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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 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