Unit 8 Flashcards
What are the 3 ways which a defendant may interfere with someone’s land usage?
Dispossession: the defendant taking possession of the claimants land. Like squatter. Trespass to land
Direct interference with possession: interferes without taking full possession. For example unauthorized usage and dumping. Trespass
Indirect interference with land: defendants actions affects the claimants enjoyment of their land. Like fumes or noise. Normally in private nuisance.
What are the two requirements for private nuisance?
Interference with the claimants use and enjoyment of land
The interference being unlawful
What are the three types of interference in private nuisance in the case of Hunter v Canary Wharf?
Nuisance by encroachment on a neighbours land
Nuisance by indirect physical injury to a neighbours land
Nuisance by interference of a neighbours quiet enjoyment of their land (amenity nuisance)
Is loss of a view actionable in private nuisance?
Generally not actionable. Neither are modern luxuries like TV signals.
Unlawful interference in private nuisance
Unlawful equates to unreasonable, not necessarily criminal
It requires a balance between the defendant right to use their land and the claimants right to enjoy their own land too
Encroachment is automatically unlawful
What are some relevant factors in determining unlawfulness in private nuisance?
- duration and frequency - long duration and higher frequencies increase the likelihood of finding a nuisance. Isolated incidences are generally not actionable unless they arise from a continuing state of affairs.
- Excessiveness of conduct and extent of harm - objective assessment of the defendants conduct where they subjective assessment of the impact on the claimant. Physical damage strongly indicates unlawfulness.
- Character of the neighbourhood - relevant for amenity nuisance is not physical damage
- Public benefit - this is generally not a defence against a private nuisance claim. This is because courts prioritise individual private rights over general public interest.
- Malice - malice can significantly strengthen a nuisance claim and intentionally disruptive actions are likely to be deemed unreasonable.
Abnormal sensitivity in private nuisance
Courts assess nuisance based on the impact on a normal user of land not someone with abnormal sensitivity. The claimant must prove that it was not damaged because it was abnormally sensitive. For example that any type of orchid would have been damaged, even if their one was very sensitive.
Who can sue in private nuisance?
Only those who have a right to exclusive possession of land can sue this generally means ownership or tenancy. Family members guests and hotel occupants generally cannot sue.
Who is liable in private nuisance?
The original creator of the nuisance
The occupier of the land from which the nuisance originates. They are liable for actions they create or omissions. Vicarious liability applies to nuisances created by employees during their employment. As well as independent contractors if the work carries a special danger of nuisance. Also for visitors and trespasses if the occupier adopts or continues the nuisance.
The landlord is generally not liable as the tenant is the occupier
When can a landlord be liable in private nuisance?
Liable, if the nuisance is an inevitable result of the letting.
Liable if the nuisance existed at the beginning and the landlord knew or should have known
Liable if they failed to repair premises, they promised to repair or have the right to enter and repair
When may an occupier be liable for visitors or trespasses in private nuisance?
An occupier is liable for a nuisance created by a trespasser if the occupier has either adopted or continued the nuisance; occupied adopt a nuisance if they make use of the thing which constituted the nuisance; occupied continuous nuisance if once they know or reasonably to know of its existence, they failed to take reasonable steps to end it.
Their financial resources are taken into account
Does damage need to be proved in private nuisance
Yes
What are the types of damage recoverable in private nuisance?
Physical damage to land or buildings
Interference with the quiet enjoyment of land
Consequential losses like loss of profit
What types of damage are not recoverable under private nuisance?
Personal injury as negligence should be used
Probably damage to personal property
What are effective defences to private nuisance?
Prescription requires 20 years of continuous nuisance against the claimant and it is rarely successful
Statutory authority: nuisance is an inevitable result of actions authorised by statute. Common for public authorities like a factory being built.
Contributory negligence reduces damages
Consent : the claimant expressly agreed to interference
Act of God or nature : defendant is not liable for natural events unless they adopt or continue the resulting nuisance
Necessity : imminent danger to life or limb and the defendants actions were reasonable.
What’s defences won’t work in private nuisance
The claimant came to the nuisance is generally not a valid defence
Public benefit is not a a defence
Contributory actions of others
Planning permission does not automatically legitimise a nuisance. I’m planning commission conditions regarding noise can aid a nuisance claim.
What are some remedies for private nuisance?
Damages compensate for past losses like physical damage to land personal discomfort. Courts have limited power toward damage for future loss.
Injunctions are a court order to stop or regulate future wrongful acts. The different types of prohibitory which stop a specific action. Mandatory which require positive action. And quia timet which prevent imminent future damage. This is a discretionary remedy and not granted if damages are adequate. HOWEVER THIS DOES NOT HELP FUTURE DAMAGE.
When my court refuse injunction ?
If the harm suffered by applicant is small and capable of being quantified in financial terms and capable of adequate compensation by damages.
Also if it would be oppressive to defendant to grant it.
What is abatement?
Self help and is the removal of the nuisance by the victim.
What is the Rylands v Fletcher case?
A tort imposing strict liability for damage caused by the escape of dangerous substances from not natural land use.
