TEAM 11, Applicant Submission
IN THE MOOT NEW SOUTH WALES COURT OF APPEAL
BAKER & McKENZIE NATIONAL INTERVASITY WOMEN’S MOOTING TOURNAMENT
Alain Spivkin
Applicant
and
Bernadette Carroll and Lonely Island Pools Pty Ltd
Respondent
APPLICANT'S SUBMISSIONS:
1.
2.
3.
The trial judge erred in holding that a duty of care was not owed to the Applicant.
The trial judge erred in finding that, as a matter of coherence, the failure of a claim for
negligently inflicted economic loss mean that the claim in private nuisance should also fail.
The Respondents are liable for private nuisance as the Respondents’ interference was
substantial and unreasonable.
THE ABOVE SUBMISSIONS ARE SUPPORTED AS FOLLOWS:
Submission 1:
1. The trial judge erred in holding that a duty of care was not owed to the Applicant.
1.1 The present case falls within an established duty category.
Caltex Oil (Aust) Pty Ltd v The Dredge (1976) 136 CLR 529.
1.2 In the alternative, the salient features test is applicable although, it must be applied
cumulatively. However, one factor may be overwhelming in determining a duty of care.
Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412, 444 [139] (Simpson J).
Sullivan v Moody (2001) 207 CLR 562.
1.2.1 Vulnerability may be considered an overwhelming factor, demonstrating a duty of care.
Woolcock St Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16, [23] (Gleeson CJ,
Gummow, Hayne and Heydon JJ).
Perre v Apand Pty Ltd (1999) 198 CLR 180, [11] (Gleeson CJ), [118] (McHugh J).
1.3 There is a clear assumption of responsibility on behalf of the Respondents. The Respondent’s
guaranteed that the Broadband access would be restored within one or two days.
Hill v Van Erp (1997) 188 CLR 159, 186 (Dawson J).
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
1.4 In the present case, indeterminate liability does not negate the finding of a duty of care.
1.4.1 Means of knowledge to ascertain the class of plaintiffs is sufficient.
Perre v Apand Pty Ltd (1999) 198 CLR 180, [10]-[13] (Gleeson CJ), [109]-[111]
(McHugh J), [213]-[214] (Gummow J).
Caltex Oil (Aust) Pty Ltd v The Dredge (1976) 136 CLR 529, 555-556 (Gibbs J).
1.4.2 If the Respondent has the means to know of a specific individual who is likely to suffer
loss the scope of the liability cannot be indeterminate.
Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021, 1180
(Stevenson J).
TEAM 11, Applicant Submission
1.4.3 In the alternative, the Respondents had the means to know that the Applicant is part of
an ascertainable class hence liability is not indeterminate.
1.4.4 The test for determining the class is to examine those individuals directly affected by the
alleged tortfeasors conduct and likely to suffer a particular kind of loss.
Perre v Apand Pty Ltd (1999) 198 CLR 180, [107]–[109], [143] (McHugh J), [335][337] (Hayne J), [340]- [352] (Callinan J).
Cattanach v Melchior (2003) 199 ALR 131, 141 [32] (Gleeson CJ).
1.4.5 Alternatively, if the test to determine the class is considered to be one of vulnerability,
the class is still determinable, as it would be confined to the estate of Belgravia.
Submission 2:
2. The trial judge erred in finding that, as a matter of coherence, the failure of a claim for
negligently inflicted economic loss means that the claim in private nuisance should also fail.
2.1 Negligence is not a necessary element in nuisance, however fault of some kind is almost
always required and fault generally involves foreseeability.
Goldman v Hargrave (1963) 110 CLR 40, 62 (Windeyer J).
Sedleigh-Denfield v O'Callaghan [1940] AC 880, 904 (Lord Wright).
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967]
1 AC 617, 639 (Lord Reid).
Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258, 262 (Lord Ackner).
City of Richmond v Scantlebury [1991] 2 VR 38, 45 (Kaye J).
