Tort Flashcards
(28 cards)
What defences are available in Private Nuisance that are not available in Public Nuisance
Prescription (20 yrs),
Private nuisance: Claimant
Proprietary interest in land
Private nuisance: Defendant
creator of nuisance
occupier of land from which nuisance originates unless third party created (exceptions independent contractors, if continued or adopted nuisance, naturally occurring iff no reasonable steps to stop)
landlord iff actively participating or leasing property where high probability that nuisance would be created
Private nuisance 3 elements
unlawful interference, recognised damage (physically to property or intangible), continuous act
Private nuisance: 6 Defences
- 20 year’s prescription
- Statutory authority
- Consent
- Contributory negligence
- Act of third party
- Act of god
Is moving to nuisance a defence to private or public nuisance
No
Public nuisance: 4 elements
Act or omission -
One-off or continuous -
Class of subjects -
Loss: materially affects comfort + convenience - property damage, consequential and pure economic loss, personal injury, inconvenience
Public nuisance: 3 possible Claimants
- Individual (must suffer special damage)
- Local authority
- Attorney General
Public nuisance: 5 defences
- Statutory authority
- Consent
- Contributory negligence
- Act of third party (unless adopt/continue)
- Act of God
Private nuisance: 3 Remedies
- Injunction (primary) (if AG or Local Authority only remedy)
- Damages (in lieu of or actual)
- Abatement (self-help)
Public nuisance: 2 Remedies
- Injunction
- Damages
Rylands v Fletcher: C, D, explain, remedies
Strict liability
C has proprietary interest in land
D bring something on land for non-natural use likely to cause harm if escapes, it escapes and causes foreseeable harm
Remedies same as private nuisance, damages most likely
Rylands v Fletcher: Defences (2 additional)
All of defences for Public nuisance (not prescription) +
- Common benefit (can be implied)
- Act of C wholly caused escape
Tort Causation: material increase in risk test
Case: industrial disease cases, ie mesothelioma and lung cancer from asbestos exposure or dust, dermatitis
Test: breach made greater than negligible to risk of developing
(depart from butfor)
Tort causation: multiple causes
IFF: several causes all capable of contributing to damage acting together
Test: contribution more than negligible
(depart from butfor)
Tort: when does medical treatment break chain of causation
IFF so gross and egregious that unforeseeable
Tort causation: clinical negligence where breach failure to advise on risks
Test: on balance C would not have had operation or deferred it to a later date
Tort: Loss of chance can be argued where the loss = pure economic loss
Tort causation: Apportionment
where multiple tortious factors cause loss court apportions liability based on D’s relative fault
Tort: Apportionment mesothelioma exception
All Ds jointly and severally liable
Tort causation: Multiple sufficient causes
If second D not caused additional damage not liable
If second event = tortious, first D liable for original damage past point of second event, second D liable for additional damage
If second event naturally occurring, D liable for damage only up to natural event
Tort NAI: Acts of God or natural events test
exceptional and unforeseeable
Tort NAI test: Acts of third parties
highly unforeseeable
Tort NAI: Acts of C
highly unreasonable
