Tort - Nuisance Flashcards
What does nuisance mean and what are the 3 types?
- Nuisance = Land Tort involving protecting rights in land - protecting right to peaceful enjoyment
1) - Private Nuisance
2) - Public nuisance
3) Rylands and Fletcher
Private nuisance - what does this mean and what does it require?
= unlawful interference with persons reasonable enjoyment with land or some right over it
- does NOT cover PI or damage to personal belongings - Negligence covers that
- any consequential losses flowing from the nuisance eg loss of earnings are recoverable
Requirements
1) Unlawful interference - need to identify this first
- encroaching on land or extension over land
- property damage
- unlawful disturbance, loud music etc, interfering with neighbours quiet enjoyment of land
- consider if use of land is unreasonable
must make it unbearable, does not include nice things, interfering with TV or Wi-fi
2) Can the claimant sue?
- the claimant landlord or tenant, can only sue if they have an interest in the land
- Freehold or leasehold interest, when have neighbours usually
3) Who does the claimant sue
Who is liable -
- CREATOR OF NUISANCE - even if no longer live on land
- if claimant can’t find then they can sue current occupier
- OCCUPIER - liable for what created or failed to take steps to prevent
- also liable for
* employer of occupier that made nuisance
* created by independent contractor if work done made a nuisance, or
*created by
- previous owner
- visitor or trespasser
- natural occurrence - which defendant adopts or continues. Ie becomes aware of it but uses to advantage or fails to take reasonable steps to deal with it. What is reasonable comes down to cost, effect of interference and defendants resources
* if nuisance occurs on property rented out to tenant, general rule = landlord NOT liable, tenant WILL be, BUT 3 scenarios where landlord will be liable
a) LL authorises nuisance by letting for purpose that will inevitably result in nuisance
b) nuisance existed at time of letting out property and LL knew or ought to have known about it
c) in lease LL promises to repair property BUT fails to do so, and this causes the nuisance. Hear LL and T will both be liable
4) Was that interference unlawful?
- must be substantial and unreasonable
a) - overhang - trees, building- WILL ALWAYS BE UNLAWFUL - must take action as soon as realise its there
- but still need to prove caused damage, diminished value
b) - property damage - drilling breaks someone else’s window
- can be be abnormally sensitive and therefore not feasible to foresee, normal claimant test, ie can’t stop if not foreseeable, ie storing under floorboards and fumes emitting
- if damages property likely to be unlawful
c) disturbance, noise, vibrations, fumes, becomes unlawful when assess following factors considered:
- character neighbourhood
- planning position
- frequency and duration
- ridiculousness
- if of malice
5) Causation - “but for” actions
- private nuisance - property damage, diminishing value, general disturbance
- can’t claim PI or damage personal belongings - should claim for these in negligence
6) Remoteness - reasonably foreseeable to defendant at time, and was likely result of interference
Defences to private nuisance?
= Effective defences and ineffective defences
EFFECTIVE DEFENCES
- will defeat claim
- will reduce damages payable
- prescription = successful defence, where endured 20 or more years MUST be against claimant cannot be another which then adds to 20 years
- statutory authority - act of parliament permits def to commit nuisance. Used by public authorities, NOT individuals. Must be inevitable result of what act authorises
- consent - consent/agree to nuisance in past
- act of god- natural random event eg flood, which can’t control, won’t be liable UNLESS adopt and use to advantage
- necessity - imminent danger to life and took necessary/reasonable steps to limit. Does not apply if defendant caused danger to arise in first place
- contributory negligence - reduces damages. Own negligence/fault caused, made nuisance worse, so reduce damages. This is NOT a complete defence
INEFFECTIVE DEFENCES
- claimant knows about interference when they move into the property - CAN still sue.
Only ineffective if claimant uses property for same purpose as predecessors
- others cause nuisance, if def was operative cause, not a defence.
