Land torts Flashcards
(99 cards)
1
Q
What is a partial injunction and when is it awarded?
A
A partial injunction can be seen as a compromise, striking a balance between the two parties by limiting the time and frequency of the activity rather than preventing it completely. The court may award a partial injunction where the defendant’s activities are of public benefit.
2
Q
What are the four land-based torts?
A
The four land-based torts are Private Nuisance, Public Nuisance, the rule in Rylands and Fletcher, and Trespass to Land.
3
Q
What factors does the court consider when determining if the use of land is reasonable or not in a private nuisance case?
A
The court considers various factors, including time and duration, locality, abnormal sensitivity, malice, lack of care, and excessive behavior when determining if the use of land is reasonable or not in a private nuisance case.
4
Q
What factors does the court consider when determining the steps a defendant should take in a nuisance case?
A
The court will consider what steps it is fair and reasonable to expect the defendant to take, considering the resources available to both the defendant and the claimant. The court must also take into account the competing demands on and public purpose of the funds of public authority defendants.
5
Q
requirements for public nuisance?
A
The elements of the tort of public nuisance are:
*conduct that materially affects the reasonable comfort and convenience of a ‘class of Her
Majesty’s subjects’; and
*the claimant has suffered particular harm.
6
Q
Can damages be awarded in lieu of an injunction in cases of nuisance?
A
Damages can be awarded in lieu of an injunction where the loss is substantial and outweighs the claimant’s interests. This is often the case when public interest is involved.
7
Q
What is the significance of abnormal sensitivity in a private nuisance case?
A
Abnormal sensitivity is a factor that the court considers in a private nuisance case. If a claimant is unusually sensitive or has unusually sensitive property, they cannot claim that activities that would not interfere with an ordinary occupier are a nuisance simply because they are a nuisance to them alone.
8
Q
What is the definition of private nuisance?
A
*that there is an interference with the claimant’s use and enjoyment of land or some rights
they enjoy over it; and
*that the interference is unlawful (meaning unreasonable).
‘(1) nuisance by encroachment on a neighbour’s land;
(2) nuisance by direct physical injury to a neighbour’s land; and
(3) nuisance by interference with a neighbour’s quiet enjoyment of his land.’
The last type of interference (often known as an interference with personal comfort or loss
of amenity) is potentially very wide, encompassing, for example, smells, dust, vibration
and noise. It will also include interferences with rights enjoyed over land (such as a right to
light acquired by prescription). However, the courts are generally slower to find actionable
nuisances based on personal discomfort than where actual damage to property or
encroachment is concerned.
9
Q
In what circumstances can a landlord be held liable for private nuisance?
A
A landlord will not usually be liable for a private nuisance unless they have authorized or actively participated in the nuisance. Additionally, a landlord could be liable if they lease the property in circumstances where there is a very high probability that leasing the land would result in the creation of the nuisance.
10
Q
What are the remedies in public nuisance?
A
The remedies in public nuisance are the same as for private nuisance, but only injunctions can be granted where the claimant is the Attorney General or local authority.
11
Q
What factors does the court consider when deciding whether to grant an injunction in a nuisance case?
A
The court will weigh up all the competing factors in the exercise of its unfettered discretion. This includes considering public interest, the impact on the defendant’s business, and the enjoyment of the defendant’s activity by the public.
12
Q
What are the elements of a claim for private nuisance?
A
The elements of a claim for private nuisance are: (1) indirect interference, (2) recognized damage, (3) continuous act, and (4) unlawful interference.
13
Q
Who can sue in private nuisance and who can be sued?
A
In order to bring an action in private nuisance, the claimant must have a legal interest in the land affected, such as a possessionary or proprietary interest. The defendant in a private nuisance claim can be the creator of the nuisance, the occupier of the land from which the nuisance originates, or the owner of the land.
14
Q
Rylands v Fletcher requirements?
A
The elements of the tort are:
*The defendant brings onto their land for their own purposes something likely to do
mischief
*if it escapes
*which represents a non- natural use of land
*it causes foreseeable damage of the relevant type.
15
Q
What are the potential remedies available in cases of nuisance?
A
The potential remedies available in cases of nuisance are injunctions, damages, and abatement. Injunctions are the primary remedy and can be either full or partial. Damages can be awarded for any physical damage to property or consequential economic loss. Abatement represents a self-help remedy where the claimant acts to stop the nuisance.
16
Q
What types of damage can be recovered in a claim for private nuisance?
A
The types of damage recoverable in a claim for private nuisance are physical damage to property and sensible personal discomfort (SPD). SPD refers to the interference that affects the senses of the claimant, such as unpleasant odors or noise, and damages the amenity value of the property.
17
Q
What are some examples of cases where abnormal sensitivity played a role in determining liability in a private nuisance case?
