Legal Frameworks and Regulation

Transcription

1 Legal Frameworks and Regulation Mark Wilson 1

2 Legal Frameworks and Regulation Lecture 3 Nuisance A Tort 2

3 Private Nuisance Private - interference with the proprietary enjoyment of land either by invasion or withdrawal but must affect enjoyment Derived from but no longer limited to adjoining landowners but occupation of land is required Cannot sue for personal injuries it protects interest in land only 3

4 Public Nuisance Derives from criminal law and is a crime An individual may also sue in tort if he has also suffered special damage or personal injury Public nuisance does not require the invasion of land Public nuisance relates to the annoyance of a member of the public 4

5 Private Nuisance Interference must be unreasonable and indirect (Perera v Vandiyar 1953) cf trespass - interference must be direct Interference may or may not result in damage to land or property But damage does make it easier to prove interference 5

6 Enjoyment An individual has the right to the quiet and comfortable enjoyment of his land When there is no damage, the Claimant must prove substantial interference with his enjoyment, beyond that tolerated by a reasonable man. Law seeks balance between defendant s use of his own land and neighbours right not to be inconvenienced 6

7 Interference Not all interference is actionable People expected to tolerate a degree of reasonable noise or smell. People have to co-exist Interference becomes actionable when it becomes unreasonable 7

8 Causes of Nuisance Nuisance can be caused by: vibration noise dust flooding offensive sights etc.. 8

9 Causes of Nuisance cont.. These are not unlawful in and of themselves but the consequences become unlawful if they extend to the neighbours land And unreasonably affect their enjoyment of that land 9

10 Difference From Other Torts Trespass Trespass is a direct invasion, wheras nuisance must be indirect interference Negligence Negligence is much wider than nuisance No duty of care necessary in nuisance! Nuisance can be intentional or without negligence interference with land is unlikely to form an action in negligence. 10

11 Examples of Nuisance Smoke - Crump v Lambert 1867 Tree Roots - Lemmon v Webb 1895 Fumes - St Helens v Tipping 1865 Smell - Adams v Ursell 1913 Debris from dilapidated building - Wringe v Cohen

12 Examples of nuisance cont.. Flooding from blocked drains - Sedleigh-Denfield v O Callaghan 1940 Prostitution - Thompson-Schwab v Costaki Noise and Dust - various 12

13 Elements of Nuisance Continuity Interest in land Intention of Defendant Character of Neighbourhood Abnormally Sensitive Claimant Defendant s lack of care These should all be discussed in any question on nuisance 13

14 1) Continuity one off, temporary or occasional occurrences are not actionable unless exceptional De Keyser s Royal Hotel v Spicer Brothers Ltd 1914 the nuisance must normally recur. Continuity of interference is significant if seeking damages If seeking only an injunction, continuity is not necessarily so important 14

15 Continuity cont.. Liability is unlikely to exist if reasonable care has been taken to avoid undue annoyance such as unreasonable hours, inordinately long time, inconvenient working methods. 15

16 Continuity cont.. A one off incident may cause damage and constitute a nuisance if a permanent state of affairs can be established (distinction from one off occurrence). Spicer v Smee adjacent house burnt down due to faulty wiring 16

17 2) Interest in Land With rare exceptions, nuisance offers protection only to those with an interest in land, who suffer as a consequence. Licensees, guests, lodgers - unable to sue Only those in possession could substantiate an action landlord out of possession could not unless nuisance threatens physical damage and he has a reversionary interest 17

18 3) Intention of Defendant Acting out of spite or malice towards Plaintiff may turn a non nuisance into a nuisance. Christie v Davy 1893 Hollywood Silver Fox Farm v Emmett 18

19 4) Character of the Neigbourhood Leading Case: St.Helens v Tipping 1865 P. bought 1300 acre estate next to D s copper smelting works. Vapour caused damage to C s trees and he successfully claimed damages. D. said C should put up with fumes in an industrial area. Court decided that location was a factor when looking at comfort and enjoyment, but not when physical damage occurs - never reasonable. 19

