Land based torts Flashcards

1
Q

What are the land based torts?

A

Private nuisance
Public nuisance
The rule in Rylands v Fletcher
Trespass to land.

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2
Q

What is private nuisance?

A

Use of one’s land causes interference with use of another’s land

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3
Q

Who can sue for private nuisance?

A

Anyone with legal interest in the land

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4
Q

Who can be sued for private nuisance?

A
  • Creator of nuisance
  • Occupier of land from which nuisance originates
  • Owner of land
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5
Q

In what situations will an occupier be able to be sued for private nuisance?

A

o Independent contractor – if tasks cause an inevitable nuisance
o Trespassers/visitors/predecessors in title – if they continued/adopted the nuisance (knew/ought to know and fail to take reasonable steps to end it)
o Naturally occurring nuisances – (knew/ought to know and failed to take steps to abate nuisance if fair and reasonable to)

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6
Q

When will an owner of the land be able to be sued for private nuisaance?

A

Authorised it by participating in it, or leasing the property and high probability that leasing the land would cause nuisance

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7
Q

What are the elements of private nuisance?

A

Indirect interference
Recognised damage
Continuous act
Unlawful interference

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8
Q

What are the types of recognised damage for private nuisance?

A

a) Physical damage
b) Sensible personal discomfort

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9
Q

What must physical damage be for private nuisance?

A

more than de minimis

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10
Q

What must sensible personal discomfort be for private nuisance?

A

more than fanciful and materially interfere with ordinary human comfort

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11
Q

What must the recognised damage be for private nuisance?

A

Reasonably foreseeable

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12
Q

What can the claimant also recover in private nuisance?

A

Consequential losses

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13
Q

What can a claimant not claim for in private nuisance?

A

Personal injury

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14
Q

What are the exceptions to the rule that private nuisance must be a continuous act?

A

a) Single incident caused by underlying state of affairs
b) Activity which creates state of affairs giving rise to risk of escape of physically dangerous or damaging material

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15
Q

What does unlawful interference mean for private nuisance?

A

whether activity amounts to unreasonable use of land

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16
Q

What factors are considered when assessing whether interference is unlawful for private nuisance?

A
  • Time and duration
  • Locality (where SPD)
  • Abnormal sensitivity
  • Malice
  • D’s lack of care
  • Excessive behaviour
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17
Q

What may assist the courts in determining whether an interference is unlawful considering the locality?

A

Planning permission

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18
Q

What are the defences to private nuisance?

A

20 years’ prescription
Statutory authority
Specific consent
Contributory negligence
Act of third party
Act of god
Necessity

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19
Q

What is the defence of 20 years prescription for private nuisance?

A

actionable nuisance for 20 years/more + no action taken = D earned right to continue nuisance

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20
Q

What is the defence of statutory authority for private/public nuisance?

A

D’s activity carried out on statutory basis + exercised all due care + nuisance is inevitable consequence of activity

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21
Q

What is the defence of an act of a third party for private/public nuisance?

A

Nuisance created by TP whom D bears no responsibility for, not liable unless they adopt or continue nuisance

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22
Q

What is the defence of an act of god for private/public nuisance?

A

Not liable unless they adopt or continue nuisance

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23
Q

What is not a defence to private nuisance?

A

Moving to the nuisance

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24
Q

What are the remedies for private nuisance and which is the primary remedy?

A

Injunction (primary)
Damages
Abatement

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25
What can an injunction be?
Full or partial
26
What is a partial injunction?
limiting time and frequency
27
When might a partial injunction be awarded?
Public benefit
28
When are damages usually awarded?
causes actual physical damage, cost of repair/renewal can be claimed
29
When will damages usually be awarded in lieu of an injunction?
loss is SPD
30
What factors may assist the court in deciding that an injunction should not be awarded and damages instead?
Public benefit/planning permission
31
What are damages for private nuisance usually based on?
Reduction in value of claimant's property
32
What must happen if a claimant exercises their right to abatement?
- leave anything belonging to defendant on their property - notice unless emergency
33
Who can sue for public nuisance?
a) Local authority b) Attorney general c) Individual
34
When can an individual sue for public nuisance?
need not have interest in land affected but must have suffered ‘special damage’ = over and above the rest of the class or different in kind
35
Who can be sued for public nuisance?
a) Creator of nuisance b) any person who is responsible for the nuisance
36
What are the elements of public nuisance?
Act/omission One off event/continuous Class of her majesty’s subjects Materially affects comfort + convenience
37
What must there be for a class of her majesty's subjects?
common injury (same time/location)
38
What is recoverable for public nuisance?
- property damage - consequential economic loss - personal injury - pure economic loss - inconvenience if material
39
What must the type of loss be for public nuisance?
Reasonably foreseeable
40
What are the defences to public nuisance?
Statutory authority Specific consent Contributory negligence Act of third party Act of god Necessity
41
What are the remedies for public nuisance?
- injunction and/or damages - injunction only if brought by local authority/attorney general
42
Who can sue for the rule in Rylands v Fletcher?
Anyone with proprietary interest in land affected
43
Who can be sued for the rule in Rylands v Fletcher?
person who brings thing onto land and/or anyone who has control over land
44
What type of loss is recoverable for the rule in Rylands v Fletcher?
Property damage and consequential economic loss
45
What are the elements of the rule in Rylands v Fletcher?
- D brings onto land and accumulates - For own purpose, anything likely to do mischief if escapes - Escape - Caused foreseeable harm - Non-natural use of land
46
What are the defences to the rule in Rylands v Fletcher?
Common benefit Act/default of C Statutory authority Act of third party Act of god Contributory negligence Consent
47
What is the defence of common benefit for the rule in Rylands v Fletcher?
Consent implied if substance accumulated for common benefit of C + D
48
What is the defence of an act of a third party for the rule in Rylands v Fletcher?
unforeseeable act of a stranger over whom they had no control
49
What is the defence of an act of god for the rule in Rylands v Fletcher?
escape caused by natural occurrence which could not have been reasonably foreseen
50
What are the remedies to the rule in Rylands v Fletcher and which is most common?
Damages (most common) and injunctions
51
What is an action in trespass?
actionable per se (without proof of damage)
52
Who can sue for trespass?
Anyone with legal interest in land
53
Where the land is demised, when will a landowner be able to sue for trespass rather than the tenant/licensee?
Damage to interest goes beyond term of lease/licence
54
What is the recoverable loss in trespass
Actionable per se (without proof of damage) harm compensated is the unjustifiable interference with C’s land.
55
What are the elements of trespass to land?
Damage and physical interference Intention
56
What are the categories of direct physical interference for trespass
* Entering C’s land * Remaining on C’s land when permission revoked * Doing something not permitted on C’s land * Placing objects on C’s land without permission
57
What must be intended for trespass?
Direct action that results in trespass (need not intend to trespass)
58
What are the defences to trespass?
* Permission * Legal authority * Necessity
59
What are the remedies for trespass?
* Damages * Injunction * Re-entry * Recovery of land * Mense profits
60
What are the damages for trespass?
cost of harm suffered by direct interference
61
When may an injunction be awarded for trespass?
continuing trespass or threatens to repeat trespass (for latter, trespass must be serious in nature)
62
What are the restrictions on re-entry as a remedy to trespass?
Must only use reasonable force
63
What is the recovery of land remedy for trespass?
court order for defendants to be removed
64
What are mesne profits as a remedy for trespass?
wrongfully occupied land and made profit/saved expenditure
65
What is the limitation period for trespass?
6 years from date on which cause of action accrued