🚑Tort: nuisance/land Flashcards
3 torts relating to land
- Private nuisance
- Rylands v Fletcher
- Public nuisance
Private nuisance: definition
‘an unlawful interference with a persons use or enjoyment of land, or some right over, or in connection with it’
Priv nuisance: what counts as an interference with Cs use and enjoyment of land or some rights they enjoy over it and requirements for it to be actionable in tort?
- Encroachment
- Direct physical injury
- Interference with a neighbours quiet enjoyment of their land (interference with personal comfort/loss of amenity-wide ranging but courts slower to find )
□ To be actionable in nuisance, interference had to be something that materially interfered with ‘ordinary comfort’ not ‘elegant or dainty modes…of living’
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Priv nuisance: what is NOT actionable in nuisance?
□ Loss of prospect (view) from home
□ Disruption to TV reception caused by a new building (could apply to other luxuries)
Prive nuisance: what does ‘unlawful’ interference mean?
Substantial and unreasonable (not necessarily criminal and Ppl are expected to tolerate a certain amount of noise/smell)
□ Courts will attempt to balance right of the occupier to do what they are lawfully entitled to on their land against their neighbours right to enjoy their land free from interference.
Priv nuisance: what will always be unlawful
Encroachment
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Priv nuisance: how will the courts determine what is unlawful?
Reasonable user test-has Ds use of their land unreasonably interfered with Cs reasonable use of their land? (NOT reasonable person test).
Consider:
1. Duration and frequency
2. Excessiveness of conduct/extent of the harm
3. Character of neighbourhood
4. Public benefit
5. Malice
6. Abnormal sensitivity
Priv nuisance: how to assess duration and frequency as a factor for ‘unlawful’
◊ Must be some degree of continuity and frequency
◊ Isolated incident only actionable if it emanates from some continuing state of affairs on the Ds property
Priv nuisance: how to assess Excessiveness of conduct/extent of the harm as a factor for ‘unlawful’
◊ How far removed from ‘normal’ behaviour’ (objective)
◊ Physical damage always excessive unless trivial.
◊ Eg. Noise from renovation lasting from 8am-5pm each day found to be excessive
Priv nuisance: how to assess character of neighbourhood as a factor for ‘unlawful’
Only relevant for interference causing personal discomfort and inconvenience (rather than physical (material) injury to property)
When assessing, do NOT take into acc:
*If an activity cant be carried out without creating a nuisance.
* Breach of planning permission- should be discounted when assessing character of locality HOWEVER planning permission can operate to change character of neighbourhood
Priv nuisance: how to assess public benefit as a factor for ‘unlawful’
Rarely a factor as public interests shouldn’t deprive individual of rights
Priv nuisance: how to assess malice as a factor for ‘unlawful’
(ie. Spite or improper motive)
Interference carried out with malice cant be regarded as a reasonable one
Priv nuisance: how to assess abnormal sensitivity as a factor for ‘unlawful’
◊ Only actionable a normal user of land would have been effected, ignore abnormal sensitivity of C
◊BUT can use to recover more losses if greater (egg shell skull)
Private nuisance: who can sue?
- Person with right to exclusive possession (exclude everyone else) deriving from a proprietary interest:
○ Owner/occupier
○ Tenant (in leasehold) - AND C must have suffered damage, inc:
◊ Physical to land/buildings (inc. crops/plants)
◊ Interference with quiet enjoyment
◊ Consequential losses from recoverable damage (eg. Loss of profits) - AND prove causation and remoteness (normal way)
Priv nuisance: what types of damages are not recoverable?
- Personal injury
- Damage to personal property (BUT recovery has been allowed on basis they flow as a consequence of the personal discomfort caused by the nuisance.)
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Priv nuisance: who is a category that CANT sue
○ Children of the owner-occupier
○ Guest on property legally owned by another (ie. Hotel guest)
Priv nuisance: who are potential defendants?
- CREATOR (remains liable even land now occupied by another)
-
OCCUPIER created by them OR others where:
a. Vicarious liability
b.Independent contractor if nature of work special danger of nuisance being created
c. Visitor, predecessor in title, trespasser, or natural events if occupier adopted (make use of thing which constituted the nuisance) or continued ( once they know or ought reasonably to know of its existence, they fail to take reasonable steps to end the nuisance) nuisance -
LANDLORD generally not liable unless:
i. Expressly or impliedly authorised nuisance (ie. its an inevitable result of the letting)
ii. It existed at start of letting and landlord knew or ought reasonably to have known it.
iii. Where ll cov to repair, or has the right to enter to do so, and, fails to make the repairs, giving rise to the nuisance (but this wont exonerate the tenant)
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Priv nuisance: effective defences
- Prescription: continuing nuisance for 20y against THAT C
- Statutory authority (inevitable result of doing something authorised by statute )
- Contributory negligence
- Consent (normal principles)
- Act of God or nature=not liable unless adopt or continue
-
Necessity
a. A situation exists because of an imminent danger to life and limb (or occasionally threat to prop)
b.. AND Ds actions reasonable in all circumstances.
CANNOT be used of circumstances giving rise to necessity were of Ds own making4.
Priv nuisance: 2 examples of ‘act of god or nature’ defence
- Subsidence under or near the foundations of the defendant’s house
- Act of God (eg lightning)
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Prive nuisance: non operative/ineffective defences
- C ‘came to the nuisance’ (app where C uses prop for essentially same purpose as predecessors, may work where change use)
- Public benefit
- Contributory actions of others
- Planning permission
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Priv nuisance: remedies
- Injunction
- AND/OR Damages for loss already suffered at date of trial
- Abatement (self-help) (Removal of interference by V)
Priv nuisance: types of injunction
- Prohibitory injunction-Stops D acting in some way
- Mandatory injunction-requires D to take positive action to rectify
-
A ‘quia timet’ injunction (in anticipation of the tort)
C has to show:
* They are almost certain to incur damage without the injunction
* AND such damage is imminent
* AND D wont stop their course of conduct without a court order
Priv nuisance: when will/wont damages in lieu of an injunction be awarded?
○ NOT where common law damages adequate (ie past breaches)
○ So can award for future breaches where:
– Harm suffered by applicant is:
1. Small
2. AND Capable of being quantified in financial terms
3. AND capable of adequate compensation by damages
– AND It would be oppressive to the D to grant the injunction
Priv nuisance: Procedure for self help
V must normally give prior notice to the wrongdoer, except;
1. in an emergency
2. where the nuisance can be abated (removed) without entering the wrongdoer’s land