A
In Robinson v Kilvert, the claimant’s heat-sensitive paper was damaged by the heat emitted from the defendant’s premises. The court held that the claimant’s paper was abnormally sensitive, and ordinary paper would not have been affected. In McKinnon Industries v Walker, the claimant’s orchids were damaged by fumes and smuts emitted by the defendant’s factory. The court found the defendant’s use of land to be unreasonable, and the claimant was entitled to recover for the damage to the sensitive orchids.
18
Q
What is the difference between private nuisance and public nuisance?
A
Private nuisance refers to interferences with the use and enjoyment of one’s property, while public nuisance involves acts or omissions that materially affect the reasonable comfort and convenience of a class of people. Public nuisance is a crime and can also be a tort in certain circumstances.
19
Q
What is the general rule regarding the continuity of a nuisance?
A
The general rule is that a nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance. However, there are exceptions to this rule, such as a single incident caused by an underlying state of affairs or an activity that creates a state of affairs giving rise to the risk of escape of physically dangerous or damaging material.
20
Q
What are some factors that the court considers when determining if the defendant’s behavior is excessive in a private nuisance case?
A
The court considers various factors, such as time and duration, locality, abnormal sensitivity, malice, lack of care, and excessive behavior when determining if the defendant’s behavior is excessive in a private nuisance case.
21
Q
What are the defenses and remedies available in a private nuisance claim?
A
Defenses that might be available to the defendant in a private nuisance claim include statutory authority, prescription, and coming to the nuisance. The remedies available to the claimant if successful in a private nuisance claim are injunctions and damages.
22
Q
Who can sue in cases of public nuisance?
A
An individual, a local authority, or the Attorney General can sue in cases of public nuisance. An individual can only sue if they have suffered special damage, which means they have suffered over and above the rest of the class or in a way that is different from the rest of the class.
23
Q
What is the significance of malice in a private nuisance case?
A
Malice is a factor that the court considers in a private nuisance case. If the defendant’s aim is solely to annoy the claimant without any legitimate reason for their actions, it will normally constitute a nuisance.
24
Q
Who can be sued in cases of public nuisance?
A
The creator, owner, or occupier of the nuisance can be sued in cases of public nuisance. The tortfeasor is usually easily identifiable.
25
How does the law determine whether an interference is unreasonable in a claim for private nuisance?
The law does not look at whether the defendant is at fault, but rather considers whether the activity causing the nuisance amounts to an unreasonable use of land. The courts balance various factors, such as time and duration of the interference, the locality or character of the neighborhood, and the competing interests of the parties involved.
26
What is public nuisance and how does it differ from private nuisance?
Public nuisance involves acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of people. It is different from private nuisance in that it requires a class of people to have been affected, and it is both a crime and a tort. Public nuisance covers a wide range of acts or omissions that can be considered nuisances.
27
What is the role of lack of care in a private nuisance case?
If the defendant has shown a lack of care in causing the nuisance, it is likely to count in the claimant's favor. The defendant's lack of care may indicate that they are being unreasonable and creating a nuisance.
28
What are the preliminaries to consider in the tort of Rylands v Fletcher?
(1) Who can sue? The claimant must have a proprietary interest in the land affected. (2) Who can be sued? The person who brings, collects, and keeps the 'thing' onto the land (the creator of the nuisance) and/or any person who has control over the land (owner/occupier). (3) Loss: The claimant must suffer some damage. The only types of loss recoverable under Rylands v Fletcher are property damage and consequential economic loss.
29
What are the elements that make up the tort of public nuisance?
The elements of public nuisance include an act or omission, whether it is a one-off event or continuous, the impact on a class of people, and whether it materially affects the reasonable comfort and convenience of the claimant/s.
30
What is the rule in Rylands v Fletcher?
The rule in Rylands v Fletcher covers situations where something escapes from the defendant's land to the claimant's land, causing foreseeable damage. The claimant must prove that the interference or act being carried out by the defendant is continuous, and that the interference is unreasonable. The defendant's right to use their land is balanced against the claimant's right to enjoy their land without disturbance.
31
What is the significance of excessive behavior in a private nuisance case?
If the defendant has behaved in an excessive manner, it may indicate that they are being unreasonable and creating a nuisance. Excessive behavior is a factor that the court considers when determining if the defendant's behavior is unreasonable.
32
What defences are available in cases of public nuisance?
The defences available in cases of public nuisance include prescription, statutory authority, consent, contributory negligence, act of third party, act of God, and necessity.
33
What is trespass to land?
Trespass to land involves unlawful presence on somebody else's land. The interference must be intentional and direct, and an action in trespass to land is actionable per se, meaning the claimant need not have suffered any loss. The claimant must have a possessionary or proprietary interest in the land affected to bring a claim.
34
What are the elements of the tort of Rylands v Fletcher?
The elements of the tort of Rylands v Fletcher are: (1) The defendant brings onto land and accumulates there; (2) For their own purposes, anything likely to do mischief if it escapes; (3) Escape; (4) Escape caused foreseeable harm; and (5) Non-natural use of land.
35
What remedies are available in cases of public nuisance?
