Land-based Torts Flashcards
What are the four types of land based tort?
Private nuisance
Public nuisance
Rylands v Fletcher
Trespass to land
How is private nuisance defined?
Defined as 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.
Who can sue in private nuisance?
Must have a proprietary interest in the land (freehold / leasehold) - permission to use or occupy the land is not enough.
Who can be sued in private nuisance?
The creator of the nuisance
The occupier of the land from which the nuisance originates
- Occupier will be liable for an independent contractor if there is an inevitable nuisance
- Also liable for a trespasser / visitor / predecessor if they adopt or continue the nuisance
- Occupier may also be liable for naturally occurring nuisances if they knew / ought to have known of a danger and failed to take reasonable steps to fix nuisance.
Owner of the land
-Landlords not liable unless they authorised it, actively and directly participated it, or knew of the large change of that particular nuisance being created.
What are the four elements of a private nuisance tort?
Indirect interference
Recognised damage
Continuous act
Unlawful act
What losses are recoverable in private nusiance?
Physical damage - more than trivial
Sensible personal discomfort - must be material - ‘more than fanciful’
[Must have been reasonably foreseeable]
CEL
NOT PERSONAL INJURY
Name the two exceptions to the rule that a nuisance must be continuous/
A single incident caused by an underlying state of affairs
Activity creating a state of affairs which gives rise to the risk of escape of physically dangerous / damaging material
How is unlawful interference interpreted in this context?
Unreasonable act.
What are the factors the court will apply when considering if an act is unreasonable [private nuisance]?
Time and duration
Locality [only for SPD]
Abnormal sensitivity; can’t be a nuisance to you alone because of abnormal sensitivity. Reasonable occupier is the test. + Thin Skull rule applies.
Malice
Lack of care
Excessive behaviour
How will courts approach planning permission for locality?
Planning permission can change, but it does not authorise a nuisance.
Precise terms of the planning permission might have a bearing on whether the use of land is unreasonable.
Which defences are available for private nuisance?
20 years prescription
Statutory authority
Consent
CN
Act of 3rd party / God
Which defence will not work for private nuisance?
Moving to the nuisance
What remedies can be awarded for private nuisance?
Injunction - partial often if the activity is of public benefit.
Damages - cost of repair or renewal, + CEL. When in lieu of an injunction, will be calculated based on reduction in value of property.
Abatement - fixing nuisance yourself e.g. cutting down branches. should give notice.
How is public nuisance defined?
An act or omission of the defendant that materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.
Who can sue in public nuisance?
An individual - need not have an interest in the land but must have suffered ‘special damage’
A local authority
AG
How is special damage interpreted in public nuisance?
Over and above the rest of the class
Different in kind
Direct and substantial
Who can be sued in public nuisance?
Creator of the nuisance
What are the four elements of public nuisance?
Act or omission
One off event or continuous
Class of HM subjects
Materially affects comfort and convenience
If you wanted to sue for an omission or a one off event, what would be the best way to do it?
Public nuisance - omissions / one off events not actionable in private nuisance generally.
What losses are recoverable in public nuisance?
Property damage
CEL
Personal injury
PEL
Inconvenience - must be material
Type of loss must be reasonably foreseeable
Which defences are available for public nuisance?
Statutory authority
Consent
CN
Act of 3rd party / God
Which remedies are available for public nuisance?
Injunctions / damages - no damages if brought by LI / AG
What is the rule in Rylands v Fletcher?
The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep in it at his peril, and if he does not do so, is prima facie answerable for all the damage that is the natural consequence of the escape.
Who can sue in Rylands v Fletcher?
It is a sub-species of private nuisance - proprietary interest needed
Who can be sued?
The creator of the nuisance and or anyone with any control over the land
What losses are recoverable under Rylands v Fletcher?
Property damage
CEL
What are the elements of a Rylands v Fletcher tort
D brings onto land and accumulates there
For their own purposes, anything likely to do mischief if it escapes
Escape
Escape caused foreseeable harm
Non-natural use of land
Which defences are available for Rylands v Fletcher?
Common benefit
Act or default of the claimant
Statutory authority
Consent
CN
Act of 3rd party / God
Which remedies are available in Rylands v Fletcher?
Damages and injunctions - damages most common as it is a one off event.
