Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Tort > 12. Nuisance > Flashcards

12. Nuisance Flashcards

1
Q

Purpose of the law of private nuisance

A

to protect an individual in their enjoyment of their own property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Definition of private nuisance

A

unlawful interference with a person’s
use or enjoyment of land, or some right over, or in connection with it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Things the claimant must demonstrate to have a successful case in the tort of private nuisance

A
  1. There is an interference with the claimant’s use and enjoyment of land or some rights they enjoy over it; and
  2. the interference is unlawful
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Three types of ‘interferences’ in private nuisance

A
  1. nuisance by encroachment on a neighbour’s land
  2. nuisance by indirect physical injury to a neighbour’s land
  3. nuisance by interference with a neighbour’s quiet enjoyment of his land
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Characteristics of an interference which is actionable in the tort of private nuisance

A

Something that materially interferes with ordinary comfort (not elegant or dainty modes of living) - ie. loss of a view is not actionable or loss to TV reception

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Definition of ‘unlawful interference’

A

An interference which is substantial and unreasonable (not necessarily criminal)
- eg. encroaching onto a neighbour’s land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Relevant factors when assessing whether an interference is substantial and unreasonable (unlawful)

A
  1. Duration and Frequency (cannot be an isolated incident unless this emanates from a continuing state of affairs on D’s property)
  2. Excessiveness of conduct / extent of the harm (objective)
  3. Character of the neighbourhood
  4. Malice
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

When is ‘the character of the neighbourhood’ a relevant consideration in a private nuisance claim

A

If the claimant has suffered personal discomfort or inconvenience due to the interference (rather than physical damage)
- each area has its own standards (eg. london)
- if the activities cannot be carried out without creating a nuisance they will have to be discounted when assessing the character of locality

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

PN: When will the activities of the defendant NOT be taken into account when assessing the ‘character of the locality’

A
  • if they cannot be carried out without creating a nuisance
  • if they are in breach of planning permission
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

PN: The effect of an activity done with ‘malice’ on the claimant’s case

A

If interference carried out with Malice it will never be regarded as reasonable (satisfying ‘unlawful’ requirement) - likely to tip balance in claimant’s favour

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Does the court take into claimants with ‘abnormal sensitives’ when deciding whether an interference is unlawful?

A

Generally no - the claimant will be judged against the normal user of their land
- BUT if they are successful, they can recover for ALL of their losses even if these losses are greater than those which a ‘normal’ person would incurr

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Who can sue in private nuisance?

A

Those with proprietary interest in land (and therefore the right to exclusive possession of land)
- Owner-occupier
- tenant of land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Who CANNOT sue in private nuisance

A
  1. children of owner-occupiers
  2. anyone else staying in property legally owned by another person as their guest
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Three potential defendants in private nuisance

A
  1. creator of the nuisance
  2. occupier of land from which nuisance originates
  3. the landlord
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

When will ‘the creator of the nuisance’ be liable in PN?

A

Always, even if the land is now occupied by someone else (as they are the original creator)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

When is an ‘occupier of land’ liable for PN?

A
  1. When they have created nuisances by positive acts or omissions
  2. when the nuisance was created by an employee acting in the court of the occupier’s employment
  3. where nuisance created by independent contractor if nature of work carried a special danger of the nuisance
  4. where nuisance is created by a visitor, predecessor in title or trespasser or natural occurrence if occupier has ADOPTED nuisance or CONTINUED it
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

When could an occupier be said to have ‘adopted’ a nuisance?

A

If they make use of the thing which constituted the nuisance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

When could an occupier be said to have ‘continued’ a nuisance?

A

if, once they know or ought reasonably to know of its
existence, they fail to take reasonable steps to end the nuisance.

19
Q

When assessing whether a defendant took reasonable steps to end a nuisance - will they take into account the defendant’s financial resources?

A

YES

20
Q

When will a landlord be liable for a PN claim

A
  1. expressly or impliedly authorised nuisance (ie. nuisance inevitable result of the letting)
  2. Nuisance existed at the start of the letting and landlord knew or ought reasonably to have known of it
  3. landlord has covenanted to repair premises / or has right to enter to do so and fails to make these repairs (giving rise to the nuisance)
21
Q

If a landlord fails to make repairs which they have the right to enter (and do) and therefore a nuisance is created - is the tenant also liable?

