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2. What was the subject matter for last week? Nuisance, including both public and private nuisance.

3. What were the main points of the subject matter from last week? Private nuisance is a tort that protects land only * No personal injury * No pure economic loss

4. What are the 6 elements to private nuisance? (which unlike in negligence do not all have to be proved – they are rather indicators as to whether a nuisance might exist) Continuity Interest in land Intention of defendant Character of neighbourhood Abnormally sensitive claimant Defendant’s lack of care

5. Provide three examples of nuisance which may apply in the construction industry * Where an individual has suffered above and beyond how the general public has suffered; * Includes personal injury * Includes for recovery of pure economic loss (financial loss only amounting to loss in profit, loss in income or loss in value).

6. How can the intention of the defendant turn a non-nuisance into a nuisance? In Hollywood Silver Fox Farm v Emmett (1936) 1 All ER 825 the defendant owned a farm near to the claimant’s fox farm and following a dispute between them he caused guns to be fired on his own land but as near as possible to the claimant’s breeding pens, during the fox breeding season. Such noises were likely to prevent the vixens from mating or to kill their young. Held: The claimant was entitled to damages and an injunction to restrain the defendant from firing his guns or making other noises in the vicinity of the fox farm during the breeding season.

7. Congratulations...Free points!

8. Building work starts in March in close proximity to a student accommodation block housing 250 students. Piling using driven piles is scheduled to take place throughout April and May – prime revision time for the students, most of whom are severely disturbed in their concentration by the constant banging of the pile drivers and affecting their revision. What if anything can be done? This is a case in public nuisance since it affects a group of people, they could therefore petition Environmental Health to take action against the contractor who may have to consider using an alternative form of piling such as auger bored piles – a quieter technique. If any one of the students had particularly suffered they could sue under the tort of public nuisance but it is difficult to see what for as they will not have suffered property damage or personal injury or financial loss – proving causation would be key.

9. You have just graduated and landed yourself the perfect job with a grateful employer who has paid off your student loan. Six months later with the assistance of your parents you have saved up enough money to put down as a deposit on a modest semi-detached house. Having moved in, to your horror you discover that you have an adjoining neighbour who goes out a lot over the weekend leaving his dog alone in the house which barks constantly while your neighbour is out. What if anything can be done? This is a case of private nuisance. Students should consider first of all whether the defence of prescription applies (has he been doing this for 20 years without permission, or objection, or secrecy). They should then look at the elements of nuisance – particularly 1,2,3 and 6 as set out above. As there is no physical damage they would also have to consider does the amount to substantial interference with his enjoyment, beyond that tolerated by a reasonable man.This is a case of private nuisance. Students should consider first of all whether the defence of prescription applies (has he been doing this for 20 years without permission, or objection, or secrecy). They should then look at the elements of nuisance – particularly 1,2,3 and 6 as set out above. As there is no physical damage they would also have to consider does the amount to substantial interference with his enjoyment, beyond that tolerated by a reasonable man.

10. Your neighbour on the other side is a small manufacturing workshop on the edge of an industrial estate that has been there for the last 30 years. 6 months later they undertake some anodising to some of their products. This creates some fumes that because of the wind direction passes across your vegetable garden depositing a fine layer of white dust. That autumn you notice that both the onions and leaks that you have grown specially have a luminous pink hue to them and a strange sulphurous smell making them inedible. What if anything can be done? This is a further case of private nuisance and the students should give particular consideration to elements 4 and 5. The industrial nature of the area means that you will have to put up with a greater degree of discomfort from the industrial process than you could expect in a pure residential or rural area, but it is never reasonable to damage someone’s land (St Helens v Tipping). Here we have damage to onions and leaks, and the white powder could be said to have damaged the land itself. As for abnormal sensitivity a question hangs over whether the onions and leaks are abnormally sensitive and turn what appears to be a nuisance into a non-nuisance, but being a vegetable grower myself and keen on organic produce I would favour the outcome that if the leaks and onions have become inedible (and they are fairly hardy vegetables) then probably anything grown for consumption would become inedible. I wouldn’t eat anything out of that garden for at least seven years.

