LWZ116 Lecture Notes - Lecture 11: Culvert, Colonial Stores, One Canada Square
Lecture 11
Torts
NUISANCE
Private Nuisance is an interference of an indirect or a consequential nature with the use and enjoyment of
land, compared with Trespass which is a direct interference.
•‘Nuisances are caused by an act or omission, whereby a person is unlawfully annoyed, prejudiced or
disturbed in the enjoyment of land.’ Salmond Law of Torts, (17th ed)
•‘an unlawful interference with a person’s use or enjoyment of land, or some right over, or in
connection with it. In Hargrave v Goldman (1963) 110 CLR40, A 100 foot red gum tree on the
defendant’s land was struck by lightning and caught fire. The following morning the defendant
contacted a tree feller to cut down the tree saw it into sections. The wood was still smouldering and
the defendant failed to douse it with water to eliminate the risk of fire. Over the next few days the
weather became very hot and reignited the fire which spread to neighbouring property. Held: The
defendant was liable for the naturally occurring danger that arose on his land as he was aware of the
danger and failed to act with reasonable prudence to remove the hazard.
•‘The very nature of the tort of nuisance is that it is founded on the use of land in such a way as to
diminish the enjoyment of another’s land’. In Octavia Hill Housing Trust v Brumby [2010] EWHC
1793 Ms Brumby, was a tenant of a lower ground floor flat, within a larger block, owned and occupied
by Octavia Housing Trust. She alleged nuisance arising from the Trust's failure to control the anti-social
behaviour of others within common parts — a neighbouring flat and immediately outside Ms Brumby's
bedroom window. She complained throughout a four-year period. The Trust argued that, for a cause
of action to arise, there needed to be more than a mere existence of anti-social behaviour on the
Trust's land and that a mere failure to control the behaviour was not enough. The Court ruling in
favour of Brumby, said, Liability in tort in such cases could be established within the principles laid
down inSedley-Denfield v O'Callaghan (1940), where a person in possession of land can become liable
for the continuation of a nuisance or be seen as adopting the nuisance, originally created by others,
and who failed to take reasonable steps to abate the nuisance.
Examples of Nuisance are Noise, odour, fumes, dust, smoke etc.
Compared to Trespass which is actionable per se, Nuisance requires proof of damage.
Contrast with Negligence - ‘Nuisance is a separate field of tortious liability and not merely an offshoot of
the law of negligence. A nuisance may be caused by an intentional or by a negligent act. Negligence is not
a prerequisite to an action for nuisance. A negligent act may, however, be a constituent element of a
nuisance, or may itself constitute a nuisance.’ Pugliese v National Capital Commission (1977) 79 DLR (3d)
592
ELEMENTS OF NUISANCE - To establish the tort the following elements are required to be established:
1. The plaintiff must have title to sue - the plaintiff must have a possessory interest in land: Oldham v
Lawson (No 1) [1976] VR 654; Malone v Laskey [1907] 2 KB 141
2. There must be unlawful interference with land; In Robson v Leischke (2008) 72 NSWLR 98, ‘Three
kinds of interference are recognised by the law as constituting a nuisance:
1. Causing encroachment on the neighbour’s land, short of trespass;
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Lecture 11
Torts
2. Causing physical damage to the neighbour’s land or building, works or vegetation on it; and
3. Unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or
her land’
In assessing the reasonableness of interference, the courts have traditionally made a distinction between
two types of interference:
1. Interference causing physical damage to land; and
2. Interference with the quiet enjoyment and use of land
St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 64, in this case, The claimant owned a manor house with
1300 acres of land situated a short distance from the defendant’s copper smelting business. He brought a
nuisance action against the defendant in respect of damage caused by the smelting works to their crops,
trees and foliage. There were several industrial businesses in the locality including and alkali works. The
defendant argued that the use of property was reasonable given the locality and the smelting works
existed before the claimant purchased the property. The court held where there is physical damage to
property, the locality principle has no relevance. It is no defence that the claimant came to the nuisance.
Relevant Interests protected in Torts are:
•Support to one’s land and building from the adjoining land, removal of which will give away support
to my land: Pantolone v Alaouie (1989) 18 NSWLR 119 the plaintiff owned a property at No 310, on
which stood a building housing a flat and a restaurant, both of which were tenanted. The defendant
owned vacant land at No 312, on which excavation work was commenced for the purpose of erecting
a building. To this end the defendant engaged an engineer and a backhoe operator. As a result of the
excavation work the building at No 310 collapsed. The plaintiff claimed against the defendant, the
engineer and the backhoe operator.
The Court held that, while liability in nuisance normally attaches to the occupier, it may also be
incurred by someone creating a nuisance on land in the occupation of another. On this basis the
backhoe operator was liable as the creator of the nuisance, but not the engineer, who was held liable
for negligence on the basis of proximity.
•Noise: Sturges v Bridgman (1879) 11 Ch D 852 The defendant ran a confectionary shop which
operated a noisy pestle and mortar. It had done so for over 20 years but had no neighbouring property
so there were no complaints as to its use. The claimant then built a consulting room for his practice as
a physician adjacent to the defendant’s noisy shop. The claimant brought an action in nuisance to
obtain an injunction to prevent the continuance of the noise. The defendant, relying on the
Prescription Act, argued that he had obtained the right to be noisy by operating the noisy pestle for
over twenty years.
Held: The use of land prior to the construction of the consulting room was not preventable or
actionable and therefore it was not capable of founding a prescription right.
•Right of Access: Jeffry v Honing [1999] VSC 337 Justice Hedigan confirmed the traditional right of
farmers to move stock down country roads in Australia. It was a normal, common activity, “coped with
by sensible management of cattle and patient driving by motorists”. On the other hand, he found that
the right of farmers to move stock on roads should not unreasonably interfere with the right of other
landholders to move into and from their property or to use a road.
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Document Summary
Private nuisance is an interference of an indirect or a consequential nature with the use and enjoyment of land, compared with trespass which is a direct interference. Nuisances are caused by an act or omission, whereby a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land. " salmond law of torts, (17th ed) An unlawful interference with a person"s use or enjoyment of land, or some right over, or in connection with it. In hargrave v goldman (1963) 110 clr40, a 100 foot red gum tree on the defendant"s land was struck by lightning and caught fire. The following morning the defendant contacted a tree feller to cut down the tree saw it into sections. The wood was still smouldering and the defendant failed to douse it with water to eliminate the risk of fire. Over the next few days the weather became very hot and reignited the fire which spread to neighbouring property.
