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Tort > Land based torts > Flashcards

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
Q

What can an injunction be?

A

Full or partial

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26
Q

What is a partial injunction?

A

limiting time and frequency

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27
Q

When might a partial injunction be awarded?

A

Public benefit

28
Q

When are damages usually awarded?

A

causes actual physical damage, cost of repair/renewal can be claimed

29
Q

When will damages usually be awarded in lieu of an injunction?

A

loss is SPD

30
Q

What factors may assist the court in deciding that an injunction should not be awarded and damages instead?

A

Public benefit/planning permission

31
Q

What are damages for private nuisance usually based on?

A

Reduction in value of claimant’s property

32
Q

What must happen if a claimant exercises their right to abatement?

A
  • leave anything belonging to defendant on their property
  • notice unless emergency
33
Q

Who can sue for public nuisance?

A

a) Local authority
b) Attorney general
c) Individual

34
Q

When can an individual sue for public nuisance?

A

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
Q

Who can be sued for public nuisance?

A

a) Creator of nuisance
b) any person who is responsible for the nuisance

36
Q

What are the elements of public nuisance?

A

Act/omission
One off event/continuous
Class of her majesty’s subjects
Materially affects comfort + convenience

37
Q

What must there be for a class of her majesty’s subjects?

A

common injury (same time/location)

38
Q

What is recoverable for public nuisance?

A
  • property damage
  • consequential economic loss
  • personal injury
  • pure economic loss
  • inconvenience if material
39
Q

What must the type of loss be for public nuisance?

A

Reasonably foreseeable

40
Q

What are the defences to public nuisance?

A

Statutory authority
Specific consent
Contributory negligence
Act of third party
Act of god
Necessity

41
Q

What are the remedies for public nuisance?

A
  • injunction and/or damages
  • injunction only if brought by local authority/attorney general
42
Q

Who can sue for the rule in Rylands v Fletcher?

A

Anyone with proprietary interest in land affected

43
Q

Who can be sued for the rule in Rylands v Fletcher?

A

person who brings thing onto land and/or anyone who has control over land

44
Q

What type of loss is recoverable for the rule in Rylands v Fletcher?

A

Property damage and consequential economic loss

45
Q

What are the elements of the rule in Rylands v Fletcher?

A
  • 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
Q

What are the defences to the rule in Rylands v Fletcher?

A

Common benefit
Act/default of C
Statutory authority
Act of third party
Act of god
Contributory negligence
Consent

47
Q

What is the defence of common benefit for the rule in Rylands v Fletcher?

A

Consent implied if substance accumulated for common benefit of C + D

48
Q

What is the defence of an act of a third party for the rule in Rylands v Fletcher?

A

unforeseeable act of a stranger over whom they had no control

49
Q

What is the defence of an act of god for the rule in Rylands v Fletcher?

A

escape caused by natural occurrence which could not have been reasonably foreseen

50
Q

What are the remedies to the rule in Rylands v Fletcher and which is most common?

A

Damages (most common) and injunctions

51
Q

What is an action in trespass?

A

actionable per se (without proof of damage)

52
Q

Who can sue for trespass?

A

Anyone with legal interest in land

53
Q

Where the land is demised, when will a landowner be able to sue for trespass rather than the tenant/licensee?

A

Damage to interest goes beyond term of lease/licence

54
Q

What is the recoverable loss in trespass

A

Actionable per se (without proof of damage)
harm compensated is the unjustifiable interference with C’s land.

55
Q

What are the elements of trespass to land?

A

Damage and physical interference
Intention

56
Q

What are the categories of direct physical interference for trespass

A
  • 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
Q

What must be intended for trespass?

A

Direct action that results in trespass (need not intend to trespass)

58
Q

What are the defences to trespass?

A
  • Permission
  • Legal authority
  • Necessity
59
Q

What are the remedies for trespass?

A
  • Damages
  • Injunction
  • Re-entry
  • Recovery of land
  • Mense profits
60
Q

What are the damages for trespass?

A

cost of harm suffered by direct interference

61
Q

When may an injunction be awarded for trespass?

A

continuing trespass or threatens to repeat trespass (for latter, trespass must be serious in nature)

62
Q

What are the restrictions on re-entry as a remedy to trespass?

A

Must only use reasonable force

63
Q

What is the recovery of land remedy for trespass?

A

court order for defendants to be removed

64
Q

What are mesne profits as a remedy for trespass?

A

wrongfully occupied land and made profit/saved expenditure

65
Q

What is the limitation period for trespass?

A

6 years from date on which cause of action accrued

Tort (12 decks)

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