Sutherland Shire Council v Becker [2006] NSWCA 344, [119] (Bryson JA).
2.2 The type of fault required varies depending on whether the defendant created the nuisance or
adopted or continued the nuisance.
Robson v Leischke (2008) 72 NSWLR 98, [47] (Preston CJ).
2.2.1 Carroll continued the nuisance as she had actual knowledge of the damage to the
telephone cables and failed to take reasonable measures to remedy the damage.
2.2.1.1 The fault is in the failure to abate the nuisance through reasonable measures
upon becoming aware of the existence of the nuisance and the resulting damage.
2.2.1.1 Carroll duty to eliminate the risk of reasonably foreseeable damage resulting
from the nuisance arises from her knowledge of the existence of the nuisance.
2.2.1.2 It is practicable and reasonable that Carroll’s duty extends to the expeditious
arrangement for the repair of the central telephone cable.
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980]
QB 485, 524 (Megaw LJ).
Robson v Leischke (2008) 72 NSWLR 98, [49], [51]-[53] (Preston CJ).
Sedleigh-Denfield v O'Callaghan [1940] AC 880, 894 (Viscount Maugham), 904-5
(Lord Wright), 913 (Lord Romer).
2.2.2 Lonely Pools created the nuisance through recklessly ignoring the surface signs
indicating the presence of cables and digging to deep.
2.2.2.1 By virtue of the surface signs, Lonely Pools had knowledge that their action
would cause harm to the Applicant, and is therefore liable for the foreseeable
consequences of the harm caused.
Robson v Leischke (2008) 72 NSWLR 98, [48] (Preston CJ).
Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248, [142] (Ward J).
TEAM 11, Applicant Submission
Submission 3:
3. The Respondents are liable for private nuisance as, the Applicant’s use of his property is not
abnormally insensitive and the Respondents’ interference was substantial and unreasonable.
Hargrave v Goldman (1963) 110 CLR 40, 62 (Windeyer J).
3.2 The use of home internet as the sole avenue for conducting business is not an abnormally
insensitive use of applicant’s property.
3.2.1 The law of torts can evolve to match changes in society. As a matter of policy, the use of
home internet as the sole means of conducting business is not abnormally insensitive.
Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436 (Buckley J).
3.2.2 Using home internet for business is a convenience for living according to the standards
of the average person in the third millennium.
Network Rail Infrastructure Ltd v Morris [2004] EWCA Civ 17, [13] (Lord Phillips).
3.2.3 The business of stock trading was no different from any other business activity carried
out using the internet at Belgravia.
Robinson v Kilvert (1889) 41 Ch D 88, 94 (Cotton LJ), 97 (Lopes LJ).
3.3 In the alternative, whether or not the interference was substantial and unreasonable is a
question of fact and a matter of degree, determined by reference to all relevant circumstances.
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 486, 487 (Jordan CJ).
Struges v Bridgman (1879) 11 Ch D 852, 865 (Jessel MR).
3.3.1 The balance of factors outweighs any abnormally sensitive use of the internet by the
Applicant.
3.3.1
It was reasonably foreseeable that the Applicant would lose the ability to conduct
business from his home if the Respondent acted recklessly and failed to remedy
the damage.
McKinnon Industries Ltd v Walker [1951] 3 DLR 577 (Lord Simonds).
Network Rail Infrastructure Ltd v Morris [2004] EWCA Civ 17, [33] (Lord
Phillips).
3.3.2
The specialised nature of Belgravia for proving underground infrastructure for
utilities meant that the loss of any utility was a private nuisance.
Sturges v Bridgman (1879) 11 Ch D 852, 865 (Thesiger LJ).
3.3.3
The guarantee given by the Respondent of fixing the nuisance, and then the
failure to do this, substantiated the nuisance.
Oldham v Lawson (No. 1) [1976] VR 645, 655 (Harris J)
Hasley v Esso Petroleum Co Ltd [1961] 1 WLR 683.
DATED this 13th day of September 2013
Team 11
Counsel for the Applicant