Land based torts

Question 1

What losses are recoverable in private nuisance?

(a) 
Physical damage to property, SPD, and consequential economic loss.

(b) 
Physical damage to property, SPD, and pure economic loss.

(c) 
Physical damage to person or property, SPD, pure economic loss, and consequential economic loss.

(d) Physical damage to person or property, SPD, and consequential economic loss.

(e) 
Physical damage to person, SPD, and pure economic loss.


Answer 1

(a) 
Physical damage to property, SPD, and consequential economic loss.


Question 2

The defendant obtained planning permission to extend their steel manufacturing factory. The factory is now just 50 metres from the claimant’s house. The claimant can no longer enjoy their property given the constant noise created by the lorries continuously arriving and leaving from the defendant’s factory. Which of the following is correct in relation to the tort of private nuisance?

(a) 
The planning permission will not authorise the nuisance. However, the terms of the planning permission may have a bearing on whether or not a nuisance exists.
(b) 
The claimant cannot sue in private nuisance as the defendant had planning permission to extend their factory. The noise created is therefore reasonable.

(c) 
The planning permission is completely immaterial to whether there has been private nuisance.

(d) 
The courts will consider whether the planning permission justifies the nuisance when assessing whether the defendant’s use of their land is reasonable.

(e) The planning permission will have changed the locality of the area from residential to commercial and there will therefore be no actionable private nuisance.

Answer 2

(a) 
The planning permission will not authorise the nuisance. However, the terms of the planning permission may have a bearing on whether or not a nuisance exists.

The planning permission does not make the defendant’s use of their land reasonable. The courts might consider the terms of the planning permission in order to help them decided whether the use of the land is reasonable. For example, if the planning permission allows the factory to operate between 9am and 3pm, and the lorries are arriving and leaving outside of these hours, this could indicate that the use of land is unreasonable.


Question 3

What factors might the court consider when deciding whether the defendant’s use of land was unreasonable where the claimant’s loss is physical damage to property?


(a) Time and duration, abnormal sensitivity, malice, lack of care and excessive behaviour. 

(b) 
Time and duration, abnormal sensitivity, lack of care and excessive behaviour.

(c) 
Time and duration, lack of care, and excessive behaviour.

(d) 
Time and duration, locality, abnormal sensitivity, malice, lack of care and excessive behaviour.

(e) 
Time and duration, locality, lack of care and excessive behaviour.


Answer 3

(a) Time and duration, abnormal sensitivity, malice, lack of care and excessive behaviour.

The courts can take into account any of these factors if relevant. Locality is omitted from the list as this is not relevant where the loss is physical damage to property.


Question 4

Rosie has just opened a yoga business next to a hairdresser. The hairdresser has operated at that site for 21 years. Rosie is finding it impossible to run her yoga business given the high level of noise made by the hairdresser. Prior to Rosie, her yoga premises were occupied by a small chocolate making company for 30 years. Which of the following is correct in the law of private nuisance?

(a) 
The hairdresser can rely on the defence of prescription and consent.

(b) 
The hairdresser will be unable to rely on the defence of prescription and will be unable to argue that Rosie moved to the nuisance.
(c) 
The hairdresser will be able to rely on the defence of prescription and will be able to argue that Rosie moved to the nuisance.

(d) 
The hairdresser can rely on the defence of prescription and contributory negligence.

(e) 
The hairdresser will be able to rely on the defence of prescription but unable to argue that Rosie moved to the nuisance.


Answer 4

(b) 
The hairdresser will be unable to rely on the defence of prescription and will be unable to argue that Rosie moved to the nuisance.

The hairdresser cannot rely on the defence of prescription as their activity only became a nuisance when Rosie moved in next door. We are told that she has only just done this. The 20 years starts running from when the activity becomes a nuisance. Moving to the nuisance is not currently a defence to a private nuisance claim.


Question 5

Following on from question one, if the hairdresser was found to have committed a private nuisance, what remedy is Rosie most likely to be awarded?

(a) 
Full injunction.

(b) 
Abatement.

(c) Partial injunction.
(d) 
Damages in lieu of an injunction.

