Tort

Question 1

Tresspass to land (elements)

Answer 1

= unlawful direct interference with C’s possession of land

1. land incl the surface of the land, the buildings on it, the plants in it, the sub-soil beneath it and rights to airspace to ‘such heights as it necessary for the ordinary use and enjoyment of the land and the structures on it’
2. Direct interference must flow almost immediately and without any intervention from the actions of D (no time lag or other intervention)
   - roots of tree/noise not sufficient
3. possession - ie owner/occupier or tenants
4. intentional => must be a voluntary act

Question 2

Tresspass to land (defences)

Answer 2

1. Justification/consent
   - Had owner of land’s implied or express permission to enter their land
   - Permitted by law (eg policeman with valid warrant)
2. Necessity (see trespass to the person)
3. Lawful entry

Question 3

Tresspass to the person (general and defences)

Answer 3

Actionable per se => no need to show actual injury or harm

1. Consent:
   - Consent to medical treatment
   - Adult C of sound mind and full understanding is entitled to withhold consent to medical treatment even when it is necessary to save C’s life
   - Implied (eg physical contact during sport if within rules of game)
   - Consent must not be induced by fraud, misrep or duress
2. Lawful arrest/authority
   - If pursuant to a valid warrant, not battery provided the officer uses only reasonable force to carry out the arrest
   - In false imprisonment if imprisoned pursuant to a statutory power
3. Self-defence
   - The force must be used in self-defence and not as an act of retaliation
   - The force must be reasonable and proportionate to that used or threatened against him
   - Extends to: protecting others and property (BUT degree of force which is reasonable is likely to be lower in case of defence of property than in defence of person)
4. Necessity
   - D acts reasonably to prevent harm
   - Eg where adult lacks capacity to consent to treatment

Question 4

Trespass to the person (assault)

Answer 4

= intentional act by D that causes C to reasonably apprehend the immediate infliction of a battery/unlawful force upon him

Question 5

Trespass to the person (battery)

Answer 5

= intentional direct application of unlawful force to another person

Interpreted broadly by the courts (Valid if medium is used provided that the medium is controlled by D and the application of force to C follows from its use without any intervention (eg throwing fireworks))

Unlawful force = Physical conduct which is not generally acceptable in the conduct of everyday life

Question 6

Trespass to the person (false imprisonment)

Answer 6

= unlawful constraint of C’s freedom of movement from a particular place

Unlawful (defence is D can establish lawful grounds for doing so)
- Not a defence that D mistakenly believed they had the right to detain C

Constraint must be complete is in every direction

Question 7

Trespass to goods

Answer 7

= intentional and direct interference with C’s possession of goods

Interference = Taking, damaging, interfering with them (incl touching provided it goes beyond what is acceptable in everyday life)

Damage not required

Question 8

Conversion

Answer 8

= dealing with goods in a way which is seriously inconsistent with the rights of the owner

Acts of conversion
- When D’s actions are inconsistent with the tights of the owner to such an extent as to exclude the owner from use and possession of the goods
- Incl wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel

Question 9

Negligence (general)

Answer 9

= a breach by D of a legal duty of care owed to C, that results in actionable damage to C unintended by D

C must establish:
1. D owed a duty of care
2. D breached that duty
3. D’s breach caused damage to C

Question 10

Negligence (duty of care)

Answer 10

Various established duty situations

Not an established duty (ie novel duty), courts will imply a duty of care only if:
1. Foreseeability
- D’s negligence must have created a foreseeable risk to THIS C
2. Proximity
- So closely and directly affected by the act that they ought reasonably to have them in D’s contemplation
3. Fair, just and reasonable to impose a duty
- Allows court to consider policy factors

Question 11

Negligence (duty of care for omissions?)

