An Introduction to the Tort of Nuisance – Part 1

….an interference or disturbance must be shown to be unreasonable in order to pursue an action in nuisance, which by default must means that there are some occasions when interferences or disturbances will be reasonable

Source: http://www.mylubbock.us/

I have recently written a number of articles which discuss the Tort of Negligence which tends to get a great deal of publicity with legal specialists offering their services on a no win no fee basis.  You will see television adverts, billboards, newspaper and magazine articles, unsolicited emails and sometimes cold calling from legal companies trying to convince us that we have a legitimate claim in negligence for one reason or another.  A further area of Tort law which is just as significant, but less well known is the Tort of Nuisance.

In the case of Walter v Selfe (1851) the definition of nuisance is defined as: ‘…..an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes of living, but according to plain and sober and simple notions among the English people’.  It is always interesting to read a judge’s decision and particularly the language that is used in ‘older cases’.  The vast majority of nuisance cases relate to an ‘unreasonable’ interference with the use and enjoyment of land or property.  What is also interesting is the fact that an interference or disturbance in nuisance must be shown to be unreasonable in order to pursue an action, which by default must means that there are some occasions when interferences or disturbances will be reasonable.  As an example let us consider a person who is working night shifts and therefore has to sleep during the day.  Does noise from a neighbouring property (during the day), constitute an unreasonable interference or disturbance?  It is unreasonable to expect the neighbour to be completely silent and an action in nuisance by the night worker is highly likely to fail.  On the other hand if the noise complained of can be proved to be excessive and persistent then the outcome could be very different.   The definition of what is considered as unreasonable interference is further clarified in the case of Carley v Willow Park Golf Course Ltd. (2002), ‘Interference must be such as would not be tolerated by the ordinary occupier. No use of land is reasonable if it produces substantial discomfort to others, or materially damages their property’.

Source: http://metro.co.uk/

Examples of what may constitute nuisance are not limited to noise as per the example above, and can include things such as odour, lighting, waste, air quality, bonfires and so on……  Nuisance can be categorized as public nuisance, private nuisance and statutory nuisance and I will endeavour to explain the difference between each over the course or this and the next few articles.

Public Nuisanceis defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the public. As it is the general public that are affected, actions in public nuisance will mean that a number of people are affected (sometimes a considerable amount of people), not just an individual. Public nuisance is considered as a criminal action, where proceedings are brought by the Government who will typically seek an injunction to remedy the nuisance, not damages.  Sometimes however damages will accrue as a result of a successful injunction resulting in a defendant suffering financial consequences to rectify the impact of the nuisance. For example, a manufacturer who has polluted a river or stream may be served with an injunction preventing them from further pollution (the nuisance) and be fined for the costs of any clean up or re-mediation works.  Also, in some situations a criminal sentence may also be handed down by the courts.

There are a number of previous cases which provide examples of public nuisance including Benjamin v Storr (1874). For the purposes of his business, Storr kept horses and vans standing outside Benjamin’s coffee house throughout the day which caused an obstruction to the highway (a public nuisance). Benjamin complained that he had suffered special damage due to the vans and horses obstructing light, resulting in increased expense incurred for keeping gas lights burning throughout the day.  He further alleged that the smell of the horses was offensive and deterred customers from using the coffee house.  The court found in favour of the plaintiff (Benjamin) and demonstrates that a defendant can be found guilty of public nuisance (the obstruction of the highway) and also be faced with an action in tort for the loss and disruption resulting from the nuisance. 

Other examples of cases of public nuisance to look at include Tarry v Ashton (1876), Attorney General v PYA Quarries Ltd (1957), Dollman v Hillman (1974) and Tate & Lyle Industries v Greater London Council 1983), however, to conclude this article I would like to finish with a case that always generates some discussion with my students, the outcome of which, at first glance does seem a little unfair;

Wandsworth London Borough Council v Railtrack plc (2001), The defendant (Railtrack) owned a bridge which attracted large numbers of pigeons.  Interestingly, although the owner was not at fault, they were held liable to contribute to the local authority's costs of the bridge to deal with the nuisance.  As stated above, at first glance it does seem unfair that the defendant could be held responsible for what is effectively ‘the forces of nature’.  The justification from the courts for their decision was that the number of pigeons were enough to constitute a public nuisance, and the defendants became liable where they had not remedied the nuisance after a reasonable time. The judge went onto state; ‘the fact that the pigeons were wild, and that the nuisance was one of inconveniencerather than the causing of actual damage were not relevant. The local authority's request was reasonable’.

The above introduces the tort of nuisance and provides some case examples to demonstrate the point.  As with all areas of law, further reading will help to deepen understanding where I have provided some other cases for further reading and research. In my next article I will consider private nuisance.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Law of Land & Property - Part 2 - Fixture or Chattel?

The definition of a fixture is sometimes subject to heated debate, however in general terms the law considers a fixture as something that is permanently fixed to the property/land and therefore is deemed to form part of it. 

