Tort Law - Land-based torts Flashcards
What are the torts relating to land? (4)
Private nuisance, public nuisance, trespass to land and the rule in Rylands V Fletcher.
What is private nuisance? (2)
Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land. The claimant must have a legal interest in the land affected to bring a claim in private nuisance.
Who can the claimant sue? (4)
- Creator of the nuisance
- Occupier of land where the nuisance emanates
- Owner of land where the nuisance emanates
- In some circumtances the landlord
When may an occupier be liable for nuisance created by third parties? (5)
- Independent contractors
- Predecessors in title
- Trespassers
- Visitors
- Naturally occurring nuisances
What two preliminaries must be considered in regard to private nuisance? (2)
Who can sue in private nuisance and who can be sued in private nuisance.
Key case for claim in private nuisance? (1)
Hunter and others V Canary wharf 1997.
What are the four elements that make up private nuisance? (4)
- Indirect interference
- Recognised damage
- Continuous act
- Unlawful interference
What is indirect interference? (1)
Nuisance which starts on the defendant’s land but causes damage to the claimant’s use / enjoyment of their land such as sounds, smells and fumes.
What could a recognised damage be? (2)
Physical damage - overhanging branches
Sensible personal discomfort - unpleasant odour
What did case of Rylands V Fletcher decide? (3)
A nuisance must be a continuous act, although there are two exceptions to this general rule, which are a single incident caused by an underlying state of affairs and an activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material.
Key case for exceptions to continuous acts underlying state of affairs? (1)
British celanese V AH hunt ltd 1969
Key case for continuous acts state of affairs creating risk of escape of physically dangerous or damaging material? (1)
Crown River Cruises Ltd V Kimbolton Fireworks Ltd 1996.
What factors will the court consider when deciding if a defendant’s use of land is reasonable (lawful) or not? (6)
- Time and duration
- Locality
- Abnormal sensitivity
- Malice
- Lack of care
- Excessive behaviour
What defences are available in private nuisance? (7)
- Statutory authority
- Consent
- Contributory negligence
- Act of a third party
- Act of God
- Necessity
- Prescription
What are the remedies available for private nuisance? (3)
Injunctions (primary remedy), damages and abatement.
What can a partial injunction be seen as? (1)
A compromise, striking the balance between the two parties limiting the time and frequency of an activity rather than preventing it completely.
What remedy will be awarded for physical damage to property? (1)
Damages.
When may damages be awarded in lieu of an injunction? (1)
Where the loss is SPD, often where public interest outweighs the claimant’s interest.
What is abatement? (1)
A ‘self-help’ remedy where the claimants acts to stop the nuisance.
Is moving to a nuisance a successful defence? (1)
No.
What is a public nuisance, and the key case? (1)
Acts or omissions of the defendant that materially affects reasonable comfort or convenience of life of a class of her majesty’s subjects, Attorney General v PYA Quarries 1957.
Who can sue in public nuisance? (3)
Individual, local authority or Attorney General.
Does the claimant need to have an interest in the land affected to sue for public nuisance? (1)
No.
Who can be sued in public nuisance? (3)
Creator, owner or occupier
What elements should we consider for public nuisance? (4)
- Acts or omission
- One-off event or continuous
- Class of people must have been affected
- Loss must materially affect the comfort and convenience of the class
What are the defences available for public nuisance? (1)
Same as private minus prescription.
What are the remedies for public nuisance? (1)
Same as private but only injunctions can be granted by Attorney General or local authority.
What does the rule in Rylands V Fletcher protect against? (1)
Interference due to an isolate escape from the defendant’s land.
What are the defences available for Rylands V Fletcher? (1)
Same as public plus common benefit and act/default of claimant.
What are the remedies available for Rylands V Fletcher? (1)
Same as private, most common remedy is damages.
What is the common benefit defence? (1)
If the claimant agreed to the accumulation of the material by the defendant, there will be no liability.
What must the claimant do to bring a claim in trespass to land? (2)
The claimant must own the land or be in possession of it. Where a trespasser possesses demised land, the tenant or licensee in possession will be the claimant.
What is meant by trespass to land is actionable per se? (1)
Without proof of damage.
What are the defences available in trespass to land? (3)
Permission, legal authority and necessity.
What are the remedies available in trespass to land? (5)
Damages, injunctions, re-entry, recovery of land, mesne profits.
What are examples of trespass? (2)
Intrusion to airspace above the claimant’s land and intrusion to the claimant’s land beneath the ground.