Answer 11

General rule = no liability for pure emissions - D owes no duty to act to prevent harm to C

Exceptions –
1. Special relationship (eg parent/child or assumes responsibility)

2. Control (eg police officer placing someone under arrest)
   - ie contractual and legislative duties to act
3. Liability for actions of 3rd parties under D’s control or responsibility
   - Eg over a child who has caused a tort to others
4. Rescue situations
   - Only owes limited duty not to make the situation worse

Question 12

Negligence - scope of duty of care

Answer 12

If harm suffered by C was not within the scope fo D’s duty of care, damages will not be recoverable even if D owed C a duty and acted negligently

Question 13

Negligence - breach of duty

Answer 13

ie whether D fell below the relevant standard of care

1. Consider relevant standard
   General standard = standard of the reasonable person (ie objective)
   BUT- D is skilled/professional: standards of the D’s profession/a reasonably competent professional in the circs
   - there is no allowance for inexperience
   - D is a child: reasonable child of D’s age
2. Did D fall below? (question of fact)
   - courts consider:
3. Magnitude of risk in activity (ie likelihood and seriousness of potential harm)
4. Practicability of taking precautions
5. Social utility of D’s conduct

Question 14

Negligence - proving brecah of duty

Answer 14

ie C must provde that the breach caused the damage

Res ipsa loquitor (‘the thing speaks for itself’):
- ie where an absence of explanation of how the incident happened – court may be able to infer breach from the circs of the accident
- Three conditions needed to apply:
1. Cause of the accident is unknown
2. The thing causing the damage must be under the control of D or someone for whom D is responsible
3. Accident must be such as would not normally happen if proper care had been taken

=> enables court to draw inference of negligence
- May be rebutted if D is able to show they did exercise reasonable care

If guilty in criminal proceedings, conviction admissible as evidence in any civil claim arising from the incident

Question 15

Negligence - causation

Answer 15

Three components:

1. But for test (factual)
   - number of causes => only needs to show actions materially contributed to harm
2. No new intervening act
   - would only break chain if unforeseeable
   - C’s own action can only break chain if unreasonable
3. Not too remote (legal causation)
   - ie C’s harm was reasonably foreseeable
   -exceptions:
4. Egg shell skull - aka D takes C as he finds him
5. Similar in type - ie where C suffers foreseeable harm but if unforeseeable manner

Question 16

Negligence - divisible vs indivisible injuries

Answer 16

Divisible
- damages can be apportioned between Ds according to share of injury each of them caused
=> C can only recover a portion of damages from each D, so must sue all if they are to recover in full

Indivisible
- C can recover fully from either D
- paying D may recover from other(s) a contribution to the damages payable

Successive injuries
- D in second accident only liable to the extent that their negligence made C’s damage worse than it already was

Question 17

Negligence - defences

Answer 17

1. Contributory negligence (partial defence)
   - D must show that:
   a) C did not take reasonable care for their own safety; and
   b) C’s careless behaviour contributed to C’s harm (does not need to have contributed to accident)
2. Voluntary assumption of risk- complete defence (volenti non fit injuria)
   - D must prove that:
   a) C had full knowledge of the nature and extent of the risk; and
   b) C freely and willingly accepted the risk of being injured due to D’s negligence (hard to show)
   BUT Statute prevents this defence from applying to passengers in road traffic accidents
3. Illegality- ‘no action arises from a disgraceful cause’
   - If C was involved in an illegal enterprise at the time
   - Injury must have been caused by the illegal act
4. Exclusion of liability
   - Liability for death or PI arising from negligence can never be excluded
   - Liability for other damage caused by negligence can only be excluded if the exclusion satisfies a requirement of reasonableness or fairness

Question 18

Pure economic loss (general rule)

Answer 18

General rule = no duty of care is owed in tort in respect of PEL
=> e.g. defective item of property
- Cost of damage to product itself is PEL and not recoverable (may be recoverable in contract)
- Damages other property => can claim (as consequential economic loss)

Question 19

Pure economic loss (negligent misstatement)

Answer 19

Damages can be recovered in negligent misstatement where:

1. Advice is required for a purpose which is made known to D
2. D knows:
   - Advice will be communicated to C in order to be used for that purpose; and
   - C is likely to rely on the advice without independent enquiry
3. C must have actually relied on the advice
4. It must have been reasonable for C to do so

ie assumption of resposiblity by D and reasonable reliance by C

Question 20

Pure psychiatric harm (general)

Answer 20

= psychiatric harm that stands alone ie does not flow from physical injury or damage