(e) 
Damages.

Answer 5

(c) Partial injunction.

Prima facie, Rosie would be awarded an injunction. This is likely to be a partial injunction, not a full injunction, given that the hairdresser has operated from the site for 21 years and it is likely that the business is of some public benefit (used by the public and as an employer). The courts could, for example, stipulate what type of machinery the hairdresser can use.


Question 6

Simon buys a house with a huge garden. Fifteen years before Simon purchased the house, the local authority installed a water pipe at the very back of his garden. It was not installed properly and frequently leaks causing flooding on the next-door neighbour’s property. Simon is unaware of the water pipe or that it is leaking as his neighbour has not mentioned the flooding to him.
Which defence/s might Simon be able to rely upon if his neighbour sues him in the law of private nuisance?

(a) 
Prescription.

(b) 
Act of God.

(c) 
Act of a third party.
(d) 
Consent.

(e) 
Statutory authority.

Answer 6

(c) 
Act of a third party.

The nuisance has been created by a third party (the local authority) for whom Simon bears no responsibility. He has not carried on the nuisance nor is it reasonable for him to put a stop to it as he is unaware of the pipe and that it is leaking.


Question 7

What losses are recoverable in public nuisance?

(a) 
Property damage, consequential economic loss, personal injury, pure economic loss, and inconvenience.
(b) 
Property damage, consequential economic loss, personal injury, and inconvenience.

(c) 
Property damage, consequential economic loss, personal injury, pure economic loss, and SPD.

(d) 
Property damage, consequential economic loss, personal injury, and pure economic loss.

(e) 
Property damage, consequential economic loss, pure economic loss, and inconvenience.

Answer 7

(a) 
Property damage, consequential economic loss, personal injury, pure economic loss, and inconvenience.

A wide range of losses are recoverable in public nuisance. Personal injury and pure economic loss are recoverable unlike in private nuisance and Rylands v Fletcher.


Question 8

As a joke, Troy sends 50 of his friends envelopes full of talcum powder with a note saying ‘anthrax’. Which of the following is correct in the law of public nuisance?

(a) 
Troy’s friends cannot bring a claim in public nuisance as they consented to Troy’s actions by being his friends.

(b) 
Troy’s friends cannot bring a claim in public nuisance as they have suffered personal injury.

(c) 
Troy’s friends cannot bring a claim in public nuisance as 50 people will not amount to a ‘class’.

(d) 
Troy’s friends cannot bring a claim in public nuisance as they have not suffered a common injury.
(e) 
Troy’s friends cannot bring a claim in public nuisance as Troy’s acts amount to a crime.

Answer 8

(d) 
Troy’s friends cannot bring a claim in public nuisance as they have not suffered a common injury.

In order to be defined as a ‘class’, the friends must have suffered a ‘common injury’, i.e. be affected at more or less the same time and in the same location. This has not happened here. For example, in R v Rimmington the defendant sent around 500 racially offensive items to people across the country. The people who received the items were not a ‘class’ in the way required by public nuisance.

Question 9

Mishal has a party at her house. Her friends park their cars across many of Mishal’s neighbours’ driveways so the neighbours cannot get out. Gita is a beautician who visits her clients at their houses. She is parked in one of her client’s driveways when it is blocked by Mishal’s friend’s car. As a result, she cannot leave for the rest of the afternoon and so she misses her remaining appointments. She suffers a loss of income.
Which of the following is correct in the tort of public nuisance?

(a) 
A class of people have been affected by Mishal’s actions. Gita cannot bring a claim as an individual.

(b) 
A class of people have been affected by Mishal’s actions. Gita cannot sue Mishal in public nuisance as it was not Mishal’s car blocking the client’s driveway.

(c) 
A class of people have been affected by Mishal’s actions. Gita cannot bring a claim as she does not own the land affected.

(d) 
A class of people have been affected by Mishal’s actions. Gita can bring a claim for her economic loss as an individual.
(e) 
A class of people have been affected by Mishal’s actions. Gita cannot bring a claim for economic loss in public nuisance.