Source: http://www.ecoinstaller.net/

Anyone who has bought and sold property over recent years will be very familiar with the pack of information that they receive from their legal advisors which details or schedules out all of the fixtures and fittings that will form part of the property/land.  This is important because there were often conflicts between a purchaser and a seller in respect of what formed part of the property/land and what did not.  It is therefore interesting to see what the law says about what is a fixture (and therefore forms part of the property/land) and what is a chattel (which does not).

The definition of a fixture is sometimes subject to heated debate, however in general terms the law considers a fixture as something that is permanently fixed to the property/land and therefore is deemed to form part of it.  Fixtures will therefore include things like buildings together with anything that is permanently attached to it.  If something is secured in place by anything other than its own weight, it is highly likely to be considered as a fixture.  A chattel on the other hand and hardly surprisingly is the exact opposite, being something that is easily removed and therefore cannot be considered as permanent. Chattels are therefore generally considered as temporary and easy to move (although there a number of exceptions to this, which will be considered later).  Before proceeding it is worth clarifying that the law considers ‘tenant fixtures’ in a very different way to other types of fixtures.  For the purposes of this article I will not be discussing tenant fixtures, which is a topic I will save for a future article.

Property is usually bought and sold under a contract which therefore allows the buyer and seller to come to whatever agreement they want in respect of fixtures and chattels.  Where this agreement is lacking, whether by ignorance or wilfulness and a dispute ensues the parties will sometime go court in order to resolve the dispute. Under the doctrine of judicial precedent the courts in the UK are bound by decisions made in similar previous cases so it is worth looking at some previous cases to help us to understand how the courts decide what is a fixture and what is a chattel.

Source: http://www.theglasgowstory.com/

The case of Holland v Hodgson (1872) is commonly referred to where the question in respect of fixtures and chattels.  The case related to whether some factory machinery (looms) were a fixture and formed part of a factory or if they indeed were chattels.  As stated above the law relating to tenant fixtures has evolved since this case however the test used for determining whether something is a fixture of a chattel is still relevant.  In deciding whether something is a fixture or a chattel the Judge identified two tests.  Firstly, the degree on annexation (how and the extent to which something is fixed) and the purpose of the annexation (the reason for fixing the item). In explaining the test the Judge went on to say that ‘articles that are only attached to the land by their weight are not usually considered to be part of the land, unless they were actually intended to form part of the land’. In order to demonstrate this point the judge gave an example of a dry stone wall, stating that ‘a pile of stones, randomly stacked in the middle of a field, would not be part of the land but when they have been arranged, packed, and formed into a stone wall, then they clearly are intended to be part of the land’. In any case it is the responsibility of the person/party claiming that an object forms part of the land to prove it.

In the case of Berkley v Poulett (1976) a dispute arose relating to whether certain items sold at auction were deemed to be fixtures and therefore formed part of the property/land or whether they were chattels.  The items in question were some pictures fitted into panelling in a wall and in the garden, a heavy marble statue resting on plinth and a sundial.  The Court of Appeal considered the test used in Holland v Hodgson and concluded that the pictures, although fixed to the wall were chattels as ‘they were put on the walls to be enjoyed as pictures, rather than with the intention of making them part of the land’. The statue was also not attached to the land, but was placed on a plinth that was attached to the land. The Court concluded that the plinth formed part of the land, but the statue did not, because there was no evidence that the statue was designed as part of an ‘architectural scheme’. The sundial was also determined to be a chattel, because it had been detached from its pedestal many years earlier.

If we contrast the case of Berkley v Poulett with the case of D’Eyncourt v Gregory (1866) we can see how the courts arrived at a different decision for similar items. In this case a sundial was also held to be a chattel rather than a fixture, however, in the garden, statues, figures, vases, and stone garden seats that were part of the architectural design of the grounds were deemed to be fixtures, whether or not they were attached to the ground.

In most property transactions the question of whether something is a fixture or a chattel is relatively straightforward however in instances where this is bought into question it is worth being aware that there is precedent for determining this and resolving disputes.  As stated above, in a future article I will tackle the issue of ‘tenant fixtures’, where we will find that the law differs from that stated above.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Law of Land & Property – Part 1 - What is Land?

If we were to carry out a survey and asked the question ‘what is land?’, the vast majority of responses would undoubtedly refer to a two dimensional area that they identify as standing on or where buildings or structures are erected on or possible ground, soil or earth that is not covered by water

Source: http://imgkid.com/

Land is something that has been occupied, bought. sold, fought over and disputed throughout the course of history in all parts of the World.  Even today land disputes are commonplace, some of which have led to war between the disputing parties where many lives are lost during these conflicts.  Fortunately, not all land disputes lead to war and in fact in my professional career I have dealt with boundary disputes where the disputing parties are arguing over what most people would consider as insignificant pieces of land.  For example where someone has erected a fence and the line or position has been disputed by a neighbour.  In these cases the amount of land being disputed is usually very small.