May be:
- A medically-recognised psychiatric condition; or
- A shock-induced physical condition (eg a miscarriage)

ie not consequential psychiatric harm (in which case usual negligence rules apply)

General rule = no DoC for PPH

Question 21

PPH - primary victims

Answer 21

C must have:
1. Been in the actual area of danger; or
2. Reasonably believed he was in danger

DoC owed to a primary victim in respect of PPH if the risk of physical injury was foreseeable

Question 22

PPH - secondary victims

Answer 22

Duty only established if:

1. Proximity in time/space and perception - C was present at the time of the accident or its immediate aftermath
2. Proximity of rel: C has close ties of love and affection with the person endangered by D’s negligence
3. Sudden shock
4. Psychiatric harm was foreseeable

Question 23

Employers liability (general)

Answer 23

Duty of care = to take reasonable care of their safety while at work

Nondelegable ie ‘personal to the employer’
=> They must ensure reasonable care is taken by others
=> If person to whom a task is delegated fails to take such reasonable care then employer’s duty is breached

Question 24

Employers liability - established duties

Answer 24

Established duties of the employer to take reasonable steps to provide:

1. Competent staff
   - Ensure fellow staff are competent
   - Extends to selection of competent staff and training
2. Safe plant and equipment
   - Incl equipment and machinery, and protective clothing where required
3. Safe system of work
   - Incl supervision to ensure implementation and enforcement of such system and conducting appropriate risk assessments
4. Safe place of work
   - ie where dangers due to the state of the premises, occupier owes a duty to visitors to take reasonable care for their safety
   - Overlap with OLA

Extends to stress-induced psychiatric harm

Question 25

Employers liability - breach of duty

Answer 25

Standard of care = reasonable employer in its position
- Duty owed to each ind employee, taking into account their ind circumstances

Latent defects in equipment =>
- Provided that defect is attributable to fault on the part of some third party (whether identified or not), the employer is also deemed to have been negligent
- Injured employee must still establish that there was a defect in the equipment and that the defect was caused by fault on the part of someone

Question 26

Employers liabliity - defences

Answer 26

1. Contributory negligence
2. Voluntary assumption of risk
   - Rarely successful due to difficulty of showing that the employee freely consented to run the risk of injury caused by the employer’s negligence - rather, are obliged to (in order to keep their job)

Question 27

Vicarious liability ie employers secondary liability (general)

Answer 27

= liability of one person for a tort committed by another

3 components:

1. Was a tort committed?
2. By an employee (or rel akin to employment)?
3. In the course of employment?

Question 28

Vicarious liability - by an employee/rel akin to employment

Answer 28

ie not independent contractor (considered separately)
- law looks at economic reality of parties to establish whether employee

Akin to employment? Consider:
- whether activity undertaken on behalf of D
- D created risk by assigning activity to the tortfeasor
- Tortfeasor’s activity is an integral part of D’s business (rather than tortfeasor’s ind business)

Applies => could be liable for tort’s committed against customers, other employees, or third parties with no connection to employer’s business

Question 29

Vicarious liability - in the course of employment?

Answer 29

Court must be satisfied that there was a close rel between the tort and the work the employee was employed to do (so that it was fair and just to hold the employer liable)

If employee disobeys instructions, depends whether:
1. Prohibition limits scope of employment (so outside course of employment)
2. Or limits manner in which the employment is carried out (within course of employment)

Deviation from authorised journey is a matter of degree
- Sig distance/time => may have started on separate ind journey of their own => ‘on a frolic’
- Purpose of deviation – if employee was still going about the employer’s business at time of tort, not on a ‘frolic’
- Consider whether deviation was reasonably incidental to one’s work (eg having lunch)

Not a bar to VL that tort committed was also criminal act (above test ie closeness still stands)

Question 30

Vicarious liability - independent contractors

Answer 30

Employer not vicariously liable for the trot of an ind contractor

BUT may become personally liable when:
1. Employer is in breach of own non delegable duty of care
- ie Personal and nondelegable duty to see that reasonable care is taken
2. Ind contractor engaged to carry out an extra hazardous activity
3. Employer is in breach of their own duty to take reasonable care in selecting a competent contractor

