Private Nuisance. Introduction

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Rodney Phillips
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1 Private Nuisance Introduction Private nuisance is the tort of protecting the plaintiff s interest in the enjoyment of land. It was defined by Windeyer J as: an unlawful interference with a person s use or enjoyment of land, or of some right over, or in connection with it. CASE AUTHORITY: Hargrave v Goldman (1963), is the case that introduced the definition for private nuisance above. Elements of a Private Nuisance The two elements of a private nuisance are: 1) When the conduct of the defendant indirectly (note that if it is direct, you should consider trespass): i) either material physical damage to land; or ii) substantial interference with the use or enjoyment of land or an interest in land. 2) Which is, in light of all the surrounding circumstances, unreasonable. Both limbs need to be satisfied, although the courts have expressed their approval that if there is physical damage, this is unreasonable and therefore the second limb is satisfied. CASE AUTHORITY: St Helen s Smelting Co v Tipping (1865), the House of Lords established the two elements of the first limb of private nuisance. It has been argued that material physical damage is a much easier threshold to meet than the second which solely involves personal discomfort. Striking a Balance In order for there to be a nuisance, the plaintiff must show that the interference was unreasonable in all circumstances. The court will balance the plaintiff s desire to use and enjoy their land without interference against the defendant s desire to undertake the activity that causes the interference.

2 CASE AUTHORITY: Halsey v Esso Petroleum [1961], is authority for the process that the courts will consider the rights of the plaintiff and the rights of the defendant to strike a balance of what is fair and reasonable. Standing to Sue for Private Nuisance In the UK, only a plaintiff with recognised rights over a property will be conferred the rights to sue a defendant causing a nuisance. CASE AUTHORITY: Oldham v Lawson [1976] is authority that anybody but a person with recognised rights over the plaintiff is not allowed to sue for nuisance. Although in 1993, an English case allowed a 16 year old girl to sue for nuisance even though she did not have a recognised right over the land. CASE AUTHORITY: Khorasandijan v Bush [1993], is a case whether the English CoA abandoned the proposition that a plaintiff for a nuisance claim must have some recognised right over the land. Although, in a House of Lords case in 1997, the House of Lords reinstated the traditional approach and said that a plaintiff must have standing to sue for nuisance. CASE AUTHORITY: Hunter v Canary Warf [1997], is authority for the principle that in you need standing to sue, conferred by having a right in the land. The current Australian position is unclear as most courts have omitted the question of whether the plaintiff has standing to sue altogether. There is case law supporting either proposition. Who May be Sued (Found Liable) The person may be sued for nuisance if they: a) are the creator of the nuisance, even if they have no property rights over the area the nuisance came from; CASE AUTHORITY: Fennell v Robson Excavations [1977], is authority for the principle above.

3 b) adopt or continue the nuisance while failing to take reasonable care (requires 1 - knowledge of danger; 2 - ability to prevent danger; 3 - omission to prevent danger); CASE AUTHORITY: Sedeigh-Denfield v O Callaghan [1940], is authority for the principle that adopting or containing a nuisance originally caused by another party can attract liability. In deciding whether or not the defendant had failed to take reasonable steps to bring the nuisance to an end, the court will take into account the defendant s subjective ability to do so. CASE AUTHORITY: Goldman v Hardgrave [1967], is authority for the principle above. c) authorising the nuisance (if the occupier authorises the very use of the activity which constitutes a nuisance, he will of course be liable for it); CASE AUTHORITY: De Jager v Payneham and Magill Lodges Hall (1984), is authority for the principle that authorising a nuisance will attract liability for it. You can be held liable for a nuisance even if you are no longer the owner of the premises from which the nuisance emanates. Considerations for Nuisance Locality What would be an unreasonable interference with the use and enjoyment of property in one neighbourhood would not necessarily be so in another. The court will consider the area and general neighbourhood and whether the is something that other people are accustomed to and habitually put up with. CASE AUTHORITY: Munro v Southern Diaries [1955], is an Australian decision that recognised the need to consider the locality in determining whether there was a nuisance. CASE AUTHORITY: Sturges v Birdgman (1879), is an English CoA decision that recognised the need to consider the locality in determining whether there was a nuisance.

