70311 Torts. Week 1 : Intentional Trespass to Person. Aim: to protect person from unlawful interference by others.

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1 70311 Torts Week 1 : Intentional Trespass to Person Aim: to protect person from unlawful interference by others. Onus of proof: P must prove elements, then D must show tort not intentional/negligent (lack of fault). Exception: P must prove fault in highway accidents (traffic accident on public road), Venning v Chin. Elements of Intentional Trespass: 1. Positive voluntary act 2. Direct injury of some kind a. Immediacy: example of log being thrown on highway and hitting someone (direct), as opposed to be lying on the highway and later injuring someone by driving into it (consequential) Reynolds v Clarke. b. Not consequential: A trespass occurs when follows so immediately upon the act of the defendant that it may be termed part of that act; it is consequential on the other hand, when, by reason of some obvious and visible intervening cause, it is regarded, not as part of the defendant s act but merely as a consequence of it Hutchins v Maughan (1947): D put poison baits on property. P brought dogs to land, dogs died. c. Need not be physical contact between P and D: Scott v Shepard (1773): firework thrown in marketplace, tossed by person to other, then again, then finally exploding and injuring P. Court: justified that two others acted in agony of the moment. Criticised decision. 3. Injury/interference: a. Actionable per se: no proof of damage needed. 4. Intentional/negligent act: a. Fault is essential (McHale v Watson): wrongfully wilful or negligent (Holmes v Mather: horses out of control, injured P. Held no tort as D s servant tried best to guide horses away from P) or (Stanley v Powell: shooting party, shot glanced off tree and hit P). b. Intention: simply to do the act. No need for hostility or intention to injure. c. Negligence: trespass includes negligence (Williams v Milotin: child + bike run over by truck driven neg). Does not exist in England (Letang v Cooper: sunbathing girl overrun by car). i. Platt v Nutt: D slammed door and P put arm out, injured. Trial: D failed to prove absence of negligence, even though no intention. Held: trespass failed as the action was not direct enough. Kirby dissented saying P should bear onus in all situations.

2 Week 6 Proof and Causation Proof of negligence P bears the legal onus of proof (CLA s5e) Standard: balance of probabilities D may bear an evidentiary onus of proof in some instances to counteract P s claims. No evidence rule : Trial judge must decide: P s evidence reasonably infers negligence on D s part? o No evidence (no prima facie case) case is withheld from jury (Holloway v McFeeters). o Any evidence (no matter how slight) case must go to jury (TNT Management v Brooks). If prima facie case, D can submit no case to answer P s case is so weak that D need not provide any evidence. Fact that D has not called evidence cannot be used by P to prove P s case (Jones v Dunkel). Inferences: Evidence must give rise to POSITIVE inference rather than mere conjecture. Must do more than give rise to conflicting inferences of equal probability. Must be more probably than not. o Bradshaw v McEwans Cited in Holloway v McFeeters: P widow of hit and run victim at night, suing Nominal Defendant for husband s death. No direct evidence of the accident and victim deceased. Injuries to deceased consistent with run over, position of body, state of roadway, debri, tyre marks. Held: unidentified driver drove negligently. T.N.T. v. Brooks: circumstances raising a more probable inference in favour of what is alleged. West v GIO of NSW: P injured in collision with other car where driver died. P and wife suffered memory loss and other passenger of other car could not give any evidence to infer cause of crash. o HC held: insufficient evidence to infer that negligence caused accident. o more akin to conjecture than to inference Res Ipsa Loquitur: The thing (event) speaks for itself happening of an event can itself be evidence without further evidence of negligence. Mummery v. Irvings: it is not a legal principle but a general index to those cases in which mere proof of an occurrence constitutes prima facie evidence of negligence. This happens where: Scott v. London & St. Katherines Docks (P injured when bags of sugar fell on him when standing near doorway of D s warehouse): 1. D is in sole control of situation, and 2. Accident would not ordinarily happen unless someone was negligent, and 3. No explanation or knowledge of how accident happened.

3 Nuisance Nuisance: Private nuisance: tort Public nuisance: common law crime, but individual may have action where particular damage suffered. Defined: unreasonable interference by D with P s use or enjoyment of real property. Differs from trespass to land: o Interference with RIGHTS rather than contact with land o Need not be DIRECT or physical interference eg. noise, smell (Halsey v Esso Petroleum). Private Nuisance Definition: Hargrave v. Goldman: Windeyer, J an unlawful interference with a person s use of enjoyment of land or some right over or in connection with it. Actionable per se? Generally, NO: must have proof of damage, which can be actual or intangible (unreasonable interference with enjoyment of land). Damage may be (restrictively) presumed: Baten s Case: P won as court presumed that cornice overhanging P s land from D s property would cause damage by pouring rainwater onto P s land. However, this approach is restrictive, as in Lemmon v Webb. Title to sue: P must prove possession of land pursuant to legal/equitable interest in land Licensee: conflicting cases o No title. Oldham v Lawson: husband and wife claimed damaged for noise. Wife owned house, and husband could not claim damages as he was merely a licensee. o Yes title. Animal liberation (Vic) v Gasser: court granted injunction to circus camping on council land, to restrain Ds who were demonstrating outside about animal rights. o Yes, where licensee has exclusive occupation and an equitable right to remain in possession. Inwards v Baker. o Some jurisdictions, family members (licensees) have succeeded. Canadian Motherwell v Motherwell and Khorasanjian v Bush. o Current: HOL overruled above. P must have right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession (Hunter v Canary Wharf). What Interests are Protected? Only protects right to use and enjoyment of land. Shown in below case: Victoria Park Racing v. Taylor: P complained D caused economic loss by erecting platform on his adjoining property to view races, and broadcast calls of the races. o Held: failed as substance of plaintiff s complaint goes to interference, not with the enjoyment of land but with the profitable conduct of its business