If we were to carry out a survey and asked the question ‘what is land?’, the vast majority of responses would undoubtedly refer to a two dimensional area that they identify as standing on or where buildings or structures are erected on or possible ground, soil or earth that is not covered by water.  Think of an image of the World which shows the mass of the continents and countries, surrounded by seas and oceans and you will see the perception of what most people consider as land.  Whilst this perception does in fact demonstrate some land, we will see that the legal definition of land in the UK is far wider.  The Law of Property Act 1925, s205(1)(ix), provides a definition of land (see below) which at first glance seems confusing, complicated and difficult to interpret.  This is because it uses some language and terminology that has evolved over many hundreds of years and is not commonly used today; 

“Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir;

It is worth however persevering with this definition in order to understand the scope and context of what land actually is.  Firstly, the definition states that land ‘includes…’ This suggests that the definition provided, as confusing as it is, is only in fact a partial definition and has the potential to include other things. Also, ‘land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way)’, suggests that land is more than just a two dimensional flat area and in fact is three dimensional, including not only the surface of the land, but also the ground beneath (subterranean space) and the airspace above.  The wider definition of land is sometimes expressed in the Latin term ‘cuius est solum eius est usque ad coelum et ad inferos’ which translated means ‘he who owns the land owns everything reaching up to the very heavens and down to the depths of the earth’. Although it is correct that land includes airspace and subterranean space, we will see that these rights are not unlimited.

Source: http://www.aandshouselifting.com/

Subterranean Land – If for example a landowner wants to add a basement to their property then they are free  to excavate below the ground to allow for its construction.  This is something that may be considered when land availability is restricted to add space and value to a property (subject to obtaining statutory permissions such as Planning Permission and Building Regulations Approval and other permissions where appropriate). Section 205(1)(ix) of the Law of Property Act states, ‘mines and minerals form part of the land’ – however certain ‘minerals’ are restricted from belonging to the land owner by statute. Gold or silver automatically belong to the ‘Crown’, which is the case across the whole of the UK.  Also, the Crown is entitled to oil, petroleum, coal, and natural gas by virtue of the Coal Industry Act 1994 and the Petroleum Act 1998.  It is therefore clear that land includes subterranean land however it has been shown that rights are sometimes limited.  The discovery of ‘treasure’ is also covered by statute and this is something I will discuss in a future article.

Airspace – By virtue of the Law of Property Act 1925 a landowner owns the airspace above their land, however as with subterranean land these rights are sometimes restricted.  If a landowner actually owned the airspace ‘up to the very heavens’, then effectively they would be able to sue in trespass every time an aeroplane flew over ‘their land’, which would be ridiculous!  However section 76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property ‘at a height above the ground which is reasonable’. The question of reasonableness is a case in point in every action and the courts will refer to previous case law to establish precedent.

Source: http://www.hintmedia.co.uk/

The consideration of airspace is far wider that the impact of aeroplanes passing over ‘land’, and in fact consideration must be given at a much lower level.  Tower cranes are a relevant example from a built environment context which have the potential to trespass onto land of different owners unless permission and/or an oversailing licence have been obtained.  Other examples include Kelson v Imperial Tobacco Co (1957), where a defendant committed trespass by allowing an advertising board to project eight inches into the Claimant’s property at ground level and another above ground level. John Trenberth v National Westminster Bank (1979), where scaffolding erected on a neighbours land constituted trespass and Laiquat v Majid (2005), where an extractor fan at about 4.5 m above ground level, protruded 750mm into the claimant’s garden.

The legal definition of land is clearly wide and in a future article I will explore some of the ‘older terminology’ that is used in section 205(1) (ix) of the Law of Property Act 1925, in order to consider land in its wider context.  This will include an explanation of the terms ‘corporeal and incorporeal hereditaments’, ‘manorial rights’ and ‘advowsen’, and consider what the law says about ‘fixtures’ and ‘chattels’

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Negligence – Part 3 - Defences to Negligence

In today’s extremely litigious society there will always be those who are willing to pursue a claim in negligence if they feel a professional has been negligent which has resulted in them suffering some loss or damage. Unfortunately this is the World we now live in and due to the fact that a defendant (the person accused of negligence), does not intend for the bad consequence to happen, many who are accused of negligence are likely to be surprised that they find themselves in that predicament.

Source: http://imgarcade.com/

In my two recent negligence articles (Link 1) & (Link 2) I have introduced the basic principles of the tort of negligence and discussed the ‘ingredients’ necessary to establish a claim in negligence. I have also considered the significance of this area of law to the professional person and in particular those working in Construction and the Built Environment. In today’s extremely litigious society there will always be those who are willing to pursue a claim in negligence if they feel a professional has been negligent which has resulted in them suffering some loss or damage.  Unfortunately this is the World we now live in and due to the fact that a defendant (the person accused of negligence), does not intend for the bad consequence to happen, many who are accused of negligence are likely to be surprised that they find themselves in that predicament.

In the event that someone is found to be negligent there are a number of defences in UK law that may be used to reduce or nullify any damages or compensation that can be claimed.  These defences do not remove the fact that a person has acted and has been proved to be negligent, moreover, to help them to reduce the impact and consequences of their actions.  The three defences of Contributory Negligence, Volenti non fit injuria and Ex turpi causa will be considered within this article. The latter two are Latin terms which are typical of terminology within the UK legal system which have been used over many hundreds of years and continues to be used today.  I will provide a translation for each together with the explanations below.

