TORTS LECTURE

1. TORTS LECTURE NUISANCE

2. WHAT IS NUISANCE? • An unreasonable conduct that materially interferes with the ordinary comfort of human existence

3. THE TWO ‘SIDES’ OF NUISANCE NUISANCE PRIVATE PUBLIC NUISANCE

4. PRIVATE NUISANCE • Unlawful interference with P’s interest in land • The tort protects against interferences with the enjoyment of land

5. THE NATURE OF THE TORT • Conduct or something that emanates from D’s land • Noise • Dirt • Fumes • Noxious smell • Vibrations etc • (interference with TV signals)?

6. INTERESTS PROTECTED • The tort centres on interest in the land that is affected • D’s conduct must impact on P’s land as a form of interference to the enjoyment of the land in question • Victoria Park Racing v Taylor (D constructs a platform on his land to view and comment on races taking place on P’s land) • Thomson v-Schwab v Costaki (prostitutes in the neighbourhood) • Raciti v Hughes (1995) (flood lights and camera equipment overlooking P’s backyard)

7. NUISANCE AND THE PROTECTION OF PRIVACY • Victoria Park does not stand in the path of the development of such a cause of action [in privacy] (per Gummow, Hayne JJ with Gaudron J in agreement in ABC v Lenah Games Meats Pty Limited (2001) 185 ALR 1)

8. TITLE TO SUE • P must have proprietary interest in the affected land to be able to sue • Oldham v Lawson • Hunter v Canary Wharf • Blay, ‘The House of Lords and the Lord of the House: Making New sense of Nuisance’ ALJ ( 1999) Vol. 73, 275

9. THE NATURE OF D’S CONDUCT • D’s conduct must be unreasonable. • In general, acts which are reasonably necessary for the normal use of the land would not be considered unreasonable • Munro v Southern Dairies ( smells from D’s property where he keeps 5-7 horses with associated smells, noise and flies held to constitute a nuisance)

10. “A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.” (per Lord Wright in Sedleigh-Denfield v O’Callaghan (1940) AC at 903)

11. ABNORMAL PLANTIFFS • Where D’s conduct is neither unreasonable nor excessive P cannot claim • Robinson v Kilvert (27 degree heat generated as a result of D’s work in lower floor causing damage to P’s sensitive paper) • But where D’s conduct even though slight, but is malicious, P can claim • Hollywood Silver Fox Farm Ltd v Emmett (gunshots to frighten P’s vixen and to discourage P from setting up- farm. Pretext that the shooting was to keep rabbits off the property was not accepted)

12. WHO MAY BE SUED? • The creators of the nuisance • Fennell v Robson Excavations (1977) • Occupiers • De Jager v Payneham & Magill Lodges (1984) 36 SASR Occupier may be liable for the acts of a party who resides on the property with occupiers permission • Hargrave v Goldman ( an occupier may be held liable where they allow the continuation of a nuisance from the land even though they may not have created it initially)

13. PUBLIC NUISANCE • Any nuisance that materially affects the reasonable comfort and convenience of a class of people • P may sue in public nuisance only if he/she can establish special damage above and beyond that suffered by other members of the affected public • Walsh v Ervin ( D ploughs up part of highway obstructing access to P to the highway, D held liable)

14. QUEUES OBSTRUCTING PUBLIC HIGHWAYS AND ROADS • Silservice Pty Ltd v Supreme Bread Pty Ltd (queues to buy bread on George Street) • Queues do not necessarily provide a basis for an action even where they seem to obstruct a public access way that affects the P • However D may be liable if • the crowd is attracted by something done by D which is not bona fide necessary for the conduct of his/her business • the facility for the purpose of D’s trade is inadequate or not suitable to hold or control the crowd • D could employ some other reasonable means within his control to minimize or prevent the damage to P

15. THE DEGREE OF INTERFERENCE • It is not every interference however slight that constitutes an actionable nuisance; the interference must be substantial and material(York Bros v Commissioner of Main Roads: construction of a bridge across a river obstructs navigation by P, held nuisance)

16. PUBLIC BENEFIT AND PUBLIC NUISANCE • In general public benefit is not a defence that can defeat P’s objections to D’s conduct • Where the interference to P is not substantial, the public benefit argument may be used to reinforce the justification to the inconvenience caused to P

17. REMEDIES • Abatement of nuisance (self-help remedy) • Who bears the cost of abatement? • Normally the abater does as often there is little or no cost, but see Proprietors-Strata Plan No 14198 v Cowell where it was held that D may be required to bear cost if the steps taken by P to abate were in reasonable mitigation • Injunction to prevent the continuation • Damages

18. End