Question 31

Remedies for PI and death - purpose of damages

Answer 31

Damages are awarded to put the C in the position he would have been in had the tort not been committed (ie compensatory)

Mitigation of loss: C has a duty to take reasonable steps to avoid losses and C should not profit from the incident (C cannot claim damages for losses which they could have avoided by taking reasonable steps themselves)

Special damages = those that can be calculated precisely at the time of trial (incl past loss of earnings and past expenses)
General damages = not capable of being calculated precisely and are therefore left to the court to determine (incl loss of future earnings and future expenses and damages for pain and suffering/loss of amenity)

Limitation period for claims under both acts = 3 years

Question 32

Damages for living C - pecuniary losses

Answer 32

ie financial losses

1. Loss of past income
   - based on net wages lost (after payment of taxes and NI)
2. Loss of future income
   - measured as difference in income before and after injury multipled by number of years teh income will be lost
   - adjusted for contingencies of life (eg possiblity C would have lost job in future)
   - awarded as lump sum which reflects present value of the amount awarded
   - if life expectancy shortened, deduct amount C would have spent on himself
3. Past and future costs of medical treatment, costs of care, costs of necessary equipment or necessary modifications to C’s home
   - C can choose private treatment over NHS treatment (not a failure to mitigate)
4. Damage to property usually measure by replacement costs or cost of repair, plus consequential costs eg hiring a replacement until permanent repair/replacement

Question 33

Damages for living C - non-pecuniary losses

Answer 33

1. Pain and suffering
   - Covers past, present and future pain; physical and mental anguish; fear of future surgery etc
   - Subjective test => C must be aware of the injuries to be able to claim for pain and suffering => cannot claim for period unconscious

Loss of amenity
- Covers: loss of enjoyment of life, eg inability to pursue hobbies, loss of sight/smell; freedom of movement; marriage prospects etc
- Objective test => can still claim for period unconcious

One figure is generally given to cover pain and suffering and loss of amenity. Lawyers use Judicial College Guidelines as a guide to come to this figure – using case law to determine appropriate compensation

Question 34

Damages if victim dies (general)

Answer 34

Claim is dependent on the original cause of action (ie must show that, had the person survived, they would have been able to bring a claim against D themselves ie D must have committed a tort against the deceased)

Causes of action AGAINST deceased can be brought against their estate

Question 35

Damages if victim dies - what can be recovered by estate

Answer 35

Continues/commenced claim on C’s behalf - brought by PRs

1. Survival period losses (losses between tort and death ie lost years do not apply):
   - All pecuniary and non-pecuniary losses up to the date of death;
   - Incl damage to property
   - Medical and other expenses
   - Loss of income til date of death
2. Reasonable funeral expenses incurred by the estate

Question 36

Damages if victim dies - what can’t be recovered by estate

Answer 36

1. Loss of income after death
2. No account is taken of any money received by the estate as a result of the death incl life insurance
3. No claim if C has already been compensated in full
4. Claims in defamation do not survive the death of the C
5. No claim for death itself
6. Reduced by any contributory neg

Question 37

Damages if victim dies - brought by dependents

Answer 37

Bereavement damages (fixed sum) if:
1. Wife/husband/civil partner of the deceased
2. Parents (or mother if illegitimate) of a minor who was never married or civil partner
3. NOT children of the deceased

Loss of dependency if:
- Satisfy BOTH requirements:
1. Must fall within class of dependent
2. Must have been actually financially dependent on the deceased

Reasonable funeral expenses

Question 38

Occupiers liability (visitor or trespasser?)

