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45 Cards in this Set
- Front
- Back
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What does P.N do? |
Protects the rights of the c to use and enjoyhis land |
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When will P.N be committed? |
Rodgers 2010: D commits P.N when D unlawfullyinterferes with a person’s use or enjoyment of land. |
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Hunter says private nuisance protects what Pickford says what in relation to negligence |
interest in land. Negligence primarily protects against personalinjury, loss or damage. |
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Rapier? |
P.N traditionally strict liability, based onconcept of ‘reasonable user’.- For example I do not expect my neighbours to beperfect, and live in complete silence, but neither do I expect my neighbours touse their property in such a way as to render my existence un-bearable. Therefore fore I expect them to use it ‘reasonably”- The defedants use of land can be ‘unreasonableeven though he or she has taken all reasonable care to prevent the nuisanceoccurring.- |
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Barr
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The question is simply what objectively, anormal person would find it reasonable to put up with (note there are not setfactors to determine what is unreasonable) |
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Latimer in relation to negligence |
In negligence D will not breach his duty if hetook reasonable steps in the circumstances to extinguish risk of injury. |
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distinguish the principle of reasonableness in negligence and private nuisance |
Reasonableness Applies to P.N & Negligence.- Nettleship: Negligence focuses on the objectivereasonableness of the ‘doing’- P.N focuses on the on the reasonablenessof the ‘deed’ (reasonable user) |
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What are the similarities of Negligence and P.N |
Wagon Mound (no1): rule on remoteness of damageapply in P.N and Negligence.- The defendant is only liable for what he canforsee.
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What does cambridge water co say about negligence and p.n |
It was suggested that foreseeability of harmmight be a requisite for recovering damages for causing harm to P. Suggesting there has been a gradual alignment ofP.N and negligence, which indicates that nuisance, is no longer strictliability. |
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In terms of the balancing exercise 1)what does sedleigh denfield say 2) storr 3) hunter 4) Walter |
1) Sedleigh – Denfield : Claims in P.N are based ona balance between the rights of C and D. 2)Storr: Interference must be more than trivial,trivial things are not actionable. 3)Hunter: Interference with C’s land must beunreasonable. 4) Walter: mere personal discomfort treated withlatitude unless it is excessive. |
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Nature of locality
1) sturges 2)Gillingham 3) Wheeler 4)Coventry 5) Murdoch |
1)Nuisance in Belgrave square(fashionableresidential district) would not necessarily be so in Bermondsey( semlly leatherindustry). The law required those in Bermondsey to be more tolerant. Nature of locality is not relevant where Csuffered physical injury. Only relevant where C suffered personal discomfort.
2) grant of planning permission to convert land tobecome a commercial dock meant that an area around it could no longer beregarded as residential but industrial. In this case planning permission wasenough to change the nature of locality 3) Wheeler: permission to extend a pig breeding operation notenough to change nature of locality. 4) Coventry: confirmed wheeler. Planning permission was notsufficient to change the nature of the locality. 5) Murdoch: C complained of noise, which disturbed her fromsleeping at night. Judge did not find nuisance when considering the area shewas situated in. however he did state the existence of other complaints mightbe further evidence of the nature of locality. i.e. residential not industrial. |
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Duration and frequency 1)Cunnard: 2)De Keysers 3)Crown river 4)Bolton 5)SCM |
Cunnard: P.N is interference over a substantialamount of time.-
De Keysers: D carried out works in the middle ofthe night , court found P.N & granted an injunction. Crown river: Disturbance lasted 20mins and wasenough for the substantial requirement. Bolton: Balls were not struck over theresidential area enough times so it was not a nuisance. - SCM (United Kingdom) Ltd : 1 isolated escapecannot amount to P.N. Better dealt with in Ryalands v Fletcher. |
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Utility of D's conduct 1) Adams 2) Miller |
Adams: fact that D’s activities provideemployment will not mean that it can’t amount to P.N. Miller: Social utility may however affect theremedy, which the courts prescribed although P.N was found against anuisance-causing village cricket club, an injunction was not granted. Lord Denning stated that public benefitshould outweigh the private interest.
