Tort 5 Notes

Front 1

Two types of nuisance

Back 1

Public
- Protect the public in the exercise of public rights (use highways)
- Usually brought by A-G
- Sometimes crimes
Private
- Protect the individual in enjoyment of own property

Front 2

"Unlawfulness" in nuisance...

Back 2

...close to "unreasonableness"

Front 3

ECHR compatibility with Hunter

Back 3

Under HRA98 s6, the courts are supposed to develop the law compatibly with ECHR.

- Article 8 is not really compatible with Hunter

Front 4

Who is liable in nuisance?

Back 4

- Creator of the nuisance
- The occupier, whether or not they create the nuisance
- The landlord

Front 5

Occupier also liable for:

Back 5

- Also liable for nuisances created by employees acting in the course of their employment (under normal vicarious liability)
- Also where nuisance created by contractor, IF the nature of the work carries a special danger of the work creating a nuisance
- Where the nuisance was created by a visitor, predecessor in title or trespasser, IF the occupier has adopted or continued it

Front 6

General rule on landlord liability in nuisance

Back 6

The general rule is that the tenant or occupier is the proper defendant, not the landlord

Front 7

Causation in nuisance

Back 7

Causation and Remoteness

- “but for” test
- Intervening acts test

Front 8

Defence of Prescription in nuisance...

Back 8

If the nuisance has been carried on by the defendant and actionable by the claimant for 20 years or more, the defendant has acquired the right to commit the nuisance

Front 9

Statutory authority

Back 9

Statutory Authority

- May be able to rely on statutory authority if D can show that the nuisance is an inevitable of doing what the statute authorised

Front 10

Other defences to nuisance

Back 10

Contributory Negligence
- Partial defence to claims in private nuisance, usual principles apply

Consent
- If it can be shown that a claimant has specifically agreed to the nuisance, the claim will fail

Front 11

Public benefit

Back 11

- Providing a public benefit is not a defence, although it may affect the granting of an injunction

Front 12

Contributory Actions of Others

Back 12

- It is not a defence that others are combining to make the nuisance and that you would not be a nuisance on your own
- All contributors are liable in nuisance

Front 13

Remedies in nuisance

Back 13

- Damages
- Injunction

Front 14

Injunctions for nuisance

Back 14

Prohibitory injunctions forbid the defendant from persisting in some wrongful act

Mandatory injunctions require a defendant to take some positive action to rectify the consequences of what has been done

Both types can be granted “Quia timet” , in anticipation of the tort if
- C is almost certain to suffer damage without the injunction
- The damage is imminent
- D will not stop conduct without a court order

Front 15

Damages in lieu of an injunction

Back 15

Derives from the Chancery Amendment Act 1858; damages are for all loss past, present and future

Court must first decide that the case is suitable for an injunction

Front 16

Trespass to land definition

Back 16

Trespass to land is the intentional direct interference with the claimant’s possession of the land

- Actionable per se, although only nominal damages and probably no costs

Front 17

Types of trespass

Back 17

- Entering C’s land, walking, riding, driving, cycling and other movement onto land
- Acting in excess of permission to be on land, i.e. doing something not invited to or not leaving when asked
- Bringing anything into contact with land, throwing a ball, resting a ladder, erecting a fence on their side
- Damaging claimant’s land

Front 18

What is Land?

Back 18

- The surface of the land
- Buildings and plants
- Sub-soil beneath

Front 19

Elements of trespass to land

Back 19

- The interference must be direct, i.e. flow directly from the actions of the defendant
- The act must be intentional (don’t need to intend to trespass)

Front 20

Causation in trespass for damages

Back 20

- “But for” test
- Intervening acts

Re Polemis test for direct consequences – all direct consequences of the tort are not too remote