Mental

Harm

What harm is Compensable?

Recognisable psychiatric illness

Recognised psychiatric injury

Pure and Consequential Injury.

Historical Development

Requirements of Liability prior to Tame/Annetts

Liability under current Australian common law

11

Comparison with the position in England

14

Other Situations Involving Psychiatric Injury

18

Negligence and Omissions

21
22

Nonfeasance Rule

Nuisance

26

Structure for answers:

26

Private Nuisance

27

Unreasonable Interference

28

Title to Sue

28

Who may be liable?

29

What is unreasonable interference?

33

Damage/ Interference

35

Propriety Right

37

Structures on and emanations form the Ds property

38

Material

40

What is Unreasonable

40

Locality

40

Extent and Intensity

41

Duration, time and frequency

41

Undue Sensitivity of the plaintiffs utility

42

Malice

43
1

Private Nuisance - Remedies

50

Remedies

54

Mental Harm
What harm is Compensable?

Recognisable psychiatric injury, Recognised psychiatric injury, pure and consequential

psychiatric harm
Terminology: Psychiatric Injury/illness, Mental harm, Nervous Shock
Psychiatric harm consequential on (and in breach of duty to prevent) physical injury:
Under common law fully compensable (subject to remoteness); but see now s5T CLA 2002
(WA)
Psychiatric harm not consequential on physical injury (=pure psychiatric harm): Only
compensable where it amounts to a recognisable psychiatric illness.

Recognisable psychiatric illness

Reasonable foreseeability of the psychiatric injury, that which is not far fetch or fanciful
Sudden shock and direct connection are no longer preconditions for duty being owed (if
relationship between the plaintiff and victim is sufficiently close) but can be considered.

Harm required by courts was a recognisable psychiatric injury inflicted by traumatic shock

Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 394-5
Facts: plaintiff helped injured employees who were badly burnt in an electric fire and
suffered nervous shock. He developed schizophrenia (a recognised mental illness) and sues
his employer
Held:
The duty of care owed was to provide a safe working environment, the question was one of
remoteness of damage, was nervous shock the kind of damage that is foreseeable?
Differentiated from mere sorrow or actual distress, sorrow does no sound in damages,
cannot recover shock no matter how serious, however shock can be the starting point for a
lasting illness for which (it if was a result of a tortuous act) may be recoverable.
at 394 per Windeyer J, quoting Lord Denning from Hinz v Berry Damages are recoverable
for nervous shock, or, to put it in medical terms for recognisable psychiatric illness caused by
the breach of duty by the defendant

In establishing whether a duty of care exists it must be determined whether it is reasonable to have
required the defendant to have foreseen the risk of shock-induced psychiatric injury. Reasonable
foreseeability requires the injury is not far-fetched or fanciful. Sudden shock is not an absolute
requirement.

Tame v New South Wales, Annetts v Australian Stations Pty Ltd [2002] HCA 35 , (2002) 211 CLR 317 at
[168]-[185], [192]-[195], [285]-[297]
Facts: Tame: a police office gave a blood alcohol test to the plaintiff after she was involved in a motor
vehicle collision. The test showed that she had not alcohol in her blood at all, but the police officer
mistakenly recorded the reading as 0.14. Although the error was corrected within a month, the
plaintiff became obsessed by the mistake and developed a psychotic depressive illness, worrying that
people would think that she had been heavily drinking before the accident. She sued the state of NSW,
the police officers employer, alleging that she had suffered emotional harm as a result of his
negligence in recording the test results. Annetts: the plaintiffs suffered an entrenched psychiatric
condition after their son died while working as a jackaroo on the defendants cattle station. They had
been assured by the defendant that their son would work under constant supervision and would be
well looked after but he was assigned to work alone at a remote station. He died of dehydration,
exhaustion and hypothermia after his car became bogged in the desert. The parents sued the cattle
station owner, alleging that their psychiatric condition was caused by its negligence.

Held: The HC heard both appeals together. By a majority of six to one, it held that liability for damages
for psychiatric harm was not limited to cases where the harm was caused by a sudden shock arising as
a result of direct perception of a distressing event or its immediate aftermath.
Where the plaintiffs response to the defendants conduct is so extreme of idiosyncratic as to render
the risk of that response far-fetched or fanciful, the law does not require the defendant to guard
against it.

|The plaintiff is considered to be of normal fortitude unless defendant knew or ought to know
that a plaintiff was abnormally sensitive to risk. Normal fortitude is a convenient means of
determining whether a risk of psychiatric injury is foreseeable, but a duty might arise if the
plaintiff is particularly sensitive.
Foreseeability of the type of injury is not required, all forms of psychiatric injury are
considered to be harm of the same kind
No need for sudden shock requirement, because even though cases of protracted suffering
may raise difficult issues of causation and remoteness of damage, these are better dealt with
by reference to the principles rather than absolute denial.
The court held unanimously that the plaintiffs appeal in Tame should be dismissed, because
the psychiatric injury suffered by the plaintiff was not reasonably foreseeable.
The court held unanimously that the plaintiffs appeal in Annetts should be allowed, because
the relationship between the defendant and the plaintiffs was such that the defendant owed
the plaintiffs a duty of care. The majority thought that the absence of sudden shock did not
affect the result.

Recognised psychiatric injury

General Principles
4

Psychiatry recognises a distinction between mere mental distress and psychiatric illness,
although the distinction between the two is a matter of degree rather than kind, and as
medical knowledge advances, changes over time.
Problems: the distinction between mere distress and psychiatric illness is a matter of degree
rather than kind and may change with improved medical knowledge and there is
uncertainty as to what extent clinical criteria for assessing whether a person has suffered a
recognised psychiatric injury are suitable in a legal context.
Examples of psychiatric injury: Post-traumatic stress disorder (PTSD); reactive depression
Examples of mental distress: Sorrow, grief, distress, anxiety, fear, embarrassment

Pure and Consequential Injury.

Consequential psychiatric injury: Harm suffered as a result of physical injury under common law
fully compensable (subject to remoteness. Under CLA only compensable if recognised psychiatric
illness

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 (CA)

Facts: There was a collapse of a couples dream house which lead to psychiatric illness and
break up of a marriage.

Held:
Damages recoverable.

Civil Liability Act 2002 (WA), S5T Liability for pecuniary loss for consequential mental
harm

A court cannot make an award of personal injury damages for pecuniary loss for consequential
mental harm unless the harm consists of a recognised psychiatric illness.

Pure psychiatric injury: Plaintiff only suffers mental harm, eg. As a result of witnessing a traumatic
event, no physical injury. Only compensable when it amounts to a recognisable psychiatric illness

Reasons for reluctance to compensate (pure) psychiatric injury

psychiatric harm is less likely to be tangible: more open to error in diagnosis, to

fabrication or exaggeration; more difficult to establish a causal link between defendants
fault and injury
litigation may pose disincentive to rehabilitation
unrestricted recoverability poses risk of greatly increased and possibly indeterminate
liability
liability may impose an unreasonable or disproportionate burden on defendant
with limits on resources, it is more important to compensate victims of physical injuries

Historical Development

No recovery for pure psychiatric damage. Nervous shock, unaccompanied by physical injury
was too remote a consequence of a negligent accident, to result in damages

Victorian Railways Commissioner v Coultas (1888) 13 App Cas 222

Facts: the woman victim suffered shock which caused her pregnancy to miscarriage, no
physical injury.

Held:
Privy council denied liability because the woman suffered no physical harm, found that it
was too remote
Early cases saw nervous shock cases decided on the principle of remoteness.

Fear of injury to oneself (primary victim cases) For the first time accepted that if the plaintiff
fears for their own safety, but escapes physical injury, the defendant is under of duty of care to
protect against psychiatric injury

Dulieu v White & Sons [1901] 2 KB 669

Facts: Carriage driven by negligently into a pub, plaintiff feared for safety and suffered
psychiatric shock.

Held:
Court found that liability was based on shock arising from immediate fear of injury to oneself
even though there was no physical impact.

Fear of injury to another (secondary victim cases) Plaintiff outside of the zone of danger, but
others were in danger, this was found to be sufficient enough to warrant a duty of care

Hambrook v Stokes Bros [1925] 1 KB 141

Facts: Plaintiff took her children o school, was out of sight (narrow road), truck rolled down
road and plaintiff saw the accident had occurred and was told that a girl matching her
daughters description was injured.

Held:Found by the jury that the immediate shock experience by the plaintiff was out of fear
for safety of her child.
Court held that the plaintiff (to recover) had to be present at the scene of the accident
It was also held that the plaintiff had to be a close relative of the victim, one of the judges
commented it may be possible to extend this to bystanders of an accident, hence the plaintiff
could recover damages.

The plaintiff must be reasonably foreseeable Liability based on foreseeability of nervous

shock to the particular plaintiff (but restrictive and policy based interpretation)

Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1

Facts: son playing in an area and fell into a trench. The mother was around when they were
pulling the child out of the trench and it caused her psychiatric injury.

Held:
Court held that this was not a reasonably foreseeable result, that the woman would suffer
these injuries.
The dissenting judgment by Evatt J, stated that it was clearly reasonably foreseeable that the
bond between mother and child would be such that this reaction would be a reasonably
foreseeable one. This is now considered the correct judgment, and the case might be decided
differently now.

Bourhill v Young [1943] AC 92 (HL)

Facts: The plaintiff was a fishwife who was 8 months pregnant who was retrieving a basket
from the seat of a tram. Cyclist on the opposite side to tram was hit by a car and died. Plaintiff
did not see the accident but heard it and then saw the blood on the motorist.

Held: HOL found she was not a person whom the defendant owed a duty of care, nor could
she build a case on the defendants duty to another.
Shows that the relationship between the victim and the plaintiff had to be more than a
bystander.

Requirements of Liability prior to Tame/Annetts

Pre-existing Relationships between plaintiff and defendants
If duty of care was owed due to a pre-existing relationship (eg employer-employee),
recoverability was treated as a question of remoteness

Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Facts: as a result of helping out, unsuccessfully, the co worker developed psychiatric illness

Held:Plaintiff was successful
The case was different to previous cases because the co-worker was not directly related to the victim,
but here the relationship was between colleagues.
The question that the HC had to answer was whether the harm was foreseeable in the circumstances?
If the shock was foreseeable to the employer then the plaintiff could recover.
The case was distinguished from pervious cases, because it needed to be established that a duty of
care was owed. The relationship was one of employer/employee which is an established relationship.
The reason that this was disputed in the HC was because there was an issue of whether they owed a
duty for this kind of harm, remoteness.

In the event of purely psychiatric loss in the absence of pre-existing relationship of

plaintiff and defendant, liability depended on Reasonable foreseeability of nervous shock
and proximity of relationship between plaintiff and defendant

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549

Facts: Plaintiff suffered injuries on seeing her husband in hospital after he was involved in a
car accident. Her perception of the injuries (and their extent) was changing over a period of
weeks. Kind or type of damage must be foreseeable (injury by shock) and the plaintiff must
be reasonably foreseeable.

Held: This case suggests that we must look to the proximity of relationship between the
plaintiff and the defendant. Then we must look to the closeness of the relationship between
the plaintiff and the primary victim.
In this case Jaensch witnessed the immediate aftermath (which included surgery etc) she
was not present at the scene of the accident. The duty was extended to this presence as well.
She was therefore owed a duty of care.
Factors used to determine proximity: Normal fortitude, shock-induced injury, direct
perception of event or its aftermath, particular relationship between plaintiff and accident
victim

Relevance of normal fortitude?

Plaintiff does not need to be a person of normal fortitude to be able to recover but:
Issue of duty of care is to be determined upon the assumption that he is of a normal standard of
susceptibility, unless:
Plaintiffs extraordinary susceptibility is known to defendant
Plaintiff belongs to a class for which event has a special significance which foreseeably
heightens susceptibility (eg parent who witnesses child being injure in a road accident)

(Brennan J in Jaensch v Coffey)

The need for shock induced injury
A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently
inflicted on him by the defendant or if it is induced by shock. Psychiatric illness caused in other
ways attracts no damages[] (Brennan J in Jaensch v Coffey at [561])
On the other hand: [The requirement for nervous shock] is entirely artificial Psychological
injury is a much more complex process. It is rarely (if ever) explicable as the result of an isolated
shock. (Kirby J in Campbelltown City Council v Mackay (1989) 15 NSWLR 501, 504 (CA)).
Arguments for retention of sudden shock requirement: Would open floodgates for litigation;
Proof of causation too difficult.
Arguments against retention: Not in accord with medical opinion on how psychiatric injury is
incurred; harsh effect for carers of accident victims; Unfair discrimination between different
types of psychiatric illness.

The need for direct perception of the distressing event or its immediate aftermath
A psychiatric illness induced by mere knowledge of a distressing fact is not compensable;
perception by the plaintiff of the distressing phenomenon is essential. (Brennan J in Jaensch v
Coffey (1984) at 566)
The shock must come through sight or hearing of the event or its immediate aftermath.
Whether some equivalent of sight and hearing, eg. Through simultaneous television, would
suffice may have to be considered. (Lord Wilberforce in Mcloughlin vOBrian (1983) at 305.)
On the other hand: The question whether the requirement of proximity precludes the recovery
in a case where reasonably foreseeable psychiatric injury is sustained as a consequence of being
told about the death or accident remains, in my view, an open one. (Deane J in Jaensch v Coffey
(1984) 125 CLR 549 at 561)
Main arguments for retention of direct perception: Relative certainty of law; No pressing policy
need for extending liability.

10

Main arguments against retention of direct perception: Witnessing an event is not necessarily
more traumatic than being told; Emotional involvement is more relevant than physical
presence; What about cases where plaintiffs notification is delayed?; What about cases where
there is no aftermath?

The need for a particular relationship to the victim

Originally, only close relatives and rescuers could recover damages for nervous shock
(cf. Windeyer J in Mount Isa Mines v Pusey (1970) 125 CLR 383 (holding a different
view)).
Position from Jaensch v Coffey: : no authoritative statement as to whether a particular
relationship is a separate requirement (of proximity) or merely part of the inquiry as to
whether nervous shock was reasonably foreseeable.
While the relationship of the plaintiff with the threatened or injured person [] may
well be of critical importance on the question whether the risk of mere psychiatric
injury was reasonably foreseeable in a particular case, the preferable view would seem
to be that a person who has suffered psychiatric injury as the result of contemporaneous
observation at the scene of the accident is within the area in which the common law
accepts that the requirement of proximity is satisfied regardless of his particular
relationship with the injured person (Deane J in Jaensch v Coffey (1984) 125 CLR 549 at
561.

Liability under current Australian common law

The High Court decision in Tame/Annetts

General Principles:

Duty of care: A duty of care is established or denied on the basis of the ordinary
principles of the law of negligence, ie Lord Atkinss neighbourhood principle.
A duty of care is owed to persons who are so closely and directly affected by my act that
I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called into question.

11

Tame v New South Wales, Annetts v Australian Stations Pty Ltd [2002] HCA 35 (5
September 2002), (2002) 76 ALJR 1348
Facts: Two situations: Mrs Tame and the Annetts.
Mrs Tame: police officer reported a wrong blood alcohol reading and she became aware of
this she became obsessed by this. She suffered a psychiatric illness. What was different in
this case was that unlike traditional physiological harm cases; where there is usually
someone physically injured and a person close to them suffer mental harm as a result. In this
case as a result of a particular circumstances and a particular vulnerability she was unable to
deal with the situation.

Annets: a 16 year old boy went to be a jackaroo in the outback. The parents asked whether
he would be supervised at all times, they said that he would be. 7 weeks later he was sent to
work alone on a remote property, at some point in time he and another worker went out into
the outback in a jeep and became bogged. It took a long time to find the body. This was
different to other previous cases because there was no direct perception of the harm on the
primary victim, it was not a sudden event it was protracted over time and this elongated the
parents grief.

Held: HC said that the factors used to determine proximity that had been used up to this time
could sometimes lead to unjust results.
The court said that you need to go back to the reasoning in the decision in Donoghue v
Stevenson.

Appeal in Tame failed because: Person of normal fortitude would not have suffered
psychiatric injury in the circumstances
Possibility of conflict between duty of police to investigate crime and a duty to prevent
mental harm from a person under investigation
Risk of incoherence between law of negligence and law of defamation.

Appeal in Annetts succeeded because: Parents were in an existing relationship with
defendant because of undertaking to take quasi-parental care.
It was reasonably foreseeable that parents of normal fortitude would suffer mental harm in
the circumstances.

Question: is it reasonable to require the D to have in contemplation the risk of

psychiatric injury to the plaintiff and to take reasonable care to guard against such an
injury?
12

What is the relevance of reasonableness?: The conduct of the defendant the defendant
needs to take reasonable care; the courts must also be reasonable in imposing a duty of
care the court should not extend a duty to that which is considered outside the publics
wants
The previous control mechanisms are not preconditions of a duty being owed but are to
be considered in this context. People can use these to regulate their conduct, and
whether they should have the plaintiff in contemplation. It is at this point that you use
these factors:
Normal fortitude of plaintiff
Sudden shock
Physical and temporal proximity to the distressing event
Relationship between plaintiff and immediate victim

Relevance of Normal Fortitude

Majority: Normal fortitude of a plaintiff is not a precondition of liability but standard of normal
fortitude assists in assessing whether the risk of psychiatric injury was reasonably foreseeable.
It is unreasonable to expect others to take precautions where only particularly vulnerable
people are at risk.
Same rule applies to duty of care to prevent physical injury.
Exceptions: Pre-existing relationship between plaintiff and defendant; or Defendant knew or
out to have known of special susceptibility of plaintiff (or class of persons plaintiff belongs to)
Minority: consider requirement of normal fortitude as a separate rule:
Duty of care only where: Defendants conduct would have caused a person of normal fortitude
to suffer nervous shock and Likelihood of nervous sock to person of normal fortitude was
foreseeable.

Relevance of Sudden Shock

Sudden shock is not a precondition for recovery.
Where prolonged suffering gives rise to difficult questions of causation and remoteness, these
issues should be dealt with in that context. Gummow and Kirby JJ at [210].
[A]bsent circumstances giving rise to a sudden shock, the risk of psychiatric injury will not be
reasonably foreseeable in many cases. Gaudron J at [66]

Relevance of Direct Perception

Lack of direct perception does not preclude recovery: But relevant where the nature of the
relationship is not that of parent and child Gleeson CJ at [18].
13

Distance in time and space from a distressing phenomenon, and means of communication
or acquisition of knowledge concerning that phenomenon, may be relevant to assessing
reasonable foreseeability, causation and remoteness of damage in a common law action for
negligently inflicted psychiatric illness. But they are not themselves decisive of liability.
Gummow and Kirby JJ [at 225]

The High Court decision in Gifford v Strange Patrick Stevedores Ltd: Relevance of the
relationship between the plaintiff and the immediate victim

Relationship of parent and child is important in two respects: Foreseeability of psychiatric injury
Gifford v Strang Patrick Stevedores Pty Ltd [2003] HCA 33; (2003) 198 ALR 100
Facts: Parent killed due to defendants negligence, wife and children suffered psychiatric
injury

