Tort Law 2 Flashcards
Requirements for public nuisance
.Defined where a group of people is affected by the use of land in the locality
.Class of people- nuisance will more than likely affect more than 2 or 3 people
.Special damage- the person needs to show they have suffered special damage over and above the rest eg Castle v. St Augustine
.Claimants can claim damages for personal injury eg Corlay v. Corby
Defences, Remedies and Evaluation
.Defences include consent and contributory negligence as well as statutory backing
.Remedies include injunction and damages
.Evaluation: public nuisance is broader than private nuisance
Private Nuisance
.This is where a person’s use or enjoyment of their property is affected by the unreasonable behaviour of a neighbour
.The claimant can be either the owner, tenant or whoever has responsibility for the land
.The defendant is the occupier who will be held liable for the nuisance
Elements of private nuisance
.Tort must be unlawful eg use of land deemed unreasonable
.Indirect Interference- if the interference is obvious and direct then the defendant will be found liable. If however it is indirect, then this is not enough eg Hunter v. Canary Wharf
-Courts are prepared to consider emotional distress however eg Laws v. Florinplace
Factors of reasonableness
.Locality- what sort of area is it eg residential, partly commercial, industrial etc
.Duration of interference- a one off noisy party may not be nuisance but regular late night parties could be
.Sensitivity of the claimant eg Robinson v. Kilvert
Defences of private nuisance
.Prescription- if the action has been a carried out for at least 20 years with no complaint in that time it can be used as a defence
.Statutory Authority- defendant may argue that the nuisance is regulated and licensed by the law eg Allen v. Golf
Remedies for private nuisance
.Injunctions were set out in the Shelfer test. Damages should be awarded if:
-Claimant can be compensated by money
-Unfair on the defendant to grant an injunction
What is a Rylands v. Fletcher tort
.Was a case where the decision was made in 1868. The original case involved water
4 elements to be proved in Rylands v. Fletcher
- The bringing onto the land and an accumulation
- Of a thing likely to cause mischief if it escapes
- Which amounts to a non-natural use of the land
- Escapes onto adjoining property
What things did the court decide were to cause mischief if it escapes
Gas/Electricity
Poisonous fume
A flag pole
Tree branches
An occupied chair from a chair-o-plane ride eg Hale v. Jennings
What is non-natural use of the land
.Complex such as petrol in the tank of a garaged car eg Musgrove
-The natural use of the land differs eg Rickards v. Lothian where no liability was held as the use of domestic pipes was a natural use of the land
The thing must escape and cause foreseeable damage
.It must escape from one property to another eg Wyvern
Defence to Rylands v. Fletcher
Volenti (consent)
Act of stranger- D has no control of the escape
Act of God- caused due to unforeseen extreme weather conditions
Contributory negligence
Evaluation of Rylands v. Fletcher
Overlap with the tort of negligence
Requirement that is must be a non-natural use of the land
Wide range of defences available for D
Test of foreseeability is strict
Vicarious Liability
Vicarious Liability is where a third person, usually an employer has legal responsibilities for the unlawful actions of another, usually the actions of an employee acting in the course of employment
2 main tests for VL
Was the person alleged to have committed the tort an employee or an independent contractor
Was the tort committed during the course of their employment
Liability for employees test
The Integration or organisation test: unless a worker is fully integrated into the business then they are no employees
The economic reality or multiple test: this test uses multiple factors such as employer provides work for wage, subject to the control of an employer and a contract of employment
Acting in the course of employment
Acting against orders: the employee is doing this, employer can still be liable eg Limpus v. London
Acting outside employment: if injury is caused by the employee doing something outside of his employment then the employer is not liable
Employee committing a criminal act: employer may be liable if the act has a close enough connection to what the employee has been employed to do
Employee committing a negligent act
Employee acting on a ‘frolic’ of their own
Liability for independent contractors
An independent contractor is liable for their own actions, therefore it is important to have their own insurance cover
Evaluating the tort of vicarious liability
.It is a just and practical remedy for the claimant as the employer is much more likely to have the means and resources to pay for compensation
.It seems unfair that an employer who has taken all precautions will still be held liable
.Decisions have been inconsistent eg Hilton v. Thomas
.It encourages employers to take greater care training their staff and making sure they are properly supervised
