Land-based Torts Flashcards
What is private nuisance and who can make a claim?
A continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s use and enjoyment of their land. Claimant is someone with proprietary right in land.
Who can a claim for private nuisance be made against?
- Owner
- Occupier
- Creator of nuisance
What constitutes “continuous” state of affairs in the context of private nuisance?
Must not be one-off or isolated event unless a single incident is caused by a continuing state of affairs.
What constitutes a “substantial and reasonable interference” in the context of private nuisance?
- Can be indirect (smells, fumes)
- Unreasonable by standard of ordinary use of mankind living in society, must consider duration of activity, locality and character of neighbourhood (SPD only), abnormal sensitivity, malice and public benefit.
Which kinds of loss caused by private nuisance are recoverable?
- More than de minimis physical damage to property or sensible personal discomfort
- NOT personal injury
- Must be reasonably foreseeable
What are the defences to private nuisance?
- Prescription (20 years starts running when it becomes a nuisance)
- By statute + exercise all due care + nuisance is inevitable consequence of activity
- Consent by word or deed
- Contributory negligence
- Act of 3rd party for whom D bears no responsibility (only liable if he continues / adopts nuisance)
- Act of God
- Necessity
What are the remedies for private nuisance?
- Full or partial injunction
- Damages (cost of repair / renewal / consequential loss), usually based on reduction of value and used where public benefit
- Abatement = must use notice + anything belonging to D must be left on property.
What is public nuisance and who can bring a claim?
Public nuisance is an act or omission by the defendant which materially affects the reasonable comfort and convenience of a life of a class of HM subjects.
- Individuals who have suffered special damage over and above the rest of the class which is direct and substantial
- Local authority where it has suffered damage or inhabitants of its area have suffered damage
- Attorney General = where class of persons affected but no individual action forthcoming.
Who can a public nuisance claim be brought against?
Owner, occupier, creator
What is a “class” in terms of public nuisance?
Must be sufficiently widespready section of public or community who suffer a common injury, i.e being affected at same time, in same place, in more or less the same way.
Which type of damage is recoverable under public nuisance?
- Property damage
- Consequential loss
- Personal injury
- Pure economic loss
- Material inconvenience
What are the defences to, and remedies for, public nuisance?
All those available for private nuisance except prescription.
Remedies = injunction (for all claimants) and damages (individual claimant only).
What is Rylands v Fletcher and who can claim?
Where D brings onto his own land for his own purposes, and collects and keeps, anything likely to do mischief which escapes, liable for damage arising naturally from escape. Must be a non-natural use of the land (e.g non-ordinary depending on time, place and context).
Person with proprietary interest in affected land can claim as this is a sub-species of private nuisance.
What are things likely to do mischief if they escape in the context of Rylands v Fletcher?
Things which have an exceptionally high risk, i.e toxic waste, acid, water, explosives. D is strictly liable, even if they took reasonable care to prevent the escape.
What are the defences to the rule in Rylands v Fletcher?
Same for private nuisance but no prescription +
(a) Common Benefit = C agreed to collection of material by D, consent may be implied if it benefits C and D (e.g sprinkler system).
(b) Act of C = if escape caused wholly by C’s actions
