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 damage
physical/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