Source: http://www.barberandsims.com/

Contributory Negligence – This defence has been used for many years where a person who has been found to be negligent will try to prove that an injured party has contributed to their own loss or damage by their actions (or omissions).  A passenger who is injured in a road traffic collision and is not wearing a seat belt is a good example.  The driver of the vehicle may have caused the injury to the passenger and negligence may have been established, so there is no question of the driver’s negligence.  The driver however may argue that, yes, they may have acted negligently and caused the accident and the injury and loss to the passenger, however if the passenger had been wearing their seat belt then in all likelihood the injuries sustained would have been less severe.  Therefore, by not wearing the seatbelt the passenger has contributed (to the negligence) and to the extent of their injuries. These circumstances appear in the case of Froom v Butcher (1976), where the Court of Appeal reduced the amount of damages payable to the claimant by 20%.

Prior to 1945 if a person found liable in negligence could prove that the injured party had contributed to the negligence then this could negate any damages completely.  Basically the rule was all or nothing, however, in 1945 a general power to apportion damages was given to the courts by the Law Reform (Contributory Negligence) Act 1945.  This meant that as in the case of Froom v Butcher the courts have the discretion to consider the extent of contributory negligence and to award damages accordingly.

Volenti non fit injuria (‘to a willing person, no injury is done’) - If a defendant can demonstrate that the claimant (the person/party who have suffered loss, damage or injury as a result of the negligence of the defendant) voluntarily agreed to undertake the legal risk of harm at their own expense then this can negate any damages completely.  Unlike contributory negligence which allows the courts to apportion damages, volenti non fit injuria is a complete defence. When using volenti as a defence the defendant must show that the claimant acted voluntarily in the sense that they were able/capable of exercising free choice. The courts will consider the ability of a person to be able to make a free choice and therefore whether they are able/capable of making a voluntary assumption of risk.  This will be a matter of fact in each individual case and the courts will consider things such as mental capacity, alcohol and substance consumption etc.

The case of Morris v Murray (1991) is a commonly quoted case in respect of Volenti; The plaintiff (Morris) agreed to be flown by the defendant (Murray) in his light aircraft though he knew the defendant was inebriated. The plaintiff drove the car which took them to the airfield and he helped to start and refuel the aircraft, which was piloted by the friend. Shortly after take-off the aircraft crashed, killing the pilot and severely injuring the plaintiff. At first instance the court found the defendant failed in his claim of volentii non fit injuria, but the plaintiff succeeded in negligence.

Held: The defendant’s appeal was allowed. The defence of volenti non fit injuria applied, and the claim failed. The plaintiff willingly embarked upon the flight, knowing that the pilot was drunk; that the danger in embarking upon the flight was both obvious and great and the plaintiff was not so drunk as to be incapable of appreciating the nature and extent of the risk involved, and, therefore, he was to be taken to have fully accepted the risk of serious injury and implicitly discharged the pilot from liability for negligence in relation to the flying of the aircraft; and that, accordingly, the maxim volenti non fit injuria applied as a defence to the plaintiff’s claim. Source: www.swarb.co.uk

There are however statutory restrictions on the use of volenti In the case of car passengers. Section 149 of the Road Traffic Act 1988 prohibits any restriction on the driver’s liability to his passenger when required to be covered by insurance. Therefore a driver who is found to be negligent which cases injury, loss or damage to his passengers cannot use volenti as a defence.

Ex turpi causa no oritur action (‘from a dishonourable cause an action does not arise’) - A person who is injured whilst involved in a criminal act may be denied an action. In these circumstances the courts are likely to find that no duty of care is owed. The case of Ashton v Turner and Anr (1981) provides a good example; ‘The Claimant was injured when the Defendant crashed the car in which he was a passenger. The crash occurred after they both had committed a burglary and the Defendant, who had been drinking, was driving negligently in an attempt to escape. The judge dismissed the claim holding that as a matter of public policy the law would not recognise a duty of care owed by one participant in a crime to another. He held in the alternative that, even if a duty of care was owed, the Claimant had willingly accepted as his the risk of negligence and injury resulting from it’. Source: www.e-lawresources.co.uk/

UK case law is well established with many other case examples that demonstrate the application (or not) or each of the three defences discussed above.  Law can often appear unclear and complicated at first glance and I always advise my students that the most effective way of understanding the law is to research previous cases.  Anyone who wants to find out and understand more about this area of law will find that a simple internet search will provide you with all of the information you need.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Negligence – Part 2 – Reducing the risk of negligence claims

There are a number of areas of civil law or tort which may be considered by an ‘injured’ party such as Nuisance, Trespass and numerous others however in many cases built environment/construction professionals find themselves defending a claim in negligence.

