Week #6: Civil liability for environmental harm Flashcards
What are the 4 main causes of action we have seen for civil liability? (+ bonus 5th one that’s not a real cause of action)
- Nuisance and public nuisance
- Negligence
- Strict Liability (Rule in Rylands v. Fletcher)
- Trespass–Statutory cause of action (usually gives rise to NEGLIGENCE, so not really an independant cause of action)
What amounts to nuisance?
Unreasonable interference with another’s enjoyment of his/her property resulting in damage to the property, personal injury or pecuniary loss. E.g. toxic fumes, excessive smoke or noise, unpleasant or offensive odour.
•The cause of action must be a substantial and unreasonable interference and not just an interference with ordinary comfort of life.
What are factor to consider related to nuisance?
The nature of the locality where the act took place, the time and duration of the act and utility of the activity is taken into consideration in determining the act(s) amount to nuisance.
What are the 4 possible defences to nuisance?
–Abnormal sensitivity (Asthma)
–Consent (Express consent to the problem that causes the nuisance)
–Prescription rights (20 years) (both you and your predecessors, 20 years of knowing the problem and not take action)
–Express statutory authorization to carry on the act (airport example)
What amounts to public nuisance?
Interference or injury to public right or enjoyment of a right held in common by the public.
•Most adequate for addressing environmental harm but is fraught with problem in terms of standing to sue.
•The Attorney-General (AG) is most suitable person to sue as a representative of the public.
WAS IMPORTANT FOR FIRST EXAM
•Individuals wishing to sue must obtain the consent of AG or/and prove damage above that of the public (special damage).
What amounts to trespass and what are its principal characteristics?
Intentional and direct entry, placing or allowing substance or material onto another’s property (e.g. deposit of toxic substances upon the plaintiff’s property) without consent.
•Actionable per se (does not requires proof of damage).
•An example of trespass in an environmental situation might be if a person deliberately sprays pesticides or dumps waste on your property.
•In all cases of common law tort relating to the environment, the plaintiff may ask for damages or equitable relief such as injunction.
What amounts to negligence?
Arises where there is a breach of duty of care owed to the plaintiff resulting in damage.
•A common law cause of action developed in Donoghue v. Stevenson.
*Your neighbor, the one you have to care for regarding negligence, are all people that may be adversely affected by your actions
What are the main elements of negligence?
–Existence of duty of care
–Breach of duty of care
–Damages
–Causation
What is the defining sentence of strict liability?
A person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”
What are 3 characteristics of strict liability?
The rule relates to “non-natural use of land”.
•May apply to situations of injury resulting form escape of such things as sewage, industrial chemicals, fuels, and gases.
•Exercise of reasonable care is no defense
What are the 4 elements of strict liability?
*The defendant must be in control of the land on which the object was brought
•Whatever is brought onto the land must be capable of causing foreseeable damage if it escapes
•The object must have been brought onto the land with the purpose of non-natural use on that land
•The item must have escaped from the defendant’s land and caused the damage
What are 5 challenges/limitations to common law cause of action?
- Standing
- expenses
- burden of proof
- causation
- damages
