brought an action against David Stevenson, an aerated

water manufacturer in Paisley, in which she claimed £500 as damages for injuries sustained by
her through drinking ginger beer which had been manufactured by him. Following the House of
Lords judgement, which dealt with a preliminary matter, the case was settled out of court and so
the full facts were not heard in court. The identity of Donoghue's friend is unknown, but that
person is referred to as "she" in the case reports (including the first paragraph of the judgement
of Lord MacMillan in the House of Lords). Other factual uncertainties include whether the animal
(if it existed) was a snail or a slug, whether the bottle contained ginger beer or some other
beverage (as 'ginger' in Glaswegian and West of Scotland parlance refers to any fizzy drink)
and whether the drink was part of an ice-cream soda.

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

Conclusion of the cases:

The conclusion from the situation, the Stevenson has the duty of care because he was familiar
and manufactures the ginger bear otherwise; Donoghue is the neighbour of the Stevenson
because of the privity of the contract with the product that he had manufactured. Then, because
of his negligence during the manufacture the drink, a snail was composed in the drinking bottle
which is that thing is not suppose to happened, so he was breach the duty. Because of his
action, Donoghue had a stomachache and doctor was diagnosed that she was had a
gastroenteris after she drank the ginger bear. In this situation, the injuries or a damage that she
had is the stomachache and she sued for claimed the injuries that he have.

2. Nuisance & trespass

The nuisance case can be a part of the trespass case which is happened to [ CITATION Ryl68
\l 1033 ]. There is the sequence of the case:

Rylands v Fletcher (1868)

In 1860, John Rylands paid contractors to build a reservoir on his land, intending that it should
supply the Ainsworth Mill with water. Rylands played no active role in the construction, instead
contracting out to a competent engineer. Rylands employed contractors to build a reservoir,
playing no active role in its construction.

While building it, the contractors discovered a series of old coal shafts and passages under the
land filled loosely with soil and debris, which joined up with Thomas Fletcher's adjoining mine.
When the contractors discovered a series of old coal shafts improperly filled with debris, they
chose to continue work rather than properly blocking them up.

The result was that on 11 December 1860, shortly after being filled for the first time, Rylands's
reservoir burst and flooded a neighbouring mine, run by Fletcher, causing £937 worth of
damage. Fletcher pumped the water out, but on 17 April 1861 his pump burst, and the mine
again began to flood. At this point a mines inspector was brought in, and the sunken coal shafts
were discovered. Fletcher brought a claim against John Rylands, the owner, and Jehu
Horrocks, the manager of Rylands's reservoir on 4 November 1861. Fletcher brought a claim
under nuisance, through which the case eventually went to the Exchequer of Pleas; while ruling
in favour of Rylands, Bramwell B, dissenting, argued that the claimant had the right to enjoy his

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

land free of interference from water, and that as a result the defendant was guilty of trespass
and the commissioning of a nuisance. Bramwell's argument was affirmed, both by the Court of
Exchequer Chamber and the House of Lords, leading to the development of the "Rule
in Rylands v Fletcher; that "the person who for his own purpose brings on his lands and collects
and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he
does not do so, is prima facie answerable for all the damage which is the natural consequence
of its escape".

Conclusion of the cases:

The action of the Rylands hiring a contractor to do the reservoir in his land making he have a
vicarious liability to the contractor (Jehu Horrocks). Otherwise, he was in duty after he was
taking the decision to build the reservoir and he needs to maintain it. When the contractor know
the condition of the soil and he not do the right action to prevent the damage from the soil
condition. So, he was breach his duty of care. His action make the damage which is the water
that he try to brought to the Rylands land was burst and harm the Fletcher land which is the
mine land. The water that was brought into the Rylands was in a large volume of water and it
will cause a mischief if it was escape from the reservoir. In the same time, it is not the natural
used of the land because it was excavating to make a reservoir in that land. The situation make
the Rylands was claimed in a strict liability but not under nuisance tort because it is not the
repeating action which can make him being sued under the tort of law.

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LAW 381 Comparison and Contrast between Negligence, Nuisance and Trespass

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