Land Based Tort Flashcards
Private nuisance definition
Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land
Private nuisance - who can sue
C must have a legal interest in the land
Private nuisance - who can be sued
- Creator of the nuisance
- Occupier of the land (may also be liable for the work of independent contractors (if their work will cause inevitable nusiance) and trespassers (if they continue or adopt the nuisance)
- owner/LL of the land ONLY if they authorised it by actively participating in the nuisance or by leasing the property in circumstnaces where there was a very high degree of probability that leasing the land would result in that specific nuisnace being created
Private nuisance - elements
- Indirect interference
- Recognised damage
- Continuous act
- Unlawful interference
What is considered Indirect Interference?
Sounds/smells, fumes, and vibrations that cause damage to some aspect of the claimant’s use or enjoyment of the land, rather than direct interference.
What are the recgonised types of damage?
Physical damage to property.
Sensible personal discomfort (SPD).
Consequential economic loss.
NB NOT personal injury and PEL
Can a single incident be actionable in Private Nuisance?
Generally not, unless:
A single incident is caused by an underlying state of affairs.
An activity creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material (such as an out-of-control fireworks show).
What factors are considered to establish whether there is unlawful interference (unreasonable use of land)
- Time and Duration.
- Locality (relevant only for SPD).
- Abnormal Sensitivity.
A claimant who is abnormally sensitive cannot claim activities that would not interfere with an ordinary occupier are a nuisance.
If the reasonable occupier would be affected, the claimant can claim for the full extent of their loss and irritation, even though these are increased by their sensitivity.
- Malice.
If actions do not have a legitimate reason and the aim is solely to annoy, this will normally constitute a nuisance. - Lack of Care.
- Excessive Behaviour.
- Public Benefit.
Limited weight.
What are the defences available for private nuisance?
- 20 years prescription
- Statutory authority - Can escape liability if they have exercised all due care and the nuisance is an inevitable consequence.
- Consent
- Cont neg
- Act of 3P - Unless the defendant adopts or continues a nuisance made by a third party.
- Act of God - Unless the defendant adopts or continues a nuisance.
- Necessity.
moving to the nusiance is not a defence!
What is the primary remedy for private nuisance
Injunction - full or partial (more likely if there is a public benefit)
When can damages be claimed for private nuisance
- Where there is actual physical damage, the cost of repair/renewal can be claimed.
-Consequential Economic Loss.
-Damages can be awarded in lieu of an injunction for SPD.
Primarily based on the reduction in the value of the claimant’s property.
When there is a public interest exception – damages instead of injunction.
What is abatement?
Another remedy for private nuisnace.
Public nuisance - definition
acts or omissions which materially affect the reasonable comfrot and convenience of life or a class of his Majesty’s subjects
Public nuisance - who can sue?
- Local authority (in its own name or on behalf of inhabitants of the area)
- AG if no individual action is possible or forthcoming
- An individual who has suffered over and above the rest of the class, or in a different way to the rest of the class
Public nuisance - who can be sued
the creator of the nuisance
Public nuisance - elements
- Act or omission
- One off or continuous
- Class of His Majesty’s subjects
- Materially affects comfort and convenience
Definition of a class of his Majesty’s subjects
Must be sufficiently widespread, and suffer a common injury
Materially affects the comfort and convenience - recgonised losses
- Property damage
- CEL
- Personal injury
- PEL
- Inconvenience - must be material
all losses must be reasonably foreseeable
Public nuisance - defences
Same as for Priv Nuisance BUT no prescription
Public nuisance - remedies
Injunction and damages
- if the AG brings the claim, the only available remedy is an injunction
Rylands v Fletcher - who can sue
Anyone with a proprietary interest in the land affected (this is a sub-species of priv nusiance)
R v F - who can be sued
- the creator of the nuisance
- and/or the occupier of the land
R v F - recoverable losses
- Property damage
- CEL
R v F - elements
- D brings on to the land and accumulates there
- for their own purpose, something likely to do mischief if it escapes
- it escapes
the escape causes
foreseeable harm - non-natural use of the land
R v F - defences
Same as private nusiance plus:
- common benefit (type of consent)
- act or default of the claimant
- statutory authority
- act of 3P
- act of God
R v F - remedies
Damages most likely (property damage only), injunction also possible
