Tort Law - Land-based torts

Question 1

What are the torts relating to land? (4)

Answer 1

Private nuisance, public nuisance, trespass to land and the rule in Rylands V Fletcher.

Question 2

What is private nuisance? (2)

Answer 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.

Question 3

Who can the claimant sue? (4)

Answer 3

1. Creator of the nuisance
2. Occupier of land where the nuisance emanates
3. Owner of land where the nuisance emanates
4. In some circumtances the landlord

Question 4

When may an occupier be liable for nuisance created by third parties? (5)

Answer 4

1. Independent contractors
2. Predecessors in title
3. Trespassers
4. Visitors
5. Naturally occurring nuisances

Question 5

What two preliminaries must be considered in regard to private nuisance? (2)

Answer 5

Who can sue in private nuisance and who can be sued in private nuisance.

Question 6

Key case for claim in private nuisance? (1)

Answer 6

Hunter and others V Canary wharf 1997.

Question 7

What are the four elements that make up private nuisance? (4)

Answer 7

1. Indirect interference
2. Recognised damage
3. Continuous act
4. Unlawful interference

Question 8

What is indirect interference? (1)

Answer 8

Nuisance which starts on the defendant’s land but causes damage to the claimant’s use / enjoyment of their land such as sounds, smells, fumes/

Question 9

What could a recognised damage be? (2)

Answer 9

Physical damage - overhanging branches
Sensible personal discomfort - unpleasant odour

Question 10

What did case of Rylands V Fletcher decide? (3)

Answer 10

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.

Question 11

Key case for exceptions to continuous acts underlying state of affairs? (1)

Answer 11

British celanese V AH hunt ltd 1969

Question 12

Key case for continuous acts state of affairs creating risk of escape of physically dangerous or damaging material? (1)

Answer 12

Crown River Cruises Ltd V Kimbolton Fireworks Ltd 1996.

Question 13

What factors will the court consider when deciding if a defendant’s use of land is reasonable (lawful) or not? (6)

Answer 13

1. Time and duration
2. Locality
3. Abnormal sensitivity
4. Malice
5. Lack of care
6. Excessive behaviour

Question 14

What defences are available in private nuisance? (7)

Answer 14

1. Statutory authority
2. Consent
3. Contributory negligence
4. Act of a third party
5. Act of God
6. Necessity
7. Prescription

Question 15

What are the remedies available for private nuisance? (3)

Answer 15

Injunctions (primary remedy), damages and abatement.

Question 16

What can a partial injunction be seen as? (1)

Answer 16

A compromise, striking the balance between the two parties limiting the time and frequency of an activity rather than preventing it completely.

Question 17

What remedy will be awarded for physical damage to property? (1)

Answer 17

Damages.

Question 18

When may damages be awarded in lieu of an injunction? (1)

Answer 18

Where the loss is SPD, often where public interest outweighs the claimant’s interest.

Question 19

What is abatement? (1)

Answer 19

A ‘self-help’ remedy where the claimants acts to stop the nuisance.

Question 20

Is moving to a nuisance a successful defence? (1)

Answer 20

No.

Question 21

What is a public nuisance, and the key case? (1)

Answer 21

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.

Question 22

Who can sue in public nuisance? (3)

Answer 22

Individual, local authority or Attorney General.

Question 23

Does the claimant need to have an interest in the land affected to sue? (1)

Answer 23

No.

Question 24

Who can be sued in public nuisance? (3)

Answer 24

Createor, owner or occupier

Question 25

What elements should we consider for public nuisance? (4)

Answer 25

1. Acts or omission
2. One-off event or continuous
3. Class of people must have been affected
4. Loss must materially affect the comfort and convenience of the class

Question 26

What are the defences available for public nuisance? (1)

Answer 26

Same as private minus prescription.

Question 27

What are the remedies for public nuisance? (1)

Answer 27

Same as private but only injunctions can be granted by Attorney General or local authority.

Question 28

What does the rule in Rylands V Fletcher protect against? (1)

Answer 28

Interference due to an isolate escape from the defendant’s land.

Question 29

What is the key definition in Rylands V Fletcher? (3)

Answer 29

We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keep there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage that is the natural consequence of the escape.

Question 30

What are the defences available for Rylands V Fletcher? (1)

Answer 30

Same as public plus common benefit and act/default of claimant.

Question 31

What are the remedies available for Rylands V Fletcher? (1)

Answer 31

Same as private, most common remedy is damages.

Question 32

What is the common benefit defence? (1)

Answer 32

If the claimant agreed to the accumulation of the material by the defendant, there will be no liability.

Question 33

What must the claimant do to bring a claim in trespass to land? (2)

Answer 33

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.

Question 34

What is meant by trespass to land is actionable per se? (1)

Answer 34

Without proof of damage.

Question 35

What are the defences available in trespass to land? (3)

Answer 35

Permission, legal authority and necessity.

Question 36

What are the remedies available in trespass to land? (5)

Answer 36

Damages, injunctions, re-entry, recovery of land, mesne profits.

Question 37

What are examples of trespass? (2)

Answer 37

Intrusion to airspace above the claimant’s land and intrusion to the claimant’s land beneath the ground.