A

Yes, potentially as an occupier

22
Q

PN: Types of damage recoverable

A
  1. physical damage to land or buildings
  2. NOT personal injury
  3. interference with quiet enjoyment (personal discomfort)
  4. MAYBE damage to personal property (if they flow as a consequence of personal discomfort caused by nuisance)
  5. Consequential losses flowing from a recoverable damage
23
Q

Effective Defences for a PN Claim

A
  1. Prescription
  2. Statutory Authority
  3. Contributory Negligence
  4. Consent
  5. Act of god or nature
  6. Necessity
24
Q

PN: Defence of prescription requirements

A

if the defendant can show that they have been continuing
the nuisance for a period of at least 20 years against THE CLAIMANT. The effect of prescription
is that the defendant has ‘acquired’ the right to commit the nuisance.

25
Q

PN: Defence of Act of God / Nature

A

Where an interference on the
defendant’s land results from a ‘secret unobservable process of nature’ (eg subsidence under
or near the foundations of the defendant’s house) or from an act of God (eg lightning) then
the defendant will not be liable in nuisance unless they adopt or continue the nuisance.

26
Q

PN: Defence of Necessity (two elements)

A
  1. a situation of necessity exists because of an imminent danger to life and limb (or in limited circumstances, a threat to property); and
  2. the defendant’s actions were reasonable in all the circumstances
27
Q

Ineffective defences in the tort of private nuisance

A
  1. claimant ‘came to the nuisance’ (knew about it)
  2. Public Benefit
  3. Contributory Actions of others
  4. Planning permission was granted (but this will be considered in considering the character of the neighbourhood)
28
Q

PN Claim: Principal Remedies

A
  1. Damages
  2. Injunction
  3. Abatement (self help)
29
Q

PN Claim: Damages

A

Damages will be awarded for any loss which the claimant has already suffered by the date of trial
- the court also has limited power to award damages for future loss

30
Q

PN: Damages assessed for physical damage to claimant’s land

A

a claimant will generally be awarded damages to reflect the cost of repairing
the damage or, if this is not possible, the loss in value of the land in question.

31
Q

PN: Damages assessment for personal discomfort

A

it was suggested that personal
discomfort should be valued by looking at the loss of amenity value of the land in question - but this is difficult to assess

32
Q

PN Claim: Can damages AND injunction both be pursued as remedies?

A

Yes - if court decides not to grant damages in lieu of injunction (which would cover future breaches)

33
Q

Quia Timet Injunction Definition

A

Exceptional Circumstances: court grants injunction (prohibitory or mandatory) in anticipation of the commission of the tort

34
Q

Requirements a claimant must show to be granted a quia timet injunction

A

Claimant:
1. are almost certain to incur damage without the injunction
2. such damage is imminent
3. the defendant will NOT stop their course of conduct without the order of the court

35
Q

PN: When should the court exercise its discretion to refuse an injunction and grant damages instead

A
  1. the harm suffered by the applicant is
    - small
    - capable of being quantified in financial terms and
    - capable of adequate compensation by damages AND
  2. it would be oppressive to the defendant to grant the injunction

BUT court may still refuse to grant an injunction if these are NOT satisfied (as it is up to their discretion) - public interest may be a consideration and planning permission

36
Q

Definition of Abatement

A

The removal of the interference by the victim

37
Q

Requirements for abatement (notice?)

A
  • victim must normally give notice except in an emergency OR where nuisance cannot be removed without entering wrongdoer’s land
38
Q

Tort of Rylands v Fletcher

A
  1. the defendant brings onto their land for their own purposes something likely to do mischief
  2. if it escapes
  3. which represents a non-natural use of land
  4. and it causes foreseeable damage of the relevant type
39
Q

RvF: What must happen to the ‘things likely to do mischief’ to give rise to a successful claim

A

The things themselves must actual escape (they cannot just cause an issue from the defendant’s land)

40
Q

RvF: Defences

A
  1. Escape caused by the unforeseeable act of a stranger
  2. escape caused by an ‘act of god’ which could not have been reasonably foreseen
  3. statutory authority
  4. consent
  5. contributory negligence
41
Q

Public Nuisance: Crime or Tort

A

Both

42
Q

When does public nuisance give rise to tortious liability

A
  1. conduct that materially affects the reasonable comfort and convenience of a ‘class of Her
    Majesty’s subjects’; and
  2. the claimant has suffered particular harm.
43
Q

‘Harm’ in public nuisance

A
  1. Property Damage
  2. Loss of profit
  3. Personal Injury **

Tort (12 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions