Tort Private Nuisance Define law The tort of private nuisance protects plaintiff from an unreasonable interference with

h a plaintiffs use or enjoyment of a proprietary right in land: Hargrave v Goldman (1963). It must be established by P on balance of probabilities that:1) there has been an unreasonable interference 2) interference is with proprietary right 3) plaintiff has title to sue the def 4) def is the appropriate def who can be sued? A) Unreasonable interference 2 categories (important to identify this at start of discussion!!) (i) Material damage to land (ii) Damage to utility ( or sometimes referred to amenity) of the land State damage suffered!! (i) Material damage to land Occurs when there has been actual, or material damage. Material damage was suffered in Halsey case when acid smuts from defs oil plant damaged paintwork on pls laundry. Proof of material damage always = unreasonable interference (except in unduly sensitive use of land) see below. Damage to utility of the land Damage to utility doesnt automatically mean interference is unreasonable as the interference to utility must be (i) substantial: Walter v Selfe(1851) and (ii) balanced against Ds rights to what he likes against right of neighbour not to be interfered with: Sedleigh Denfield v OCallaghan(1940). Factors to determine if interference were unreasonable (consider all!!):a) Locality of land interfered with- Nature and character of neighbourhood must be considered. Sturges v Bridgman (1879)- P sued D (a confectioner) for creating noise and vibrations with pestles and mortar in rear of house. Court held there is nuisance as it is a fashionable residential area. b) Extent and intensity of interference- Intensity or extent of nuisance to be considered. Feiner v Domachuk(1994) D grew mushrooms which gave off bad smell causing Ps daughter to have nausea and asthma symptons. Court held there is nuisance as despite rural nature of area, intensity of smell is more than ordinarily expect in rural area. c) Duration, time and frequency of interference- Duration of interference, time of day and number of times each day it occurs. Wherry v KB Hutcherson (1987)- P sued D for noisy excavation in CBD area. Sound level was above typical max sound level. Court held unreasonable interference and grant injunction as P cant reasonably undertake his work. Seidler v Luna Park Reserve Trust (1995)- Ps neighbours of nearby commercial and residential area complained of noise from roller coaster. Noise measured 5 dcb above ordinary background noise. Court held due to locality and noise level reasonable to expect in area, there is nuisance. d) Undue sensitivity of the utility of Ps land Mckinnon Industries v Walker (1951) case of sulphur dioxide affecting Ds sensitive orchids. no nuisance as court held that sulphur dioxide could have affected anyone with normal sensitivity ie. it could have affected anyone or any plants. Not just the sensitive orchids. Robinson v Kilvert (1889) - heat from Ds business dried up Ps paper which made it less valuable (paper sold by weight). Court held: no nuisance as it didnt affect any other paper and P was using land for delicate trade hence a sensitive purpose. e) Malicious interference Hollywood Silver Fox Farm v Emmett (1936)- D protested for Ps notice board up as it can be seen from Ds prop. D threatened to shoot near breeding pen if sign not removed. P sued for disturbance which affected the Ps vixen. Court held there is nuisance. If it occurred between 2 innocent parties, then its different. D does it to cause annoyance and it is not legitimate use of Ds land for purpose of annoying neighbours.

(ii)

i. Reach a conclusion as to whether or not it was unreasonable.

B)

interference with property right 5 categories:1) Occupation of land: owned or in exclusive possession of the P (ie. owning a hand or leasing). Hasley v Esso Petroleum case prop right to occupation through ownership Robinson v Kilvert prop right through lease of premises. 2) Free Access to property: interests in free access to property to do proprietary right Animal Liberation v Gasser (1991) protesters prevented free access of into circuss tent. 3) Electronic signals Not a proprietary interests: Hunter v Canary Wharf Ltd (1997) 4) View of Ps property Not proprietary right: Victoria Park Racing & Recreation Grounds Co v Taylor (1937) P cant stop people viewing into racecourse from outside their land. 5) View from Ps property Generally not prop interests: Hunter v Canary Wharf (1997). Rare case Thompson-schwab v Costaki (1956) morally offensive views (ie prostitute walking in and out of neighbouring premises) was held to be nuisance. Plaintiffs title to sue Nuisance is about interference in use of land therefore P must have adequate interest in use of land to have title to sue for interference in the use or amenity. Types of ownership:1) Ownership 2) Exclusive possession 3) Licensee (no HC authority, need to argue following) Oldham v Lawson (1976) traditional view:-husband living in house which is in wifes name is a licensee and does not have title to sue. Animal Liberation Inc v Gasser(1991) license granted to circus to use the land is sufficient title to sue (view in Australia maybe?) Khorasandjan v Bush (1993)(KB) - child living at home with parents have sufficient title to sue, thus got injunction against defendant. Court held this was more of a harassment matter. Hunter v Canary Wharf(1997) (tower blocks tv reception of homes. Owners & occupiers sued) majority judges view that only owners & those with exclusive possession had title to sue not the licensees.

