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Legal Studies > civil liability: lesson 14 - 20 > Flashcards

civil liability: lesson 14 - 20 Flashcards

1
Q

Lesson one

what does the law of nuisance deal with?

A

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

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2
Q

Lesson one

what are the two types of nuisance?

A
  • private nuisance
    &
  • public nuisance
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3
Q

Lesson one

what is private nuisance?

A

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

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4
Q

Lesson one

what is public nuisance?

A

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

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5
Q

Lesson one

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

A

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

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6
Q

Lesson one

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

A
  • 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)
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7
Q

Lesson one

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

A
  • 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
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8
Q

Lesson one

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

A
  • 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
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9
Q

Lesson one

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

A

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

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10
Q

Lesson one

what can interference include?

A
  • noises
  • dust
  • vibration
  • water run-off
  • objects
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11
Q

Lesson one

when assessing ‘reasonableness’ what aspects will be considered?

A
  • nature of the interference
  • time of day
  • ordinary use of land
  • ongoing or intermittent
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12
Q

Lesson one

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

A
  • est that damage which had a negative impact on ones life has been suffered
  • damage can be ‘material’ or ‘non-material’ in nature
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13
Q

Lesson two

what are the sources of the law of nuisance

A
  • 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
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14
Q

Lesson two

what is the limitation on actions regarding general nuisance claims?

A

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

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15
Q

Lesson two

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

A

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

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16
Q

Lesson two

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

A
  • yes, plaintiff can apply to a court for ‘leave’ (permission) to extend a limitation period.
  • the application must be considered ‘fair & reasonable’
17
Q

Lesso two

what are the impacts of nuisance on the plaintiff?

A
  • 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
18
Q

Lesson two

what are the impacts of nuisance on the defendant?

A
  • 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
19
Q

Lesson two

what are the three defences to nuisance?

A
  • stautory authorisation
  • consent
  • reasonable use
20
Q

Lesson two

what is the nuisance defence, statutory authroisation?

A
  • 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
21
Q

Lesson two

what is the nuisance defence, consent?

A

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

22
Q

Lesson two

what is the nuisance defence, reasonable use?

A
  • 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
23
Q

Lesson three

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

A
  • trespass to the person
  • trespass to goods
  • trespass to land
24
Q

Lesson three

what are the three distinct aspects of trespass to the person

A
  • assault
  • battery
  • false imprisonment
25
Q

Lesson three

what does assault involve?

A
  • 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
26
Q

Lesson three

what are the three elements of assault?

A
  • direct threat
  • reasonable fear
  • knowledge of threat
27
Q

Lesson three

what is battery?

A
  • a direct act which has the effect of causing contact w/ another w/o consent
  • contact is intentional / reckelss / careless
28
Q

Lesson three

what are the three elements of battery?

A
  • direct contact
  • intention
  • voluntary
29
Q

Lesson three

what does false imprisonment involve?

A
  • the wrongful total restraint of another’s liberty
  • restraint either intentional / reckless / careless
  • distinct from lawful imprisonment
30
Q

Lesson three

what are the elements of false imprisonment?

A
  • total restraint (no reasonable means of escape)
  • confining done by defendant
  • intentional / reckless / careless
31
Q

Lesson four

what is the trespass to goods?

A

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

32
Q

Lesson four

what are the elements of trespass of goods?

A
  • in possession of goods at time of interference
  • act of interference which was intentional
  • act of interference was a direct act by the defendant
33
Q

Lesson four

examples of trespass of goods

A
  • 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
34
Q

Lesson four

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

A
  • 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
35
Q

Lesson four

what is the trespass to land?

A

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

36
Q

Lesson four

what are the elements for trespass to land?

A
  • direct physical interference w/ a person’s exclusive possession of their land
  • interference is usually voluntary & intentional or reckelss / careless
37
Q

Lesson four

what does “land” include?

A

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)

38
Q

Lesson four

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

A
  • 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

Legal Studies (9 decks)

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