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
Requirements
1) Unlawful interference - need to identify this first
- encroaching on land or extension over land
- property damage
- unlawful disturbance, loud music etc
- consider if use of land is unreasonable
2) Can the claimant sue?
- the claimant 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
- occupier of land who is usually the cause of the nuisance
- can be employee causing nuisance, but can sue occupier business, who owns business
- occupier didn’t create but adopts it and continues to cause it
- sue tenant if causing nuisance
- or landlord if criteria applies - if they let property and nuisance inevitable, or they know of nuisance when they let, or covenant to repair which landlord not complied with.
4) Was that interference unlawful?
a) - overhang - trees, building- WILL ALWAYS BE UNLAWFUL 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, ie can’t stop if not foreseeable, ie storing under floorboards and fumes emitting
c) disturbance, noise, vibrations, fumes, becomes unlawful when assess following factors
- character neighbourhood
- planning position
- frequency
- 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
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
- consent - consent/agree to nuisance
- act of god- natural random event
- necessity - imminent danger to life ad took necessary/reasonable steps to limit
- contributory negligence - reduces damages. Own negligence/fault caused loss so reduce damages
Ineffective defences
- def came to nuisance knowing it was there
- others cause nuisance, if def was operative cause, not a defence.
- public good - not a defence
- planning permission - is disturbance unlawful or not? NOT a defence
Remedies private nuisance
- damages
- injunction where damages not adequate
- mandatory injunction - orders defendant to put end to nuisance
- abatement - self help remedy - claimant goes into property, fixes themselves and then claims to court for compensation. Used before the courts, serve notice on other parties to let know going onto their land. Can recover abatement costs.
- If fail to serve notice UNABLE to trespass
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 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. - no interest in land needed
- defences - effective, same as in private
- can be 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
