Tort Unit 8 SBAQs Flashcards
Consider the types of harm covered by the tort of private nuisance.
Which one of the following statements is most likely to be INCORRECT?
A. Loss of sleep is a type of harm covered by private nuisance.
B. A heart attack is a type of harm covered by private nuisance.
C. Damage to trees is a type of harm covered by private nuisance.
D. Damage to the foundations of a house is a type of harm covered by private nuisance
The correct answer is B . Private nuisance does not cover personal injury.
In which of the following situations could there be a possible claim in private nuisance?
A. To celebrate a special event X lights a bonfire in his garden. Smoke drifts over the garden of his neighbour Y. X is not in the habit of lighting bonfires and this is a one-off event.
B. X lights a bonfire in his garden every Sunday to burn garden rubbish. Smoke and fumes always drift over Y’s garden and spoil her pleasure in sitting there.
C. X’s one-off celebratory bonfire was carelessly constructed so it collapsed onto Y’s fence and burnt it down.
The correct answer is B. This situation is a continuing state of affairs which is potentially actionable in private nuisance.
A is wrong as there would be no claim in private nuisance as there is no continuing state of affairs.
C is wrong because there is no claim in private nuisance as this is a single event. However a single event which causes tangible damage could be actionable in negligence.
Which ONE of the following statements is INCORRECT?
A. A lodger cannot sue in private nuisance.
B. A member of the owner’s family cannot sue in private nuisance.
C. A tenant cannot sue in private nuisance.
D. The owner’s husband or wife cannot sue in private nuisance.
E. A landlord can only sue in private nuisance if the interference is likely to cause permanent damage to the property.
The correct answer is C. A tenant can sue in private nuisance as they have the necessary proprietary interest.
The test for remoteness of damage in the tort of private nuisance requires the damage to be of a reasonably foreseeable type.
Is this statement TRUE or FALSE?
The statement is true. The damage must be of a foreseeable type. In other words, the same test applies as in negligence.
Consider potential defences to an action in private nuisance.
Which ONE of the following statements is CORRECT?
A. Planning permission is an effective defence to an action in private nuisance.
B. The fact that the defendant has been committing the nuisance for 15 years is an effective defence to an action in private nuisance.
C. The fact that the claimant bought his house knowing of the defendant’s nuisance is an effective defence to an action in private nuisance.
D. The fact that the defendant is authorised by a statute to commit the nuisance is an effective defence to an action in private nuisance.
The correct answer is D. The fact that the defendant is authorised by a statute to commit the nuisance is an effective defence to an action in private nuisance. The other options are not effective defences to a claim in private nuisance.
Which one of the following statements on trespass to land is INCORRECT?
A. A tenant can sue in trespass to land.
B. An owner-occupier can sue in trespass to land.
C. A lodger can sue in trespass to land.
D. A squatter can sometimes sue for trespass to land.
C is the correct answer. A lodger cannot sue in trespass to land because they do not have possession of the land. All the other persons do have possession rights including a squatter who has a better right to possession than anyone apart from the legal owner and (if any) earlier squatters.
Is the following statement true or false?
In trespass to land the courts apply the same test for remoteness of damage as in negligence and private nuisance
The statement is false. The test for remoteness in trespass to land is the direct consequences test from the case Re Polemis. Under this test the defendant is liable for all the direct consequences of his tort even if unforeseeable. This is more onerous to the defendant than the Wagon Mound test.
A mother, (who owns a house); her boyfriend who lives with her (when he is not working abroad), her 8 year old daughter; and the childminder (who receives a room as part of his employment); all wish to bring a claim against the Sawmill Company who occupy the neighbouring property. When the wind blows in a certain direction, their house, garden and possessions are coated in a layer of sawdust.
Who has the right to bring claim a claim in private nuisance?
A. The mother.
B. The mother and her boyfriend.
C. The mother and the daughter.
D. Everyone who lives in the property.
E. No one who lives in the property.
Option A is correct because if you consider Hunter v Canary Wharf Limited [1997] this reasserted the traditional view that private nuisance is a tort directed against the claimant’s enjoyment of his/her rights over land. Private nuisance claims can only be brought by a claimant with a proprietary interest in the land.
Option B is wrong because, whilst the mother has a proprietary interest in the house the boyfriend is likely to be just visiting and cannot make a claim.
Option C is wrong because the daughter is likely to have no proprietary interest and so does not have the right to bring a claim.
Option D is wrong because, the mother is the only one who has the right to bring a claim due to her propriety interest. No one else has a proprietary interest.
Option E is wrong because, the mother is able to bring the claim in private nuisance due to an unlawful interference with her use and enjoyment of her land as she does have a proprietary interest.
The gardener at a country house with a large garden creates and lights bonfires to dispose of fallen leaves, wood and grass cuttings. The owner of the country house has instructed the gardener to dispose of these items in this way. The gardener lights the bonfires in the early afternoon three or four times a week and they usually burn for about four hours. A woman who owns a neighbouring property experiences great discomfort because of the bonfires. They worsen her asthma and prevent her from being outside in her garden whilst they are burning. The woman brings a claim in private nuisance against the owner of the country house.
Which of the following answers is correct?
A. The woman cannot claim against the owner of the country house because he is not the creator of the bonfires.
B. The woman’s claim is unlikely to be successful because neither the gardener nor the owner of the house are behaving maliciously.
C. The woman’s claim is unlikely to be successful because the type of harm she suffers is intangible.
D. If the woman’s claim is successful, she is likely to receive damages for the loss of enjoyment of her garden.
E. If the woman’s claim is successful, she is likely to receive damages for the worsening of her asthma and the loss of enjoyment of her garden.
Option D is correct because damages for loss of enjoyment of property is a potential remedy for private nuisance.
Option A is wrong because it is not only the creator of the nuisance who can be sued, the occupier of the land can be too. This is also because the owner of the house has instructed the gardener to do something that carries a special danger of nuisance being created.
Option B is wrong because the actions of the defendant in a private nuisance claim need not be malicious.
Option C is wrong because private nuisance can compensate for intangible harm.
Option E is wrong because private nuisance does not compensate for personal injury.
A sewage plant operates a site near to a residential area. It has recently obtained planning permission to extend the plant, despite the villagers campaigning against it. The new plant extension has doubled the capacity to carry out processing on the site. This has resulted in dirty fumes drifting over gardens, noise from trucks operating on the site which happens over 24 hours and smells from waste which is awaiting processing invading homes. Chemicals are also leaking from one of the waste holding sites through the soil and into neighbouring gardens, causing the soil to become polluted as a result and plants and trees dying.
A solicitor has been asked to give advice to one of the residents in relation to them bringing a private nuisance claim.
What advice should the solicitor give?
A. The character of the neighbourhood is relevant in respect of all of the complaints.
B. The court will consider the abnormal sensitivity of the client in determining whether there is a nuisance.
C. Anyone living in a property can bring a claim in private nuisance.
D. Public benefit will be a relevant factor considered by the court in determining whether there is a nuisance.
E. The court will attempt to balance the interests of all parties
Option E is the correct answer because not one relevant factor is conclusive, the court attempts to balance interests, and all relevant factors will be taken into account in reaching a decision on lawfulness.
Option A is wrong because the character of the neighbourhood will be relevant with the noise, fumes and smells, but not relevant with the property damage.
Option B is wrong because the court will look at the impact of the normal user of neighbouring land and ignore any abnormal sensitivity of a claimant in determining whether there is a nuisance.
Option C is wrong because to be able to sue in private nuisance a claimant must have a proprietary interest in the land.
Option D is wrong because public benefit is not usually a relevant factor in deciding whether the defendant’s use is unreasonable, it is more relevant when considering remedies.
A homeowner is concerned about a building development in fields adjacent to her property. Builders and equipment have appeared, and work has begun clearing the land. Site engineers advise that initial clearance work will last 2 months. Work will take place 12 hours a day, 7 days a week. The subsequent development of the site into a university campus will take 2 years.
Work on the development has caused the homeowner, who is a mental health therapist, to lose clients due to the excessive noise and smell. She fears she will not be able to continue to provide therapy at her home.
Which of the following is the best cause of action available to the homeowner and the best remedy?
A. The homeowner should sue for damages in negligence for the noise interference which is an unlawful interference with her enjoyment of her property and is affecting her business.
B. The homeowner should sue for damages in negligence for the excessive smell which is an unlawful interference with her enjoyment of her property and is affecting her business.
C. The homeowner should sue in private nuisance for the excessive noise and smell which is an unlawful interference with her enjoyment of her property and seek an injunction to prevent the building of the university campus.
D. The homeowner should sue in private nuisance for the excessive noise and smell which is an unlawful interference with her enjoyment of her property and seek damages for loss of amenity.
E. The homeowner should sue in private nuisance for the excessive noise and smell which is an unlawful interference with her enjoyment of her property. She should seek an injunction limiting the hours during which the noise and smell is created and seek damages for loss of amenity which would include loss of profit from her business.
Option E is correct because the tort of private nuisance relates to the unlawful interference with her use and enjoyment of land. In private nuisance she can seek an injunction to limit the hours in which the work takes place. She can also seek damages for loss of amenity which would include loss of profit from her business.
Options A and B are wrong because negligence is not defined as an unlawful interference with her enjoyment of land. Noise and smell interference intangible and so is not covered by negligence.
Option C is wrong because whilst this is a claim in private nuisance an injunction to stop the work is very unlikely due to the public benefit of a university campus.
Option D is wrong because it is incomplete. The homeowner, in addition to damages may ask for a limited injunction to limit hours of work.
A client owns a flat next door to a man, on the same floor of the block. They don’t know each other well. The man likes to practise the drums loudly most days between 3pm and 6pm, with only short breaks within those hours. The client returns from work at 5pm each day and has complained to the man about the noise, which is easily heard by her from her property. The client suffers from headaches caused by the drumming. She also can’t relax between 5-6pm. The block is also popular with students who play music loudly, but this generally doesn’t bother the client. No one else in the block plays an instrument.
Which of the following best explains why any claim by the client in private nuisance against the man could succeed?
A. The man’s activity is motivated by lack of concern for his neighbours and this could be construed as malice by him.
B. The client can say the man’s drumming has caused her personal injury by way of her headaches.
C. The man’s drumming is out of character with the neighbourhood, as no one else uses drum kits in the block.
D. The noise caused by the man is excessive in terms of frequency and intensity and is interfering with the client’s enjoyment.
E. The man’s behaviour is an interference with a right that the client has over her property
Option D is correct because a claim in private nuisance will succeed if there is unlawful interference with the claimant’s use and enjoyment of land. The noise is indeed excessive and the client can’t relax, so there is interference with her enjoyment.
Option A is wrong because there is no evidence of malice.
Option B is wrong because a claim in personal injury is not possible in nuisance – the claim would lie in negligence instead, if at all.
Option C is wrong because it cannot be said the drumming is out of character with the area.
Option E is wrong because there is however no interference with a right over land.
A solicitor is instructed by a client who bought a house located in a rural location 6 months ago. A cement factory is near to the client’s house. Heavy lorries regularly arrive and leave during the day and night via a public road, making it difficult for the client to sleep at night.
The client has complained to the factory owner. The factory owner has responded that the factory has been operating for 25 years in the same location and that the client should not have bought their house near a factory if they are a light sleeper. The factory owner has also confirmed that their lorries are fitted with the best noise reduction mechanisms that are available on the market.
Which of the following statements best explains whether the client may have a claim in tort against the factory owner?
A. Yes, because the client will be able to pursue a claim in public nuisance because the lorries are using a public road.
B. Yes, because the client will be able to pursue a claim in private nuisance because the noise from the lorries is substantial and unreasonable.
C. Yes, because the factory is a non-natural use of land in a rural location.
D. No, because the factory was already operating before the client moved to the area.
E. No, because the factory owner has taken reasonable care to ensure that the noise from the lorries is kept to a minimum level.
B is the correct answer. The noise from the lorries may be a substantial and unreasonable interference with the claimant’s use of their land. The fact that the noise is at night and in a rural location would indicate that the claimant would have a claim in private nuisance.
A is incorrect because there is nothing to suggest that the noise from the lorries affects a ‘class of Her Majesty’s subjects’ ie a sufficient number of members of the public. Public nuisance is primarily concerned with protecting public rights and the fact that the lorries are using a public road is only incidental to the interference with the client’s private right to be able to use and enjoy their land.
C is incorrect because a non-natural use of land is only one element of the rule in Rylands v Fletcher. The other requirements are not satisfied on these facts as there has not been an escape of anything likely to cause damage to the claimant’s land. In fact, it is unlikely that this is a non-natural use of land in any event. A cement factory is not an extraordinary or unusual use of land, even in a rural location.
E is wrong because private nuisance is not based upon proving that the defendant has not taken reasonable care. Private nuisance is concerned with whether the consequences of the defendant’s use of their land is unlawful in that it causes a substantial and unreasonable interference with the claimant’s use of their land.
A solicitor is instructed by the manufacturer of explosives used in the mining industry. A relatively minor explosion at the client’s factory scattered debris over the trading estate situated next door to their factory. Fortunately, no one was injured. However, the client has been contacted by one potential claimant. They are the owner of one of the businesses on the trading estate who are looking to claim for the cost of damage to the roof of their warehouse.
An expert has investigated the cause of the explosion and they have advised that the client was not to blame for the explosion.
Which of the following statements best explains whether the client may be liable in tort for the damage to the warehouse roof?
A. No, because the incident was an isolated event.
B. No, because the explosion was not the client’s fault.
C. Yes, because the warehouse owner has suffered particular harm over and above the harm suffered by the public at large.
D. Yes, because the client’s use of their land was non-natural and the debris caused foreseeable damage.
E. Yes, because property damage is always an unlawful interference with the use and enjoyment of land.
D is the correct answer. The manufacture of explosives is likely to be held to be a non-natural use of land. The debris from the explosives has ‘escaped’ and caused foreseeable harm to the warehouse owner.
A is wrong because the torts of public nuisance and the rule in Rylands v Fletcher can be used by claimants where there have been ‘one-off’ or isolated events. It is correct, however, that private nuisance does not usually cover isolated events.
B is wrong because private nuisance, public nuisance and the rule in Rylands v Fletcher do not depend upon the need to prove that the defendant was at fault i.e. that they did not exercise reasonable care. Liability under the rule in Rylands v Fletcher is strict. Liability under both private nuisance and public nuisance is concerned with whether the defendant’s conduct is unreasonable because it causes an unreasonable interference with the claimant’s rights.
C is incorrect because, while it seems that the warehouse owner is the only person to have suffered harm, there is nothing to suggest that the public has been affected. A claim in public nuisance is not, therefore, appropriate on these facts.
E is incorrect because property damage is not always an unlawful interference with the use and enjoyment of land. It is correct that an interference which causes physical damage to the claimant’s land is likely to be considered excessive. However, this does not apply if the damage is only trivial. In any event, private nuisance is not the appropriate tort for isolated events.
A solicitor is instructed by a client arising from the following incident. The client’s next door neighbour employed a building contractor to dig into the foundations of their home to create a basement in their property. Despite carrying out all the normal surveys and investigations, the neighbour’s building contractor disrupted a Roman sewer that was not shown on any charts or surveys. This caused the busy road outside the client’s home to collapse. The road was closed for 12 weeks while remedial works were carried out, causing traffic to be diverted around the client’s village.
The client was injured as she was crossing the road when the road collapsed. She fell into part of the hole in the road, breaking her leg.
Which of the following statements best explains whether the client may have a claim in tort against the building contractor?
A. Yes, because the building contractor has caused a substantial and unreasonable interference with the client’s use and enjoyment of their land.
B. Yes, because the client owns their property and they have suffered particular harm over and above the harm suffered by the public as a whole.
C. Yes, because the client has suffered particular harm over and above the harm suffered by the public as a whole.
D. No, because the building contractor carried out all the normal surveys and investigations and the client suffered a personal injury.
E. No, because the harm suffered by the client was not reasonably foreseeable.
C is the correct answer. The client will have an action in public nuisance because the public right to use the highway has been affected and the client has suffered particular harm ie the personal injury.
A is incorrect because there is nothing on the facts to suggest that the client’s use and enjoyment of their land has been interfered with (the interference is with the use of a public road). In any event, the client’s personal injury is not a type of harm that is recoverable in private nuisance.
B is incorrect as an action in public nuisance does not depend upon the client having a proprietary interest in the land affected (it is a requirement for private nuisance and the rule in Rylands v Fletcher). In any event, the fact that the client owns their property is irrelevant as the land interfered with is a public road.
D is wrong because the fact that the building contractor used reasonable care is not relevant for the torts of private nuisance, the rule in Rylands v Fletcher and public nuisance. Also, while it is correct that personal injury is not a type of harm recoverable in private nuisance and the rule in Rylands v Fletcher, it is recoverable in public nuisance.
E is wrong because, while it is correct that reasonable foreseeability of the harm suffered is an element of private nuisance and the rule in Rylands v Fletcher, it is not a requirement in public nuisance.