Source: http://davidlaw.com/

In Part 1 (Link) of this article I explained how the tort of negligence is particularly relevant to the role of the built environment/construction professional and why it so important to act with professionalism, vigilance and attention to detail at all times.  The consequences of not doing this could result in a mistake/omission/error, albeit unintentionally and may lead to a loss, damage or injury occurring.  If this does happen then an action may be sought in negligence to recover the loss. There are a number of areas of civil law or tort which may be considered by an ‘injured’ party such as Nuisance, Trespass and numerous others however in many cases built environment/construction professionals find themselves defending a claim in negligence.

As also identified in Part 1 of this article; In order to assess whether a person has acted negligently the courts will consider a person’s conduct and actions against how a reasonable person would act in the same circumstances. Although important this is just one consideration in establishing negligence. Over many years through the doctrine of Judicial Precedent, case law has developed a method of establishing negligence based upon decisions made in previous cases. The landmark case of Donaghue v Stevenson (1932) established the modern version of negligence and set a precedent for the main principles of establishing negligence and ‘the neighbour test’.  It is not the purpose of this article to discuss the circumstances or detail of the case, as this is information is widely published however it is worth exploring the principles that arose from the case and how negligence is measured and proved.

Source: http://legemetevangelium.wordpress.com/

In order to establish negligence there are four main ingredients for which all need to be proved. If just one of these are missing or cannot be proved then any action in negligence will fail.  Firstly, a duty of care must be owed to the plaintiff (the ‘injured’ party) by the defendant (accused of the negligence).  Next, if a duty of care is established then it must be shown that the defendant breached this duty.  Thirdly, if the first two elements are in place then proximate cause must be established. In other words, but for the breach of duty, the injury or loss would not have happened. Finally, if all three previously discussed elements are established the plaintiff must demonstrate that the loss/injury was a reasonably foreseeable consequence of the defendant's action or inaction.

Source: https://sielearning.tafensw.edu.au

The first two elements of negligence require the establishment of a duty of care and if shown that this has been breached, but what is a duty of care? A common definition of a duty of care is: ‘A requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. The Oxford Dictionary’s definition is a little more concise; ‘A moral or legal obligation to ensure the safety or well-being of others’. As built environment/construction professionals the understanding of duty of care and how it applies is fundamental.  If there is a contractual relationship with a Client, then any loss/damage that may occur is usually dealt with through the contract and any dispute through contract law.  If you read the details of Donaghue v Stevenson you will note that a claim for negligence can be brought in the absence of a contract, so if a Client’s claim were to be unsuccessful in contract law, they may pursue a claim in negligence instead.

As a construction professional it is always worth thinking about your activities and asking yourself if you are meeting your duty of care and acting reasonably.  The measure of reasonableness of a built environment/construction professional will be established in a number of ways. Firstly, by the standards set within an individual’s particular profession. Then, if a mistake has been made and if an appropriately qualified and experienced person taking reasonable care would not have made the mistake, then the professional person may be liable in negligence.  To establish what are reasonable standards in a profession, either the plaintiff or defendant can call an eminent practitioner to give evidence in Court as an expert witness, which is another measure of reasonableness. 

How can we reduce the risk of negligence claims? - The tort of negligence can be a legal minefield for all professionals and something that should not be underestimated.  Before undertaking any professional services it is worth establishing precisely what is expected for your fee, a robust scope of services and knowing exactly who the services are being provided for and who will be relying on your advice.  This may sound simple and obvious to many however it is these simple things that can help to avoid confusion and reduce the possibility of cutting corners and of possible negligence claims in the future. 

Underestimating a fee or confusion over the scope of services does not diminish a professional’s responsibilities in respect of duty of care, and this would certainly be a very weak defence if a claim for negligence was brought by a Client. Acting with watchfulness, attention, caution and prudence will help to avoid these types of scenario, however in the fast paced World of commerce where everything seems to be done at 100mph, sometimes working to impossible deadlines, it is easy to see how we can sometimes ‘drop the ball’. Good robust quality assurance procedures will help to identify issues/mistakes before they leave the office, however it is also worth reviewing and training staff on an ongoing basis to improve knowledge and competence, all of which will help to minimize the risk of negligence (and other) claims in the future.  How much of this are you or your organization currently doing?  Something to think about maybe?

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Negligence – Part 1 – An Introduction - Construction & Built Environment

As professional people our Clients pay for our services with the expectation that we will provide a high quality service and give good appropriate advice.  In the event that we do not meet this expectation and our Clients suffer some loss or ‘damage’, then they may attempt to recoup any losses through the courts

Source: http://www.claimsjournal.com/

Professional people should have a good understanding of the law and especially those areas of law which are relevant to their own particular field.  There are however some areas of law that are better know and understood than others. Law (in general terms) does not discriminate between specific professional roles and practices. Moreover it relates to the manner, conduct, attention to detail and professionalism in which we undertake our day to day professional duties. Yes, there will undoubtedly be ethical standards and codes of conduct to follow which may vary from profession to profession, however the underlying principles will be the same.  These ethical standards provide a level of protection however they will not make a professional immune from acting and becoming negligent.