The remedies available in cases of public nuisance are injunctions and damages. Injunctions are the primary remedy and can be either full or partial. Damages can be awarded for physical damage to property, consequential economic loss, or inconvenience.
36
How does the law define indirect interference in a claim for private nuisance?
Indirect interference in a claim for private nuisance refers to interference with the use or enjoyment of the claimant's land that is not a direct interference, such as sounds, smells, fumes, or vibrations. It occurs when the nuisance starts on the defendant's land but causes damage to some aspect of the claimant's use or enjoyment of their land.
37
What are the components that a claimant must prove in a trespass to land claim?
In a trespass to land claim, the claimant must prove direct and physical interference, and that the interference was intentional. The claimant does not need to prove any loss, unlike the other three land-based torts.
38
What is the defense of prescription in a private nuisance case?
The defense of prescription in a private nuisance case applies when the defendant's activity has been an actionable nuisance for 20 years or more, and no action has been taken against it. In such cases, the defendant will have earned the right to continue committing the nuisance.
39
What are the defenses and remedies available in a trespass to land claim?
The defenses available to the defendant in a trespass to land claim include license, consent, and necessity. The remedies available to the claimant if successful in a trespass to land claim are damages and an injunction.
40
What is the defense of statutory authority in a private nuisance case?
The defense of statutory authority in a private nuisance case applies when the defendant's activity is being carried out based on statutory authority. The defendant will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of the activity.
41
What is the defense of consent in a private nuisance case?
The defense of consent in a private nuisance case applies when the claimant specifically agrees to the defendant causing the nuisance. If the claimant, knowing the danger to their property, has shown willingness to accept the risks, their consent will be a defense.
42
What is the requirement for a nuisance to be continuous?
The general rule is that a nuisance must be continuous. This means that a one-off isolated event is not normally actionable in private nuisance. However, there are exceptions to this rule, such as a single incident caused by an underlying state of affairs or an activity that creates a state of affairs giving rise to the risk of escape of physically dangerous or damaging material.
43
What is the significance of public interest in cases of nuisance?
Public interest plays a role in cases of nuisance as it can influence the court's decision on whether to grant an injunction. The court may consider how the public enjoys the defendant's activity or if the defendant's business would be severely impacted by an injunction.
44
What are the defences available in the tort of Rylands v Fletcher?
The defences available in the tort of Rylands v Fletcher are the same as for public nuisance, with the addition of common benefit (a type of consent) and default of the claimant. The defences include: (1) Common benefit, (2) Act or default of the claimant, (3) Statutory authority, (4) Act of third party, (5) Act of God, and (6) Contributory negligence.
45
What is the defense of contributory negligence in a private nuisance case?
The defense of contributory negligence in a private nuisance case applies when the claimant's own negligence contributes to the nuisance. The usual rules of contributory negligence apply, and the defendant may argue that the claimant should have taken reasonable steps to avoid or minimize the nuisance.
46
What are the remedies available in the tort of Rylands v Fletcher?
The remedies available in the tort of Rylands v Fletcher are the same as for private nuisance, namely damages and injunctions. Damages are the most common remedy given that the types of loss recoverable in Rylands v Fletcher are property damage and consequential economic loss.
47
What is abatement and when can it be used as a remedy?
Abatement is a self-help remedy where the claimant takes reasonable steps to prevent the nuisance from continuing. It can be used in certain circumstances when the claimant has the right to enter onto the land of another and the defendant's belongings must be left on the property.
48
What is the defense of act of third party in a private nuisance case?
The defense of act of third party in a private nuisance case applies when the nuisance has been created by a third party for whom the defendant bears no responsibility. The defendant will not be liable for the nuisance unless they adopt or continue the nuisance.
49
What is the defense of act of God in a private nuisance case?
The defense of act of God in a private nuisance case applies when the nuisance results from an act of God, such as an unexpected and unavoidable natural event. The defendant will not be liable for the nuisance unless they adopt or continue the nuisance.
50
What is special damage in public nuisance cases?
Special damage refers to the harm or loss suffered by the claimant that is over and above the rest of the class or in a way that is different from the rest of the class. It is a requirement for an individual to sue in public nuisance.
51
What is the significance of the non-natural use of land in the tort of Rylands v Fletcher?
n the tort of Rylands v Fletcher, the non-natural use of land is a crucial element. It means that the use of the land must be non-ordinary or non-ordinary according to the standards of the day. The circumstances, including the type of area, must be taken into account when determining whether the use is non-natural. Storage of substantial quantities of chemicals on industrial premises is considered an 'almost classic case' of non-natural use.
52
What remedies are available to a claimant if they are successful in proving private nuisance?
If a claimant is successful in proving private nuisance, they may be awarded three potential remedies: an injunction, damages, or abatement. An injunction is the primary remedy for a continuing nuisance, and it can be full (banning the activity altogether) or partial (regulating the activity on certain conditions). Damages may be awarded to compensate the claimant for their losses, and abatement involves taking action to remove or reduce the nuisance.
53
What can interference with land include?
Interference with land can include both the airspace above the land and the ground beneath it.
