MLL213 Study Guide - Final Guide: Personal Injury, Diminution, Miscarriage
24 May 2018
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11 Private Nuisance
A substantial and unreasonable interference with the use and enjoyment of land.
- Material damage, and
- Intangible interferences
Differentiation from trespass to land:
- Covers indirect interferences as well as direct interferences
- No need for a contact with land
PRINCIPLES
The interference must be reasonably foreseeable.
Liability is strict – tort is not based on negligence
Thought f oupies liailit fo uisaes ot eated it.
The interference does not necessarily have to be harmful, nor result in a diminution in the
value of the property.
Personal injury not actionable
MATERIAL DAMAGE
Damage to buildings or chattels on the land that is more than trivial.
- Damage by fire or flood
- Damage by tree roots
- Undermining the support of the land. Kebewar.
- Damage caused by cricket or gold balls
Cambridge Water Co v Eastern Countries Leather PLC (1994) 2 AC 264
• Water was infected. Closed down. Sued company which infected the water.
• Court initially and upon appeal dismissed the case as it was reasonably foreseeable that the
nuisance would occur.
Hunter v Canary Wharf (1997) AC 655
• Hs t sigal as uied the pesee of CWs e uildig. Held that haltig the t
signal, CW was guilty in being a private nuisance.
Marshall v Berndt (2011) VCC 384
• Bs pestiides killed tees ad fish of M. Bs tee oots eae a puli uisae.
• Court held the latter was correct and awarded M $5000 in damages. Former was dismissed.
Lester-Travers v City of Frankston (1970) VR 2
• golf balls hit from the City of Frankston golf course regularly entered into the adjoining
property. As the City of Frankston was in a position to know and should have known and
appreciated the nature and extent of the intrusion of golf balls and taken all reasonable
precautions, an injunction was granted restraining the defendant from permitting persons
playing golf to hit balls on to the plaintiffs popet!
•
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- Damage to paintwork by acid smuts
o Locality of the land is irrelevant
INTANGIBLE INTERFERENCES
Common examples of intangible interferences that are actionable in nuisance:
- Noise, smells, vibrations, smoke and fumes. dirt/dust. Halsey v Esso Petroleum
[1961] 2 All ER 145
- Encroaching tree branches. Lemmon v Webb [1894] 3 Ch 1
- Harassing telephone calls. Khoransidijian v Bush [1993] QB 727
- Planes flying overhead. Dennis v Ministry of Defence [2003] EWHC 793
- Watching and besetting. Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51
- Cricket balls or golf balls hit onto the property. Lester-Travers v City of Frankston
[1970] VR 2
REQUIREMENT FOR AN EMANATION
Nuisance normally protects against emanations from land; not interferences caused by the
mere presence of buildings on the land. Hunter.
Activities of neighbous o thei o popet ot esultig i eaatios ot geeall
actionable. Hunter.
UNREASONABLENESS
Itefeee ust e ueasoale ad seiousl itefee ith ps use ad ejoet of
the lad. Deteied fo the pespetie of the odia ad easoale ladoe.
Ladoes ae epeted to egage i a it of gie ad take.
The uusuall sesitie ladoe is ot geeall poteted eg. Night shift okes.
Considerations to determine with interference is unreasonable: Halsey
- Timing,
Halsey v Esso Petroleum (1961) 2 All ER 145
- oil depot aused oise, foul sells ad aid suts i atosphee that daaged Ps a ad
clothes.
o Damaged car/clothes: nuisance.
o Noise/smell: P must prove unreasonableness of interference.
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St Hele’s Seltig Co v Tippig
• The claimant owned a manor house with 1300 acres of land which was situated a short distance
fo the defedats oppe seltig usiess. He ought 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.
• 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.
Hollywood Silver Fox Farm v Emmett (1936) 2 KB 468
- P (silver fox fae) o agaist D, ho theateed to daage Ps fo eedig shootig
off a gun near breeding stock to frighten them. Breeding vixens are particularly sensitve to
loud noise, which frightens leading to miscarriage and eating their young. D shot off noise.
Held: even though shooting was reasonable, it was done maliciously.
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Document Summary
A substantial and unreasonable interference with the use and enjoyment of land. Covers indirect interferences as well as direct interferences. No need for a contact with land. Cambridge water co v eastern countries leather plc (1994) 2 ac 264: water was infected. Court initially and upon appeal dismissed the case as it was reasonably foreseeable that the nuisance would occur. Thought (cid:272)f o(cid:272)(cid:272)upie(cid:396)(cid:859)s lia(cid:271)ilit(cid:455) fo(cid:396) (cid:374)uisa(cid:374)(cid:272)es (cid:374)ot (cid:272)(cid:396)eated (cid:271)(cid:455) it. Liability is strict tort is not based on negligence. The interference does not necessarily have to be harmful, nor result in a diminution in the value of the property. Hunter v canary wharf (1997) ac 655: h(cid:859)s t(cid:448) sig(cid:374)al (cid:449)as (cid:396)ui(cid:374)ed (cid:271)(cid:455) the p(cid:396)ese(cid:374)(cid:272)e of cw(cid:859)s (cid:374)e(cid:449) (cid:271)uildi(cid:374)g. held that (cid:271)(cid:455) halti(cid:374)g the t(cid:448) signal, cw was guilty in being a private nuisance. Damage to buildings or chattels on the land that is more than trivial.