As professional people our Clients pay for our services with the expectation that we will provide a high quality service and give good appropriate advice.  In the event that we do not meet this expectation and a loss or ‘damage’ is suffered, then our clients may attempt to recoup any losses through the courts.  A particular area of law where professional people can find themselves brought into question in this respect is the Tort of Negligence. For the remainder of the article I will refer to the role of the built environment professional however the principles of negligence are relevant to all professional roles. I will introduce negligence and consider how it is defined and how it is measured and in part 2 I will discuss the main ‘ingredients’ necessary to prove negligence.

Source: http://www.albanyworkerscomplawyer.com/

A quick internet search provides numerous definitions for negligence.  Yourdictionary.com states negligence as ‘failure to use a reasonable amount of care when such failure results in injury or damage to another’ and lectlaw.com provide; ‘the failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community’.These definitions are interesting because throughout you will notice the word ‘reasonable’ or the term ‘reasonably prudent person’.  In order to assess whether a person has acted negligently the courts will consider a person’s conduct and actions against how a reasonable person would act in the same circumstances. As a construction/built environment professional, this assessment will consider whether an experienced person taking reasonable care would not have made the same mistake, then the professional person may be liable in negligence. This is worth thinking about when carrying out our day to day duties and why it is so important to act with professionalism, vigilance and attention to detail at all times.  I wonder how many of those who have been found liable in negligence, with hindsight will wish they had paid closer attention to these things.

An important factor of negligence is that a defendant (the person accused of negligence), does not intend for the bad consequence to happen.  If intent could be proved (the courts refer to this as mens rea, which is a latin term meaning ‘a guilty mind’), then this would more than likely result in a criminal prosecution and not a civil action.  There are however circumstances where a person can face a criminal action and later also face a civil action from those who have suffered the consequences of a negligent act.  As an example let us think about a passenger injured in a motor vehicle collision.  Drivers do not generally get into their vehicles each day with an intention to injure, however road traffic collisions occur on a regular basis.  A driver who exceeds the speed limit may face a criminal prosecution under the Road Traffic Regulations Act 1984, which could lead to a fine or imprisonment depending upon the severity of the offence. In addition the driver may also face a civil action in negligence from the passenger who was injured in the collision (or anyone else who is injured in the incident). This interaction between criminal law and civil law (in our example, negligence) is also something that can occur with the construction/built environment professions and something that all working in the sector should be conscious of.

It is not necessary to search too far to find examples of where construction/built environment professionals have been found to be negligent. One such example is the case of Theodore Goddard v Fletcher King Services (1996). Fletcher King had overall responsibility for a commercial letting. Theodore Goddard (Solicitors), which drafted the lease, accidentally deleted the upwards-only rent review clause. A Surveyor at Fletcher King reviewed the draft lease but did not notice the error. The judge found that although the Solicitor had primary liability for the terms of the lease, the amendment to the clause was 'such a blunder' that an experienced Surveyor should have noticed the deletion. The Surveyor was ordered to contribute 20% of the loss. This decision has potentially wide-ranging consequences for professionals who work together on a transaction and have some input in one another’s drafting, a common relationship between construction/built environment professional and legal professional.

In Part 2 I will discuss negligence in more detail and consider the main ‘ingredients’ necessary to prove negligence and in particular ‘duty of care’ and how this relates to the construction/built environment professional.  I will also discuss the famous case of Donaghue v Stevenson (1932), and how the decision in this landmark case formed the modern tort of negligence as we know it today.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

CDM Regulations 2015 – Changes that will not please everyone!

….the proposed removal of the CDM Coordinator and replacement with that of a Principal Designer will result in plenty of debate.  Currently the CDM Coordinator is an independent role under the CDM Regulations, which will be lost, as a Principal Designer will undoubtedly have other additional roles/duties within a project. 

http://www.schlecht.com/safety

Consultation on proposed changes to the Construction (Design & Management) Regulations 2007 (CDM) were completed on 6^th June 2014 by the Health & Safety Executive (HSE) with the aim of introducing Construction (Design & Management Regulations 2015 in April next year.  In its consultation document the HSE set out a number of policy objectives which explain why an update to the current CDM 2007 is required:

     ·  Maintain or improve worker protection;
·  Simplify the regulatory package;
·  Improve health and safety standards on small    construction sites;
·  Implement the Temporary or Mobile Construction  Sites Directive (TMCSD) in a proportionate way (this  is a European Directive);
·  Discourage bureaucracy; and
·  Meet better regulation principles. 

HSE also cite external research into CDM 2007 within its consultation document which concluded:

    ·  CDM 2007 was viewed more positively by dutyholders than the 1994 version; its broad structure was fit for purpose;
·  Problems generally arose through mis- and over-interpretation of the Regulations; significant concerns remained, however, in several areas:
·  The Regulations had not borne down on bureaucracy as hoped;
·  The Regulations had led to an industry approach to competence which was heavy-handed and in many cases burdensome, particularly on SMEs;
·  The co-ordination function in the pre-construction phase was not in many cases well-embedded. 