54
Who can be sued in a claim of private nuisance?
In a claim of private nuisance, the creator of the nuisance, the occupier of the land from where the nuisance has come, and the owner of the land from where the nuisance has come can all be sued.
55
According to case law, is there a limit to how deep the concept of land ownership extends?
According to case law, there is a limit to how deep the concept of land ownership extends. At some point, physical features such as pressure and temperature render the concept of the strata belonging to anyone as absurd
56
Under what circumstances can an occupier be sued for nuisances created by contractors?
An occupier can be sued for nuisances created by contractors if the nuisance created was a reasonably foreseeable consequence of the task requested of the contractor by the occupier.
57
Who can sue in trespass to land?
In trespass to land, the claimant must have a legal interest in the land affected, such as ownership or possession. However, in situations where a trespasser possesses demised land, the claimant would be the tenant or licensee in possession, rather than the landowner.
58
Give an example of direct physical interference in trespass to land.
An example of direct physical interference in trespass to land is piling a large compost heap on someone else's land without permission.
59
What is the role of intention in trespass to land?
In trespass to land, the defendant must intend the direct action that results in the trespass, but they do not need to intend to trespass. For example, accidentally walking over a private field still constitutes trespass.
60
What are the examples of intentional direct interference that could amount to trespass to land?
Examples of intentional direct interference that could amount to trespass to land include entering someone's property without permission, building structures on another person's land, or placing objects on someone's land without consent.
61
Can interference with land include both physical and non-physical elements?
Yes, interference with land can include both physical elements, such as structures or objects, as well as non-physical elements, such as noise or vibrations.
62
What are the primary remedies in trespass to land?
The primary remedies in trespass to land are damages and injunctions. Other remedies include re-entry, recovery of land, and mesne profits (The claimant might bring an action for mesne profits to claim money from a defendant who wrongfully occupied the land and made a profit or saved expenditure in doing so, eg where a tenant fails to leave at the end of their tenancy and stops paying rent.).
63
What factors are considered when determining whether the use of land in private nuisance is unreasonable?
When determining whether the use of land in private nuisance is unreasonable, factors such as time and duration, locality, abnormal sensitivity, malice, lack of care, excessive behavior, and public benefit may be relevant. However, when the use of land causes physical damage, the court will not take into account locality and is likely to find the use unreasonable.
64
What is the time limit for bringing a claim in trespass to land?
A claim in trespass to land must be brought within six years from the date on which the cause of action accrued.
65
What are some examples of non-physical elements that can interfere with land?
Some examples of non-physical elements that can interfere with land include noise, vibrations, or other forms of environmental pollution.
66
What losses are recoverable in private nuisance?
Physical damage to property, SPD, and consequential economic loss.
67
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?
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 claimant cannot sue in private nuisance as the defendant had planning permission to extend their factory. The noise created is therefore reasonable.
The planning permission is completely immaterial to whether there has been private nuisance.
The planning permission will have changed the locality of the area from residential to commercial and there will therefore be no actionable private nuisance.
The courts will consider whether the planning permission justifies the nuisance when assessing whether the defendant’s use of their land is reasonable.
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.
This is the correct answer. 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.
68
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?
Time and duration, abnormal sensitivity, malice, lack of care and excessive behaviour.
69
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?
The hairdresser can rely on the defence of prescription and consent.
The hairdresser will be able to rely on the defence of prescription but unable to argue that Rosie moved to the nuisance.
The hairdresser can rely on the defence of prescription and contributory negligence.
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 will be able to rely on the defence of prescription and will be able to argue that Rosie moved to the nuisance.
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.
70
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?
Act of a third party.
Consent.
Prescription.
Act of God.
Statutory authority.
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.
71
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 class of people have been affected by Mishal’s actions. Gita cannot bring a claim as an individual.
A class of people have been affected by Mishal’s actions. Gita cannot bring a claim as she does not own the land affected.
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.
A class of people have been affected by Mishal’s actions. Gita can bring a claim for her economic loss as an individual.
A class of people have been affected by Mishal’s actions. Gita cannot bring a claim for economic loss in public nuisance.
A class of people have been affected by Mishal’s actions. Gita can bring a claim for her economic loss as an individual.
This is the correct answer. 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.
72
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?
Troy’s friends cannot bring a claim in public nuisance as they consented to Troy’s actions by being his friends.
Troy’s friends cannot bring a claim in public nuisance as they have suffered personal injury.
Troy’s friends cannot bring a claim in public nuisance as they have not suffered a common injury.
Troy’s friends cannot bring a claim in public nuisance as 50 people will not amount to a ‘class’.
Troy’s friends cannot bring a claim in public nuisance as Troy’s acts amount to a crime.
Troy’s friends cannot bring a claim in public nuisance as they have not suffered a common injury.
This is the correct answer. 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.
73
What losses are recoverable in public nuisance?
Property damage, consequential economic loss, personal injury, pure economic loss, and inconvenience.
74
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?