Answer 38

Visitor = anyone with express or implied permission to be there

• Implied permission could be permission:
  a) in exercise of a legal right eg firemen/police with warrant to search the premises; or
  b) Under terms of contract
• If C has exceeded his permission, he becomes a trespasser

=> 1957 act applies

Trespasser = A person other than a visitor (ie without expressed/implied permission)
- Includes circs when exceeding permission
- Applies even if they do not know that they are a trespasser

=> 1984 Act applies

Question 39

Occupiers liability - both acts require

Answer 39

1. D is an occupier = anyone with a ‘sufficient degree of control over the premises’
2. C suffered loss due to the state of the premises
   - defined broadly ie land itslef and any buildings/structures on the land

Question 40

OLA 1957 - duty of care to lawful visitors

Answer 40

Common duty of care
=> Take reasonable care to ensure visitor (specific visitor) reasonably safe in using premises for permitted purpose (reasonable occupier in all circs)
- Reasonable care => have regard to magnitude of risk and practicability of taking precautions

Special visitors
1. Children => should be prepared for children to be less cautious
2. Coming to exercise skills (eg electrician) => should be exepcted to appreciate and safeguard against risks that are incidental to their job

Extends to visitors AND THEIR PROPERTY

Question 41

OLA 1957 - discharging the duty of care

Answer 41

1. Warning notice
   - Only discharge duty if warning is sufficient to enable the visitor (specific visitor) to be reasonably safe
   - consider: location of the notice, how specific is the warning, danger hidden or obvious, who is visitor
2. Ind contractors
   - Ie where the visitor has been injured by faulty work of ind contractors (of construction, maintenance or repair)
   - Occupier not liable for injury caused by faulty work done by ind contractors if (all 3):
   a) Occupier acted reasonably in entrusting work to contractor
   b) Occupier took reasonable steps to check (specific) contractor was competent
   c) Occupier took reasonable steps to check the work was completed properly

Question 42

OLA 1957 - defences

Answer 42

Normal negligence defences ie consent and contributory neg

Exclusion of liabilty
- by statute or by contractual notice (valid if clearly worded and adequately brought to attention of C)

STATUTE
1. Private occupiers => not subject to UCTA or CRA => can display a prominent notice at the entrance of their property excluding their liability to visitors
2. Occupier acts in course of business => UCTA
- Can’t exclude liability for PI or death
- Can exclude liability for other loss, if satisfied UCTA reasonableness test
3. Non-business visitors => CRA applies
- Can’t exclude or restrict liability for death or PI resulting from negligence
- Can exclude liability for other loss or damage, if it satisfies the CRA fairness test

Question 43

OLA 1984 - duty to trespassers

Answer 43

Owed if (all required):
1. Occupier is aware of danger (ought reasonably to be aware)
2. Occupier knows/has reasonable grounds to believe trespasser is/may come into vicinity of danger
3. Risk is one against which occupier may reasonably be expected to offer trespasser some protection (in all the circs) - objective

Above satisfied => duty is to take such care as is reasonable in all the circs to see that the trespasser does not suffer injury by reason of the danger concerned

Duty does NOT cover damage to property

Question 44

OLA 1984 - discharging the duty

Answer 44

Reasonable care => consider magnitude of risk of harm and precautions which it would be reasonable to expect the occupier to take

Children (as for 1957 act)

Warnings (Less onerous than for visitors)
- Occupier may be able to discharge their duty by taking such steps as are reasonable to:
- Give warning of the danger; and
- Discourage persons from incurring the risk (eg putting barriers in place)

Question 45

OLA 1984 - defences

Answer 45

Consent/voluntary assumption of risk (usual rules)

Contributory negligence (usual rules)

Exclusion of liability: position is unclear, as OLA 1984 is silent on whether liability can be excluded
- If can be excluded => UCTA and CRA do not apply

Question 46

Defective premises act

Answer 46

ie for Ds who are not occupiers (LLs)

Duty arises where tenancy obliges LL to carry out repairs or permits the LL to enter premises to do so

Duty covers defects within the scope of the LL’s repair obligations or rights, which the LL knew or ought to have known about

Owed to anyone who might reasonably be expeted to be affected by the defect

Duty = to take such care as is reasonable is all the circs to see that they are reasonably safe from PI or damage to their property

Question 47

Liability for defective products (general)

Answer 47

Easier to bring a claim in contract/CPA as liability is strict (Y need not have been at fault).

