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Private Nuisance. Week 12. 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. Elements of the Action. - PowerPoint PPT Presentation

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  • Private NuisanceWeek 12

  • Private NuisanceAction on the caseindirect interferencesintentional or unintentionalTo protect the use and enjoyment of landrequires proof of damageprotects against physical injury interference with the use and enjoyment of land

  • Elements of the Action Standing /title to suerecognised legal rightsubstantial and unreasonable interferencenature of the damagephysical/material damageinterference with the use and enjoymentinterference must be substantialinterference must be unreasonable

  • Title to SuePlaintiff must have a legally recognised right in the landMalone v Laskeya mere licensee does not have standing to sueHunter v Canary Wharfoverturned Kharasandjian v Bush

  • Legally Recognised RightExamples

    right to support of landright to support of buildingsright to lightright to airright of way

  • Nature of the DamageMaterial/physical damage to the propertySt Helens Smelting Co v TippingHarris v Carnegies Pty LtdHalsey v Esso Petroleum

    Personal injuryBenning v Wong

  • Interference with the use and enjoyment of landHaddon v Lynchno requirement that the interference be continuing or recurrentHargrave v Goldmancausation must be establishedreasonably foreseeable consequences of his/her actionsmay be liable for naturally occurring interferences

  • Substantial InterferenceNot trifling and small inconvenienceinjuries which sensibly diminish the comfort, enjoyment or value of the propertySt Helens Smelting Co v Tippingloss of one nights sleep may be substantialMunro v Southern Dairiesno injury to health required

  • Unreasonable InterferenceDefendant bears onus to prove interference reasonablerule of give and take, live and let liveBamford v Turnleyobjective testinconvenience materially interfering with the ordinary comfort physically of human existenceWalter v Selfe

  • Factors Taken into Accountlocalitytimedurationnature of the activitiesavailability of alternative meansmotive

  • Who May be LiableOwner/occupierperson who created the nuisancenew owner /occupieradopting or continuing the nuisanceSedleigh-Denfield v OCallaghan

  • Defendants Liabilityonus of proofplaintiff establish elements of actionnote plaintiff prove interference substantial and defendant to prove interference reasonabledefendant prove defencescausationdamage foreseeable

  • DefencesStatutory authorityplaintiffs own default or contributory negligence;prescription;plaintiffs abnormal sensitivity; consent; andabsence of any legally recognised right in the plaintiff.

  • Statutory AuthorityStatutory provision may authorise the commission of a nuisancelegislative intentionParliament can abrogate common law rights of the individualimmunity extends to inevitable consequences of authorised activitiesalternative approachreasonable care

  • Plaintiffs Own Defaultcontributory negligenceFault defined as negligence or any other act or omission which gives rise to a liability in tortplaintiff not to benefit from action in nuisance rather than negligence

  • Prescription

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

  • Abnormal SensitivityA 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 tradeRobinson v Kilvert

  • Consent

    implied in circumstances where the plaintiffs premises form part of the defendants building

  • Absence of Legally Recognised Right

    plaintiff must have a legally recognised right to protectElston v Dore

  • Remediesinjunctiondiscretionaryclearest of casesdamagesproperty damage (decrease in value)consequential lossabatementself-help remedy

  • Answering a Question in Private Nuisanceidentify 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; andadvise on remedies

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