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20 Cards in this Set
- Front
- Back
Two types of nuisance
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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 |
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"Unlawfulness" in nuisance...
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...close to "unreasonableness"
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ECHR compatibility with Hunter
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Under HRA98 s6, the courts are supposed to develop the law compatibly with ECHR.
- Article 8 is not really compatible with Hunter |
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Who is liable in nuisance?
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- Creator of the nuisance
- The occupier, whether or not they create the nuisance - The landlord |
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Occupier also liable for:
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- 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 |
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General rule on landlord liability in nuisance
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The general rule is that the tenant or occupier is the proper defendant, not the landlord
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Causation in nuisance
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Causation and Remoteness
- “but for” test - Intervening acts test |
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Defence of Prescription in nuisance...
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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
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Statutory authority
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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 |
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Other defences to nuisance
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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 |
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Public benefit
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- Providing a public benefit is not a defence, although it may affect the granting of an injunction
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Contributory Actions of Others
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- 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 |
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Remedies in nuisance
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- Damages
- Injunction |
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Injunctions for nuisance
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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 |
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Damages in lieu of an injunction
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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 |
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Trespass to land definition
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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 |
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Types of trespass
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- 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 |
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What is Land?
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- The surface of the land
- Buildings and plants - Sub-soil beneath |
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Elements of trespass to land
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- 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) |
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Causation in trespass for damages
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- “But for” test
- Intervening acts Re Polemis test for direct consequences – all direct consequences of the tort are not too remote |