- public good - not a defence
- planning permission - to male interference - WON’T be a defence. BUT CT will consider where considering if interference unlawful
Remedies private nuisance
DAMAGES - compensate for loss, reasonably foreseeable as result of nuisance
Physical damage - land or stuff on land - plants buildings- resulting in damage - needing fixing, of diminution in value of land
Personal discomfort - any discomfort endured
INJUNCTION - where damages not adequate, prevents interference from continuing or happening in first place
- Public benefit is a big factor in considering whether to award injunction. If nuisance has planning permission may be beneficial to keep and just award damages
- Mandatory injunction - orders defendant to put end to nuisance
- Prohibitory injunction - stops defendant from doing something
- Future Injunction - orders to do or not do something to prevent a nuisance in the first place. Claimant fears nuisance imminently
- abatement - self help remedy - claimant goes into property, fixes themselves and then claims to court for compensation. Used before goes to court, MUST serve notice on other parties to let know going onto their land. Can recover abatement costs.
- If fail to serve notice UNABLE to trespass
Can have two claims at once - nuisance and negligence
- unlawful interference causes personal discomfort to claimant and actual damage to their personal belongings
SUMMARY
1) ID unlawful interference
2) Can C sue, check have interest in land
3) Who to sue
- creator but can be occupier, if employee or contractor made nuisance, or they adopt a nuisance and landlord, if they authorise nuisance, knew about it at start of lease or fail to remedy it under lease
4) Is it an overhang that causes damage or property damage to C’s land
- If Yes, C will be successful unless property damaged is abnormally sensitive ( therefore not reasonably foreseeable it would be damaged
5) If it is a disturbance, is it unlawful- must be substantial and reasonable
- check factors
*locality of area
* planning position
* duration and frequency
* ridiculousness
* abnormal sensitivity
* malice of D
6) Check causation and remoteness
7) Do any defences apply
- Must be EFFECTIVE defence - prescription, stat authority, act of god, consent, necessity and contrib neg can reduce damages paid
8) If NO - claim successful. Remedies for successful claim, injunction, damages and abatement
Public nuisance what does this mean and what does it require?
- technically it is a crime enforced by the police, but it is also a civil claim
- when can it be made? 2 criteria to meet
1) Affects reasonable comfort and convenience, causes damage or discomfort of a class of his majesties subjects, ie: - full street
- obstruction road
- large group of people
2) claimant is within the group and has suffered specific particular harm, above and beyond rest of group affected. Can be property damage, PI or loss of earnings - no interest in land needed
- defences - effective, same as in private nuisance
- can be isolated one off event
Rylands v Fletcher what is it and how does it apply?
= someone bringing something onto land when shouldn’t have and then it escapes
1) def brought something onto land capable of damage - water, fumes, electricity, cattle, sewage
2) If escapes, thing must actually escape from defendants land
- MUST be actual thing, not something associated with it eg fire caused by tyres, fire goes onto claimants land but not tyres.
3) Escape happens while land is being used in an extraordinary and unusual way
- shouldn’t be there in first place eg cattle on farm escaping, not Rylands as cattle would be found on land used as farm
- bar is high, use of land must be extraordinary and unusual
4) cause foreseeable damage
- thing that escapes MUST ACTUALLY cause damage “but for” and that damage must be a REASONANLY FORESEEABLE possibility/result if it escapes
- thing escapes shouldn’t have been there in 1st place.
- Usually have Rylands and Fletcher claim with negligence claim. If R & F fails can proceed with negligence
- Rylands can fail on use of land in extraordinary and unusual way.
- PI not available in Rylands
- Not liable if 3rd party causes escape - ie 3rd party opens gate and lets cattle out this may be negligence. BUT could be Rylands if the defendant could have reasonably considered/anticipated, guarded against it.
- have to have freehold/leasehold interest in land
Defences -
- Act of god - storm
- statutory authority - on land because parliament said it could be
- random acts of a stranger- unless foreseeable
- claimant gave consent
- claimant contributed to the negligence
Advantages R & F
- DON’T need to show defendant didn’t show REASONABLE CARE. IS applicable in negligence claim
- can’t claim PI
- interest in land to sue
Summary of Private, Public and R v F
Private -
- neighbour dispute - overhang
- disturbance = unlawful, interest in land, suing right person, causation, remoteness, no defence
Public -
- one off event affects large group.
- complainant affected over and above
- some defences
- can’t claim PI & loss earnings
R v F
- brought on land escapes, causes damage to claimants land
- need interest in land
- NO PI claim available
- Defences - check don’t defeat
- not unusual, that make negligence claim at same time as R v F and private nuisance claim
** Negligence
= duty of care to neighbour
= standard of care is that of reasonable neighbour
