civil liability: lesson 14 - 20 Flashcards
Lesson one
what does the law of nuisance deal with?
deals with the violation of a person’s right to reasonable convience & comfort in life
Lesson one
what are the two types of nuisance?
- private nuisance
& - public nuisance
Lesson one
what is private nuisance?
when an act or omission substantially & unreasonably interferes w/ a person’s use & enjoyment of their own land
Lesson one
what is public nuisance?
when, to a considerable degree, an act or omission interferes w/ the comfort or convience of a no. of ppl
Lesson one
to have an action for public nuisance what does an affected person need to show?
show that they have suffered ‘special damage’ that extends beyond what may have been experienced by other members of the public
Lesson one
what is the tort of nusiance designed to protect the right of?
- 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)
Lesson one
in a case of nuisance what elements must the plaintiff est?
- 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
Lesson one
what does the element ‘the plaintiff has a property right in, or over the land mean?
- 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
Lesson one
what must the plaintiff est for the element ‘interference w/ the plaintiff’s use & enjoyment of the land’?
must est that the defendant interfered w/ the use & enjoyement of the land
Lesson one
what can interference include?
- noises
- dust
- vibration
- water run-off
- objects
Lesson one
when assessing ‘reasonableness’ what aspects will be considered?
- nature of the interference
- time of day
- ordinary use of land
- ongoing or intermittent
Lesson one
what must the plaintiff est for the element, ‘plaintiff has suffered a loss’?
- est that damage which had a negative impact on ones life has been suffered
- damage can be ‘material’ or ‘non-material’ in nature
Lesson two
what are the sources of the law of nuisance
- 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
Lesson two
what is the limitation on actions regarding general nuisance claims?
claim can be made 6 yrs from the date on which the action occurred
Lesson two
what is the limitation on actions regarding nuisance claims involving injury, disease or disorder?
claim can be made 3 yrs from the date on which the injury was discovered
Lesson two
can the plaintiff apply to a court for a time extention regarding a nuisance claim?
- yes, plaintiff can apply to a court for ‘leave’ (permission) to extend a limitation period.
- the application must be considered ‘fair & reasonable’
Lesso two
what are the impacts of nuisance on the plaintiff?
- 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
Lesson two
what are the impacts of nuisance on the defendant?
- 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
Lesson two
what are the three defences to nuisance?
- stautory authorisation
- consent
- reasonable use
Lesson two
what is the nuisance defence, statutory authroisation?
- 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
Lesson two
what is the nuisance defence, consent?
it might be argued that the plaintiff gave consent to the activity that allegedly led to injury or loss
Lesson two
what is the nuisance defence, reasonable use?
- 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
Lesson three
what are the three disinct areas of the tort of trespass?
- trespass to the person
- trespass to goods
- trespass to land
Lesson three
what are the three distinct aspects of trespass to the person
- assault
- battery
- false imprisonment
Lesson three
what does assault involve?
- 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
Lesson three
what are the three elements of assault?
- direct threat
- reasonable fear
- knowledge of threat
Lesson three
what is battery?
- a direct act which has the effect of causing contact w/ another w/o consent
- contact is intentional / reckelss / careless
Lesson three
what are the three elements of battery?
- direct contact
- intention
- voluntary
Lesson three
what does false imprisonment involve?
- the wrongful total restraint of another’s liberty
- restraint either intentional / reckless / careless
- distinct from lawful imprisonment
Lesson three
what are the elements of false imprisonment?
- total restraint (no reasonable means of escape)
- confining done by defendant
- intentional / reckless / careless
Lesson four
what is the trespass to goods?
direct interference by one person w/ another person’s possession of goods
Lesson four
what are the elements of trespass of goods?
- in possession of goods at time of interference
- act of interference which was intentional
- act of interference was a direct act by the defendant
Lesson four
examples of trespass of goods
- 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
Lesson four
what can the defendant argue in defence to a claim of trespass to goods?
- 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
Lesson four
what is the trespass to land?
direct interference w/o lawful justification w/ another person’s possession of land which includies houses, shops, gardens, & paths
Lesson four
what are the elements for trespass to land?
- direct physical interference w/ a person’s exclusive possession of their land
- interference is usually voluntary & intentional or reckelss / careless
Lesson four
what does “land” include?
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)
Lesson four
what can the defendant argue in defence if a claim of trespass to land is made?
- 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
