"... to make sure that you, the people who live with you and your visitors:
"... [the Council] views any form of racial harassment as a serious offence and we will take action against anyone who harasses others."
"Has failed to cause the nuisance and acts of violence towards the Plaintiffs to cease.
"Within the limits of any restriction whether financial or otherwise imposed by the County Council take such precautions for the protection of the public and private interests as would be incumbent upon them if the District Council were the principal authority and subject thereto the County Council shall indemnify the District Council against all claims for damages and compensation arising out of the exercise of the said functions which may be brought against the District Council."
"(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.
"(i) The power to provide housing accommodation under Part II of the 1985 Act.
"(1) A landlord (or at least a local authority landlord) who knows or ought to know of a nuisance being committed by his tenant in the neighbourhood of the demised premises but who fails to take such steps as are reasonable in all the circumstances and within a reasonable time to control or prevent the nuisance may thereby be held to have caused, continued or adopted that nuisance. So the landlord may be liable to any other tenant or neighbour who suffers damage because of the nuisance.
"Now if this proposition is understood as relating to a general duty to take reasonable care not to cause damage to premises in the neighbourhood (as I believe that the Lord President intended it to be understood) then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party's own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third parties from causing such damage. The point is expressed very clearly in Hart and Honore, Causation in the Law 2nd ed. (1985), when the authors state, at pp. 196-197:
"There is another basis upon which a defender may be held liable for damage to neighbouring property caused by a fire started on his (the defender's) property by the deliberate wrongdoing of a third party. This arises where he has knowledge or means of knowledge that a third party has created or is creating a risk of fire, or indeed has started a fire, on his premises, and then fails to take such steps as are reasonably open to him (in the limited sense explained by Lord Wilberforce in Goldman v. Hargrave[1967] 1 AC 645 , 663-664) to prevent any such fire from damaging neighbouring property. If, for example an occupier of property has knowledge, or means of knowledge, that intruders are in the habit of trespassing upon his property and starting fires there, thereby creating a risk that fire may spread to and damage neighbouring property, a duty to take reasonable steps to prevent such damage may be held to fall upon him. He could, for example, take reasonable steps to keep the intruders out. He could also inform the police; or he could warn his neighbours and invite their assistance; If the defender is a person of substantial means, for example a large public company, he might even be expected to employ some agency to keep a watch on the premises. What is reasonably required would, of course, depend on the particular facts of the case. I observe that in Goldman v. Hargrave , such liability was held to sound in nuisance; but it is difficult to believe that, in this respect, there can be any material distinction between liability in nuisance and liability in negligence."
"It is established beyond question that the person to be sued in nuisance is the occupier of the property from which the nuisance emanates. In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance: Harris v. James (1876) 35 L.T. 240. But this exception has, in the reported cases, been rigidly confined to circumstances in which the nuisance has either been expressly authorised or is certain to result from the purposes for which the property is let: Rich v. Basterfield (1847) 4 C.B. 783 and Avers v. Hanson Stanley & Prince (1912) 56 S.J. 735; and see generally Clerk & Lindsell on Torts 13th ed. (1969), p. 805, para. 1426; Salmond on the Law of Torts, 15th ed. (1969), p.89 and Winfield and Jolowicz on Tort, 9th ed. (1971), p.348. I have used the word ´certain' but ´certainty' is obviously a very difficult matter to establish. It may be that, as one of the textbooks suggests, the proper test in this connection is ´virtual certainty' which is another way of saying a very high degree of probability, but the authorities are not, I venture to think, altogether satisfactory in this respect. Whatever the precise test may be, it would, I think, be impossible to apply the exception to the present case. The exception is squarely based in the reported cases on express or implied authority: see in particular the judgment of Blackburn J. in Harris v. James , 35 L.T. 240. 241. The exception is not based on cause and probable result, apart from express or implied authority. In the present case, the corporation let No. 25, Walpole Road to the Scotts as a dwelling house on conditions of tenancy which expressly prohibited the committing of a nuisance, and, notwithstanding that the corporation knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the corporation impliedly authorised the nuisance.
"Landlord's liability in other cases. The owner is liable if he has let the premises to a tenant for the purpose of doing an act likely to cause a nuisance, for example burning lime, if he has authorised his tenant to do an act which is likely to cause a nuisance, or if he has let the premises with a nuisance on them. On the other hand, "If a landlord lets premises, not in themselves a nuisance, but which may or may not be used by the tenant so as to become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are used or not, the landlord cannot be made responsible for the acts of the tenant. Where the owner is liable, that does not relieve the occupier from liability."
