Land based torts Flashcards
What is a private nuisance?
The basis is the use of one’s land that causes an interference with the use or enjoyment of another land.
Private nuisance: any continuous activity or state causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.
Who can sue in private nuisance?
- Claimant must have a legal interest in the lawn (either possessionary or proprietary interest) cannot just have permission to use the land
- In Hunter v Canary wharf – many claims failed because many people did not have a legal interest in the land.
Who can be sued in private nuisance?
- Creator of nuisance - even if they are not in a position to end the nuisance
- Occupier of the land from which nuisance originates
- Usually this. An occupier is not normally caused by others but may be held liable when:
- Independent contractors -building work does not normally from basis of private nuisance but if it’s known to cause an inevitable nuisance there will be liability.
- Trespassers – occupier will still be liable if they continued or adopted the nuisance.
- Naturally occurring nuisance – if they ought to have known of a danger and failed to take reasonable steps to abate the nuisance.
- Owner of the land (landlord)
- Coventry v Lawrence 2014 – landlord can only be liable if they authorised it
Private nuisance elements?
Indirect interefence - sounds, smells, vibrations
Recognised damage (loss)
Types recoverable are
- Physical damage
- Sensible personal discomfort – if unable to enjoy because of odours. So, amenity damage.
- Must be reasonably foreseeable
- Cannot claim for personal injury.
continuous act
- General rule is that the nuisance must be continuous.
- EXCEPTIONS:
- A single incident caused by an underlying state of affairs
Unlawful interference
So much be unreasonable
Factors
Locality - ONLY FOR SENSIBLE DISCOMFORT NOT FOR PHYSICAL DAMAGE
Time and duration - cannot claim for an normal sensitivity unless a normal person would have also suffered it but it was simply increased for the claimant.
Malice
Defendants lack of care
- State of affair creating risk of escape of physically dangerous or damaging material –
Excessive behaviour
Defences to private nuisance?
PLANNING PERMISISON IS NOT AN AUTHROITY FOR PRIVATE NUISANCE
20 years prescription
- If defendants’ activity has been an actionable nuisance for 20 years or more and no action taken then defendant has earned right to commit the nuisance. Does NOT have to be continuous throughout the 20 years. Unless it has been increased.
Statutory authority
- Escape liability if they have exercised all due care and the nuisance is inevitable consequence of the statutory prescribed activity
Contributory negligence
Acts of a third party
- If created a by a third party for whom defendant bears no responsibility
Act of God
Necessity
Remedies for private nuisance?
Injunction
Damages - - If nuisance caused physical damage – the cost of repair or renewal can be claimed which ever is lower. Defendant needs to put forward the argument as to why an injunction should not be granted.
- If public benefit outweighs the effect on claimant
Abatement
- - Self help remedy where claimant acts to stop the nuisance – may in reasonable situations take steps on someone else’s land to stop nuisance continuing
What is a public nuisance?
An act or omission is a public nuisance if its effect is sufficiently widespread.
It’s a crime, but occasionally it’s a tort.
Who can sue in public nuisance?
A local authority – can also sue in its own name to protect inhabitants of its area
Attorney general – can bring a claim on behalf of a class in their name.
An individual – claimant need not have an interest in the land affected. But can only sue if they can show they have suffered special damage.
Elements of a public nuisance?
Elements of public nuisance
Act or omission
- Liability is for both
One off event or continuous
- Can be one off
Class of her majesty’s subjects
- Sufficiently widespread, no number.
Materially affects comfort and convenience
- Includes property damages, and consequential economic loss.
- Personal injury too
- Also claim for inconvenience if it is material.
What is the rule in Ryland v Fletcher?
FOR PRIVATE NUISANCE
True to rule of law that the person for his own purposes brings on his land and collects and keeps there anything likely to do mischief, if it escapes prima facie answerable for all damages that is a natural consequence of the escape.
IT CAN BE AN ISOLATED INCIDENCE.
Elements of rule in rylands v fletcher?
Loss that can sue
Property damage and consequential economic loss
Elements
Defendant brings on land
For their own purpose anything likely to do mischief if it escapes
- Examples include water, acid and explosives
Escape
- The water escaped onto neighbour’s land
Escape caused foreseeable harm
- If escaped cause damage
Non natural use of land- non ordinary use
Defences to rule in rylands v fletcher?
Common benefit
- If claimant agreed to accumulation of material by defendant, then no liability. Consent can be implied.
Acts or default of the claimant
Statutory authority
Acts of third party
- If the escape occurred through unforeseeable act of a stranger over whom they had no control
What is trespass to land and who can sue?
Who can sue
- Claimant must have a legal interest in land, possesionary or proprietary interest. Claimant could be tenant, or licensee in possession.
Loss or damage
- Actionable – does not require any actual damage
Elements of tresspass?
Elements
Direct and physical interference
- Entering claimant’s land
- remaining on claimant’s land when permission has been revoked
- Doing something that is not permitted on claimant’s land
- Placing objects on claimant’s land without permission
Intention
- Must intend the direct action, need not intend the trespass
Defence
* Permission
* Legal authority
* Necessity
Remedies
Damages or injunction
LIMITATIONS– must be brought within 6 years from date of action occurred
Defences for public nuisance?
SAME AS PRIVATE EXCEPT FOR PRESCIRPTION.