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Abnormal sensitivity 1) robinson 2) mckinon industries 3) sound star studio |
Robinson: Damage would not have occurred toordinary paper, no PN. thus P.N. Discomfortresulting from personal sensitivity to noise or heat would not affect theordinary citizen. - Mckinon industries: loss was caused to orchids, this was held notto be special sensitivity, because any other ordinary plant would have beenaffected by D’s conduct. P.N found Sound Starr Studio: C could not record properlybecause of D. No P.N because C’s property was abnormally sensitive. |
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Malice 1) silver fox farm |
May be evidence of an unreasonable use of land. Silver Fox farm: D was shooting his gun acrossC’s land causing foxes on C’s land to miscarry. This was found to be P.Nbecause D was motivated by malice. |
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Who can sue 1)Malone: 2)Hunter: 3)Peberton 4)Delware 5)Jones |
Malone: Only those with a proprietary interestcan bring a claim in P.N because it is a land – based tort. For example thosewith a fee simple absolute in possession and those granted a term of yearsabsolute.
Hunter: Only those with a proprietary interestin land can bring a claim + the lawful use of someone’s property disruptinganother television signal will not be actionable in P.N because it is a tort toland, to find otherwise would convert it into a tort to person. Pemberton: case concerned a toleratedtrespasser, a former tenant who had an order for possession against him, but itwas suspended whilst he continued to pay rent. Emphasises the importance of exclusive possession. This is because when his flat was infestedwith cockroaches he was allowed to sue in nuisance. - Delaware: provided P.N is continuing, C may suefor his or her losses even if it begun prior to the acquisition of premises. - Jones: Landlord can only sue where P.N hasharmed his reversionary interest when the lease ends and property reverts backto him and the property has diminished in value. |
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Human rights act Hunter: Art 8(1) ECHR Art 6 HRA Professor Wright Mckena Khatun v UK H .fenwick |
Hunter: only those with a proprietary interestor exclusive possession can sue in nuisance. - However Art 8(1) ECHR states that everyone has aright to private and family life, his home and his correspondence.
S.6 of the HRA 1998 says that it is unlawful fora public body (courts) to act in a way, which is incompatible with a conventionright. - So if the courts are saying you need exclusivepossession to sue? Does this mean that as a public body they are breaching art8(1). Professor Wright: wants the boundaries ofprivate nuisance to be determined by the link with ones home, this is becauseHunter has the effect of limiting those who can sue in P.N. - Mckena: The judge here rejected the defendant’sargument that their claims should be struck out, unless they could point to aproprietary interest.- This shows that P.N is moving closer tonegligence, which does not require any proprietary right in land to sue or anyexclusive possession.- Khatun v UK: Courts said whether a person has aright to sue will depend on whether there is a sufficient and continuous link to home to protect convention rights.- H. Fenwick: argues that Khatun will allow thosewithout rights in home to sue and this may open the floodgates to litigation. |
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How can hunter be justified under art 8(2) what case also shows us hunter is justified under art 8(3) |
Hunter may be justified under Art 8(2) as D’sactivities could be a legitimate and important aim such as developing theinfrastructure in public interest. -
Khatun V Uk has not affected the status ofHunter, Hunter remains good law.- Dobson: D’s were divided into 2. Those withlegal interests and those without. Court said the award of damages at commonlaw to a proprietary owner would satisfy art 8(3) HRA. No additional award ofcompensation the act would be necessary. Here we can see only those with legalinterests were compensated. |
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Who can be sued generally+7 cases + 1 statute 1) 2)Gibson 3)Matania 4) Sedliegh Den field 5)Goldman 6)Roberts 7)Hulbeck 8)Tetley 9) s.11-12 landlord and tenant act 1985 |
1)The person who created the nuisance. - 2)Gibson: The defendant does not have to occupythe property . Where the person who created a nuisance cannotbe traced C can bring proceedings against the occupiers of premises or thelandlord. 3)Matania : C may sue the occupier of premises ifhe exercises control over the creator of nuisance.- 4)Sedleigh – Denfield – the occupier continues atrespassers nuisance. - 5)Goldman: Occupier adopts or continues a nuisancecreated by an act of nature. 6)Roberts: where the predecessor in title causedthe nuisance , and the current occupier knows or ought to have known of theexistence of the nuisance he can be sued. 7)Hulbeck: local authority could not liable forcollapse of a cliff supporting a hotel because only a geological expert couldhave foreseen the likely extent of damages. 8)Tetley: C may sue landlord where he expressly orimpliedly authorised Nuisance. - 9)S.11-12 Land Lord and Tenant Act 1985: impliedretention of control. Landlord may be sued in P.N if landlord knows or ought tohave known of a defect, which caused injury or property damage. |
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what are the 4 defences which are effective plus their cases if they have one 1) statutory Authority 2) inevitable accident 3) act of a stranger 4) 20 years prescription |
Statutory authority: - Allen : Nuisance has been authorised if there isan explicit nuisance clause in legislation.
