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

Standing /title to sue recognised legal right substantial and unreasonable interference

nature of the damagephysical/material damage interference with the use and enjoyment

interference must be substantial interference must be unreasonable

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

Legally Recognised Right

Examples

right to support of land right to support of buildings right to light right to air right of way

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

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

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

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

Factors Taken into Account

locality time duration nature of the activities availability of alternative means motive

Who May be Liable

Owner/occupier person who created the nuisance new owner /occupier

adopting or continuing the nuisance Sedleigh-Denfield v O’Callaghan

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

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.

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

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

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

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

Consent

implied in circumstances where the plaintiff’s premises form part of the defendant’s building

Absence of Legally Recognised Right

plaintiff must have a legally recognised right to protect Elston v Dore

Remedies

injunction discretionary clearest of cases

damages property damage (decrease in value) consequential loss

abatement self-help remedy

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