Monash University Torts LAW1113 Exam Notes: Private Nuisance, Negligence, and Remedies, Exams of Remedies

Download Monash University Torts LAW1113 Exam Notes: Private Nuisance, Negligence, and Remedies and more Exams Remedies in PDF only on Docsity! Torts LAW1113 Monash University S2 2017 Torts 1113 Exam Notes Sample Private nuisance An unreasonable interference with the P’s use and enjoyment of the land Standing to sue In order to sue, the P must be in exclusive possession of land PI with exclusive right to possession of land -owner -tenant (in possession) -reversioner (if the nuisance would affect the reversioner’s interest) -mere licesnsee is not enough (Hunter v Canary Wharf; Oldham v Lawson)You need to show you have a legal interest, an exclusive right to the possession of land Who can be sued A person is held liable if he bears some degree of personal responsibility 1. The creator, or person who authorised the creation of the nuisance (Fennell v Robson Excavations Pty Ltd) 2. Occupier of the land who adopts a nuisance (Senleigh- Denfield v O’Callaghan) Court found they adopted the drainage system of the land for their benefit and that caused a nuisance. Adopting = actively using it 3. Continuing a nuisance Can be passive when continuing a nuisance if occupier knew of it or ought to have known, or they failed to take reasonable steps to end it (Hargrave v Goldman) Unreasonable interference with the land • Material injury to property- physical interference test which says “if it’s not trivial, it is unreasonable” (St Helen’s Smelting Co.) • Damage to sensibilities- test: “Inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to dainty modes and habits of living, but according to plain and sober and simple notions among the English people (Walter v Selfe) a. extent (duration/time/frequency) (Clarey; Seidler v Luna Park) b. locality (Munro v Southern Dairies) c. Sensitivity of the plaintiff (robinson v Kilvert) d. Improper motive (Hollywood Silver Fox Farm) e. Live and let live/ ordinary noises not bad (Clarey) Freedom from view Courts do not protect uninterrupted views (Hunter v Canary) Being observed in the use of one’s premises is not a nuisance (Victoria Park Racing v Taylor) Defences • Statutory Authority (Laster-Traversz) Torts LAW1113 Monash University S2 2017 Legal test: 1. Language used by the legislator must be mandatory, must mandate you to do something 2. Nuisance has to be an inevitable consequence of the act, no other way you can comply with the legislation • Not a defence: Coming to the nuisance (Miller v Jackson) Remedies • Damages: -Compensatory- but only if the damage was reasonably foreseeable (Cambridge Water Co v Eastern Counties Leather) - Exemplary- if D needs to be made an example of for ‘highhanded behaviour’ Reasonably foreseeable at the time the nuisance was created (can only get an injunction, not damages, if this not fulfilled) • Injunctions -Discretionary: (miller v Jackson) injunction denied on balance of interests -(kennaway v Thompson) public interest prevailed over the disturbance caused -(Coventry v Lawrence) Factors to consider when deciding an injunction/damages: -where the injury to the claimant’s legal right is small -where the injury to the claimant can be adequately compensated by a small money payment -where the case is one which would be oppressive to the D to grant an injunction -where the injury to the claimant is capable of being estimated in money • Self-help/abatement Taking action yourself, as long as use of force is not unreasonable