The neighbour will be able to claim for damage to his plants as the harm suffered was foreseeable if the chemicals escaped.
The neighbour will be unable to claim for damage to his plants as the escape of the chemicals was not foreseeable.
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.
The neighbour will be unable to claim for damage to his plants as Max did not know about the leak.
The neighbour will be able to claim for damage to his plants as Max is responsible for anything he brings onto his land.
The neighbour will be able to claim for damage to his plants as the harm suffered was foreseeable if the chemicals escaped.
This is the correct answer. It was reasonably foreseeable that if the chemicals escaped, they could kill plants. The escape does not need to be foreseeable.
75
Which defences are applicable to the rule in Rylands v Fletcher?
Common benefit, act or default of the claimant, statutory authority, act of third party, act of God, contributory negligence and consent.
76
What losses are recoverable in the rule in Rylands v Fletcher?
Property damage and consequential economic loss.
77
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?
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.
This is not trespass to land. The crane is not interfering with the neighbour’s use of their land.
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.
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.
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.
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.
78
A student, at a university, uses the library facilities to revise for his PGDL exams. In previous months the library was a quiet and peaceful place in which to work. In recent weeks, the university has formally permitted the rugby society to use the room adjacent to the library to conduct fund raising activities. The fundraising events are considerably noisy, and the student can no longer revise in the library. As a result of his inability to revise adequately, the student fails his exams. The university does not offer the option to resit the exams. The student cannot qualify as a lawyer in this way.
Which of the following statements represents the most appropriate advice to the student?
The student should be advised that he would have a claim in public nuisance but not in either private nuisance or under the rule in Rylands v Fletcher
The student should be advised that he would not have a valid claim in private nuisance or public nuisance but should bring the claim under the rule in Rylands v Fletcher
The student should be advised that he would not have a valid claim in either private nuisance, public nuisance or under the rule in Rylands v Fletcher
The student should be advised that he would have a valid claim in private nuisance but not in public nuisance or under the rule in Rylands v Fletcher
The student should be advised that he would have a valid claim in private nuisance and Rylands v Fletcher but not in public nuisance
The student should be advised that he would not have a valid claim in either private nuisance, public nuisance or under the rule in Rylands v Fletcher
Yes. This is correct. The student, as a bare licensee, does not have the requisite legal interest in land to enable him to bring a claim in either private nuisance or in Rylands v Fletcher (Hunter v Canary Wharf). As a student, he would be a bare licencee. Additionally, the student would not have a valid claim in public nuisance as there is no evidence on the facts that a class of people (AG v PYA Quarries) have suffered any discomfort or inconvenience. The noise from the fundraising activity appears to only affect the student in question.
79
A farmer runs a sheep farm at the edge of a small rural village. She has owned and run the farm for 25 years. The sound of the sheep and the shearing is very loud prevents the owner of neighbouring house from using his garden for most of the summer. He has lived in the house for 22 years and has not been too bothered by the noise, but this year the farmer has increased the number of sheep by 50% and the neighbour decides he must do something about it now.
The neighbour visits a local solicitor for advice.
Which of these represents the most accurate legal advice?
The farmer has been causing an actionable nuisance to the neighbour, and the neighbour will not have an actionable claim because they moved to the nuisance.
The farmer has been causing an actionable nuisance to the neighbour, and the farmer is unlikely to have a defence of prescription if there has been significant increase in the nuisance.
The farmer has been causing an actionable nuisance to the neighbour for 22 years and the neighbour has not complained until now, so the farmer will have the defence of prescription.
The farmer has probably not been causing an actionable nuisance due to the rural neighbourhood in which the farm is located.
The farmer has been causing an actionable nuisance for 25 years so may have the defence of prescription.
The farmer has been causing an actionable nuisance to the neighbour, and the farmer is unlikely to have a defence of prescription if there has been significant increase in the nuisance.
This answer best reflects the law in this area. There is an actionable nuisance on the facts and the change in the level of nuisance prevents the defendant from successfully relying on the defence of Prescription. For prescription defence to apply there must be 20 years or more of the actionable nuisance. In these facts the nuisance has only arisen recently. The fact the claimant moved to a nuisance is irrelevant. See Coventry v Lawrence [2014] UKSC 13 for example on this point. Character of the neighbourhood is a factor to be considered, though we don't have sufficient information here.
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A young entrepreneur ran a business from the third floor of a building. An old woman owned the building and leased different parts to other business tenants. A third party person had blocked all the sinks in the lavatory on the fourth floor and turned on all the taps in order to cause a flood. This damaged the young entrepreneur's stock.
Will the old woman be liable under Rylands v Fletcher?
The old woman will not be liable under Rylands v Fletcher.
The old woman will be liable under Rylands v Fletcher.
The old woman will only be liable under Rylands v Fletcher if the young entrepreneur can establish that there was a clear 'escape' of the flooding from the fourth floor property to his property.
The old woman will only be liable under Rylands v Fletcher if the young entrepreneur can establish that there was a natural use of the land.
