Tort 7 - Nuisance Flashcards
Private nuisance
‘Unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it’
requires c to show;
interference with use and enjoyment
interference is unlawful
Three types
Hunter v Canary Wharf (1997);
-nuisance by encroachment on a neighbours land
-nuisance by direct physical injury to a neighbours land
-nuisance by interference with a neighbours quiet enjoyment of his land (dust, smell, vibrations *wider but courts slower).
Interference must be something that materially interferes with ‘ordinary comfort’’ not ‘elegant or dainty modes’.
Loss of view not actionable.
TV reception not actionable
Unlawful interference
Unreasonable and substantial.
Balance the rights of the people.
Reasonable user not reasonable person.
Duration and frequency important.
Isolated only from continuing state of affairs.
Excessiveness of conduct/extent of harm -
objective (how far removed from normal behaviour).
Character of the neighbourhood.
Only to personal discomfort and inconvenience.
Activities that cannot be carried on without being a nuisance. Breach of planning permission.
Public benefit -
rare (public should not infringe individuals rights).
Malice -
can tip balance of favour.
Abnormal sensitivity
Normal use of land, ignoring abnormal sensitivity.
However if can show unlawful when judged against normal use of that land, can recover all their loss.
‘Egg-shell skull rule’
Who can sue?
Right to exclusive possession of land.
Children of owner cannot.
Proprietary interest in land.
Creator of nuisance;
Even if occupied by someone else.
No longer be found or not worth it must look elsewhere.
Occupier (whether or not created);
employee acting in course of employment.
created by independent contractor (providing nature of work carried special danger of nuisance)
where nuisance is created b y a visitor predecessor in title or trespasser
Reasonable steps to end (will take into account financial resources).
Landlord
Only where
Expressly or impliedly authorised the nuisance.
or
existed at start of letting and ought reasonably to know or knew
or
convenanted to repair or has right to enter to do so, fails to make repairs giving rise to nuisance.
Tenant still liable
Damage
Must prove they have suffered damage.
Not personal injury or damage to property (may be allowed as a consequence).
Loss of profits allowed.
Causation - ‘but for’
Remoteness - ‘reasonably foreseeable’
Defences (Effective)
Effective defences;
Prescription - 20 years AGAINST the claimant. Actionable nuisance.
Statutory authority;
Statute may authorise activity. Defence in any tort.
Contributory negligence
Consent
Act of god or nature -
Secret unobservable process of nature. Only liable if adopt or continue nuisance.
Necessity -
Imminent danger to life and limb
Reasonable in all circumstances.
Not if of the defendants own making.
Defences (Ineffective)
Claimant ‘came to the nuisance’
Same purpose as precedecessors
May be a factor in injunction
Public benefit
May be a factor in injunction
Contributory actions of others;
Planning permissions;
Does not legitimise. Only acts of Parliament can take away private rights to sue not LA.
Nature of neighbour after planning permission.
May be used for noise levels etc if stipulated in the permission.
Remedies
Damages
Loss up to date of trial and limited for future loss.
Physical damage to claimant’s land;
-damages to reflect cost of repairing.
Personal discomfort -
Loss of amenity value of the land.
Injunctions -
Prohibitory injunction - stops defendant acting in some way
Mandatory injunction -
some positive action to rectify. granted less readily
Quia timet injunction -
In anticipation. C will have to show;
almost certain to incur damage
such damage is imminent
defendant will not stop course of conduct without order of the court.
All injunctions not awarded where damages would be adequate remedy. However stopping future acts only injunction.
Can grant damages for future if show case for injunction but court decides not to.
Court may exercise discretion to refuse injunction and grant damages where;
harm suffered is - small, capable of being quantified financially, capable of adequate compensation by damages.
AND
It would be oppressive to the defendant to grant the injunction.
Does not mean will be satisfied - public good etc..Planning permission may influence.
Abatement;
another remedy.
Removal of interference by victim
Rule in Rylands v Fletcher
Escape of something dangerous in course of non-natural use of land.
Occupier liable.
Strict liability.
D brings onto land for own purposes something likely to do mischief;
capable of damage if it escapes.
Excpeptionally likely.
Escape;
must move to a place outside D’s occupation or control.
Non-natural use of land;
extraordinary or unusual according to standards of the day.
Cause foreseeable damage of the relevant type;
Remoteness.
Defences
Caused by unforeseeable act of a stranger.
Could not have reasonably foreseen.
Statutory authority
Consent
Contributory negligence
Public nuisance
Crime;
act or omission that endangers life, health, property or comfort of the public or obstructs public in exercise or enjoyment of rights common to all Her Majesty’s subjects.
Unreasonable conduct that materially affects the reasonable comfort and convenience of a class of her Majesty’s subjects;
Question of facts amount of people. Representative cross-section must have been affected.
Claimant has suffered particular harm;
property damage and loss of profit. Also personal injury.