11. Congratulations...Free Points!

12. What is law? Law is a set of rules with geographic boundaries, upheld and enforced by the courts who decide what the rules are, whether they have been broken and what the penalties are for their breach. They also have the authority to enforce the judgements.

13. What is the difference between criminal and civil law? Criminal law covers offences against the state. It has its own criminal courts. The consequences are a fine, imprisonment or community service. A defendant must be found guilty on the basis of ‘beyond all reasonable doubt’ this means that it would be unreasonable for a reasonable person having listened to all the evidence still to consider that the defendant is not guilty. Civil law covers matters between individuals or companies and includes among other things torts and contracts. For breach of civil matters the penalty is typically compensation by way of damages or an injunction. There are separate civil courts who will decide the matter on the ‘balance of probability’ – on the basis of which party submits the most persuasive evidence.

14. What is ratio decidendi? Ratio Decidendi are the judge’s precise reasons for why he has arrived at his decision, and they are the part of his decision that forms any binding precedent that might be created.

15. What are law reports? Law reports are written by a barrister who was present at the case and has access to a full transcript of the case. It details the facts and the evidence and arguments presented to court along with the judges comments and his judgement. Without a law report a case is unlikely to form a binding precedent – at best it will be persuasive. The law reports are published in four series by the Incorporated Council of Law Reporting, but there are many private law reports as well. The judge is allowed to check and alter the law report before it is published, because after all, it is what the judge meant that is important, not what he actually said, and the judge must be allowed where he may have given the wrong impression to the barrister concerned to alter the report to make it correctly reflect what he intended.

16. What is a judge doing if he distinguishes a precedent? Where a party presents a previous case to a judge as being a binding precedent that must be applied to their current case and the judge feels the that facts of that previous case are significantly different from the facts in this current case then he could decide that he is not bound to follow that previous case presented as a binding precedent. The judge would then be said to distinguish the precedent or to distinguish the facts. It means he has released himself from being bound by that previous precedent. It does not mean he will not follow it – after consideration he may still be persuaded to follow.

17. What is the role of the European Court of Justice The European Court of Justice will only consider cases that are to do with the application of European law (Directives, Regulations and European Acts and Decisions) or the interpretation of the European Treaties. It is the most senior court in our legal system but there is no automatic route of appeal from the House of Lords unless the case fits the above description. Most things will stop at the House of Lords.

18. What does PI stand for? Professional Indemnity

19. What is next weeks lecture topic? Trespass & Strict Liability

20. Public nuisance – an act that relates to the annoyance of a member or members of the public Does not require _ _ _ _ _ _ _ _ _ _ in land An interest

21. Public nuisance – an act that relates to the annoyance of a member or members of the public Public nuisance is a _ _ _ _ _ Crime

22. What date is your third phase test? 28 th March 2012

23. What is needed before you would be liable for a negligent non- feasance? Some measure of reliance for the performance of the duty of care such as a contractual or fiduciary relationship. (Fiduciary = trust; e.g. the relationship between a doctor and patient or between a client and solicitor).Some measure of reliance for the performance of the duty of care such as a contractual or fiduciary relationship. (Fiduciary = trust; e.g. the relationship between a doctor and patient or between a client and solicitor).

24. What is the difference between a negligent mis-feasance (positively doing or saying something negligently) and a negligent non-feasance (negligently failing to do or say something that ought to have been done or said). You cannot in the normal course of events be liable for failing to do or say something. So if you own a field with a public footpath across it, and you allow it to fall into disrepair and someone is injured as a result, you would not be liable. However if you repaired the footpath and did it badly and someone was injured as a result of your poor repair you would be liable.You cannot in the normal course of events be liable for failing to do or say something. So if you own a field with a public footpath across it, and you allow it to fall into disrepair and someone is injured as a result, you would not be liable. However if you repaired the footpath and did it badly and someone was injured as a result of your poor repair you would be liable.