The old woman will only be liable under Rylands v Fletcher if the young entrepreneur can establish that there was no natural use of the land.
The old woman will not be liable under Rylands v Fletcher.
Correct, the old woman will not be liable. The act which caused the damage was a wrongful act by a third party (Rickards v Lothian) and there was no non-natural use of land.
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Two adjacent shops in a shopping centre are occupied by a butcher who smokes his own meat, and a high-end clothes designer. The clothes designer complains that smoke from the smoking process have led to complaints from customers and staff about the strong smell. The clothes designer wants to bring a claim for private nuisance.
In a claim for private nuisance what test will be applied to determine whether there has been an unreasonable interference?
Has the smoke caused physical injury?
Is the smoke unacceptable to the customers of the clothes designer?
Is the smoke more intense than it was a year ago?
Is the smoke unacceptable in the environment of a shopping centre?
Has the butcher acted maliciously?
Is the smoke unacceptable in the environment of a shopping centre?
This answer best reflects the law in relation to private nuisance. As per Sturges v Bridgman (1879) 11 Ch D 852, the court will consider the locality when looking at whether there was unreasonable interference. The other answers are other factors that might be taken into account, but the key test is whether the smoke is unacceptable in this environment.
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A farmer turns a field into a campsite for three months every summer, attracting hundreds of campers. The local villagers are upset by the increased traffic and rubbish caused by the campers and feel that their properties have lost value as a result.
The villagers have been advised that if they were to bring a claim as a class against the farmer in public nuisance their claim should be successful. The local authority or Attorney-General can being the claim on their behalf.
Which of the following best describes the remedies they could ask for?
The villagers could ask for either a full or partial injunction to stop or limit the camping or damages to compensate them for the value they have lost on their properties.
The villagers could only ask for a full or partial injunction to stop or limit the camping because the loss of value on their properties was not reasonably foreseeable.
The villagers could only ask for damages to compensate them for the value they have lost on their properties because camping is in the public interest.
The villagers could ask for both a full or partial injunction to stop or limit the camping and damages to compensate them for the value they have lost on their properties.
The villagers could only ask for a full or partial injunction to stop or limit the camping because those are the only remedies available.
The villagers could only ask for a full or partial injunction to stop or limit the camping because those are the only remedies available.
Correct. As the villagers would bring a claim in public nuisance as a class via their local authority or the Attorney General, a full or partial injunction would be the only remedy available.
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A farmer keeps a large silo of grain on his farm, but the grain is leaking from a crack at the bottom of the silo. This has attracted large numbers of rats to the farm, which are then also going into the garden of a neighbouring householder and some have made a nest under the householder’s shed. While putting down rat poison, the householder is bitten by a rat and also develops Weil’s disease from the rats’ urine.
Which of the following provides the best advice as to any action the householder may bring in nuisance?
The householder can bring an action in private nuisance, public nuisance and under the rule in Rylands v Fletcher
The householder cannot bring an action in any of the following: private nuisance, public nuisance or under the rule in Rylands v Fletcher
The householder can bring a claim in public nuisance, but not in private nuisance or under the rule in Rylands v Fletcher
The householder can bring an action in private nuisance and public nuisance, but not in Rylands v Fletcher
The householder can bring an action in private nuisance and under the rule in Rylands v Fletcher, but not in public nuisance.
The householder cannot bring an action in any of the following: private nuisance, public nuisance or under the rule in Rylands v Fletcher
Correct: The damage caused is personal injury, which cannot be pursued in private nuisance or Rylands. Furthermore, the farmer has not brought the rats onto his land and accumulated them there. They have been attracted by the grain, which he has accumulated, but the grain has not escaped and caused damage. Although PI may be claimed in public nuisance, there is no action on this basis either as there is no evidence that a class of his majesty’s subjects have been materially affected, of which the householder is a member who has suffered special damage (PI).
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Interferences for private nuisance?
‘(1) nuisance by encroachment on a neighbour’s land;
(2) nuisance by direct physical injury to a neighbour’s land; and
(3) nuisance by interference with a neighbour’s quiet enjoyment of his land.’
The overall duration of an interference will be a very important factor. The longer the
interference has lasted, the more likely it is that the court will consider the interference
unreasonable. On the other hand, if the interference is only short term then the claimant will
generally be expected to put up with it.
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Assessment of locality for private nuisance?
f the claimant has suffered interference with personal comfort but not physical damage,
whether the interference is unreasonable will be judged in relation to the degree and types
of interference which can be expected in that particular locality. Each area will have its own
standards. For example, a person who lives in London can expect to have to tolerate more
noise from traffic, etc than a person who lives in a rural village in Wales. Conversely, the
smells attributable to farm life are more appropriate to a rural location than a city centre.
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Public benefit as a factor for private nuisance?
courts consistently take the view
that the interests of the public should not deprive an individual of their private rights. Public
benefit, therefore, is rarely a relevant factor in deciding whether the defendant’s use is
unreasonable. (It may, however, be relevant when the court is deciding whether or not to grant
an injunction
87
Malice as a factor for private nuisance?
