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SQE1 - Tort > 11. Nuisance; Rule in Rylands v Fletcher > Flashcards

11. Nuisance; Rule in Rylands v Fletcher Flashcards

1
Q

What are the three forms of nuisance?

A
  1. Private
  2. Public
  3. Statutory
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2
Q

What is a public nuisance?

A

Unreasonable interference with the comfort and convenience of life of a class of the public

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3
Q

Can an isolated incident give rise to a public nuisance?

A

Yes

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4
Q

Does public nuisance cover personal injury and damage to property?

A

Yes

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5
Q

Who are the two parties who can sue for public nuisance?

A
  1. An individual in the class if they have suffered damage over and above the damage suffered by the class in general
  2. The Attorney General on behalf of the class to stop the nuisance
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6
Q

What is a private nuisance?

A

Unlawful interference with the claimant’s use and enjoyment of land.

Unlawful means unreasonable and substantial.

Compare to trespass to land which is the unlawful and direct interference with a claimant’s possession of land.

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7
Q

For the purposes of private nuisance, when is an interference unlawful?

A

When it is unreasonable and substantial

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8
Q

Can an isolated event give rise to a private nuisance?

A

No, it requires a continuing state of affairs

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9
Q

What is the most essential element of nuisance?

A

Damage

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10
Q

What are the three types of damage that can give rise to private nuisance?

A
  1. Physical damage to land, e.g. flooding, vibrations
  2. Amenity damage, e.g. noise, smells, dust
  3. Encroachment into land, e.g. overhanging branches or tree roots
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11
Q

Regarding intangible damage like noise and smells, what is the key difference between nuisance and negligence?

A

Intangible damage is not actionable in negligence

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12
Q

Regarding damages, what is the key difference between private nuisance and negligence?

A

The types of damages available for personal injury in negligence are not available in private nuisance, as nuisance deals with interference with land.

Note public nuisance allows for recovery personal injury.

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13
Q

What is the difference between trespass to land and nuisance?

A

Trespass to land concerns intentional and direct interference with claimant’s possession of land.

Nuisance concerns damage which is indirect and which goes to enjoyment of the land.

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14
Q

What two parties can be sued for private nuisance?

A
  1. Creator of the nuisance even if they are no longer in occupation
  2. Occupier of the land where the nuisance exists
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15
Q

The occupier is also liable for nuisance created on their land by whom?

A
  1. Employees
  2. People under occupier’s control
  3. Independent contractors, if the conduct carries a special danger of causing a nuisance
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16
Q

In what situation is an occupier liable for a nuisance created on their land by a trespasser or natural event?

A

If they adopt (make use of) or continue (fail
to deal with after they know or ought to of) the nuisance

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17
Q

When will an occupier be deemed to adopt a nuisance?

A

If they make use of the thing that constitutes the nuisance for their own purposes

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18
Q

When will an occupier be deemed to continue a nuisance?

A

If they fail to take reasonable steps to deal with the nuisance when they know or ought to have known about it

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19
Q

What must a claimant have to be able to bring a claim for private nuisance?

A

A proprietary interest in the land affected

20
Q

Who will be deemed to have a proprietary interest in the land?

A
  1. Freehold owners
  2. Leasehold owners
  3. Tenants
  4. Persons in exclusive possession
21
Q

Can claims be brought by people merely present on the land, e.g. family members, lodgers, or employees?

A

No

22
Q

In determining whether an interference is unreasonable for the purposes of assessing whether it is unlawful and therefore a nuisance, what five factors will the court take into account?

A
  1. Intensity and duration
  2. Character of the neighbourhood
  3. Abnormal sensitivity
  4. Malice
  5. Reasonable care
23
Q

What is also considered under intensity and duration?

A

The time of day or night the nuisance occurs

24
Q

When will the court consider the character of the neighbourhood?

A

When the damage is amenity damage such as noise or smells

25
Q

Is the character of the neighbourhood taken into account where the damage is physical or encroachment onto the land?

A

No

26
Q

What is abnormal sensitivity?

A

If the interference only exists because the claimant has an abnormal sensitivity, this will not give rise to a nuisance

27
Q

How does malice affect how behaviour is assessed by the courts?

A

Reasonable and lawful behaviour can become actionable in nuisance if motivated by malice

28
Q

Is the court concerned with the reasonableness of the defendant’s conduct?

A

No, just the reasonableness of the interference

29
Q

What is the effect of the court being concerned with the unreasonableness of the intereference, and not taking into account the reasonableness of the defendant’s conduct?

A

Defendant can still be responsible for a nuisance even if they took reasonable care

30
Q

What is required of the damage to be actionable?

A

It must be reasonably foreseeable

31
Q

What are the two defences to private nuisance?

A
  1. Prescription
  2. Statutory authority
32
Q

When will a defendant be deemed to have obtained a prescriptive right to carry on a nuisance?

A
  1. Activity amounting to a nuisance carried on for 20 years
  2. Someone in occupation on the land
  3. No action was taken to stop the nuisance within the 20 years
33
Q

How must the courts interpret a statute if it is deemed to permit an actionable nuisance?

A

To ascertain exactly what nuisance has been permitted, and what, if any, remedies are available

34
Q

Is the grant of planning permission a defence to nuisance?

A

No

35
Q

Is the fact the nuisance already existed when the occupier took over the land a defence to nuisance, and what is the effect of this?

A

No.

It means the claimant has a cause of action against either the occupier in occupation when the nuisance began or the current occupier

36
Q

What are the three remedies available for nuisance?

A
  1. Injunction
  2. Damages
  3. Abatement
37
Q

What is the defence of abatement?

A

A self-help remedy in which the claimant takes steps to stop the nuisance

38
Q

What is the limit on the steps the claimant can take?

A

No more than is necessary to stop the nuisance

39
Q

Where it is necessary for the claimant to enter the land of another to stop a nuisance, via abatement, what must the claimant do before?

A

Give notice and allow time for necessary remedial action to be taken

40
Q

When proper notice is given in an abatement situation, what is this a defence to?

A

An action in trespass to land brought by the person whose land you entered

41
Q

What is the rule in Rylands v Fletcher?

A

Strict liability is imposed when there is an escape of a dangerous thing from the defendant’s land in the course of a non-natural use of the land

42
Q

Therefore, what are the three elements for liability to arise under Rylands v Fletcher?

A
  1. Defendant brings something onto their land likely to cause harm if it escapes
  2. Defendant was engaged in a non-natural use of the land
  3. The thing does escape and cause damage
43
Q

Does the thing brought onto the land have to be inherently dangerous?

A

No, just dangerous if it escapes

44
Q

What is required of the use for it to be non-natural?

A

Defendant must be engaged in a special use of the land which carries an increased risk of danger to others

45
Q

Regarding damages, and the exact same as with nuisance, what is the key difference between Rylands v Fletcher and negligence?

A

Recovery for personal injury damage in negligence are not available in R v F, as it deals with interference with land

46
Q

What is required of the damage to be recoverable under Rylands v Fletcher?

A

It must be reasonably foreseeable as a consequence of escape

47
Q

What are the five defences available to liability under Rylands v Fletcher?

A
  1. Escape caused by unforeseeable act of stranger
  2. Act of God against which it is impossible to take precautions
  3. Consent, express or implied
  4. Contributory negligence
  5. Statutory authority

SQE1 - Tort (11 decks)

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