Hill : If d has an option to Act without causinga nuisance , but does so anyway , it is unlikely that any statutory provisionswill function as a defence. 20 years prescription: Bridgman: If d can show that his nuisance hasinterfered with C’s rights for more than 20 years. This is a valid defence. Inevitable accident:- If D takes all reasonable steps to avoid causinga nuisance this may operate in law as a defence. This is difficult to reconcile with the classicview that nuisance is a tort of strict liability based upon the reasonableuser. Act of a stranger:- Sedleigh –Denfield : An occupier is prima facienot liable for a nuisance created without his or her knowledge .- If he is to be liable then he must know or havemeans of knowing that he should have known of nuisance in time to correct it. |
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4 defences which are ineffective plus thier cases 1) coming to the nuisance 2)utility 3)Just tertil 4)Due to many |
Coming to the nuisance (ineffective defence):- Bliss : moving into a house which has sufferedpre-existing nuisance cannot be a defence. Utility (ineffective defence)- Adams: Cannot argue that the defendant’s conductis beneficial to the public at large. Just tertil (ineffective defence)- Nicholls: no defence to argue that a third partyhas a better title to land than the claimant. Due to many (ineffective defence)- Melish : Not a defence to argue that thedefendant was one of many parties contributing to the nuisance. |
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What is public nuisance |
What is it? Tort statutory provisions have largely supplementedthe common law.It is also a criminal offence triable summarilyor on indictment |
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What is the most common use of public nuisance |
Most common use?- Relates to the defendants unreasonableinterference with the claimants use of the highway. |
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In relation to claims in public nuisance what is the case of pya quarries rimmington goldstien |
Claims in public nuisance:- PYA Quarries Ltd: nuisance will be public whenit materially affects the reasonable comfort and convenience of her majesty’ssubject.-
Rimmington: D sent 500 racially abusive lettersto selected individuals. Held that a section of the community needed to beaffected not merely ‘selected individuals’. To permit public nuisance wheninjury was caused to selected individuals would be contrary to the rational ofthe offence. - Goldstein: posted salt to his friends address asa practical joke. The envelope did not reach his friend. Instead it leaked ontothe postal workers hands causing an anthrax scare, which meant the postaloffice, had to be evacuated. In this case R v Shrarock was considered(adefendant was responsible for a nuisance which he ought to have known would bethe consequence of what he did or omitted to do) . In this case it was notproven that G knew that salt would escape at the postal office. |
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Who can sue PYA quarries s.222 Local Government Act 1972 Wandsworth Color Quest Corby group Hunter |
Pya Quarries: Must be a member of the affectedclass. - S.222 Local Government Act 1972: local authoritymay pursue proceedings for an injunction if it considers It expedient for thepromotion or protection of interests the inhabitants of that area(WandsworthLBC).- Colour Quest: There is no requirement that theclaimant should have an interest in land. - Corby Group: Claimants in public nuisance canclaim for personal injury. - Hunter: In private nuisance there is no claimfor personal injury, because it’s a tort to land not to person. |
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What is a natural projection and how will an occupier be liable noble : |
Occupier will be liable for loss, injury ordamage caused by natural projections on the highway from his property where heknew or ought to have known of the defect. (i.e branches)- Noble: D can only be liable when he knew orshould have known of the circumstances, which caused injury. |
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what is an artificial projection and when will the occupier be liable tarry: salsbury: |
An occupier is responsible for keeping hisproperty, in a good state of repairs whether he knows of the danger or not. Tarry: Lamp attached to the front of d’sbuilding fell on a passer by. Liable because he owed a positive, continuing andnon-delegable duty to keep premises in repair so as not to prejudice thepublic. - Salsbury: rule in tarry does not extend to worksbeing carried out near the highway. In such a case normal rules of negligenceapply. |
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what are the remedies available in nuisance |
injunction ; abatement ; damges |
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what is an injunction ? what does s.50 of the senior courts act tell us what does shelfer tell us? what does coventry tell us |
This is an equitable and discretionary remedy;the court can order a defendant to refrain from doing specific acts. -
S.50 senior courts Act 1981: the courts can grant an injunction as well as damages - - Shelfer: gives us 4 reasons why the courts maychoose to grant damages instead of an injunction. (i.e were injury is toosmall) however the courts discretions limited by those 4 circumstances. - Coventry: before the courts grant an injunction,should consider whether an award for damages would be more appropriate. Thefact that an activity benefited the community may be a factor in favour ofrefusing an injunction and compensating with damages. Coventry gives the courtsa broader discretion. |
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What is abatement + 1 CASE |
Form of self-help reserved for encroachment cases(i.e over hanging branches). When it would make no sense to go to court. Lemon: A neighbour cut braches, which werehanging from his neighbour’s property onto his own without giving notice. - C should take care not to enter neighbours land.He should give notice before entry. He should also take care not to keep rootsor lopped of branches so as not to be liable for the tort of conversion. |
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Damages Hunter: Transco: Halsey |
Hunter: in private nuisance damages compensatefor the diminution to land and loss of amenity not personal injury.