Answer 9

(d) 
A class of people have been affected by Mishal’s actions. Gita can bring a claim for her economic loss as an individual.

It is likely a class of people have been affected as we are told that many neighbours have been blocked in. Gita can bring a claim as an individual as she has suffered special damage (i.e. over and above the rest of the class). The class have suffered inconvenience. Gita has suffered inconvenience and economic loss. Economic loss is recoverable in the tort of public nuisance.

Question 10

What losses are recoverable in the rule in Rylands v Fletcher?

(a) 
Property damage and consequential economic loss.

(b) 
Property damage, consequential economic loss, and SPD.

(c) 
Property damage.

(d) 
Property damage and pure economic loss.

(e) 
Property damage, consequential economic loss, and personal injury.

Answer 10

(a) 
Property damage and consequential economic loss.


Question 11

Max operates a mechanics business from his home. He stores chemicals used to “cure” car body filler. The chemicals are stored in barrels. However, there is a crack in one of the barrels, and the chemicals leak onto Max’s neighbour’s property killing all his neighbour’s plants. The presence of the crack was not known about and the leak was not apparent.
Which of the following is most accurate in the tort of Rylands v Fletcher?

(a) 
The neighbour will be unable to claim for damage to his plants as Max did not know about the leak.

(b) 
The neighbour will be able to claim for damage to his plants as the harm suffered was foreseeable if the chemicals escaped.
(c) 
The neighbour will be able to claim for damage to his plants as any property damage caused by an escape of a substance from the defendant’s land is recoverable.

(d) 
The neighbour will be unable to claim for damage to his plants as the escape of the chemicals was not foreseeable.

(e) 
The neighbour will be able to claim for damage to his plants as Max is responsible for anything he brings onto his land.

Answer 11

(b) 
The neighbour will be able to claim for damage to his plants as the harm suffered was foreseeable if the chemicals escaped.

It was reasonably foreseeable that if the chemicals escaped, they could kill plants. The escape does not need to be foreseeable.


Question 12

Which defences are applicable to the rule in Rylands v Fletcher?

(a) 
Common benefit, act or default of the claimant, statutory authority, act of third party, act of God, and contributory negligence.

(b) Common benefit, act or default of the claimant, statutory authority, act of third party, and act of God.

(c) 
Common benefit, act or default of the claimant, statutory authority, act of third party, act of God, contributory negligence and consent.

(d) 
Common benefit, statutory authority, act of third party, act of God, contributory negligence and consent.

(e) 
Common benefit, act or default of the claimant, statutory authority, act of third party, act of God, and prescription.

Answer 12

(c) 
Common benefit, act or default of the claimant, statutory authority, act of third party, act of God, contributory negligence and consent.


Question 13

Which of the following statements is most accurate in relation to intention (an element of trespass to land)?

(a) 
The defendant need not intend the direct action that results in the trespass but must intend to trespass.

(b) 
The defendant must intend the direct action that results in the trespass. This intention cannot be implied.

(c) 
The defendant must intend to commit a trespass. This intention can be implied.

(d) 
The defendant must intend the direct action that results in the trespass and must intend to trespass.

(e) 
The defendant must intend the direct action that results in the trespass. This intention can be implied.

Answer 13

(e) 
The defendant must intend the direct action that results in the trespass. This intention can be implied.

Question 14

Which of the following is most accurate in relation to what the claimant must prove in order to succeed in a claim for trespass to land?

(a) 
The interference must be indirect and physical, and the defendant must intend the indirect action that results in the trespass. The claimant need not prove any actual damage.

(b) The interference must be direct, and the defendant must intend the direct action that results in the trespass. The claimant need not prove any actual damage.

(c) 
The interference must be direct and physical, and the defendant must intend the direct action that results in the trespass. The claimant need not prove any actual damage.

(d) 
The interference must be direct and physical, and the defendant must intend the trespass. The claimant need not prove any actual damage.

(e) 
The interference must be direct and physical, and the defendant must intend the direct action that results in the trespass. The claimant must prove actual damage.

