Chapter 18 Pointers to 'pause for reflection' and 'counterpoint' boxes

Trespass to land and nuisance

Page 551

Your thoughts on the questions asked here are going to depend very much on which camp you find yourself in with relation to the land torts. Prior to the decision in Hunter v Canary Wharf [1997] some thought that the law of private nuisance could play a role in the way we dealt with environmental harms (particularly ongoing ones) (see Wightman, John (1998) 'Nuisance - the Environmental Tort? Hunter v Canary Wharf in the House of Lords', 61 (6) Modern Law Review 870) - and also harassment. The decision in Khorasandjian v Bush [1993], which involved a young woman subjected to a campaign of harassment and intimidation by her former boyfriend (something we might now call 'stalking' – see also chapter 15, particularly section 15.6.2, on this issue), opened the door to this action as it allowed Miss Khorasandjian to make use of the tort of private nuisance to obtain an injunction to prevent him from harassing her when she was at her mother's house. A strict reading of the law might have left her with no remedy but this was not the route that the Court of Appeal chose to follow (see Dillon LJ's judgment in particular where he referred to 'changed social conditions', indicating perhaps that the law was behind the times). Indeed, after Hunter, there would have been no remedy for a young woman in a similar situation (note the Court of Appeal in Hunter had followed Khorasandjian, Pill LJ finding that a 'substantial link' between the claimant and the property would be enough). Now, in order to be able to claim, she would need to show a proprietary interest in the property in order to be able to obtain protection via an injunction – something a teenage girl is very unlikely to have. But a 'substantial link' would be able to be shown by many finding themselves in a similar situation – particularly if that was more closely defined so as to include only people living there on a permanent or semi-permanent basis.

At the time Miss Khorasandjian was being harassed, there was really no other way to protect her. Coincidentally, in the same year as Hunter was decided, the Protection from Harassment Act 1997 was enacted. That said, this has its limitations (see section 15.6.2), and will not always be useful, though might have applied to the type of behaviour Miss Khorasandjian was putting up with. What she suffered can no longer be termed a 'nuisance' in law – again your opinions on this will depend on what role you see the land torts as having, particularly when considering the role or aims of tort law more generally (see chapter 1).

Page 562

This is the same wording as used in the letter – but taken in a different context might not be so offensive! Answering the first question asked here would require you to think about the various factors that are/can be considered when a claimant takes a claim in private nuisance. Would Mr Davey have had legal standing? What was the duration/frequency/intensity of the alleged nuisance? Would the nature of the locality have affected the claim etc?

As to whether the outcome of the case would have bettered the relationship – the answer to this seems quite clear! But would a legal action by Davey have had any better effect?

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