civil liability: lesson 14 - 20

Question 1

Lesson one

what does the law of nuisance deal with?

Answer 1

deals with the violation of a person’s right to reasonable convience & comfort in life

Question 2

Lesson one

what are the two types of nuisance?

Answer 2

• private nuisance
  &
• public nuisance

Question 3

Lesson one

what is private nuisance?

Answer 3

when an act or omission substantially & unreasonably interferes w/ a person’s use & enjoyment of their own land

Question 4

Lesson one

what is public nuisance?

Answer 4

when, to a considerable degree, an act or omission interferes w/ the comfort or convience of a no. of ppl

Question 5

Lesson one

to have an action for public nuisance what does an affected person need to show?

Answer 5

show that they have suffered ‘special damage’ that extends beyond what may have been experienced by other members of the public

Question 6

Lesson one

what is the tort of nusiance designed to protect the right of?

Answer 6

• right to enjoy one’s own land. others cannot interfere w/ access to, or enjoyment of private land
• right to freedom of movement
• right to seek an appropriate remedy from the courts where nuisance has occurred (e.g. injunction)

Question 7

Lesson one

in a case of nuisance what elements must the plaintiff est?

Answer 7

• the plaintiff had property right in, or over the land
• there has been an interference w/ the plaintiff’s use & enjoyment of the land
• the plaintiff has suffered damage

Question 8

Lesson one

what does the element ‘the plaintiff has a property right in, or over the land mean?

Answer 8

• the plaintiff must have an interest in the lan, usually as the owner of the property or a tenant.
• individuals also have the right to access public property

Question 9

Lesson one

what must the plaintiff est for the element ‘interference w/ the plaintiff’s use & enjoyment of the land’?

Answer 9

must est that the defendant interfered w/ the use & enjoyement of the land

Question 10

Lesson one

what can interference include?

Answer 10

• noises
• dust
• vibration
• water run-off
• objects

Question 11

Lesson one

when assessing ‘reasonableness’ what aspects will be considered?

Answer 11

• nature of the interference
• time of day
• ordinary use of land
• ongoing or intermittent

Question 12

Lesson one

what must the plaintiff est for the element, ‘plaintiff has suffered a loss’?

Answer 12

• est that damage which had a negative impact on ones life has been suffered
• damage can be ‘material’ or ‘non-material’ in nature

Question 13

Lesson two

what are the sources of the law of nuisance

Answer 13

• dev through common law
• existed since 13th century, based on protecting against the dev of land
• time progressed & industrialisation unfolded, statute law, foucssing on town development & the zoning of land dev
• environmental law has dev

Question 14

Lesson two

what is the limitation on actions regarding general nuisance claims?

Answer 14

claim can be made 6 yrs from the date on which the action occurred

Question 15

Lesson two

what is the limitation on actions regarding nuisance claims involving injury, disease or disorder?

Answer 15

claim can be made 3 yrs from the date on which the injury was discovered

Question 16

Lesson two

can the plaintiff apply to a court for a time extention regarding a nuisance claim?

Answer 16

• yes, plaintiff can apply to a court for ‘leave’ (permission) to extend a limitation period.
• the application must be considered ‘fair & reasonable’

Question 17

Lesso two

what are the impacts of nuisance on the plaintiff?

Answer 17

• effect on mental health: anxiety / depression
• quality of life: effect a person’s right to enjoy their property
• costs: small business might lose revenue or productivity / legal fees

Question 18

Lesson two

what are the impacts of nuisance on the defendant?

Answer 18

• inconvience: requirement to attend hearings in an attempt to settle the dispute
• costs: awarding of damages & legal costs
• business failure: business might suffer financially w/ an order to minimise the impact of the nuisance

Question 19

Lesson two

what are the three defences to nuisance?

Answer 19

• stautory authorisation
• consent
• reasonable use

Question 20

Lesson two

what is the nuisance defence, statutory authroisation?

Answer 20

• legislation passed by parliament allows the conduct which the plaintiff has claimed constitutes nusiance
• e.g. postal staff; council officers; meter readers; police; major infrastructure project

Question 21

Lesson two

what is the nuisance defence, consent?

Answer 21

it might be argued that the plaintiff gave consent to the activity that allegedly led to injury or loss

Question 22

Lesson two

what is the nuisance defence, reasonable use?

Answer 22

• defendant establish that their use of land was ‘reasonable’
• the court will determine whether a defendant’s use of property accords w/ existing standards & expectations for a property of that type in that location

Question 23

Lesson three

what are the three disinct areas of the tort of trespass?

Answer 23

• trespass to the person
• trespass to goods
• trespass to land

Question 24

Lesson three

what are the three distinct aspects of trespass to the person

Answer 24

• assault
• battery
• false imprisonment

Question 25

# Lesson three what does assault involve?

Answer 25

- a direct threat by a person that places another in reasonable fear on imminent fear - an intentional / reckless / careless threat - action accompianed by words or actions alone can consitute as assault

Question 26

# Lesson three what are the three elements of assault?

Answer 26

- direct threat - reasonable fear - knowledge of threat

Question 27

# Lesson three what is battery?

Answer 27

- a direct act which has the effect of causing contact w/ another w/o consent - contact is intentional / reckelss / careless

Question 28

# Lesson three what are the three elements of battery?

Answer 28

- direct contact - intention - voluntary

Question 29

# Lesson three what does false imprisonment involve?

Answer 29

- the wrongful total restraint of another's liberty - restraint either intentional / reckless / careless - distinct from lawful imprisonment

Question 30

# Lesson three what are the elements of false imprisonment?

Answer 30

- total restraint (no reasonable means of escape) - confining done by defendant - intentional / reckless / careless

Question 31

# Lesson four what is the trespass to goods?

Answer 31

direct interference by one person w/ another person's possession of goods

Question 32

# Lesson four what are the elements of trespass of goods?

Answer 32

- in possession of goods at time of interference - act of interference which was intentional - act of interference was a direct act by the defendant

Question 33

# Lesson four examples of trespass of goods

Answer 33

- smashing the windows of another's car = direct interference w/ that person's good - intentionally locking goods away in a cupboard w/o the knowledge & permission of the owner = direct interference

Question 34

# Lesson four what can the defendant argue in defence to a claim of trespass to goods?

Answer 34

- plaintiff not in possession of goods at the time of alleged trespass - act of interference was unintentional - act of interference was not a direct act by the defendant

Question 35

# Lesson four what is the trespass to land?

Answer 35

direct interference w/o lawful justification w/ another person's possession of land which includies houses, shops, gardens, & paths

Question 36

# Lesson four what are the elements for trespass to land?

Answer 36

- direct physical interference w/ a person's exclusive possession of their land - interference is usually voluntary & intentional or reckelss / careless

Question 37

# Lesson four what does "land" include?

Answer 37

includes everything under the land & over it: - gorund; soil; streams; earth - buildings & structues affixed to the land - mines sunk under the land - things growing on the land - airspace above gorund (to a reasonable height)

Question 38

# Lesson four what can the defendant argue in defence if a claim of trespass to land is made?

Answer 38

- plaintiff was not entitled to exclusive possession of land - plaintiff did not have actual possession of land - act was not intentional - act was involuntary - action was legal, pursuant to legislation (e.g mining exploration; airspace) - plaintiff gave permission