In Hollywood Silver Fox Farm, the sole
purpose of the defendant’s shooting of a shotgun near to the claimant’s countryside property
was to annoy the claimant and, more particularly, to upset the claimant’s silver foxes during
breeding time. The interference, as carried out with malice, could not be regarded as a
reasonable one.
Malice is a factor that is likely to tip the balance in the claimant’s favour, potentially making
an interference unlawful that would have been reasonable (and lawful) if done without malice.
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Who can sue in private nuisance?
both owner- occupiers and tenants can sue in private nuisance as they have the
right to exclusive possession deriving from their proprietary interest.
89
Who is liable in private nuisance?
*
The creator of the nuisance.
*
The occupier of the land from which the nuisance originates (whether or not the occupier
also created it).
*
The landlord.
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Act of God or nature defence for private nuisance?
which an occupier can be liable for natural events on their land. Where an interference on the
defendant’s land results from a ‘secret unobservable process of nature’ (eg subsidence under
or near the foundations of the defendant’s house) or from an act of God (eg lightning) then
the defendant will not be liable in nuisance unless they adopt or continue the nuisance.
91
Necessity defence for private nuisance?
The two elements of the defence of necessity are:
*
a situation of necessity exists because of an imminent danger to life and limb (or, in very
limited circumstances, a threat to property); and
*
that the defendant’s actions were reasonable in all the circumstances.
92
Planning permission defence for private nuisance?
the mere grant of planning permission (which is granted
by local authorities and not Parliament) does not legitimise a nuisanc
However, the grant of planning permission can operate to change the character of the
neighbourhood, which is a consideration when deciding whether an interference with
personal comfort is unlawful.
93
A ‘quia timet ’ injunction?
quia timet, ie in anticipation of the commission of
the tort by the defendant, in order to prevent the claimant suffering any damage. In order to
obtain such an injunction the claimant will have to show:
*
they are almost certain to incur damage without the injunction; and
*
such damage is imminent; and
*
the defendant will not stop their course of conduct without the order of the court.
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Abatement?
Abatement involves the removal of the interference by the victim. The victim must, however,
normally give prior notice to the wrongdoer, except in an emergency or where the nuisance
can be abated (removed) without entering the wrongdoer’s land.
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Defences for Ryalnds v Fletcher?
12.3.5 Defences
12.3.5.1 Escape caused by the unforeseeable act of a stranger
The defendant will not be liable if they could not have reasonably foreseen the act of the
stranger and therefore could not do anything to prevent the harm.
12.3.5.2 Escape caused by an ‘act of God’ which could not have been reasonably foreseen
The defendant will not be liable for an extraordinary act of nature, which could not have been
reasonably foreseen.
12.3.5.3 Statutory authority
This is considered in the context of private nuisance above.
12.3.5.4 Consent (voluntary assumption of risk)
This is considered in Chapter 7.
12.3.5.5 Contributory negligence
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Question 1
A solicitor is instructed by a client who bought a house located in a rural location six
months ago. A cement factory is near to the client’s house. Heavy lorries regularly arrive
and leave during the day and night via a public road, making it difficult for the client to
sleep at night.
The client has complained to the factory owner. The factory owner has responded that the
factory has been operating for 25 years in the same location and that the client should not
have bought their house near a factory if they are a light sleeper. The factory owner has
also confirmed that their lorries are fitted with the best noise reduction mechanisms that are
available on the market.
Which of the following statements best explains whether the client may have a claim in
tort against the factory owner?
A Yes, because the client will be able to pursue a claim in public nuisance because the
lorries are using a public road.
B Yes, because the client will be able to pursue a claim in private nuisance because the
noise from the lorries is substantial and unreasonable.
C Yes, because the factory is a non- natural use of land in a rural location.
D No, because the factory was already operating before the client moved to the area.
E No, because the factory owner has taken reasonable care to ensure that the noise from
the lorries is kept to a minimum level.
Answer
Option B is correct. The noise from the lorries may be a substantial and unreasonable
interference with the claimant’s use of their land. The fact that the noise is at night and in a
rural location would indicate that the claimant would have a claim in private nuisance.
Option A is wrong because there is nothing to suggest that the noise from the lorries affects
a ‘class of Her Majesty’s subjects’, ie a sufficient number of members of the public. Public
nuisance is primarily concerned with protecting public rights and the fact that the lorries are
using a public road is only incidental to the interference with the client’s private right to be
able to use and enjoy their land.
Option C is wrong because a non- natural use of land is only one element of the rule in
Rylands v Fletcher. The other requirements are not satisfied on these facts as there has not
been an escape of anything likely to cause damage to the claimant’s land. In fact, it is unlikely
that this is a non- natural use of land in any event. A cement factory is not an extraordinary or
unusual use of land, even in a rural location.
Option D is wrong because ‘coming to the nuisance’ is an ineffective defence to a claim in
private nuisance.