Answer 14

(c) 
The interference must be direct and physical, and the defendant must intend the direct action that results in the trespass. The claimant need not prove any actual damage.


Question 15

During the construction of a housing development, a construction company’s crane regularly swings into the airspace above the next-door neighbour’s property. Which of the following is most accurate in relation to whether this constitutes a trespass to land or not?

(a) 
This is not trespass to land. The crane is not interfering with the neighbour’s use of their land.

(b) 
This is not trespass to land. The crane activity takes place in the neighbour’s airspace, and this cannot constitute a trespass to land as the neighbour does not own the airspace.

(c) 
This is not trespass to land. The crane activity takes place above a height that is necessary for the ordinary enjoyment of the neighbour’s land.

(d) 
This is trespass to land. The crane has crossed over the boundary into the neighbour’s property and interference with airspace above another person’s land is trespass to land.

(e) 
This is trespass to land. The crane has crossed over the boundary into the neighbour’s property and is interfering with the neighbour’s use of their land.

Answer 15

(d) 
This is trespass to land. The crane has crossed over the boundary into the neighbour’s property and interference with airspace above another person’s land is trespass to land.


Question 16

What are the four land based torts?

Answer 16

1. Private nuisance
2. Public nuisance
3. Rylands v Fletcher
4. Trespass to land

Question 17

Who can sue and who can be sued in private nuisance?

Answer 17

Who can sue?
- To bring action, C must have legal interest in land, ie possessionary or proprietary interest (freehold or leasehold) - mere permission to occupy is insufficient
- legal interest in the land affected ie the owner, tenant in possession, grantees of an easement or licensee with exclusive possession

Who can be sued?
1. Creator of nuisance: can be sued even though they may not be in position to end nuisance and even though they may not be occupier of land
2. Occupier of land from which nuisance originates: occupier will not normally be liable for nuisances created by other but may be held liable where
(a) Independent contractor: if occupier asks him to perform certain tasks and those tasks cause inevitable nuisance
(b) Trespassers/visitors/predecessors in title: will be liable if they continued (knew or ought reasonably to know about existence and fail to take reasonable steps to end it) or adopted nuisance (if they make use of thing causing nuisance)
(c) Naturally occurring nuisances: occupier liable where they knew or ought to have known of danger and failed to take reasonable steps to abate nuisance ie continued it
3. Owner of land: landlord will not usually be liable unless Coventry exception applies (A landlord could only be liable for their tenant’s nuisance if they authorised it, by actively and 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.)

Question 18

What are the elements of private nuisance?

Answer 18

1. Indirect interference: occurs where nuisance starts on D’s land but then causes damage to some aspect of C’s use or enjoyment of their land eg sounds, smells, fumes and vibrations - ie intangible interference
2. Recognised damage (loss): C must establish they have suffered some type of damage - type of damage must be reasonably foreseeable - recoverable types:
   (a) Physical damage to property (eg overhanging branches causing physical damage) - must be more than de minimis
   (b) Sensible personal discomfort (SPD): where senses of C are affected in such a way that C is unable to enjoy land (eg unpleasant odours or noise) - can be defined as amenity damage ie smth which damages amenity value of property as opposed to physical value - must be more than fanciful and materially interfere with ordinary human comfort
   (c) Consequential economic loss
3. Continuous act: exceptions to general rule
   (a) single incident caused by underlying state of affairs and
   (b) activity which creates state of affairs which give rise to risk of escape of physically dangerous or damaging material
4. Unlawful interference: nuisance must constitute unlawful interference with C’s land or use of enjoyment of that land - unlawful here denotes unreasonableness and court will consider
   (a) Time and duration
   (b) Locality (only for SPD)
   (c) Abnormal sensitivity
   (d) Malice
   (e) D’s lack of care
   (f) Excessive behaviour

Question 19

What defences are available for private nuisance?