4 o No interference with P s use & enjoyment of land, racecourse still suitable for use as racecourse Does not protect right not to be viewed from outside (aka privacy): o Bathurst CC v Saban o ABC v Lenah Game Meats Does not protect right to a view from property: o Bathurst CC v Saban: unsightly property seen from P s property held not to be nuisance. o BUT Thompson Schwab v Costaki: operation of brothel on neighbouring land held to be nuisance. Protects right to enter/exit property: Dollar Sweets v. Federated Confectioners: union picket line tried to prevent others from entering P s premises. Held to be nuisance. Broderick Motors v. Rothe: D parked car o/s P s dealership. Held: no nuisance as D did not try to prevent ppl from entering Animal Liberation v. Gasser: D s demonstrated at P s circus. Held to be a nuisance by besetting the ppty and putting entrants in fear for their safety. Protects against obstruction build on D s land? o In some circumstances, yes: Nor Video Services v Ontario Hydro. o BUT in Hunter v Canary Wharf: tower building on D s land blocking TV reception of P was NOT nuisance. Held: a man s right to build on his land is not restricted by fact that presence of building may interfere with neighbours enjoyment of land. Not result of emanation from building or particular use of it, just simply of it being there. Nature of nuisance: Distinction between material damage and intangible interference: o St. Helens Smelting co. v. Tipping: P suffered material damage where trees on property damaged by noxious fumes from D s copper smelting business nearby. Locality is irrelevant in material damage Unreasonable interference more likely to be found in material damage. o Halsey v Esso Petroleum: oil depot caused noise, foul smells and acid smuts in atmosphere that damaged P s car and clothes. Damaged car/clothes: nuisance. Noise/smell: P must prove unreasonableness of interference. o Kraemers v The A G of Tasmania: Material damage: onus of proof on D to prove its use of property was reasonable. Is liability strict? No. o D must prove use of property reasonable. o Nuisance depends on reasonable use of land, not that D took reasonable care to avoid nuisance. Cambridge Water v Eastern Counties Leather plc. What constitutes an unreasonable nuisance? 1. Substantial: interference must be subs and not merely trivial (Halsey v. Esso Petroleum). a. Test: not merely according to elegant or dainty modes but according to plain and sober and simple notions amongst English people (Walter v Selfe).

5 b. Must be state of affairs on D s property which causes interference. Cannot be a one off event not connected to condition of D s property (Bolton v Stone: P suffered physical injury when struck by cricket ball hit out of the ground). c. Presence of building itself cannot be nuisance. Hunter v Canary Wharf. 2. Locality: only relevant with intangible interference (St. Helen s Smelting v. Tipping). coming to the nuisance is no defence, as in no defence that D was there first, or that locality is industrial etc. a. Sturges v Bridgman: D (confectioner) did business for 20 years with noisy equipment. Doctor on adjoining land, opened additional rooms at rear and complained of noise. Held: successful. b. Feiner v Domachuk: pungent smell of compost that mushrooms grew was held unreasonable nuisance to neighbours, even though area was semi rural with large land. c. Halsey and Esso Petroleum: noise/smells was nuisance, even though nature of locality was industrial. 3. Give & Take: balancing interests of parties, as for every nuisance complained, he himself will create a reciprocal nuisance (Bamford v Turnley) a. Clarey v. Womens College: not nuisance as only noises of the kind that are incidental to the occupation of premises as a dwelling, and all person make such noise. 4. Time: a. Haddon v Lynch: ringing of church bells before 9am on Sunday and public holiday held as nuisance. b. Andreae v Selfridge & Co: construction noise at night was nuisance, though at day, not. c. Wherry v KB Hutcherson: construction work in CBD during daytime office hours was nuisance 5. Duration: a. P unlikely to succeed (for injunction) if interference is temporary, but damages may still be awarded. b. Murdoch v Glacier Metal: intermittent noise at night, slightly above standard was not nuisance. c. Andreae v Selfridge & Co: disturbance of even 1 or 2 nights rest may be nuisance. 6. Undue Sensitivity of P: will not succeed as standard is objective. a. Robinson v. Klivert: P conducted twine/paper merchant on ground floor. D made boxes in basement and used heat/dry air in process. Heat rising damaged P s paper. Held: not nuisance as heat would not have affected an ordinary trade on above/ordinary paper. 7. Malice of D: may change reas act into unreasonable conduct/usage, even where P is unusually sensitive a. Hollywood Silver Fox Farm v. Emmett: P (silver fox farmer) won against D, who threatened to damage P s fox breeding by shooting off a gun near breeding stock to frighten them. Breeding vixens are particularly sensitve to loud noise, which frightens leading to miscarriage and eating their young. D shot off noise. Held: even though shooting was reasonable, it was done maliciously. b. Stoakes v Brydges: D made frequent calls at all hours of night to employer of noisy milkman. Held: nuisance. Retaliatory nature of calls malice.