Option E is wrong because private nuisance is not based upon proving that the defendant has
not taken reasonable care. Private nuisance is concerned with whether the consequences of
the defendant’s use of their land is unlawful in that it causes a substantial and unreasonable
interference with the claimant’s use of their land.
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Question 2
A solicitor is instructed by the manufacturer of explosives used in the mining industry.
A relatively minor explosion at the client’s factory scattered debris over the trading estate
situated next door to their factory. Fortunately, no one was injured. However, the client has
been contacted by one potential claimant. They are the owner of one of the businesses
on the trading estate who are looking to claim for the cost of damage to the roof of their
warehouse.
An expert has investigated the cause of the explosion and they have advised that the client
was not to blame for the explosion.
Which of the following statements best explains whether the client may be liable in tort
for the damage to the warehouse roof?
A No, because the incident was an isolated event.
B No, because the explosion was not the client’s fault.
C Yes, because the warehouse owner has suffered particular harm over and above the
harm suffered by the public at large.
D Yes, because the client’s use of their land was non- natural and the debris caused
foreseeable damage.
E Yes, because property damage is always an unlawful interference with the use and
enjoyment of land.
Answer
Option D is the correct answer. The manufacture of explosives is likely to do mischief and it is
likely to be held to be a non- natural use of land. The debris from the explosives has ‘escaped’
and caused foreseeable harm to the warehouse owner. The rule in Rylands v Fletcher is,
therefore, satisfied.
Option A is wrong because the torts of public nuisance and the rule in Rylands v Fletcher
can be used by claimants where there have been ‘one- off’ or isolated events. It is correct,
however, that private nuisance does not usually cover isolated events.
Option B is wrong because none of the torts of private nuisance, public nuisance and the
rule in Rylands v Fletcher depend upon proving fault, ie that the defendant has not taken
reasonable care.
Option C is wrong because, while it seems that the warehouse owner is the only person to
have suffered harm, there is nothing to suggest that the public has been affected. A claim in
public nuisance is not, therefore, appropriate on these facts.
Option E is wrong because property damage is not always an unlawful interference with the
use and enjoyment of land. It is correct that an interference which causes physical damage
to the claimant’s land is likely to be considered excessive. However, this does not apply if the
damage is only trivial. In any event, private nuisance is not the appropriate tort for isolated
events.
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Question 3
A solicitor is instructed by a client arising from the following incident. The client’s next
door neighbour employed a building contractor to dig into the foundations of their home
to create a basement in their property. Despite carrying out all the normal surveys and
investigations, the neighbour’s building contractor disrupted a Roman sewer that was not
shown on any charts or surveys. This caused the busy road outside the client’s home to
collapse. The road was closed for 12 weeks while remedial works were carried out, causing
traffic to be diverted around the client’s village.
The client was injured as she was crossing the road when the road collapsed. She fell into
part of the hole in the road, breaking her leg.
Which of the following statements best explains whether the client may have a claim in
tort against the building contractor?
A Yes, because the building contractor has caused a substantial and unreasonable
interference with the client’s use and enjoyment of their land.
B Yes, because the client owns their property and they have suffered particular harm over
and above the harm suffered by the public as a whole.
C Yes, because the client has suffered particular harm over and above the harm suffered
by the public as a whole.
D No, because the building contractor carried out all the normal surveys and
investigations and the client suffered a personal injury.
E No, because the harm suffered by the client was not reasonably foreseeable.
Answer
Option C is correct. The public right to use the highway has been affected and the client has
suffered particular harm, ie the personal injury.
Option A is wrong because there is nothing on the facts to suggest that the client’s use and
enjoyment of their land has been interfered with (the interference is with the use of a public
road). In any event, the client’s personal injury is not a type of harm that is recoverable in
private nuisance.
Option B is wrong as an action in public nuisance does not depend upon the client having a
proprietary interest in the land affected (it is a requirement for private nuisance and the rule in
Rylands v Fletcher). In any event, the fact that the client owns their property is irrelevant as the
land interfered with is a public road.
Option D is wrong because the fact that the building contractor used reasonable care is not
relevant for the torts of private nuisance, the rule in Rylands v Fletcher and public nuisance.
Also, while it is correct that personal injury is not a type of harm recoverable in private
nuisance and the rule in Rylands v Fletcher, it is recoverable in public nuisance.
Option E is wrong because, while it is correct that reasonable foreseeability of the harm
suffered is an element of private nuisance and the rule in Rylands v Fletcher, it is not a
requirement in public nuisance
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Question 11
A man runs a very popular farmers market on a small farm on the edge of a village every Thursday. This results in the village becoming very busy on Thursdays when many of its roads are blocked by parked cars. Because of this, on Thursdays, a woman who runs a business in the village is unable to deliver her goods and she loses trade as a result.
Which cause of action should the woman pursue in tort?
A. Private nuisance.
B. Public nuisance.
C. Rylands v Fletcher.
D. Negligence.
E. Occupiers' liability.
B - Public nuisance.