Answer 19

1. 20 years prescription: If D’s activity has been actionable nuisance for 20 years or more (ie C would have had grounds for bringing claim against D for that period) but no such action has been taken, D will have earned right to continue to commit nuisance - 20 years does not have to be continuous
2. Statutory authority: Where D activity is being carried out on basis of statutory authority, they will escape liability if they’ve exercised all due care and nuisance is inevitable consequence of activity
3. Consent: where C, knowing of danger to property, has (by word or deed) shown willingness to accept risks
4. Contributory negligence: usual rules apply
5. Act of TP: where nuisance has been created by TP for whom D bears no responsibility, D will not be liable, unless they adopt or continue nuisance
6. Act of God: Where nuisance results from act of god, D will not be liable unless they adopt or continue nuisance
7. Necessity: usual principles apply

Remember: moving to nuisance is not effective defence

Question 20

What remedies are available for private nuisance?

Answer 20

1. Injunction: full or partial - court may award partial injunction where D’s activities are of public benefit
2. Damages: where nuisance auses actual physical damage, cost of repair/renewal can be claimed, whichever is lower - damages can also be awarded for any consequential economic loss. Damages can be awarded in lieu of injunction where loss is SPD - however, where C establishes nuisance, prima facie, remedy awarded should be injunction, restraining D from committing nuisance in future.
3. Abatement: Self-help remedy where C acts to stop nuisance
   C may in certain circumstances enter onto land of natter and take reasonable steps to prevent nuisance continuing - anything belonging to D must be left on property. Notice must usually be given by C of intention but need not be given if it is emergency - validly exercising right to abate nuisance will be defence to any proceedings for trespass to land.

Question 21

Who can sue and who can be sued in public nuisance?

Answer 21

Who can sue:
1. Individual: C need not have interest in land affected. However, individual can only sue in very limited circumstances - must be able to show they suffered special damage. Special damage = C has suffered over and above rest of class (and that there is class in first place) or in way that is different in kind from that suffered by rest of class. Special damage must be direct and substantial.
2. Local authority: if authority has suffered damage it may sue on its own behalf and may also sue in its own name to protect inhabitants of its area
3. Attorney General: where class of people affected by public nuisance and no individual section is possible or forthcoming, AG can bring claim on class’s behalf in their name

Who can be sued?
Tortfeasor is usually easily identifiable - creator of nuisance or person responsible for nuisance (eg owner/occupier) may be sued

Question 22

What are the elements of public nuisance?

Answer 22

1. Act or omission
2. One-off event or continuous
3. Class of His Majesty’s subjects
   (Effect must be sufficient widespread - no exact number of people who have to be affected to constitute class and depends upon facts of case. Not necessary that every member of class has been affected, just that representative cross-section has been - class has to suffer common injury ie affected at more or less same time and in same location)
   and
4. Materially affects comfort and convenience - can claim for:
   (a) Property damage
   (b) Consequential economic loss
   (c) Personal injury
   (d) Pure economic loss
   (e) Inconvenience
   - type of loss suffered must be reasonably foreseeable

Question 23

What are the defences available for public nuisance?

Answer 23

1. Statutory authority
2. Consent
3. Contributory negligence
4. Act of TP
5. Act of God and
6. Necessity

Question 24

What are the remedies for public nuisance?

Answer 24

Injunctions and/or damages available

If claim is brought by LA or AG, only remedy available is injunction

Question 25

Who can sue in Rylands v Fletcher?

Answer 25

C must have proprietary interest in land affected

Question 26

Who can be sued?

Answer 26

Person who brings, collects, and keeps thing onto land (creator of nuisance) and/or
Any person who has control over land (owner/occupier)

Question 27

What type of loss is recoverable under Rylands v Fletcher?

Answer 27

C must suffer some damage
Only types of loss recoverable:
1. Property damage
2. Consequential economic loss

Question 28

What are the elements for Rylands v Fletcher?

Answer 28

1. D brings onto land and accumulates there: D must have voluntarily brought smth onto land
2. For their own purposes, anything likely to do mischief If it escapes: Thing brought onto land must be capable of causing damage and so be dangerous if it escapes - need not be dangerous in itself Eg water, acid and explosives - having an exceptionally high risk of causing a danger if it were to escape
3. Escape: Thing must escape from land over which D has control to land where they do not have control. Escape can be slow and over period of time. It must be substance that was collected by D that escapes.
4. Escape caused foreseeable harm: D need not have foreseen escape but must have known or ought reasonably to have foreseen that dangerous thing could, if it escaped, cause damage. Even if D had taken reasonable care to prevent escape and damage, D will still be liable if they fulfil requirements for operation of rule (strict liability applies).

and
5. Non-natural use of land: Non-ordinary use and what is ordinary depends upon time, place and context of use of land. All circumstances must be taken into account eg type of area.

