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Torts Private Nuisance Notes

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This is an extract of our Torts Private Nuisance document, which we sell as part of our Tort Law Notes collection written by the top tier of University Of Otago students.

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Torts: Private Nuisance:

21st July:

Nuisance introduction:
- Trespass to land

1. Interference with land

2. Or, actual damage

3. An invasion of a legal right It is actionable per se without actual damage. Some torts require more fault or responsibility to establish a cause of action. Can put into a tort a control mechanism, e.g. for trespass - entry onto land. Societal values will play a part in the development of torts. Protecting Interests in Land: Fault Requirement: Trespass - intentional interference Rylands v Fletcher - strict liability Nuisance - strict liability Negligence - failure to take reasonable care (For strict liability, there is no defence of reasonable care - CM3 pg74 Cambridge [CD], [H]
Interference Requirement: Trespass Direct interference Rylands v Fletcher - indirect interference Nuisance - indirect interference (Indirect interference - doing something with one's own land that impacts upon the plaintiff's land.) Interest Infringed Upon: Trespass Interference with possession (plaintiff does not need to be the owner) Rylands v Fletcher - Damage Nuisance - Interference with enjoyment Control Mechanisms: Rylands v Fletcher - Unnatural user, isolated escape from defendant's land Nuisance - unreasonable interference, recurrent emanation from defendant's land Negligence - Duty of care Level of Harm: Trespass - No loss or damage required, simple interference (actionable per se) Rylands v Fletcher - Foreseeable damage Nuisance - Foreseeable interference Negligence - Foreseeable loss or damage A search for a new doctrinal approach to negligence has been going on since the 1960s. Courts in the 1980s started saying lets worry about fairness and justice instead. The borders of our land for trespass go all the way up into the airspace above our property, and down into the core of the earth (Kelsen v Imperial Tobacco Co - sign overhanging plaintiff's land from defendant's building.)

De Richaumont Investment Co.
- Plaintiff had carparks, defendant had billboards attached to the side of the building next door
- Did not negotiate any way of accessing the billboard
- Had to go through plaintiff's carpark Trial judge said no harm done if the machine comes through to tend to the billboards. High Court judge said that's not relevant. He reaffirms the doctrinal approach that trespass is actionable per se. Civil Aviation Act protects the right of airplanes to use the airspace above properties - you do have an action though if they drop something into your property. 23rd July: Trespass:

1. Voluntary and affirmative entry onto or remaining upon plaintiff's land without licence or other right.
Smith v Stone: Pushed onto the land, not a voluntary entry

2. Directly causing a person to enter upon plaintiff's land without licence or other right

3. Directly causing a thing to enter or remain upon plaintiff's land without licence or other right Negligence:

1. Foreseeability of risk or harm to plaintiff, and the nature of the harm

2. Judicial control of liability through duty of care

3. If defendant takes reasonable care, there is no breach of duty Rylands v Fletcher:

1. Isolated incident

2. The bringing or keeping on defendant's land of something likely to do mischief if it escapes

3. Non natural use of land

4. Escape from defendant's land

5. Strict liability for all consequences of the escape

6. Defence only on basis of plaintiff's own default, act of god, or third party. CM12 [55] Transco: Economic utility justifying strict liability. Barry has a problem with this - cost of preventing escape may be huge where cost of plaintiff protecting property may be low. Australian Position on Rylands v Fletcher: Cambridge Water Co:
- Doesn't even question the existence of RvF
- Harm must be foreseeable Burnie Port Authority:
- Fire escapes and burned down someone else's property

1. Dangerous substance

2. Non Natural use of land In RvF they said water was dangerous and non natural, but it's really a pretty normal thing - anything in sufficient quantity could be dangerous.

The rule in RvF has its difficulties, qualifications and exceptions - has to regard itself as absorbed by negligence. NZ Position on Rylands v Fletcher: Autex Industries:
- Application by the plaintiff for summary judgement on the basis of RvF
- All defendant has to argue is that there is a possibility of a defence: they argued that there is a possibility RvF doesn't exist in NZ The case doesn't really declare a majority view on this point. Hamilton v Papakura DC:
- Papakura water supply got contaminated with minute quantities of weed killer
- Plaintiff was growing tomatoes hydroponically, and the weed killer killed the tomatoes because they were so sensitive
- Problems with foreseeability - could not foresee any harm to the tomatoes. 2000 decision, 6 years after Burnie. No suggestion made at all the RvF is not applicable. CM20. Transco:
- Unanimously upheld RvF - no question about whether it exists in NZ or not
- Block of flats owned by defendant
- Owned water pipes supplying the flats
- Pipes burst
- Caused structural damage to power station nearby
- One off, or long term problem?
Even plaintiff admitted there was no negligence - the defendant took reasonable care. Sued under RvF - retained by law lords, although they did say that it occupied a strange corner of the law.
[68] Lord Bingham - Anomalous grounds of liability. Four reasons for retaining RvF:

1. Category of cases where it is just to impose liability even where no fault exists. Need to retain RvF for this reason.

2. Had it for more than 100 years - part of the fabric of the law. Legislation exists that works on the premise that RvF exists. There would be unforeseen consequences if we got rid of it.

3. HL unanimously endorsed RvF in Cambridge.

4. European law CM10 [39] Lord Hoffman also accepts that it operates in a very narrow realm. [60] Lord Hobhouse. We will normally have a statute to govern high risk activity e.g. nuclear power plants in Europe are established under particular statutes. Lord Goff in Cambridge CM5 made a very similar sort of point. It is more appropriate to impose strict liability in high risk situations, and impose that liability through Parliament. The legislation means that there is no need to develop RvF - keep it a small tort. The 3rd party and Act of God defences undermine the strict liability requirement for RvF. It wouldn't be consistnt with judicial function to abolish the RvF rule - avoid disruption to established law.

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