Contract => requires privity of contract between the parties

Contract => able to claim for product itself

Generally deal in following order: contract, CPA, negligence

Question 48

Defective products - claims for breach of contract

Answer 48

Criteria for bringing claim=

Must be a contract:
1. C is the buyer of the product (or comes within Contract (Rights of Third Parties) Act 1999)
2. D is supplier of defective product (not manufacturer)

Must be a breach of terms:
- Check any express terms of the contract
- Implied terms (look at statutes)–
a) As to satisfactory quality and fitness for purpose
b) Also should be supplied with reasonable skill and care

Terms breached? Yes => strict liability for C (need not prove fault on part of seller, merely show that good is not of satisfactory quality)

Question 49

Defective products - CPA (nature of Defendant)

Answer 49

D must be: (multiple => jointly and severally liable)

1. A producer of the product (ie the manufacturer)
2. An own-brander
   - Person who by putting their trademark on the product holds himself out as being its producer
3. An importer (in order to supply it in the course of their business)
4. Supplier BUT only where:
   - C may request supplier to identify above party
   - It is not reasonably practicable for C to identify those persons independently; and
   - Supplier fails to identify producer (etc) within a reasonable period

(Supplier does supply info => C can follow supply chain to identify relevant D)

Question 50

Defective products - CPA (what C must show)

Answer 50

Strict liabilty => do not have to prove fault

C can be anyone that has suffered damage due to a defect in the product

Defect incl
- safety of the product is ‘not such as persons generally are entitled to expect’
- instructions and warnings aren;t sufficient
- product packaging or marketing implied the product could be used for something it could not be safely used for

Question 51

Defective products - CPA (what can be recovered)

Answer 51

1. Death and PI (‘any disease and any other impairment of a person’s physical or mental condition’)
2. Private property damage (incl to land), but:
   - Only if £275 or over (in aggregate); and
   - Damage to business property is not recoverable (must be ‘property ordinarily intended for private use, occupation or consumption’)

CANNOT recover for PEL (ie product itself)

Question 52

Defective products - CPA (defences)

Answer 52

1. Defect did not exist when D supplied product (was instead caused by fair wear and tear/misuse)
2. D did not supply the product in the course of business (eg sold between two friends)
3. ‘state of the art’ defence
   - D must prove that the state of knowledge at the time product was supplied, amongst producers of product in question, was not such as to allow a producer of the product to discover the defect
4. Contributory negligence (standard)

Exclusion of liability and consent are NOT available as defences

Question 53

Defective products - negligence (duty of care)

Answer 53

Manufacturer owes to end consumer of that product

=>
1. D is manufacturer
- Incl those who install or repair products
- Retailer who merely supplies will not have DoC (contrast with contract) BUT will owe duty if they reasonably ought to have inspected the product for defects before supplying it

2. Item causing damage is product
   - widely interpreted, incl labels
3. C is ultimate consumer
   = anyone D should reasonably have in mind as likely to be injured by D’s negligence

Question 54

Defective products - negligence (what is covered)

Answer 54

Extends to PI cause by product (incl consequential loss but NOT PEL)

Extends to damage caused to other property (but NOT product itself as PEL)

Question 54

Defective products - negligence (breach of duty)

Answer 54

Standard of care: to exercise reasonable care

ie That of a reasonable manufacturer in the circumstances taking account of magnitude of risk, gravity of potential injury, cost and practicalities of precautions

Court may infer breach of duty from existence of breach itself

Question 55

Breach of statutory duty

Answer 55

Consider whether statute gives rise to a claim ie:
- C must show they are in the class of persons intended to be protected by the statute
- damages suffered by C must be of the type which the statute was designed to prevent

Question 56

Public nuisance

Answer 56

= unreasonable interference with the comfort and convenience of life of a class of the public

Who can sue?

1. Ind
   - Only bring a claim if that person has suffered particular damage over and above the damage suffered by the class in general
2. Attorney General
   - Representing the public, can bring an action on behalf of the class of people affected
   - Object = to seek an injunction

Question 57

Private nuisance (general)

Answer 57

= an unlawful interference with a person’s use or enjoyment of land

• Does D fall into relevant persons?
• Does C have locus standi?
• Is the interference unlawful?
• Causation and remoteness?
• Defences apply?

