Monday, 1 July 2013

[Torts] Answer Guide to Private Nuisance

Template for Private Nuisance

1.     Private nuisance is any unreasonable (St Helen’s Smelting v Tipping) and indirect (Hunter v Canary Wharf) interference with use and enjoyment of one’s exclusive possession (Malone v Laskey) of land.
a.     Unreasonable interference
b.     Indirect interference
c.     One’s use and enjoyment of land
d.     Exclusive possession
2.     A person must have a legally recognised interest in land, such as being an owner or tenant (Malone v Laskey).
3.     In case of tenants creating private nuisance, a landlord will be liable only if the nuisance was
a.     Expressly authorised by the landlord or
b.     Certain to result from the purposes for which the property was let (Peden v Bortolazzo)
4.     However, a person who creates nuisance not from his/her place may still be liable in private nuisance (Southport v Esso Petroleum).
5.     To be actionable, it is mandatory that the conduct caused unreasonable and substantial interference with one’s use and enjoyment of the land (Munro v Southern Dairies). In Munro, it was held that even a loss of a sing night’s sleep caused by the noise of the dairy could amount to a substantial interference.
6.     Furthermore, in determining whether interference is unreasonable, the courts will (will not) consider:
a.     Triviality (Walter v Selfe)
b.     Give and take (Kennaway v Thompson; Clary v Women’s College)
c.     Hypersensitivity (Robinson v Kilvert)
d.     Locality (St Helen’s Smelting v Tipping)
e.     Time, duration and character of interference (Munro v Southern Dairies)
f.      Moving to nuisance (Campbelltown Golf Club v Winton)
g.     Motive (Christie v Davies)
7.     If there are alternatives which are reasonably practicable and open to the defendant, this may render the means used unreasonable (Halsey v Esso Petroleum).
8.     There are possible defences that a defendant may raise in order to counterclaim the plaintiff’s action in nuisance:
a.     Statutory authority
b.     Plaintiff’s abnormal sensitivity (Robinson v Kilbert)
9.     Remedies may be given such as:
a.     Abatement by self-help
b.     Injunction
c.     Damages

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