C)

D)

Defendant appropriate defendant (who may be liable?) 1) Creator of nuisance Fennell v Robson Excavations Both Dan (who directed Dave to excavate) and Dave also liable for excavating incorrectly. 2) Occupiers for continuing and adopting a nuisance Sedleigh-Denfield v OCallaghan(1940)- D knew pipe laid incorrectly but didnt do anything to rectify therefore liable. Except if no knowledge of it: Toretta House v Berkman (1940)- element of fault is necessary. Court found no nuisance as there was no fault on the D or the plumber to know fault in pipe which caused water to escape and damage Ps property. 3) Occupiers for acts of third parties De Jager v Payneham (1984)- owner of hall liable for noise made by patrons of hall. If hall is hired out which is for a purpose which involve special danger of nuisance, then he is liable for any nuisance caused by hirer. Tort Public Nuisance Defn- an act or omission which materially affects the reasonable comfort and convenience of the life of a class of the public: Wallace v Powell (2000). 4 elements are:1. Unreasonable interference must be substantial and unreasonable and balance against rights of D to undertake activity (same as above). Lyons v Gulliver(1914)- cinema operator causing long queues was held unreasonable. Maitland v Leaving (1944)- broken down and unlit car on road for short period of time not unreasonable. Harper v GN Haden (1933)(KB)-scaffolding on footpath not nuisance as D had appropriate approval and it was only temporary. Court held in general such an obstruction is wrongful unless authorised by Parliament or reasonable and lawful use of highway as highway. 2. interference must affect public (as opposed to private which affects Ps land) Castle v St Augustines Links (1922)- damage suffered by P via Ds nuisance allow P to recover damages to full

extent of damage including personal injury, doesnt matter if he doesnt own land. 3. P has title to sue D Attorney General always have title to sue. However can grant fiat to member of public. Exceptional cases where private indiv can bring action without Attorney-Generals fiat is when the indiv has been more affected by nuisance than other members of public. York Bros (Trading) v Commissioner for Main Roads (1983)Harper v G n Haden & Sons P more affected than public as he had a business there and affected him more than public walking up and down the footpath. Walsh v Ervin(1952) 4. D is the appropriate def (a) Creator of public nuisance liable whether they are in occupation of the land from which nuisance emanates or not: Kraemers v Attorney General (b) Continuing and adopting Sedleigh-Denfield & Torette House. rd (c) owner of land responsible for nuisance created by 3 party on land: White v Jameson (1874). There was a special danger of nuisance. Defences to Nuisance Onus of proof on D to prove defences on balance of probabilities. 4 Defences:1. Statutory Authority private and public nuisance Prove that legislation has authorised a particular act to be done in a particular way. 2 elements:(i) Nuisance authorised by legislation legislation specific. It must expressly authorise nuisance and not just the act that results in the interference. (it has authorise the interference with someones right not just the act itself). (ii) Nuisance could not reasonably avoided def not required to adopt design which is extra ordinary just to avoid damage to others: Symons Nominees v RTA NSW(1997). York Bros D argues Main Roads Act allowed him to build bridge. Court held legislation doesnt allow him to build bridge to create nuisance. There were other methods to build bridge without creating nuisance which didnt require fantastic method. 2. Contributory Negligence difficult to establish. Not currently clear if this defence is available.

3. Prescription (Not a defence) If nuisance has been continuing for 20 yrs without objection, then D have the right to claim this as defence. Defence not available for public nuisance: Matt v Shoolbred (1875) 4. Coming to Nuisance (not a defence) Sturges v Bridgman (1879) D had been making noise for some time and that P was aware of this and chose to build consulting room nearby. This is not a defence.

Remedies 1) Abatement Self help remedy/defence P must give D notice unless theres immediate danger to health or safety. Lemmon v Webb (1895) P not required to give notice before lopping Ds tree as not required to trespass. 2) Injunction Discretionary by court To be awarded P must prove nuisance is continuing and not one off: Seidler v Luna Park. Quia timet injunction available to restrain a threatened nuisance. P prove interference is imminent or highly likely to occur: Barbagallo v Catelan (1986) 3) Common Law damages Material damage: P put in position they would have if tort not occurred: Evans v Balog Damage to utility: P entitled to diminution value of land for duration of nuisance: Hunter v Canary Wharf Quantum of damages awarded not affected by no. of people affected but by number properties affected.