17. What is private nuisance? What is the basis of liability in private nuisance?

Private nuisance is the indirect and unreasonable interference with the use or enjoyment of neighbouring land. This may be caused by many different things, e.g. noise, smoke, odours, fumes, water and plant and tree roots. The basis of liability here is the failure to meet the reasonable expectations of one's neighbours. While this has clear similarities with negligence, there are also important differences. In negligence, the question is whether the defendant's conduct was reasonable, while in nuisance the question is whether the effect of that conduct on the defendant's neighbors’ is reasonable.

18. What factors are relevant in classifying the deed as nuisance?

This is the essential element. A nuisance is only actionable where it causes damage to the claimant's interests. This requirement is clearly satisfied where the nuisance causes physical damage to the claimant's land, as this is always unreasonable.

Other relevant factors

While proof of damage is essential to a successful nuisance action, there are a number of other factors the court may consider:

1) Generally, the nuisance must be of a continuing or regular nature. Isolated or irregular instances will not normally amount to a nuisance.

2) Where the damage complained of is disturbance, to use or enjoyment, the court may consider the character of the neighbourhood. What may be reasonable in an industrial area may not be in a residential area.

3) The fact the claimant may be unusually sensitive is not relevant to the issue of liability—the test remains the expectations of the reasonable neighbour. However, once liability has been established, unusual sensitivity may be relevant to the question of remedies.

4) While malice on the part of the defendant is not an essential requirement, the presence of malice may tip the balance, converting otherwise reasonable conduct into an actionable nuisance.

5) The defendant may be liable for a nuisance caused by the fault of another or due to natural causes. This is known as "adoption" or "continuance" of nuisance, and arises where the defendant knew or ought to have known of the nuisance and failed to take reasonable steps to stop it.

19) Types of damage in private nuisance. Is personal injury covered by a private nuisance action?

Physical damage As a general rule, nuisance is not actionable per se and actual damage must be proved, subject to the following exceptions: where a presumption of damage can be made, for example, by building a cornice so that it projects over the claimant's land, it may be presumed that damage will be caused to the claimant's land by rain water dripping from the cornice onto the land; interference with an easement, profit a prendre or right of access where there has been acquiescence in certain circumstances.

Amenity damage Amenity damage is interference such as noise, smells, dust and vibrations which will interfere with use and enjoyment of land without physically damaging the property. In the case of amenity damage, the degree of interference will be measured against the surrounding circumstances.

20. Who can sue and be sued in nuisance?

Nuisance protects those persons who have an interest in the land affected, so only an owner or occupier with an interest in the land can sue.

1) The creator of the nuisance A person who creates a nuisance by positive conduct may be sued. It is not necessary for the creator of the nuisance to have any interest in the land from which the nuisance emanates. A defendant in trespass need not be a neighbouring landowner and the same should be true in nuisance.

2) The occupier The occupier is the usual defendant in private nuisance. An occupier will be liable for:

1) Persons under his control.

2) Independent contractors. Where nuisance is an inevitable or foreseeable consequence of work undertaken by independent contractors, the occupier cannot avoid liability by employing a contractor.

3) Actions of a predecessor in title. An occupier who knows or ought reasonably to have known of the existence of a predecessor in title will be liable for continuing the nuisance if he does not abate it. If the nuisance could not reasonably have been discovered, he will not be liable.

4) Actions of trespassers. An occupier is not liable for a nuisance created on his land by a trespasser unless he adopts or continues the nuisance.

5) Acts of nature. At common law, it was thought that an occupier had no duty to abate a nuisance that arose on his land from natural causes. The extent of the obligation was to permit his neighbor access to abate the nuisance.

3) The landlord A landlord may be liable for a nuisance arising in three types of situation:

(a) Where the landlord authorized the nuisance.

(b) Nuisance existed before the date of the letting.

(c) Where the landlord has an obligation or a right to repair. The law on landlords' liability for nuisance is still developing

21) What defenses can be raised in nuisance?( Defenses: Consent of the claimant. Prescription. Statutory authority)

Consent of the claimant Where the claimant has expressly consented to the nuisance, this is a defense provided it is true consent, i.e. to both the nature and extent of the nuisance. Prescription This is a form of implied consent. Where the defendant has been committing the nuisance for more than twenty years and has done so without force, secrecy or permission, this is a defense against a claimant who has not complained during this time. Statutory authority The defendant may have a defense where their actions are in pursuance of a statutory power or duty, though they must take all reasonable steps to keep any nuisance caused to a minimum.