4 The two cases cited above also concluded (from the first case of Munro) that providing an activity for the general public is not a defence; and, coming to the nuisance is not a defence. The consideration with locality is not Who was there first, but rather, What was the nature of the area?. Duration, Time, Frequency and Extent Additional considerations are the duration, time, frequency and extent of the nuisance in determining whether or not it is reasonable. In the case cited below, the pungent smell and volume of noise produced by the defendant s industrial plant were balanced against the duration of the interference caused by them. CASE AUTHORITY: Halsey v Esso Petroleum [1961], is authority for the principle that the nuisance will be considered while bearing in mind it s duration. Generally, demolition and constriction works is temporary, and did not, in general, constitute a nuisance. However, it was held that any demolition and construction work that occurs at night may be a nuisance, because an interference, which may have otherwise been reasonable, was unreasonable at the time. CASE AUTHORITY: Harrison v Sotuhwark and Vauxhall Water Co [1891], where Sir Wilfrid Greene MR noted the principles above about construction. When it comes to noise, even the loss of one night s sleep may be substantial and unreasonable. CASE AUTHORITY: Andrae v Selfridge (1938), which is authority for the principle that a nuisance can come about from the loss of one night s worth of sleep. Undue Sensitivity of the Plaintiff An interference with the plaintiff s use and enjoyment of property will not be unreasonable if the plaintiff is unduly sensitive to the interference.

5 If the harm was caused as the result of the plaintiff being particularly sensitive, then no recovery can occur. CASE AUTHORITY: Robinson v Kilvert (1889), the plaintiff s paper was unduly sensitive to heat and therefore he cannot bring an action in nuisance as insensitive paper would not have suffered any harm. Although, if the interference would have interfered with an ordinarily robust use of the plaintiff s premises, then it constitutes a nuisance, whether or not the plaintiff s use of that property is particular sensitive. CASE AUTHORITY: McKinnon Industries v Walker [1951], is authority for the principle that if the interference would have affected something non-sensitive, then it is a nuisance. Malice If the defendant acts maliciously causing an interference to the the plaintiff by the use of their property with malice, what may otherwise be regarded as reasonable may now be regarded as unreasonable. If the defendant makes noise maliciously to respond to noises made by the plaintiff, they will be deemed to have been a nuisance because of their malicious intent. CASE AUTHORITY: Chrsitie v Davey [1893], where the defendant s production of noise in response to the plaintiff s, except with malicious intent, was a nuisance. If the acts by the defendant are carried out with malicious intent, this can outweigh the consideration of the plaintiff s being particularly sensitive. CASE AUTHORITY: Hollywood Silver Fox Farm v Emmett [1936], is authority that when the defendant acts with malice, the sensitivity of the plaintiff may be outweighed. Interference with Recognised Rights The mere fact that the plaintiff had suffered loss or inconvenience in the use of his or her property is not sufficient to give rise to an action in nuisance.

6 The defendant must interfere with the use and enjoyment of the plaintiff s land, or their recognised rights (under the common law of Australia, privacy is not included). CASE AUTHORITY: Victoria Park Racing & Recreation Grounds v Taylor (1937), is authority for the principle that viewing from outside the property where there is no direct interference with the enjoyment of the land is not a nuisance. In England, there is no tort of invasion of privacy (Wainwright v Home Office [2004], whereas in New Zealand, and most US states, the tort of the invasion of privacy is recognised. It was confirmed in Chan v Sellwood [2009] that Whether the law of Australia recognises a tort for the breach of privacy is a little unclear. (NSWCA) Material Physical Damage Where there is material or substantial injury / damage to the property of the plaintiff, nothing more needs to be shown by the plaintiff. No further considerations need to be made as this amounts to unreasonable interference. CASE AUTHORITY: Kraemers v Attorney-General [1966], which is authroity for the principle that material or substantial injury / damage is enough to amount to a nuisance. In cases of material physical damage, the NSWCA stated that: 1) the plaintiff may establish a prima facie (presentation of sufficient evidence) case of nuisance simply by proving the fact of damage; 2) the plaintiff does not have to prove that the defendant s use of land was unreasonable; 3) the burden of proof is on the defendant to establish that its use of land was unreasonable, in which case it has a defence. CASE AUTHORITY: Corbett v Pallas (1995), is authority which presented the three principles above. Physical Injury

