week 4 Flashcards
plus quam tolerabile
beyond what is reasonable
what are amenity nuisances
negligent acts making life miserable, not material
Watt v Jamieson 1954
sulphurous water vapour caused damp and damages from neighbour
after complaints it was disconnected, damage stayed
liability found, through both material damage and serious discomfort caused
Macbean v Scottish water
Location and sensitivity of nuisance considered for nuisance
works were done to adress smell nuisance from water treatment plan
impact was then irregular, faint and transient, no claim allowed
public interest was noted and no claim allowed, not sufficient for nuisance
Ben Nevis Distillery (Fort William) Ltd v North British Aluminium Co 1948
Public interest does not make claim, not defence, but does affect remedies
noxious fumes, significant public interest
held, public interest was not reason to refuse the proof
however interdict was deferred to allow them to undergo remedial works in public interest
Webster v Lord Advocate 1985
military tatoo noise
noise of tattoo did not constitute nuisance, reasonable to expect noise living near castle
noise of setup did not constitute nuisance, interdict granted
Fleming v Hislop
“wether the man went to the nuisance or the nuisance to the man the rights are the same”
culpa
negligence/fault
necessary to show to claim damages
RHM bakeries v Strathclyde regional council 1985
not necessary to aver precise nature of the fault if its evident issue was evidence of a failure to maintain
bakery flooded by sewer, was not possible to find the exact negligence causing this
claim allowed
Acts permitting statutory nuisance
environmental protection act 1990 part 3
antisocial behaviour (Scotland) act 2004
Public Health (Scotland) act 2008
contributory negligence
not a full defense, reduces damages
Sayers v Harlow UDC 1958
woman attempting to escape bathroom
damages reduced for contributory negligence
pidgeon v Doncaster Health Authority 2002
pursuant diagnosed late with cancer
pursuant had missed health appointments breaking chain of causation, contributorily negligent 2/3 damages reduced
Volenti non fit injuria (defence)
to a willing person, no injury is done
Nettleship v Weston 1971
trainees held to same duty
claimant injured in car teaching defendant to drive
claimants defense of volenti non fit injuria not allowed
Morris v Murray 1991
guys got drunk and got on defendant (deceased) plane
plane crashed injuring plaintiff
claim allowed, defendants claim of volenti non fit injuria not allowed
Titchener v British Railway Board
boy sneaking onto train tracks
volenti non fit injuria allowed
pursuant had accepted the risks
ex turpi causa non orbitor actio (defence)
no action can arise from an illegal act
Pitts v Hunt 1991
Claim not allowed due to illegality of pursuant
two men had got on a motorbike drunk, crashed into another drunk driver. passenger on bikes claim not allowed, he was drunk and aware of the bike drivers drunkenness
Sloan v Triplett 1985
Illegal act leading to contributory negligence
man got a lift with a drunk driver, knowing so
knowing illegal act led to 40 percent contributory negligence reducing damages
damnum fatale
act of god defence
Burns v Rotal Hotel (St andrews) ltd 1958
For Damnum Fatale defence defendant needs to prove damage does not have any possibility of negligence on their part
car destroyed in fire at hotel
negligence found
Caledonian Railway co v Greenock Corporation
Just because something unlikely, does not mean damnum fatale
water rerouted from natural course for water feature
during very bad rainfall caused flooding and damage at pursuants property
claim was allowed, act of god not applicable where human contribution has caused damage
Necessity
A defence for actions done in emergency