22) What is the most common remedy for the tort of nuisance?

At common law, a successful claimant has a right to damages. However, it may well be that the claimant wants the nuisance stopped by an injunction. We should remember that an injunction, being an equitable remedy, lies in the discretion of the court and will only be granted where it is just and equitable to do so. A self-help remedy, abatement, is also available. The claimant may take all reasonable steps to stop the nuisance though, for a variety of reasons, this is usually not advisable.

23. What is public nuisance? What rights does it protect? (Rights enjoyed by all members of the community, such as the right to fresh air, to travel on the highways, not to be exposed to danger to health) Can an individual sue in public nuisance?

A public nuisance is a crime as well as a tort. The remedy for a public nuisance is a prosecution or relator action by the Attorney General on behalf of the public. A claimant who suffers particular damage, over and above the damage suffered by the rest of the public, may maintain an action in public nuisance. Public nuisance has been defined as 'an act or omission which materially affects the reasonable comfort of a class of Her Majesty's subjects'.

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24. When does a tort of nuisance give rise to strict liability? What are the main principles formulated in Rylands v Fletcher?

There is a limited amount of strict liability, principally concerning liability for certain extra-hazardous activities. This liability may be imposed by statute or under the common law rule established in Rylands v. Fletcher [1868].

Under this rule: A person who is in occupation of land and brings onto that land something that is not naturally there, and does so for his own non-natural use, and that thing is likely to do mischief should it escape, then that person will be liable for the consequences of any such escape, even in the absence of any fault on his part. The various elements of this rule require further explanation.

1) The defendant must have been in occupation (i.e. in control) of the land from which the thing escapes.

2) The thing must not have been naturally present on the land [e.g. self-sown trees and plants are naturally present whereas deliberately cultivated ones are not).

3) The thing must have been brought onto the land by the defendant for his own use, though not necessarily for his own benefit.

4) The defendant must have been using the land is some non-natural way. i.e. he must have been engaged in some special use bringing with it an increased danger to others, and not merely the ordinary use of land or that which is for the general benefit of the community. This considerably limits the scope of the rule in practice.

5) The thing must be likely to do mischief should it escape. This does not mean it has to be inherently dangerous; merely that it is potentially dangerous should it escape in аn uncontrolled way.

6) The thing must escape, i.e. leave the confines of the defendant's land. Where there is no escape, the claimant must rely on the principles of negligence, occupiers' liability or nuisance as appropriate.

25) What intentional torts do you know? (Trespass to the person, trespass to land, trespass to chattels, conversion, defamation, fraud) What actions amount to trespass to the person?

26) What constitutes a tort of assault?

Assault is an act which causes another person to apprehend immediate and unlawful personal violence. The conduct forbidden by this tort is an intentional act that threatens violence, or in other words one that produces in the claimant a reasonable expectation of immediate, unlawful force. The tort is actionable per se. Assault is both a tort and a crime; the relevant principles of law apply to both. The actual application of force is known as the tort of ‘battery', and the term 'assault' is used in both ordinary and (sometimes) in legal speech to refer to both the threat and the application.

Mere words do not constitute an assault, however. The intent must be shown in acts not just in speech.

27) What actions amount to a tort of battery?

Battery consists in applying force, however slight, to the person of another hostilely or against their will. The charge of battery is usually combined with assault, namely ‘assault and battery’. Common examples include giving a person a black eye, or throwing water at them.

As the tort of battery consists of a direct act of the defendant resulting in an undesired contact with the person of the claimant this contact must be intentional.

28) What actions amount to a tort of false imprisonment?

The tort consists in the infliction of bodily restraint of another without lawful justification. As with assault and battery, false imprisonment is actionable per se (i.e. in itself) without proof of damage. The restriction of the claimant need not take the form of confinement in a room or prison cell: according to the Termes de la Ley, 'imprisonment is the restraint of a man's liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or in a man's own house, as well as in the common gaole'. Moreover, imprisonment does not have to involve seizure of the claimant; touching and informing him that he is under arrest are sufficient.

However, the restraint must be complete; that is to say, the claimant's freedom of movement has to be impeded in every direction. There is a distinction to be drawn here between confinement and obstruction. It is not sufficient to prevent a person from going forward if he is free to go back, or vice versa.