Private Nuisance Week 12

Private Nuisance 4Action on the case l indirect interferences l intentional or unintentional 4To protect the use and enjoyment of land 4requires proof of damage 4protects against physical injury interference with the use and enjoyment of land

Elements of the Action 4Standing /title to sue 4recognised legal right 4substantial and unreasonable interference 4 nature of the damage 4physical/material damage 4interference with the use and enjoyment 4interference must be substantial 4interference must be unreasonable

Title to Sue 4Plaintiff must have a legally recognised right in the land 4 Malone v Laskey 4a mere licensee does not have standing to sue 4 Hunter v Canary Wharf 4 overturned Kharasandjian v Bush

Legally Recognised Right Examples 4 right to support of land 4 right to support of buildings 4 right to light 4 right to air 4 right of way

Nature of the Damage 4Material/physical damage to the property 4 St Helens Smelting Co v Tipping 4 Harris v Carnegie’s Pty Ltd 4 Halsey v Esso Petroleum 4Personal injury 4 Benning v Wong

4Interference with the use and enjoyment of land 4 Haddon v Lynch 4no requirement that the interference be continuing or recurrent 4 Hargrave v Goldman 4causation must be established 4 reasonably foreseeable consequences of his/her actions 4may be liable for naturally occurring interferences

Substantial Interference 4Not trifling and small inconvenience 4injuries which sensibly diminish the comfort, enjoyment or value of the property 4 St Helens Smelting Co v Tipping 4loss of one night’s sleep may be substantial 4 Munro v Southern Dairies 4no injury to health required

Unreasonable Interference 4Defendant bears onus to prove interference reasonable 4rule of give and take, live and let live 4 Bamford v Turnley 4objective test 4 inconvenience materially interfering with the ordinary comfort physically of human existence 4 Walter v Selfe

Factors Taken into Account 4locality 4time 4duration 4nature of the activities 4availability of alternative means 4motive

Who May be Liable 4Owner/occupier 4person who created the nuisance 4new owner /occupier 4 adopting or continuing the nuisance 4 Sedleigh-Denfield v O’Callaghan

Defendant’s Liability 4onus of proof 4 plaintiff establish elements of action 4note plaintiff prove interference substantial and defendant to prove interference reasonable 4 defendant prove defences 4causation 4damage foreseeable

Defences 4Statutory authority 4plaintiff’s own default or contributory negligence; 4prescription; 4plaintiff’s abnormal sensitivity; 4consent; and 4absence of any legally recognised right in the plaintiff.

Statutory Authority 4Statutory provision may authorise the commission of a nuisance 4legislative intention 4 Parliament can abrogate common law rights of the individual 4 immunity extends to inevitable consequences of authorised activities 4 alternative approach 4reasonable care

Plaintiff’s Own Default 4contributory negligence 4Fault defined as negligence or any other act or omission which gives rise to a liability in tort 4plaintiff not to benefit from action in nuisance rather than negligence

Prescription 4interference is of a kind that can constitute the subject matter of a grant of an easement 4interference continued for over 20 years 4plaintiff could have prevented the nuisance or sued in private nuisance, but refrained

Abnormal Sensitivity 4A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade  Robinson v Kilvert

Consent 4implied in circumstances where the plaintiff’s premises form part of the defendant’s building

Absence of Legally Recognised Right 4plaintiff must have a legally recognised right to protect 4 Elston v Dore

Remedies 4injunction 4 discretionary 4 clearest of cases 4damages 4 property damage (decrease in value) 4 consequential loss 4abatement 4 self-help remedy

Answering a Question in Private Nuisance 4identify the possible interferences/damage; 4state the definition of private nuisance; 4state the elements of the action (title to sue etc); 4apply to the facts; 4conclude whether there is an action; 4consider any possible defences; and 4advise on remedies