20 Character cont.. Industrial areas cannot expect the same freedom from noise as rural areas again irrelevant when considering damage to property only valid for enjoyment of occupation It is important to distinguish between the nature of the damage suffered, which may include the land, buildings, plants, shrubs and chattels, but does not include pure economic loss 20

21 5) The Abnormally Sensitive Claimant A person cannot claim a nuisance because of his own special use of property, if the nuisance would not otherwise be one Robinson v Kilvert 1989 However, once a nuisance has been established, Claimant can recover even in respect of his delicate operations. McKinnon Industries v Walker 1951 Cf Eggshell skull rule in negligence 21

22 6) Defendant s lack of care Andrae v Selfridge D could have taken more care to prevent excessive dust during demolition of adjacent property Sedleigh-Denfield v O Callaghan - failure to deal with potential nuisance e.g. simple task of placing cover over culvert Goldman v Hargrave allowing a tree to burn out instead of simply extinguishing, and fire spread to next door Leakey v National Trust - allowing land slide when could have been easily supported 22

23 Who Can be Sued? The creator of the nuisance even if not the occupier of land where nuisance occurs remains liable even if he parts with possession and would have to trespass in order to stop the nuisance can be committed by a trespasser A person authorising (expressed or implied) a nuisance to be committed by another is also liable 23

24 Who can be sued cont.. The occupier if he creates the nuisance if nuisance created by previous occupants and perpetuated by him if nuisance caused by his guests The occupier is not liable for independent contractors unless the nuisance is reasonably foreseeable by him or it is non-delegable e.g. removal of support to adjacent land 24

25 Who can be Sued cont.. Occupier can also be liable for nuisance caused by a trespasser if: he adopts the nuisance with knowledge he fails to take steps to abate the nuisance (can also apply to dangerous state of affairs arising naturally on the site) 25

26 Defences Consent Statutory Authority Long use/prescription right to commit a nuisance may be acquired after 20 years if that right is capable of being an easement Claimant must have known about it for 20 years, and it must have been actionable for 20 years doesn t apply to noise, smell and dust which are intermittent 26

27 Defences cont. Nuisance caused by a stranger Abatement of nuisances 27

28 Ineffective Defences Claimant came to the nuisance Miller v Jackson 1977 Sturges v Bridgeman 1879 Reasonable care has been taken Rapier v London Tramways

29 Remedies Damages for damage to property for depreciation in value of property business loss resulting from nuisance for loss of enjoyment of land Injunction an equitable remedy may come with conditions Note - an action arises for each occurrence 29

30 Public Nuisance An unlawful act or omission which endangers the health, safety or comfort of the public or some section of it or obstructs a common right. There may be some overlap with private nuisance. Leading case - Att.Gen. V PYA Quarries 1957 Dust and vibration from quarry affected nearby houses: could also have been private nuisance 30

31 Public Nuisance Cont.. Public nuisance also includes: offensive trade food unfit for human consumption obstructing a highway 31

32 Public Nuisance cont.. Public nuisance is a common law crime, and action is brought by: the state an agent of the state a private individual in the tort of public nuisance if s/he has particularly suffered beyond that of the public. 32

33 Elements of Public Nuisance A crime as well as a tort For liability in tort, Claimant must show there has been greater damage to himself than to public at large e.g. personal injury or damage to property. more liberal than other torts in that pure economic loss is recoverable 33

34 Special Damages Inconvenience can constitute special damages in public nuisance allowing personal claim Special damages must not be too remote 34

35 Contrast with Private Nuisance In contrast with private nuisance: no need for an interest in land a need for the public at large to be affected with the plaintiff suffering special damage no need for an interference with use or enjoyment of land no right to commit a public nuisance following acquisition by long use 35

36 Special Categories of Public Nuisance Highway Nuisance obstruction is most common type must be unreasonable (e.g. parking a lorry for seven hours at night on a road) Projections over the highway artificial (shop signs) or through neglect (derelict building) but not natural (tree branch), unless danger should be apparent to defendant. 36

37 Remedies for Public Nuisance Crime: prosecution fine injunction Civil: injunction damages 37