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(FLK1) Tort Law > Land Torts > Flashcards

Land Torts Flashcards

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1
Q

What are the Land Torts?

A
  • Public Nuisance.
  • Private Nuisance.
  • Trespass to Land.
  • The Rule in Rylands v Fletcher.
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2
Q

What are the Elements of Private Nuisance?

A
  • Indirect Interference.
  • Recognised Types of Damage.
  • Continuity of Action.
  • Unlawful Interference.

Always Remember: Private Nuisance is a Tort against the Land, not the Land Owner.

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3
Q

Regarding Private Nuisances, what constitutes Indirect Interference?

A

An Act on the Defendant’s Land that impinges upon the Claimant’s use or enjoyment of its Land.

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4
Q

Regarding Private Nuisances, what are the Recognised Types of Damage?

A

Physical Damage to Property:

  • The Nuisance causes non-trivial physical damage to the Claimant’s Property.

Sensible Personal Discomfort (“SPD”):

  • The Claimant’s senses are affected such that they cannot enjoy their Land.
  • This must be reasonably Foreseeable and materially interfere with normal human comfort.
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5
Q

Regarding Private Nuisance, what are the Exceptions to the Continuity Requisite?

A
  • The Act creates a State of Affairs that risks the escape of physically dangerous or damaging material.
  • The Act is a Single Incident caused by an Underlying State of Affairs of which the Defendant has Actual or Constructive Knowledge.
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6
Q

Regarding Private Nuisance, what constitutes Unlawful Interference?

A

The Act constitutes an Unreasonable Use of the Defendant’s Land. Relevant considerations include:

  • Time.
  • Malice.
  • Duration.
  • Frequency.
  • Lack of Care.
  • Excessiveness.
  • Locality’s Character (SPD Only).

Although things like Planning Permissions are relevant to a Locality’s Character, they are not necessarily determinative.

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7
Q

Regarding Private Nuisance, what is the Position on Claimants with Abnormal Sensitivity?

A
  • If the standard of material interference with normal human comfort is met;
  • Then the Claimant can sue for the full extent of its Loss as aggravted by its condition.
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8
Q

Who can Sue in Private Nuisance?

A

A Person with a Legal (Proprietary) Interest in the Land. This includes:

  • The Title Owner.
  • The Tenant in Possession.
  • The Grantee of an Easement.
  • The Licensee with Exclusive Possession.
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9
Q

Who can be Sued in Private Nuisance?

A
  • Creator of the Nuisance.
  • Owner of the Nuisance Land.
  • Occupier of the Nuisance Land.
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10
Q

When may the Occupier of the Nuisance Land be held Liable?

A

Independent Contractors:

  • The Occupier hires an Independent Contractor that will cause an inevitable Nuisance.

Natural Occurrence:

  • The Occupier is aware, or reasonably should be, of a naturally-occuring Nuisance; and
  • Fails to take reasonable steps to end it.

Adoption or Continuation:

  • The Occupier is aware, or reasonably should be, of a Nuisance caused by another; and
  • Fails to take reasonable steps to end it.
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11
Q

When may the Owner of the Nuisance Land be held Liable?

A

The Owner:

  • Authorised the Nuisance by directly and actively participating therein; or
  • By Leasing the Property under circumstances where Nuisance was a virtual certainty.
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12
Q

What are the Defences to Private Nuisance?

A
  • Consent.
  • Necessity.
  • Act of God.
  • Act of Third Party.
  • Statutory Authority.
  • 20 Years’ Prescription.
  • Contributory Negligence.
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13
Q

Regarding Private Nuisance, when does the Defence of Consent apply?

A

The Claimant willingly accepts the Nuisance, or the risk thereof, by words or conduct.

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14
Q

Regarding Private Nuisance, when does the Defence of Necessity apply?

A

The Act is essential for the Public Good and there is no reasonable alternative.

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15
Q

Regarding Private Nuisance, when does the Third-Party-Act Defence apply?

A

The Nuisance was created by a Third Party for whom the Defendant is not responsible (barring Adoption or Continuation).

