Private Nuisance

1. Private Nuisance Week 12

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

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

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

5. Legally Recognised Right Examples • right to support of land • right to support of buildings • right to light • right to air • right of way

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

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

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

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

10. Factors Taken into Account • locality • time • duration • nature of the activities • availability of alternative means • motive

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

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

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

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

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

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

17. Abnormal Sensitivity • A 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

18. Consent • implied in circumstances where the plaintiff’s premises form part of the defendant’s building

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

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

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