Private Nuisance for permitting others to look into private dwellings from their premises.

Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4

The appellant flat owners appealed against a decision of the Court of Appeal upholding their dismissal of their claims in private nuisance against the Tate Art Gallery. In 2016 the gallery opened a 10-storey extension which incorporated a public viewing platform offering panoramic views of London. Open daily, it could accommodate 300 visitors at once and attracted around half-a-million visitors each year. The appellants’ flats were some 30 metres away from the gallery and were at about the same elevation as the viewing platform. Their external walls were constructed mainly from glass, and visitors to the south side of the viewing platform had a direct view into their living areas. A significant number of people peered into the flats, and some took photographs and posted images on social media. The appellants sought an injunction to stop the intrusion or, alternatively, damages. The trial judge dismissed their claim. He found that although intrusive viewing from a neighbouring property could in principle constitute a nuisance, it did not do so in the instant case because the viewing platform was a reasonable use of the gallery’s land and the appellants’ vulnerability to viewing was to some extent self-induced: they had bought glass-walled flats and could lower their blinds or install net curtains. The Court of Appeal found that the judge’s reasoning involved material errors of law. Nevertheless, it dismissed the appeal on the ground that overlooking could not give rise to liability in nuisance.

The Supreme Court highlighted that anything could constitute a private nuisance which materially interfered with the enjoyment of rights in land. It was however a balancing exercise between the conflicting rights of neighbouring landowners. An interference would not be actionable unless it was “unlawful” in the sense that, viewed objectively, it amounted to a substantial interference with the ordinary use of the claimant’s land. In this case, the Supreme Court found that the gallery was liable to the appellants in private nuisance. The fact that the flats were under constant observation and the use of photography was a substantial interference and the invitation to members of the public to look from the land was an exceptional use of the land, not a necessary or ordinary use in operating an art gallery.

You can access the full judgment here

For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact clerks@atlanticchambers.co.uk.

Road traffic accident: Continuing duty to carry out observations when emerging from a minor road into a major road.

Taylor v Raspin [2022] EWCA Civ 1613

A driver had turned right out of a side road onto a main road and into the path of a motorcyclist, who had been travelling along the main road from her left. The motorcycle collided with the front nearside of the car. At the point of collision, the car was travelling at about 5mph and had entered the carriageway along which the motorcyclist was travelling. The judge concluded that the collision was caused by the driver’s negligence. He found that although she had looked right, left and right again before pulling out, she should have looked left again as she moved across the road to join the far carriageway. He found that her failure to do so was causative of the collision. However, he determined that the motorcyclist was also negligent in that he was travelling at an excessive speed and reduced his damages by 45%. On appeal, the court confirmed that the judge did not purport to impose a general duty on a driver to look left for a second time when turning right from a minor road onto a major road, rather found that, in the particular circumstances, the driver should have looked left again before moving into the far carriageway. The appeal court said that the judge was wholly justified in reaching that conclusion on the basis that (i) the driver was pulling out onto a road on which a regular flow of traffic was to be expected (ii)the view to her left was affected by a bend and (iii) the slow speed at which she pulled out increased the need to check for a second time that it was safe to continue. The driver had a duty not to drive to into the path of the motorcyclist, and she breached that duty, being wholly unaware of his presence until the collision occurred. The court also highlighted that too much emphasis was placed on the expert evidence where there were three lay witnesses which was of greater importance.

You can access the full judgment here

For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact clerks@atlanticchambers.co.uk.

One you may have missed.

Secondary Victim Claims: Claimants suffer psychiatric injury after witnessing death or horrific event suffered by a close relative as a result of earlier clinical negligence.

Paul v Royal Northampton NHS Trust [2022] EWCA Civ 12

In three joined cases, the court considered whether the claimants, who it was accepted had sustained psychiatric injury after witnessing the death or other horrific event suffered by a close relative because of an earlier clinical negligence, could claim damages for that psychiatric injury.

The essential feature of each case was that the horrific event, namely the death of the primary victim which (or the immediate aftermath of which) was witnessed by the claimant and caused psychiatric injury, occurred appreciably after the omissions which constituted the Defendants’ negligence.

The court considered the five elements required in Secondary Victim claims as outlined in Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310. The first and second elements were not in dispute in this case and the fourth and fifth elements were not significantly in dispute. The question was how the third requirement for the claimant to be personally present at the scene of the accident, more or less in the immediate vicinity, or to witness the aftermath shortly afterwards was to be interpreted in the context of clinical negligence cases. The Claimants argued that the negligence and horrific event were part of a continuum as in C (A Child) v Walters [2003] 4 Q.R. 15, [2002] 12 WLUK 453 in order to satisfy the third element. The court considered itself bound by Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, which was authority for the proposition that no claim could be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event. All the claims were dismissed. The Court of Appeal acknowledged the lack of logic in respect of this decision but said that it was for the Supreme Court to decide whether to depart from Novo

The full judgment can be accessed here

For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact clerks@atlanticchambers.co.uk.