Question 58

Private nuisance - who can be sued/be a D

Answer 58

1. Creator of the nuisance (liable even if land now occupied by someone else)
2. Current occupier of the land where nuisance exists, incl liable for those created by other people:
   a) Nuisance created by employee acting in the course of his employment (under normal vicarious liability)
   b) Nuisance created by ind contractor, provided the nature of the work carries a special danger of the nuisance being created
   c) Nuisance created by visitor, predecessor in title, trespasser or natural event provided the occupier has:
   - Adopted the nuisance ie made use of it; or
   - Continued it (ie failed to take reasonable steps to end nuisance)

Question 59

Private nuisance - who can be a C

Answer 59

C must have a proprietary interest in the land

Eg freeholders and tenants and occupier in exclusive possession (right to exclude everyone else) eg not licensees

Present but do not have interest (eg family members/employees) => cannot bring a claim

Question 60

Private nuisance - what is interference?

Answer 60

Requires continuing state of affairs

Can be:
- physical damage caused by flooding, vibration etc
- damage to enjoyment (amenity) caused by dust/noise/smells etc
- encroachment (eg tree roots)

Question 61

Private nuisance - is the interference unlawful?

Answer 61

= ‘substantial and unreasonable’ ie objective standard

liability is stricy => no fault required

Courts will consider following factors:

1. Intensity and duration (incl time of day)
2. Character of the neighbourhood (only rel to loss of amenity, not physical loss)
3. Public benefit will NEVER in itself prevent activity being unreaosonable
4. Abnormal sensitivity NOT taken into account
5. Malice on part of D

Question 62

Private nuisance - causation and remoteness rules

Answer 62

Causation as standard

Only damage which is reasonably foreseeable can be claimed for
- Must be a reasonably foreseeably type of damage, even if the exact way that it occurred was not foreseeable

Question 63

Private nuisance - defences which do apply

Answer 63

1. Prescription
   - Provided the actual nuisance has been continued against C for at least 20 years and C has taken no action=> has acquired the right to commit nuisance
2. Statutory authority
   - Nuisance was inevitable consequence of doing what statute authorised
3. Contributory negligence (as above)
4. Consent (as above)
   - C specifically agreed to accept the interference
5. Act of God/nature
   - Provided that D has not adopted or continued the nuisance

Question 64

Private nuisance - defences which do NOT apply

Answer 64

1. C came to the nuisance
   - Even if nuisance existed before C eg built his house on the polluted land, C can still sue
2. Public benefit
   - C may be deprived of an injunction where the public benefit in question is considered to prevail over C’s private interests
3. Planning permission

Question 65

Private nuisance - remedies

Answer 65

1. Damages
   - Physical damage to C’s land – awarded to compensate for harm cause by nuisance
2. Injunction
   - Court order regulating D’s future conduct
   - Can be full (preventing nuisance completely) or partial (limiting frequency, times and type of nuisance to an extent)
   - Discretionary remedy
   - Will not be awarded where damages are an adequate remedy
3. Abatement (self-help)
   - The removal of the interference by the victim
   - C must do no more than is necessary to abate the nuisance
   - Normally victim has to give prior notice to D, except in emergency or where nuisance can be removed without entering wrongdoer’s land
   - No notice given => may be trespass to land

Question 66

Rule in Rylands v Fletcher (general)

Answer 66

Imposes strict liability when there is an escape of a dangerous thing from D’s land in the course of a non-natural use of the land

No requirement for continuing state of affairs

Liability is strict - ie No defence that D not at fault or that escape not reasonably foreseeable

BUT remoteness does apply - Damage caused by C must be reasonably foreseeable consequence of the escape

Question 67

Rule in Rylands v Fletcher - 3 conditions for liability

Answer 67

1. D brings onto land something likely to cause harm if it escapes
   - Not necessary for it to be dangerous in itself, just dangerous if it escapes (eg storing large quantity of water)
2. D was engaged in non-natural use of the land; and
   - Eg storage of large quantities of industrial chemicals
3. The thing gathered on the land does escape and causes damage
   - PI damage not recoverable

Question 68

Rule in Rylands v Fletcher - defences

Answer 68

1. Unforeseeable act of a stranger
2. Act of god (ie natural event, impossible to take precautions)
3. Consent to the accumulation of the substance (can be express or implied)
4. Contributory negligence
5. Statutory authority