"It is quite a novel doctrine to me that permission by a lessee to use demised premises for a purpose which may or may not involve or create a nuisance is a wrong act on the part of the landlord, and that the landlord can be rendered liable merely because a person does carry on that business in such a manner as to create a nuisance. It would be different, of course, if it were let for a purpose which necessarily involved a nuisance, but this letting did not necessarily involve a nuisance. That is quite plain from the plaintiff's own evidence. He says there was no ground for complaint until the Dents came into possession. Then it is said, Oh, but you knew of it and you have been receiving the rent from Castiglione, which he could not have paid unless he got it from the Dents, and therefore you knew the business was being carried on, and that would amount to consent or assent - it is put both ways - to what was done, and rendered you, Eichholz, an active participator in the nuisance which was being carried on. That proposition, to my mind, has only to be stated to show how fallacious it is. It cannot be that a landlord who according to the settled authorities is not bound to commence any legal proceedings to abate a nuisance is in this position, that unless he does commence those proceedings he cannot recover any rent, or if he does receive the rent he is to be taken to have sanctioned everything that the wrongdoer has done."
"The forms which nuisance may take are protean. Certain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which have been held to be nuisances. But where, as here, a plaintiff is damaged by his land being flooded, the facts bring it well within the sphere of nuisance. Such a case has a certain similarity with those to which the rule of Rylands v. Fletcher applies, but there are obvious differences in substance. There are indeed well marked differences between the two juristic concepts. This case has therefore properly been treated as a case of nuisance. It has affinity also with a claim for negligence, because the trouble arose from the negligent fitting of the grid. But the gist of the present action is the unreasonable and unjustified interference by the defendant in the user of his land with the plaintiff's right to enjoy his property. Negligence, moreover, is not a necessary condition of a claim for nuisance. What is done may be done deliberately, and in good faith and in a genuine belief that it is justified. Negligence here is not an independent cause of action but is ancillary to the actual cause of action, which is nuisance."
"Such a liability is, I think, inconsistent with the contention that the occupier is not liable for the acts of a trespasser of which he has knowledge, though possibly it might be contended that he is responsible for the acts of his predecessor in title but not for those of a trespasser. However this may be, the true view is, I think, that the occupier of land is liable for a nuisance existing on his property to the extent that he can reasonably abate it, even though he neither created it nor received any benefit from it. It is enough if he permitted it to continue after he knew or ought to have known of its existence. To this extent, but to no greater extent, he must be proved to have adopted the act of the creator of the nuisance."
"The term ´nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land."
"D owes P a duty to take reasonable care to avoid causing damage to his property. The duty is not one to manage a business well, or to operate an efficient factory: it is to avoid damage to land. There are only a few very particular situations where no such duty attaches to the conduct of D. The cases usually treat the matter as one of negligence though nuisance is often referred to and may sometimes be the preferred head of liability ............
" Smith v. Scott[1973] Ch.314 was essentially a claim brought against a local authority on the basis that as landlords they expressly or impliedly authorised the nuisance complained of, Sedleigh-Denfield v. O'Callaghan (supra) does not appear to have been cited nor, apparently, was any point taken that the non-enforcement by the council of their covenant against the commission of a nuisance by their tenant could have resulted in their adopting his tortious behaviour."
"Next, Mr. Wood submits that the conduct complained of must emanate from the demised premises. He points out that most nuisances consist of unreasonable use by an occupier, and so such a limitation should be read into the Act.
"The council require protection, in this respect, not because the conduct is a direct cause of nuisance or annoyance to them in their own enjoyment of neighbouring property or because the conduct damages their interest in the reversion of the demised premises, but because, whether reasonably or unreasonably - but, in my view, incontrovertibly - those who live or work on a council estate and are affected by the conduct of council tenants on that estate will expect the council to do something about it. The housing department will receive complaints which will have to be addressed. That will take management time and will cost money. Further, the council will find it that much the more difficult to relocate other applicants in need of housing into properties on an estate which is perceived to be out of control....