Source: http://www.constructionsafe.co.uk/

Interestingly a number of the research findings above were also reasons why it was felt that the original 1994 CDM Regulations needed to be updated and it appears that the 2007 CDM Regulations have not addressed these issues.  For example, ever since the introduction of CDM 1994 and I can remember this vividly, there have always been issues around bureaucracy. Initially, this was partially down to lack of understanding of the workings of the regulations and latterly it could be argued that this is a result of complacency.  I can remember numerous occasions whilst acting as Planning Supervisor (Now CDM Coordinator, although this title will no longer exist under the new proposals), where documentation such as Designer’s Risk Assessments, Pre-Tender Health & Safety Plans and even Construction Phase Health & Safety Plans had became so generic that often information was copy/pasted with the wrong project title, works information, site address etc. This situation became ridiculous and large volumes of paper were being produced because that is what some thought the Regulations required.  CDM 2007 does not appear to have solved this problem, as this remains an objective for CDM 2015.

CDM 2007 also introduced the need to ensure that duty holders were competent in their role.  This put additional responsibilities particularly on Clients to ensure that those they appointed in the various roles had the skills and competence to carry out their duties.  Competence checking is not a role exclusive to the Client under CDM 2007, however HSE cite this as a particularly bureaucratic process and propose the following within their consultation document:

We plan to retain a general requirement under the revision of CDM (new regulation 8) for those appointing others to carry out construction work to ensure that they have received appropriate information, instruction, training and supervision to allow them to work safely. This aligns with the general requirements under Sections 2 and 3 of HSWA.

HSE believes that the competence of construction industry professionals should be overseen by, and be the responsibility of, the relevant professional bodies and institutions 

It will be very interesting so see how this will work in practice, particularly when there are Health & Safety incidents which require investigations by HSE, and especially how those appointing duty holders can demonstrate that ‘duty holders have received appropriate information, instruction, training and supervision to allow them to work safely’

In summary, the proposed changes to the current 2007 CDM Regulations are:

     ·  Significant structural simplification of the Regulations;
·  The replacement of the ACoP with targeted guidance;
·  Replacement of the CDM-c role with a new role, that of the ‘principal designer’;
·  Removal of explicit competence requirements and replacing with a specific requirement for appropriate skills;
·  Addressing areas of TMCSD relating to domestic clients; and
·  The threshold for appointment of Coordinators. 

I am sure that the removal of the CDM Coordinator and replacement with that of a Principal Designer will result in plenty of debate.  Currently the CDM Coordinator is an independent role under the CDM Regulations, which will be lost, as a Principal Designer will undoubtedly have other additional roles/duties within a project.  A Client will effective lose an independent advisor who can provide them with a fresh perspective of Health & Safety issues and responsibilities under the Regulations, outside of other individuals within the project team.

Also, HSE estimate savings of £30 million each year as a result of efficiencies gained under the proposed new CDM Regulations.  Although, there ‘could’ be savings made due to reduced bureaucracy, as previously discussed (although this is questionable) it is difficult to see how the removal of the CDM Coordinator will produce any savings.  The title may be changing to a Principal Designer however the role and responsibilities remain.  All that will happen is that the fee currently charged by CDM Coordinators will now be charged by Principal Designers. 

What about those companies and organizations who provide CDM Coordinator services, some of which are exclusive to the role?  Surely they must be extremely concerned by this proposed change.  The role of a Principal Designer has very wide connotations and will prevent many CDM Coordinators from simply re-labeling themselves.  Whereas CDM Coordinators may have expertise in health & safety related matters, in order to be a Principal Designer they would need a much wider skill set due to the implied skills of being a 'Designer'.  No doubt some will be able to make this transition, however there will undoubtedly be others who fall by the wayside.

Another implication of the proposed replacement of the CDM Coordinator will be the requirement to update numerous pieces of documentation as well as re-drafting of Construction Contracts.  This will also have a cost implication and will reduce cost savings at least in the short to medium term.

The new proposal for CDM 2015 also propose changes to the notification threshold for a construction project as well as introducing duties for domestic Clients for the first time, however ‘create the default position whereby duties that would fall on a domestic client instead fall to the contractor’. This in itself generates a number of concerns however the HSE state that they expect the new regulations to be discharged in a sensible and proportionate manner.  It will also be very interesting to see how this works out in practice.

You can find more information about the proposed changes to CDM Regulations from the HSE by following this link (Link).