Question 29

What are the defences available under Rylands v Fletcher?

Answer 29

1.Common benefit: Consent can be implied if substance has been accumulated for common benefit of C and D
2. Act or default of C: If escape has been caused wholly by C’s actions, there will be no liability
3. Statutory authority: Rules that apply to private nuisance relevant here
4. Act of TP: D will not be liable if they can show that escape arose through unforeseeable act of stranger over whom they had no control
5. Act of God: Where escape is caused by natural occurrence which could not have been reasonably foreseen, D will not be liable eg high flooding, earthquakes, unusually violent storms
6. Contributory negligence: usual rules
7. Consent: usual rules

Question 30

What are the remedies available under Rylands v Fletcher?

Answer 30

Damages - most common
Injunction

Question 31

Who can sue in trespass to land?

Answer 31

C must have legal interest in land ie possessionary or proprietary interest - they must own land or otherwise be in possession of it

However in situations where trespasser possesses demised land, C would be tenant or licensee in possession, rather than landowner - landowner would only have right to sue in trespasser where there would be damage to their interest beyond term of lease/licence

Trespass to land actionable per se so no need to show proof of damage - where there is no actual damage, harm that will be compensated is unjustifiable interference with C’s land by D

Question 32

What are the elements of trespass to land claim?

Answer 32

1. Direct and physical interference (and includes anything under land, built on land and airspace above it) - types of physical interference
   (a) entering C’s land
   (b) remaining on C’s land where permission has been revoked
   (c) doing smth that is not permitted on C’s land
   (d) placing objects on C’s land without permission
2. Intention: D must intend for direct action that results in trespass but need not intend to trespass eg if you voluntarily walk over private field, you have trespassed, even if you did so accidentally or if you voluntarily hit cricket ball and it accidentally gets into next door neighbour’s garden.
   Intention can be implied.

Question 33

What defences are available for trespass to land?

Answer 33

Permission (consent): where D has express or implied permission (or licence) to enter or remain on land - however to be valid defence, D must not exceed boundaries of permission

Legal authority: eg under statute police have authority to enter premises and carry out arrests - but if they commit wrongful act on premises, original entry becomes trespass (trespass ab initio)

Necessity: where trespass was necessary to protect private or public interest

Question 34

What remedies are available for trespass to land?

Answer 34

1. Damages: cover costs of harm already suffered by direct interference
2. Injunction: may be awarded where there is continuing trespass or where trespasser threatens to repeat trespass - for latter, trespass must be serious in nature
3. Re-entry: might be available where owner/occupier has been excluded from land - only reasonable force can be used to re-enter
4. Recovery of land: owner/occupier can seek court order for D to be removed
5. Mesne profits: to claim money from D who wrongfully occupied land and made profit or saved expenditure in doing so eg where tenant fails to leave at end of their tenancy and stops paying rent

Question 35

What is the time limit for a claim in trespass to land?

Answer 35

Time limit for claim in trespass: 6 years from date on which cause of action accrued

Question 36

What about airspace and ground below land?

Answer 36

Note that flying aircraft at reasonable height over someone’s property does not constitute trespass
Lord Bernstein v Skyviews: claimant’s claim in trespass to land was rejected whereby the defendant used a light aircraft to take aerial photographs of the claimant’s property. The activity took place above the height as is necessary for the ordinary use and enjoyment of the claimant’s land and the structures upon it

However note: since this case IA 2015 has passed - this allows oil, gas and geothermal cos automatic right of access to land 300m or lower for purposes of exploiting petroleum or deep geothermal energy and surface landowners are unable to object - cos still have to obtain other permissions, such as planning and environmental permits