"It was the manner in which this pawnbroker's business was carried on that caused the main difficulties to the Davies. Their windows on to the mall were obstructed so you could not see into the pawnbroker and thus no light from them came out on to the passage. More importantly, entry to the premises was restricted to one customer at a time, on the door being unlocked for him. For this reason, potential customers (who by the fact they found it necessary to go there, would not be likely to have money to spend on the sort of items the defendant sold) would wait in the passage, occasionally sitting at the coffee house's tables while waiting or entering Miss Davies' shop. The largest number waiting at any time was 10 and numbers up to six were not uncommon. These groups of young men waiting had a deterrent effect on people who might otherwise have used the mall as a pedestrian way and on people who might have window shopped. It meant that effectively there was no passing trade at all. Miss Davies said:"
"The central point to be got from the circumstances surrounding the lease at the time that Mr. Davies took it was that what the landlords were marketing was not just a separate and independent retail unit, but such a shop in its place in a shopping arcade or (in the modern usage) mall. That was the ´particular purpose for which the land was hired'. The lease makes that clear. The mall was described in the lease as being ´the Centre', the common parts (including the passages required for access and the cloakrooms) were defined and kept within the responsibility of the landlords, who were entitled to charge a service charge therefore. It was implicit in the form of the lease that other tenants would be subject to similar forms of lease, as the pawnbroker was. All tenants were obliged to keep open during shop opening hours. They could not, without the landlords' consent, make any alterations or additions to the property. They could not use the property for ´any use ... similar to any other use for the time being permitted in any other part ... of the Centre'. There was a covenant restraining tenants from committing a nuisance. They could not obstruct the windows without consent. The landlords retained a rule-making power for better use of the centre and, in particular, the common parts and the power to make the tenants obey such rules. It was plain from the surrounding circumstances that the uses to which other units were put, the manner in which other tenants carried on their business and the impact of those matters on the user of the common parts, could have a great influence both on the business of the individual tenants and on the success of the development itself ....
"Where a landlord is granting leases in his shopping mall, over which he has maintained control, and charged a service charge therefor, it is simply no answer to say that a tenant's sole protection is his own ability and willingness to bring his individual action. Litigation is too expensive, too uncertain and offers no proper protection against, say, trespassing and threatening members of the public. The duty to act should lie with the landlord.
"In the case of a mere statutory power, there is the further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power, a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory ´may' can never give rise to a common law duty of care. I prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer's statement of principle in the East Suffolk case and I shall go on to consider the circumstances (such as ´general reliance') in which it has been suggested that such a duty might arise. But the fact that Parliament has conferred a discretion must be some indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions will be rare.
".... five plaintiffs , who were born between 1982 and 1990, claimed damages for personal injury arising out of breach of statutory duty and negligence by the defendant council. By their statement of claim the plaintiffs alleged that between 1987 and 1992 they had suffered parental abuse and neglect; that the council had received serious reports of such treatment but had failed to investigate the matter adequately or protect the plaintiffs from further harm; in particular, that prior to October 1991 the council had failed to exercise its powers to institute care proceedings under theChildren and Young Persons Act 1969 and theChild Care Act 1980 and thereafter, on the coming into force of theChildren Act 1989 , had failed to exercise their statutory duties to identify children in their area who were in need and to take measures to protect them from harm."
"Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability.
"From these authorities I understand the applicable principles to be as follows. Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion; nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist."
"To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty. In neither of those cases had it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer: see Hill v. Chief Constable of West Yorkshire[1989] AC 53 and Yuen Kun Yeu v. Attorney-General of Hong Kong[1988] AC 175 . In the latter case, the Privy Council whilst not deciding the point said, at p.198, that there was much force in the argument that if the regulators had been held liable in that case the principles leading to such liability ´would surely be equally applicable to a wide range of regulatory agencies, not only in the financial field, but also, for example, to the factory inspectorate and social workers, to name only a few.' In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."
"In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."
"It may sometimes be appropriate, where proceedings to strike out have reached this House on appeal and have been fully argued, to relax the rigour of these criteria in exceptional circumstances: see, for example Williams and Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd.[1986] AC 368 . But here the only possible reason for departing from the application of the ordinary tests would be if the House were satisfied that it was possible to distil from the pleadings a clearly defined issue of law which it would have been appropriate to determine as a preliminary question if the correct procedure to that end had been followed and which can be answered in a way which disposes of the action. But here it is important to remember how frequently the House has protested, where parties have agreed the terms of a preliminary question of law, at being required to answer difficult questions of law on hypothetical and disputed facts stated in general terms. In the course of the argument, counsel for the appellants were invited to formulate the terms of any question of law which they were able to submit would have been appropriate for preliminary determination, but I do not believe that any of the formulations suggested would have been accepted as appropriate for preliminary determination if a contested application had come before the court under Ord. 33 r.3. In a passage which seems to me peculiarly apt to the circumstances of this case, Lord Wilberforce said in Allen v. Gulf Oil Refining Ltd.[1981] AC 1001 , 1010 - 1011: