Torts relating to land Flashcards
what is the def of private nuisance?
any continuous activity or state of affairs causing a substantial and reasonable interference with the claimant’s land or their use or enjoyment of that land.
who can sue in private nusiance>
must have a legal interest- possessionary or proprietary interest.
who can be sued in private nuisance?
- creator of the nuisance.
- occupier of the land from which the nuisance originates and
- Owner of the land.
Sedleigh-denfield v o callaghan- occupiers can continue or adopt the nuisance if they knew or ought to have reasonably known of its existence and failed to take fair steps to end it.
Coventry v lawrence- a landlord could only be liable for their tenant’s nuisance if they authorised it, by actively or directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would result in that nuisance being created.
what are the 4 elements of private nuisance?
- indirect interference with the use or enjoyment of the claimant’s land.
- recognised damage- physical or loss of amenity. damage must be reasonably foreseeable. NO PI claims.
- more than de minimum.
- loss of amenity must interfere with ordinary human comfort. - continuous act.
- exceptions include a single incident caused by an underlying state or affairs or state of affairs creating risk of escape of physically dangerous or damaging material (fireworks). - unlawful interference.
- look at unreasonableness.
- take into account time and duration of the nuisance, locality, planning permission, abnormal sensitivty, malice,, D’s lack of care, excessive behaviour
planning permission and nuisance?
- planning permission may alter the character of an area so what once was a nuisance may not be anymore and vice versa.
- planning permission does not authorise a nuisance.
- precise terms of the planning permission might have a bearing on whether the use of land is un/reasonable.
what are the defences to private nuisance?
- 20 years prescription- length of time a claimant could have complained.
- when an activity has been an actionable nuisance for 20 years or more, and no action has been taken during that period. - statutory authority- will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of the activity.
- consent- if the claimant specifically agrees to the D causing the nuisance, then consent will be a defence.
- contributory negligence.
- act of third party- unless they adopt or continue the nusiance, the D will not be liable.
- act of god.
is moving to the nuisance a valid ddefence?
NO
WHAT ARE THE REMEDIES AVAILABLE FOR PRIVATE NUSIANCE?
- Injunction.
- damages- cost of repair or renewal can be claimed, whichever is lower.
- abatement- self help remedy where the claimant acts to stop the nuisance.
what is public nuisance?
acts or omissions of the D that materially affect the reasonable comfort and convenience of life of a class of her majesty’s subjects.
who can sue in public nuisance>
- an individual- only if they suffered special damage (claimant suffered over and above the rest of the class).
- a local authority- if the authority has suffered damage it may sue on its own behalf.
- attorney general.
who can be sued in public nuisance?
creator of the nuisance or any person who is responsible.
what are the elements of public nuisance?
- act or omission.
- one-off event or continuous.
- class of his majesty’s subjects- must be sufficiently widespread and class must share a common injury and
- materially affects comfort and convenience- includes property damage and consequential economic loss. PI can be recovered AND SO CAN PURE ECONOMIC LOSS.
- claimant can claim for inconvenience must this must be material.
- type of loss must be reasonably foreseeable.
what is the def of Rylands v Fletcher?
person for his own purposes brings on his land and collects and keeps there likely to do mischief if it escapes and the damage if the natural consequence of the escape.
who can sue, be sued and losses for Rylands v Fletcher>
sue- must have a proprietary interest in the land affected.
be sued- person who brings, collects and keeps the thing onto the land and/or any person who has control over the land.
loss- some damage. property damage and consequential economic loss
what are the elements of Rylands v Fletcher?
- defendant voluntarily brings onto land and accumulates there.
- for their own purposes, anything likely to do mischief if it escapes.
- escape- can be slow and over a period of time.
- escape caused reasonable foreseeable harm (escape itself does not need to be foreseeable) and
- non-natural use of land.
defences for rylands v fletcher?
same as for public nuisance with the addition of common benefit and default of the claimant.
common benefit- if the claimant agreed to the accumulation of the material there will be no liability. consent can be implied if the substance has been accumulated for the common benefit of the claimant and defendant.
act or default of the claimant- if the escape has been caused wholly by the claimant’s actions, there will be no liability.
who does the occupiers liability act 1957 apply to>
owed by occupiers to visitors.
duty relates to the state of the premises.
can claim for both personal injury and property damage.
what duty of care do occupiers owe to visitors?
common duty of care.
take such care as is reasonable in all the circumstances to see that the visitor will be reasonably safe in using the premises for the purpose for which they were permitted by the occupier to be there.
who is an occupier for occupiers liability?
Sufficient degree of control over the premises.
what is a premises for occupiers liability?
any fixed or movable structure, including any vessel, vehicle or aircraft.
who are visitors for occupiers liability?
express or implied permission to be there….
- may be limited to a specific area, time or purpose.
- implied is usually because of an occupier’s behaviour e.g postman.
- lawful authority such as police officers.
- contractual permission such as a contractor.
what is the law with public and private rights of way and occupiers liability>
public footpaths are not covered by OLA 1957 or OLA 1984.
Private rights of way are covered by OLA 1984.
How to breach duty of care for OLA 1957?
reasonable occupier.
- if the occupier is aware of a vulnerability of the visitor, they can be reasonably expected to guard against it.
what is the law with children and OLA 1957?
- child visitors are owed a higher standard of care.
- where children might be attracted to objects which are dangerous when meddled with, the occupier must ttake reasonable steps to ensure the premises are safe.
- where reasonable an occupier is entitled to assume a child will be subject to parental care.
what is the law with contractors entering premises in the exercise of their calling?
- owed a lower standard of care.
- ## can reasonably be expected to appecaite and guard against any such risks incidental to their job.
warnings and the OLA 1957?
- an occupier will satisfy the common duty of care if they warn the visitor of the danger and the warning was enough to enable the visitor to be reasonably safe.
- warning should make the visitor aware of what the danger is, where it is and how to avoid it.
- very obvious dangers may not require warnings.
how can occupiers discharge duty through independent contractors?
- hire an independent contractor.
- selecting the independent contractor and taken steps to check competency.
- supervising the work and checking the work was properly done (only what is reasonable, depends how specialist the work is)
defences available for OLA 1957?
Consent- fully aware of risk and accepted risk.
contributory negligence- degree of care which would be ordinarily looked for in such a visitor.
3. illegality.
what is the OLA 1984?
governs duty owed to non-visitors.
loss- only personal injury.
occupier and premises are defined the same way as OLA 1957.
when will an occupier owe a duty of care to trespassers?
- aware of the danger if they have reasonable grounds to believe it exists.
- they known or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or that they may come into the vicinity of the danger (at the time of the accident too)
- the risk is one against which in all the circumstances, they may reasonably be expected to offer some protection.
warning notices and OLA 1984?
- duty may be satisfied if the occupier takes all reasonable steps to give warning of the danger concerned or to discourage persons from incurring the risk.
- easier to satisfy.
defences for OLA 1984>
- consent.
- contributory negligence.
- illegality-
what are the four restrictions on the occupier’s freedom to use an exclusion clause? ola 1957.
Section 3 OLA 1957- occupier cannot, by contract, exclude or restrict the common duty of care which they owe to a third party (protects employees of a person with whom the occupier has contracted).
UCTA 1977- Cannot exclude or restrict liabilitiy for death or PI resulting from negligence.
- can exclude/restrict liability for negligence if the notice is reasonable.
CRA 2015- DEATH OR personal injury cannot be excluded.
- in relation to other loss, trader can exclude/restrict liability for negligence if the notice is fair.
Common humanity under the common lse- minimum legal stnadard that cannot be excluded by agreement or notice.
what are the remedies in rylands v fletcher?
injunctions and/or damages.
ONLY INJUNCTIONS if brought by local authority or AG.
