Nuisance Flashcards
In considering both damages and injunctions as remedies under the tort of private nuisance, which option below identifies the three equitable remedies which may only be granted by the court having regard to all of the circumstances of the case?
A-Damages for personal discomfort, prohibitory injunction, and mandatory injunction
B-Damages for physical damage, mandatory injunction, and ‘quia timet’
C-Prohibitory injunction, damages for personal discomfort, and damages for physical damage
D-Mandatory injunction, prohibitory injunction, and ‘quia timet’
E-‘Quia Timet’, damages for personal discomfort, and physical damage
Option D is correct because only injunctions are equitable and, therefore, discretionary remedies. This means that although a claimant can seek an injunction, whether or not the injunction is granted is the decision of the court, having regard to all the circumstances of the case. It is important to note that no injunction will be awarded where damages would be an adequate remedy. However, as damages can only be awarded retrospectively (for past breaches which have already occurred) the use of injunctions allows for a remedy where a claimant seeks to prevent future breaches.
All the other options are wrong as they involve the common law remedy of damages for either property damage or personal discomfort, and as common law remedies they are not equitable in nature.
A mother, (who owns a house); her boyfriend who lives with her (when he is not working abroad), her 8 year old daughter; and the childminder (who receives a room as part of his employment); all wish to bring a claim against the Sawmill Company who occupy the neighbouring property. When the wind blows in a certain direction, their house, garden and possessions are coated in a layer of sawdust.
Who has sufficient standing to bring the claim?
A-The mother
B-The mother and her boyfriend
C-The mother and the daughter
D-Everyone who lives in the property
E-No one who lives in the property
Option A is correct because if you consider Hunter v Canary Wharf Limited [1997] AC 655 HL this reasserted the traditional view that nuisance is a tort directed against the claimant’s enjoyment of his/her rights over land. Nuisance claims can only be brought by a claimant with a proprietary interest in the land.
Option B is wrong because, whilst the mother has a proprietary interest in the house the boyfriend is likely to be just visiting and cannot make a claim.
Option C is wrong because the daughter is likely to have no proprietary interest and so does not have the right to bring a claim
Option D is wrong because, the mother is the only one who has the right to bring a claim due to her propriety interest. No one else has a proprietary interest.
Option E is wrong because, the mother is able to bring the claim in nuisance due to an unlawful interference with her use and enjoyment of her land as she does have a proprietary interest.
A client has recently purchased a large house in the country. Her neighbour has lived in the adjoining property for many years. He uses his field which adjoins her garden for clay pigeon shooting. He and his friends shoot all day every Saturday and Sunday and the client finds the noise unbearable. Stray pellets also regularly land in the client’s garden. On one occasion she was hit on the leg by a pellet which caused a large bruise. Another pellet went through a pane of glass in her conservatory.
Which of the following statements best describes the neighbour’s liability?
A-The client can bring a claim against the neighbour in nuisance for the damage to her conservatory because the court will have regard to the character of the neighbourhood when considering this claim.
B-The client can bring a claim against the neighbour in nuisance because the neighbour has acted unreasonably in clay pigeon shooting all day every weekend.
C-The client cannot bring a claim against the neighbour in nuisance for her leg injury as the appropriate claim will be in negligence.
D-The client cannot bring a claim against the neighbour in nuisance for her losses unless she can show that the neighbour is acting maliciously.
E-The client cannot bring a claim against the neighbour in nuisance for the loss of amenity because he had been carrying out the activity of clay pigeon shooting before she purchased her property.
Option C is the best answer because personal injury is not a type of harm covered by private nuisance (Hunter v Canary Wharf [1997] 2 All ER 426).
Option A is wrong because the character of the neighbourhood is only relevant when considering loss of amenity, not tangible damage such as damage to property (Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145).
Option B is wrong because private nuisance does not address whether a defendant’s behaviour is unreasonable, only whether their use of their land is unreasonable.
Option D is wrong because proof of malice is only one factor for the courts to consider when deciding whether an interference is unlawful (Christie v Davey [1893] 1 Ch 316).
Option E is wrong because it is no defence that the claimant ‘came to the nuisance’.
A solicitor is instructed by a client who bought a house located in a rural location six months ago. A cement factory is near to the client’s house. Heavy lorries regularly arrive and leave during the day and night via a public road, making it difficult for the client to sleep at night.
The client has complained to the factory owner. The factory owner has responded that the factory has been operating for 25 years in the same location and that the client should not have bought their house near a factory if they are a light sleeper. The factory owner has also confirmed that their lorries are fitted with the best noise reduction mechanisms that are available on the market.
Which of the following statements best explains whether the client may have a claim in tort against the factory owner?
A-Yes, because the client will be able to pursue a claim in public nuisance because the lorries are using a public road.
B-Yes, because the client will be able to pursue a claim in private nuisance because the noise from the lorries is substantial and unreasonable.
C-Yes, because the factory is a non-natural use of land in a rural location.
D-No, because the factory was already operating before the client moved to the area.
E-No, because the factory owner has taken reasonable care to ensure that the noise from the lorries is kept to a minimum level
Option B is correct. The noise from the lorries may be a substantial and unreasonable interference with the claimant’s use of their land. The fact that the noise is at night and in a rural location would indicate that the claimant would have a claim in private nuisance.
Option A is wrong because there is nothing to suggest that the noise from the lorries affects a ‘class of Her Majesty’s subjects’, ie a sufficient number of members of the public. Public nuisance is primarily concerned with protecting public rights and the fact that the lorries are using a public road is only incidental to the interference with the client’s private right to be able to use and enjoy their land.
Option C is wrong because a non-natural use of land is only one element of the rule in Rylands v Fletcher. The other requirements are not satisfied on these facts as there has not been an escape of anything likely to cause damage to the claimant’s land. In fact, it is unlikely that this is a non-natural use of land in any event. A cement factory is not an extraordinary or unusual use of land, even in a rural location.
Option D is wrong because ‘coming to the nuisance’ is an ineffective defence to a claim in private nuisance.
Option E is wrong because private nuisance is not based upon proving that the defendant has not taken reasonable care. Private nuisance is concerned with whether the consequences of the defendant’s use of their land is unlawful in that it causes a substantial and unreasonable interference with the claimant’s use of their land.
A-
B-
C-
D-
E-
Does private nuisance compensate for personal injury?
Private nuisance does not compensate for personal injury.