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16
Q

Regarding Private Nuisance, when does the Act-of-God Defence apply?

A

The Nuisance was created by an Act of God (barring Adoption or Continuation).

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17
Q

Regarding Private Nuisance, when does the Defence of Statutory Authority apply?

A

The Act is:

  • Authorised by Statute;
  • Exercised with all due care and skill; and
  • Inevitably causes the Nuisance.
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18
Q

Regarding Private Nuisance, when does the Defence of 20 Years’ Prescription apply?

A
  • The Act has been an actionable Nuisance for at least 20 years; and
  • Not action has ever been taken.

The Period starts from when the Act became a Nuisance.

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19
Q

What are the Remedies for Private Nuisance?

A
  • Damages.
  • Injunction.
  • Abatement.

Injunctions are the primary Remedy.

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20
Q

Regarding Private Nuisance, how are Damages awarded?

A

Physical Damage:

  • Consequential Economic Loss; and
  • The lesser of either Repair or Renewal Costs.

Sensible Personal Discomfort:

  • The Defendant may argue that Damages should be awarded instead of an Injunciton.
    • Relevant considerations include Public Benefits, Planning Permissions, and commecial impacts.
  • If successful, the Court will award based on the consequent decrease in Property Value.
21
Q

Regarding Private Nuisance, When may the Court only award a Partial Injunction?

A

When the Act has a Public Benefit.

22
Q

Regarding Private Nuisance, what is Abatement?

A
  • The Claimant’s entitlement to enter the Defendant’s Property and do what is reasonable and necessary to end the Nuisance.
  • Notice is necessary, unless it is an emergency.
23
Q

What are the Elements Public Nuisance?

A

Act or Omission:

  • The Defendant performed, or failed to perform, a particular Act.

Continuity (or Lack Thereof):

  • The Act or Omission was either continuous or singular.

Class:

  • The Act or Omission was sufficiently wide to affect a representative cross-section of a Class of Subjects in a similar manner, time, and place.

Material Impingement of Comfort and Convenience:

  • The Act or Omission materially disrupted the comfort, convenience, or normal use of a public space; which
  • Had a substantial and reasonably foreseeable impact on the Public’s ability to ordinarily enjoy or use it.
24
Q

Regarding Public Nuisance, which Types of Damage are Recoverable?

A
  • Personal Injury.
  • Property Damage.
  • Pure Economic Loss.
  • Material Inconvenience.
  • Consequential Economic Loss.
25
Q

Who can Sue in Public Nuisance?

A
  • Individuals.
  • Local Authorities.
  • The Attorney General.
26
Q

When can an Individual Sue in Public Nuisance?

A

When it has suffered Special Damage, meaning it has suffered direct and substantial Damage:

  • Over and above the rest of the Class; or
  • In a different way to the rest of the Class.
27
Q

Who can be Sued in Public Nuisance?

A

The Creater of the Nuisance or any other person responsible therefor.

28
Q

What are the Defences for Public Nuisance?

A
  • Necessity.
  • Act of God.
  • Act of Third Party.
  • Statutory Authority.
  • Contributory Negligence.

The main Defence is Statutory Authority.

29
Q

What are the Remedies for Private Nuisance?

A
  • Damages.
  • Injunction.

Damages are unavailable if the Claim is brought by the Local Authority or the Attorney General.

30
Q

What are the Elements of Trespass to Land?

A

Direct and Physical Interference:

  • The Defendant directly and physically interfered with the Claimant’s Land.
  • This includes causing Third Parties to enter or placing, throwing, or diverting objects onto the Land.
  • Interference can be continuing if the object unlawfully placed, thrown, or diverted remains on the Land.

Intention to Interfere

  • The Defendant’s Interference was a deliberate, intentional act.

Lack of Lawful Justification or Consent

  • The Defendant’s Interference was unlawful, unnecessary, and without consent.
31
Q

Regarding Trespass to Land, what constitutes the ‘Land’?