Loss of profits can be recovered asconsequential loss , when it results from C’s inability to use his land . Transco: Compensation cannot be awarded forpersonal injury in private nuisance. Halsey: damages were awarded to C when laundrywas damaged by emissions in private nuisance. |
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What does R v F protect against what was said in rylands |
Protects the occupier against interference dueto an isolated escape, from his neighbours land. - Form of strict liability. Rylands : A person who for his own purposesbrings on land anything which is likely to cause mischief if it escapes mustkeep it at his own peril . |
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relationship between the tort of nuisance and rylands + 1 case |
Cambridge Water Co: Per lord goff ‘ rule in R vF would lead to a more coherent body of common law principles, if it were to beregarded as essentially an extension of the law of nuisance to isolated escapesfrom land.
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What is the first ingredient of an r v f claim Giles: Pre trance what 4 things plus cases were likely to do mischief what does lord bingham say in relation to the first requirement and what case does it come from what does gore say? |
d must bring something on land which is likelyto do mischief :- Giles: This requires a voluntary Act- Pre Transco things likely to do mischief = water(rylands); electricity (barker); explosives (belvedere fish guano); oil(mullholland) ; - Transco: Lord Bingham says this requirementshould not be satisfied easily. D musthave brought something on land, which he knew or ought to have recognised asgiving rise to an exceptionally high risk of danger if an escape occurred.However unlikely that may have been. - Gore: keeping tyres on land is not exceptionallydangerous. |
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what is the second element of an r v f claim what does read say what does rigby say |
(2) Escape/proof of escape:- Read: an escape would only occur when an objecthad moved from D’s premises to a place outside D’s occupation or control.- Rigby: an intentional release of an object wouldnot be an escape. |
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what is the non natural use rikards transco cambridge water co |
Bringing on land what is not naturally there/non natural use:- Usually a matter of fact for the judge toconsider. - Rickards: not the ordinary use of land must be aspecial use of land, which brings with it, increased danger. Transco: if the occupier would insure himselfagainst the risk which eventuated, then the damage is not special and the itsis ordinary.
Cambridge Water Co: the storage of substantialquantities of chemicals in an industrial (built up) area should be regarded asan almost classic example of a non-natural use. |
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what is the 4th ingredient cambridge water co transco |
Foreseeability of damage of the relevant type: Cambridge Water Co: D contaminated C’s watersupply. D not liable because the damage was not foreseeable.-
Transco : Escape need not be foreseeable onlythe damage. |
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Who can sue cambered water co |
Cambridge Water Co : Only those with an interestin land. |
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who can be sued chemical works : |
Chemical works: if you accumulated the mischiefwhich has escaped you may be liable.
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what is the defence of claimants default + case |
Noaks : D relied on this defence because escapewas attributed to the claimants fault |
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unforeseeable act of stranger boxx north western utilities norrie |
Boxx: D will not be liable where the escapewas attributed to actions of a third party. Northwestern Utilities: Act of the thirdparty must be unforeseeable. Norrie: Act of a stranger failed becauselandlord could have done more to prevent the fire, which escaped as a result ofa third party smoking. Courts said he could have put up no smoking signs. |
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Act of god marsland |
Marsland : here escape was due to natural causes .Coa held that D should not be liable because extra ordinary act of god couldnot have been anticipated. ( it isunlikely that this defence is likely to be successful , this is the only casewhich has successfully used the defence) |
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Statutory authority charging cross green |
Statutory authority :Charging cross : here there was a nusainceclause which stated that nothing in the Act would exonerate liability. On thatbasis D’s remained laible. Green: D under statutory duty to maintain acontinuous water supply . not liable when water pipe burst damaging plaintiffspremises. |
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consent |
this may be implied or expressed |
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remedies |
Damages- Likely in R v F
Injunctions - Unlikely because R v F concerns isolated escapesrather than continuing emanations from D’s property. |