6 c. Fraser v Booth: P disturbed by flock of racing pigeons released by D daily. P used water hose, etc when pigeons above her property. Held: not malice, only hoped to alleviate nuisance. Who is Liable? 1. Creator of nuisance: need not have property rights in land from which nuisance emanates (Fennell v Robson Excavations: contractor working on land was liable, even thought not in occupation/possession). 2. Authoriser of nuisance: liable if necessarily creates a nuisance. a. Teltley v Chitty: council held liable when it let land to tenants to use land for gokarting (noisy). b. De Jager v Payneham & Magill Lodges Hall: owner of hall liable for excessive noise carried by hirers of hall playing amplified music, even though owner installed electrical regulator of amplification equipment. Hirers disabled regulator. Held: if hired out for particular purpose, then liable for any nuisance caused by the hire in carrying out that purpose. 3. Vicarious liability: nuisance committed by employees in course of employment employer is liable. 4. Owner who adopts or continues nuisance: a. Sedleigh Denfield v. O Callaghan: pipe on D s land overflowed onto P s land. Pipe laid by local council but D became aware of its existence and used it to drain his fields. i. D continues a nuisance if with knowledge of its existence he fails to take any reasonable means to bring it to an end ii. D adopts nuisance if he makes any use of (the thing) which constitutes the nuisance 5. Duty to remedy a nuisance: a. Only if D knew or ought to have known nuisance: i. Montana Hotels v Fasson: D not liable for damage as they were tenants of new building and neither knew nor ought to have known about the fault down pipe. b. Even if D did not create/adopt the nuisance: i. Goldman v. Hargrave (P.C): D (farmer) s efforts to extinguish fire (started by lightning fire) was insufficient. Held liable when fire spread to P s land. Held: taking into account financial etc resources, the D had not done what was reasonable to remedy the nuisance. ii. Leakey v National Trust: D had resources to remove danger to P s land caused by large mound of unstable dirt on D s land. Public Nuisance a. Affects public at large b. Is a crime c. Action is brought by A G d. Private individuals do not have standing to sue unless they have suffered PARTICULAR DAMAGE over that suffered by the public. How many people is the public?

7 A G v. PYA Quarries: D argued that nuisance only affected a few individuals living in vicinity of quarry. Denning J I decline to answer how many people I prefer to look at the reason of the thing a public nuisance is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings but it should be taken on the responsibility of the community at large What constitutes Particular Damage? A private individual must prove particular damage which is different from (Benjamin v Storr) or greater than that suffered by public at large (Walsh v. Ervin). o Walsh v Ervin: D blocked off public road so that it could be used for agriculture. Held: public nuisance. P (adjoining neighbour) succeeded in private action for particular damage. not limited to special damage ( in the sense of actual pecuniary loss) may consist of general damage eg inconvenience and delay provided that it is substantial direct and not consequential AND appreciably greater in degree than any suffered by the general public P need not have any property interest in the area affected. Castle v St Augustine s Links: P recovered for physical injury when hit by golf ball on public road. Substantial and unreasonable interference: o Must be substantial and unreasonable. o Not nuisance if broken down vehicle (Maitland v Raisbeck) or crashed (White v Humphries) obstructs highway. o Tradesperson stopping van on roadway to unload is not nuisance (Harper v G N Haden & Sons). Defences: a. Prescription: only in private nuisance. Allows easement by prescription to be gained after 20 yr period of continuous use. a. Owner of property knew of use and chose not to prevent it (Sturges v Brudgman). b. Must be constant over the period (Lemmon v Webb: overhanging branches not prescriptive). b. Consent: is defence, but not always. a. Kiddle v City Business Properties: tenant took premises in the state they were. Cannot complain of nuisance when gutters overflowed and damaged stock. b. Sturges v Bridgman; Miller v Jackson: no defence that P has come to nuisance. c. Lester Travers v City of Frankston: P s house in between 2 holes on golf course. Not obliged to stay indoors when golf played. c. No fault: nuisance is not strict liability and thus P must prove fault of D. a. If nuisance is result of 3 rd party and D did not know/ought not to have known not liable (Montana Hotels v Fasson). b. R v Shorrock: D liable when lent farm to 3 people for weekend to raise money for special school. Really a acid house party lasting 15 hrs.