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Why Greater Powers Are Essential To Regulate Private Residential Landlords

Landlords across the UK must be rubbing their hands together at the thought of the large amount of prospective tenants who will be paying ever increasing rents, a situation which is not likely to change for the foreseeable future

Source: http://www.midlandepc.co.uk/

With rising house prices and the general lack of affordable homes in the UK many who may want to step onto the property ladder for the first time are being forced to consider rented accommodation.  Even those thinking of using the Governments Help to Buy scheme as a way forward are still required to save a 5% deposit in order to be eligible for the scheme.  A 5% deposit may not seem too bad however with an average UK house price in excess of £250,000, this still requires a deposit in excess of £12,500, which can often prove to be difficult to save once you factor in the cost of living and the cost of paying rent. Consequently demand for rented accommodation has continued to rise and in particular within the private rented sector. Financial Reporter (Online) (Link) report:

‘Average UK private home rents have increased 7.5% in the last 12 months while national average earnings now rising at 1.7%. The average cost of renting a home in the UK has risen more than four times as quickly as national average incomes, according to new findings released today from the May 2014 HomeLet Rental Index’

Source: http://www.rostons.co.uk/

Landlords across the UK must be rubbing their hands together at the thought of the large amount of prospective tenants who will be paying ever increasing rents, a situation which is not likely to change for the foreseeable future. This high demand for rented properties has provided the opportunity for some Landlord’s to try to take advantage of the current situation by attempting to encourage tenants to leave their properties by not carrying out repairs or attempting to evict tenants in order to hike up rents.  In a recent article, the Independent (online) (Link) explained:

‘Soaring numbers of people in private rented homes face eviction despite being up to date with their rent because rising house prices are prompting landlords to ask tenants to leave. In the last year, Citizens Advice Bureaux has seen a 38 per cent increase in desperate tenants coping with the threat of eviction even though they have no rent arrears, according to figures seen by the Independent.

More than 5,000 of these cases were reported to Citizens Advice in 2013-14, up from 3,750 the previous year – and as the housing shortage reaches critical levels, the figures show how increasingly precarious the situation is  for renters.

Eviction by private landlords is the most common cause of homelessness encountered by Citizens Advice, causing one in 10 of the 80,000 problems with homelessness the charity saw in the last year.

Tenants report being evicted following a request to carry out repairs, because the landlord wants to sell their home, or because rents are suddenly hiked to unaffordable levels’

Tenants have statutory protection under a raft of legislation such as the Rent Act 1977, Housing Act 1985, Housing Act 1988, depending on the type of tenancy, and the Landlord & Tenant 1985 in terms of obligations and responsibilities to carry out repairs. It does appear that Landlords are choosing to ignore their statutory responsibilities in increasing numbers in order to chase higher rental yields.  So what can a tenant do in these circumstances?

I am regularly contacted by people who experience difficulty, sometimes silence when contacting their landlord to carry out repairs.  In nearly all cases this involves private sector Landlords who for some reason think that if they ignore their tenants for long enough then they will just go away.  The issue of course is that the Tenant has rights and the Landlord has responsibilities under a whole raft of legislation (as indicated above)) and vice versa. In the event that a Landlord fails to carry out repairs for which he/she is responsible, a tenant can take action to remedy the situation. The problem becomes magnified if the repair that is necessary is something that may be dangerous or posing a health risk to the occupants.

Source: http://www.latentexistence.me.uk/

In my early career as a Building Surveyor I undertook a number inspections on behalf of Solicitors who had been appointed by Tenants where complaints had been made about living conditions and in particular habitation standards in their homes.  In those days a Surveyors report would be used as evidence that a landlord had breached their duty under legislation such as section 11 of the Landlord & Tenant Act 1985 or Public Health Acts such as the Environmental Protection Act 1990 or others.  In order to assess fitness for habitation at the time a Surveyor would consider the requirements of something known as the ‘fitness standard’ under section 604 of the Housing Act 1985.  Nowadays an assessment of the health & safety of a dwelling is considered under a much wider context under the Housing Health & Safety Rating System 2006 (HHSRS).  A tenant can contact their Local Authority and request an inspection under HHSRS if they feel that there are health, safety or habitation issues.  The Local Authority has enforcement powers under HHSRS where category 1 hazards are identified.  For more information on HHSRS refer to my previous article (Link)

Nobody wants to go through a legal process as this can be time consuming and expensive.  Ultimately, however this is one form of recourse that may be considered in which the tenant will effectively try to force the landlord to meet their statutory obligations through the courts.  In most cases tenants will not want to take this option as costs (money, time and stress), will be deemed to negatively outweigh the benefit that could be attained if successful.  Note the word ‘if’, because there is never any guarantees that legal proceedings will succeed. Although legal action should be used as a last resort this is nevertheless an option that a tenant may utilise.

Better regulation, particularly of private landlords is essential to addressing some of the issues considered above.  Rather than dilly dally around with suggestions the Government should introduce a landlord registration scheme such as that introduced in Northern Ireland earlier this year.  Under the scheme all private landlords are required to register under the Scheme and it is an offence to commence a new let of a residential property under a private tenancy without being registered. In the rest of the UK there are currently a number of voluntary registration schemes however the fact that they are not mandatory will mean that those who are likely to cut corners or do not meet their responsibilities are hardly likely to sign up!  Therefore this is something that has to become mandatory through legislation.  Mandatory registration schemes can state minimum levels of service that tenants should expect including transparent fees, improved property conditions, better communication between landlords and tenants, improved response times for repairs and maintenance and protected deposits. If all private landlords are required by law to meet these requirements then they will be made to think twice about the manner in which they deal with their tenants.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.