Occupiers liability and Nuisance

Question 1

What must be established for an occupier to have liability to a visitor?

Answer 1

• They have suffered a loss due to the state of premises
• Identify the occupier
• Prove they are a visitor
• Establish occupier failed to take reasonable care for visitors safety.

Question 2

What factors will courts consider when determining if standard of care was met?

Answer 2

A) Nature of danger
B) Purpose of visit
C) Seriousness of injury
D) Magnitude of risk
E) Cost + Practicality

Question 3

What must be true for common duty to switch from occupier to independent contractor?

Answer 3

1) Entrusted the work to independent contractor
2) Taken steps to satisfy contractor was competent
3) Taken steps to satisfy that work was done properly

Question 4

What must be true for duty of care to be automatically owed to a trespasser ?

Answer 4

1) Occupier is aware of danger
2) reasonable grounds to believe trespasser in vicinity of danger and
3) Be reasonably expected to offer some protection to the risk.

Question 5

Can an occupier escape liability with an adequate warning?

Answer 5

yes

Question 6

What is C required to show to claim under private nuisance?

Answer 6

1) There is an interference with the claimants use and enjoyment of land or some right they enjoy over it.
2) That the interference is unlawful (not illegal).

Question 7

What are considered interferences?

Answer 7

In general cause injury to property or discomfort. Three types:

1) Encroachment on land
2) Direct injury to land
3) Interference with neighbours quiet enjoyment of his land.

Question 8

What must be true of the impact of interference?

Answer 8

Must impact material comfort, not dainty (loss of view)

Question 9

What factors are considered in determining if an interference is unlawful?

Answer 9

• Duration and frequency
• Excessiveness of conduct
• Character of neighbourhood
• Public benefit
• Malice

Question 10

Who can sue for nuisance?

Answer 10

Only people with right to exclusive possession of land can sue (Tenant).

Question 11

Who is liable for nuisance ?

Answer 11

1) Creator of the original nuisance.
2) Occupier of land from which nuisance originates
3) Landlord

Question 12

Can you claim for personal injury under nuisance ?

Answer 12

Public nuisance but not private nuisance

Question 13

What is a prohibitory injunction ?

Answer 13

Prohibits them

Question 14

What is a mandatory injunction ?

Answer 14

Forces them to take positive action

Question 15

What is a quia timet injunction and what must be satisfied ?

Answer 15

Takes effect in anticipation of tort. Must show that:
- certain to incur damage without injunction
- damage is imminent
- D will not stop without court order.

Question 16

What is an abatement ?

Answer 16

Self help third party remedy where removal of nuisance by victim - must give prior notice unless it is an emergency or it can be removed without entering their land.