LLB102; Torts - Private Nuisance PDF

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Summary

Torts - Private Nuisance summary, defences, time limitations and remedies....

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PRIVATENUISANCE Protectspossessionoflandagainst indirectinterferenceswithlegally recognisedrightsthatmayresultin damagetoP’slandorpropertyor substanal&unreasonable interferencewithrightsaached ELEMENTS: 1. Does the P have Title to sue? (Hunter v Canary Wharf)  P must have a legally recognised interest in the land  Need not be owner  In possession of land at time of nuisance (inc. owner occupier, legal tenant of premises) 2. Interference w/ legally recognised right  Aim to protect the use and enjoyment of land (Munro v Southern Dairies Ltd )  can be one-off or continuing circumstances  Certain right rec. as attached to occupation of land, inc. right to:  support of land (cause to subside)  access  use & enjoyment of land free from excessive smells, noise and vibration 2. Damage  Material Damage  Misfeasance or Nonfeasance?  M (a positive act) = D is liable  evidence of reasonable care taken, irrelevant  N (failure to act) - D is liable if at fault  failed to take reasonable care  Interference w/ use and enjoyment  Substantial - cannot be trifling and small inconvenience (Munro ibid )  Unreasonable (objective, ‘give and take’) - D bears onus of proving reasonableness (Bamford v Turnley)  Locality (Urban? Rural? Industrial? (Munro ibid ))  Time & Duration (When and for how long? (McKenzie v Powley ))  Nature of the Activities (Essential for society? (ibid ))  Avail. Of alternative means (Could activity be done without causing a nuisance? (Munro ibid ))  D’s motive (Malice? (Hollywood Silver Fox Farms v Emmett))

TRESPASS TYPE OF INTERFERENCE

Indirect  Indirect interference with D’s legally rec. rights (Hargrave v Goldman)

WHO TO SUE

Occupier of land from where the nuisance derives (Sedley Denfield & O’Callaghan)  3rd party may be the creator  Tenant of leased premises of the occupier  Need not be the creator (no steps taken to prevent or stop the nuisance = adopts the nuisance)

Must be either: DAMAGE Misfeasance = did the  Material damage; or nuisance cause the dam-  Substantial and unreasonable interferage? ence w/ use and enjoyment Nonfeasance = was the damage the foreseeable consequence of the nuisance? ONUS OF PROOF

P bears Onus of Proof  D bears Onus of providing any defences (and that interference was reasonable)

DEFENCES  P’s abnormal sensitivity Time Limitation:  Alleged nuisance wouldn’t be  Material damage or inter. to a reasonable person interference w/ use (Hollywood ibid) & enjoyment - 6 yrs  Statutory authority from date (s10(1)(a))  D authorised by statute  Personal injury  Nuisance was inevitable results - 3 yrs of date consequence of performance of (s11) (Allen v Gulf Oil Ltd) (Limitation of statutory duty or exercise of power Actions Act) (York v Commissioner for Main Roads)  Contributory negligence  P contributed to nuisance = damages reduced to reflect contribution  Consent  Necessity  Threat of imminent harm  Reasonable apparent necessity to act  D not at fault of creating the imminent harm REMEDIES

 Abatement  Self-help  Damages  Compensatory, for:  Material damages to property  Interference w/ use and enjoyment (restoration v decrease in value, usually lesser)  Injunction  Continuing nuisance  Damages are not adequate...