7 Generally, an action in nuisance for physical injury would fail as there is very little authority. It is arguable that any action for physical injury should be brought under the tort of negligence. It is unclear whether or not an action can be brought for nuisance. The only authority at which an action for injury was successful in nuisance was Pelmothe v Phillips (1899). Although this case is not convincing authority and should not be cited. Defences for Nuisance Statutory Authorisation When Parliament authorises a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance was the inventible result of the making or doing of the authorised act. Although it is not sufficient to say that the activity was authorised by Parliament. The defendant must show that it was inevitable that a nuisance would be caused. Where the authorised activity can be undertaken without creating a nuisance, the defence is not amiable as any nuisance created is then not the inevitable consequence of the activity. CASE AUTHORITY: Barr v Biffa Waste Services [2012], the court found that statutory authorisation was a defence for nuisance where the nuisance is inevitable. It is also a general requirement that the party hoping to rely on statutory authorisation as a defence had acted in good faith. CASE AUTHORITY: Bankstown City Council v Alamdo Holdings (2005), is authority for the principle that to invoke a defence of statutory authorisation, there is a general obligation to have acted in good faith. Contributory Negligence Although SA and WA do not have legislation for contributory negligence, it is applicable as a defence to reduce or apportion liability when the plaintiff suffered damage as the result of a wrong, and partly as a result of him or her failing to take reasonable care. Other Defences

8 Other defences include: 1) Prescription: a particular nuisance that has carried on for a long time and that you have consented to by implication, by failing to do anything about it. (Although there is a high threshold for this). 2) Consent: by consenting to the nuisance (coming to the nuisance is not a defence). 3) Conduct or Consent of the Plaintiff: by impliedly consenting to the nuisance. Remedies Injunction An injection may be sought to prevent the defendant from continuing with the interference. Before the trial a interlocutory injunction may also be sought to restrain the defendant from continuing on with the interference until the trial determines whether it constitutes a nuisance. A court may only grant an interlocutory injection if it is satisfied that: a) there is a serious matter to be tried about whether the interference is a nuisance; b) on the balance of conveniences it is appropriate to restrain the defendant. The tests were adopted by the HCA in Australian Coarse Grain Pool v Barley Marketing Board (1982). The court may grant an quia timet injunction to restrain the defendant from causing the interference even before it has begun, but when it is serious and imminent (or highly likely to occur). A mandatory injunction may also be granted to force the defendant to carry out some kind of action where the interference requires it. Damages Equitable damages will be awarded instead of an injunction where there is an injury that is to occur in the future. Common law damages are awarded to compensate the plaintiff for past interferences.

9 The test for remoteness in nuisance is the same as for negligence, so therefore the plaintiff may recover damages for all reasonably foreseeable consequences of the nuisance. CASE AUTHORITY: Overseas Tankship (UK) Miller Steamship (The Wagon Mound (No2)) [1967], is authority that the test for remoteness is consistent between negligence and nuisance. Self Help (Abatement) The plaintiff may be able to help himself by carrying out self-help. Abatement is a defence to trespass where the plaintiff (the person who has standing to sue) moves onto someone else's property to stop the interference or nuisance. CASE AUTHORITY: Lemmon v Webb [1895], is authority for the principle that abatement is a complete defence to trespass, and is a recognised form of self help. Answering a Problem Question for Private Nuisance 1) Identify the plaintiff and defendant. 2) Determine whether or not the plaintiff has standing or the ability to sue in this situation. (Ask: does he or she have some title over the property in question?) 3) Determine whether or not the defendant can be sued in this situation. 4) State the definition of a nuisance, and relate it back to why the nuisance you identified is a nuisance. 5) Satisfy the two limbs of the elements of private nuisance. (Consider: Was there physical damage or was there substantial interference with the use or enjoyment of the property? Was this unreasonable in all of the circumstances? Remember: the court will try to do a banking act weighting the rights of the defendant and the plaintiff). 6) State the equation of reasonableness (Hasley v Esso Petroleum) where the courts will try to strike a fair and reasonable balance. 7) Identify precisely, what the nuisance is (a nuisance is not the factory, but the smell, pollution and noise that come from the factory). Apply this to the definition and the elements. 8) Apply the case law to consider what is reasonable, do not be overly sympathetic to the plaintiff. 9) Consider whether the defendant has any defences. i) if there is public utility, state that this is not a defence; ii) if there is consent, note that simply tolerating the nuisance is not consent;

10 iii) for prescription, note that the defence is usually only applicable after 20 years of the nuisance. 10) Consider remedies, and what may be effective in this situation. i) damages for compensating the plaintiff for past nuisance; ii) injuction to prevent future nuisance; iii) abatement (self-help remedy).

a. Identify the specific act b. Damage need not be shown Dumont v Miller

Trespass to Land 1. Positive and voluntary act a. Identify the specific act b. Damage need not be shown Dumont v Miller 2. Fault c. Intention relates to intention to do the act, not intention to trespass