A
  • The Ground.
  • The Subsoil, down to the point where the notion of ownership is absurd.
  • The Airspace, up to the point necessary for ordinary use and enjoyment of the Land.
32
Q

Who can Sue in Trespass to Land?

A

Anyone with a Possessory Interest in the Land.

33
Q

Who can be Sued in Trespass to Land?

A

The Trespasser.

34
Q

What are the Defences for Trespass to Land?

A
  • Consent.
  • Necessity.
  • Abatement.
  • Lawful Authority.
35
Q

Regarding Trespass to Land, what are the Two Types of Necessity?

A
  • Public Necessity: Entry to prevent a Public Disaster (e.g., firefighting efforts).
  • Private Necessity: Entry to protect Oneself or one’s Property from imminent harm.
36
Q

What are the Remedies for Trespass to Land?

A
  • Re-Entry.
  • Damages.
  • Injunctions.
  • Mesne Profits.
  • Recovery of Land.

Trespass is actionable per se.

37
Q

Regarding Trespass to Land, what is the Remedy of Re-Entry?

A

The Claimant’s right to retake possession of their Land using reasonable force.

38
Q

Regarding Trespass to Land, what is the Remedy of Mesne Profits?

A
  • Compensation for the profits made or expenses saved by the Defendant while Trespassing.
  • The Claimant must evidence the Defendant’s profits or the Land’s rental value, respectively.
39
Q

Regarding Trespass to Land, what is the Remedy of Recovery of Land?

A

A Court Order to remove the Defendant from the Claimant’s Land.

40
Q

What are the Elements of the Rule in Rylands v Fletcher?

A

Introduction of Object to the Defendant’s Land:

  • The Defendant voluntarily brings an Object it controls onto its Land.
  • This is called Accumulation.

Capacity for Damage upon Escape:

  • The Object has an exceptionally high risk of causing damage if it Escapes.
  • The Defendant has Actual or Constructive Knowledge of the Object’s destructive capacity if it Escapes.

Escape to the Claimant’s Land:

  • The Object itself Escapes from the Defendant’s Land to the Claimant’s Land.

Foreseeable Harm to the Claimant’s Land:

  • The Escaped Object causes Foreseeable Harm to the Claimant’s Land.
  • Reasonable care to prevent Escape will not avoid Liability.

Unnatural Use of the Defendant Land:

  • The Defendant’s use of its Land is extraordinary and unusual by contemporary standards, all things considered.
41
Q

Who can Sue in the Rule in Rylands v Fletcher?

A

Anyone with a Possessory Interest in the Land.

42
Q

Who can be Sued in the Rule in Rylands v Fletcher?

A
  • Creator of the Nuisance.
  • Owner of the Nuisance Land.
  • Occupier of the Nuisance Land.
43
Q

Regarding the Rule in Rylands v Fletcher, what are the Recognised Types of Damage?

A
  • Property Damage.
  • Consequential Economic Loss.
44
Q

What are the Defences for the Rule in Rylands v Fletcher?

A
  • Consent.
  • Act of God.
  • Common Benefit.
  • Act of Third Party.
  • Statutory Authority.
  • Default of the Claimant.
45
Q

Regarding the Rule in Rylands v Fletcher, what is the Act-of-God Defence?

A

The Escape was caused by a reasonably Unforeseeable natural event.

46
Q

Regarding the Rule in Rylands v Fletcher, what is the Defence of Common Benefit?

A

If the Claimant derived a Common Benefit from Accumulation, it is deemed to have implicitly consented thereto.

47
Q

Regarding the Rule in Rylands v Fletcher, what is the Third-Party-Act Defence?

A

The Escape was caused by an Unforeseeable act of a Third Party over whom the Defendant had no control.

48
Q

Regarding the Rule in Rylands v Fletcher, what is the Defence of Default of the Claimant?

A

Escape was caused wholly by the Claimant.

49
Q

What are the Remedies for the Rule in Rylands v Fletcher?

A
  • Damages.
  • Injunction.

Damages are the main Remedy.

(FLK1) Tort Law (6 decks)

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