Held:HC held that not all parents and children have a close relationship; however defendant
should be reasonably aware that there will be ties of love and affection in some and
psychiatric injury may be likely.
Wife failed because she couldnt prove a recognisable psychiatric injury (she was in the class
of plaintiff and didnt need to prove direct perception hence would have been successful if
she could prove injury -1994 statute).
Children do not come under the statute (required direct perception) court decided the
common law was not superseded by the legislation (existed side by side), hence no need to
prove direct perception in all cases.
Children were shown to be owed a duty of care, due to relationship involved, that is they
were a class that was reasonable foreseeable. Reasonableness of recognizing a duty of care
on part of defendant: If it is reasonable to require any person to have in contemplation the
risk of psychiatric injury to another, then it is reasonable to require an employer to have in
contemplation the children of an employee.
and reasonableness of recognizing a duty of care on the part of the defendant

Comparison with the position in England

General Principles:
Distinction between primary victims and secondary victims

14

Primary victims
Those who are involved in the event causing psychiatric injury mediately or immediately as
participants- Alcock
Those within the range of foreseeable physical injury- Frost
Where defendant owes primary victim duty of care not to cause physical injury, defendant may
be liable for psychiatric injury even if it is not itself foreseeable- Page v Smith

Page v Smith [1996] AC 155 (HL)

Facts: Primary victim case, minor car accident aggravating pre-existing chronic fatigue
syndrome.

Held:HOL held that where the plaintiff is a primary victim, that is, threatened with physical
injury, the requirement of reasonable foreseeability of mental injury does not apply.
Their prior stance was that for the purposes of foreseeability the plaintiff is assumed to be a
person of normal fortitude was therefore reversed, but the HOL specified that this
requirement applied only to secondary victims.

Secondary victims

no more than the passive ad unwilling witness of injury caused to others Alcock
Must show:
that psychiatric injury is reasonably foreseeable in persons of normal fortitude;
close tie of love and affection with immediate victim; closeness in time and space to the
incident or its aftermath;
direct perception of the incident or its immediate aftermath (rather than hearing about it
from somebody else)

15

Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 (HL)
Facts: Police allowed excessive numbers of people into a section of a soccer ground causing 95 people
to be crushed to death and many others injured, it was televised live and family members and friends
suffered shock. The individuals filmed were not recognisable. The plaintiffs were parents, brother-inlaw, fianc and friend. There was a breach of negligence to the primary care, each plaintiff suffered
psychiatric injury and the causal link was when the plaintiff had become aware of injury to the
primary victim. The issue was whether the defendant owed a duty of care to the plaintiff concerning
the type of injury concerned.

Held: At first instance most cases were successful, on appeal both CA and HOL found for the defendant.
HOL was will to extend the category of people able to claim (ie beyond parent, spouse, child) to a
loving/caring relationship (dependant on the case), but they rules out those that saw disaster on TV or
learnt from means other than direct perception (being at the scene or aftermath). Aftermath was
defined very narrowly in this case. The brother and brother-in-law (who were at the ground) were
found not to have the requisite relationship.
Proximity- presence at the ground was sufficient, applied strict 2 hour limit, a plaintiff failed (despite a
close relationship) because they arrived 7-8 hours later at the hospital (too far beyond aftermath).
Bystander issue was not completely rule out, has not been recognised in cases following this.
The test is reasonable foreseeability of nervous shock and proximity. Proximity requires closeness of
relationship, physical/temporal proximity to the accident or immediate aftermath, equated to direct
perception. The plaintiffs failed because they either lacked the physical/temporal proximity or were
unable to see relatives on TV.

Rescuers
Originally, defendant seemed to have owed a duty of care to rescuers because of their position-
Chadwick v British Transport Commission: injury as a result of horror of his experience
Now, rescuers can only recover where they expose themselves to physical danger or reasonably
believe to do so (but no need that perception of danger cause psychiatric injury) White v Chief
Constable
Rescuers are not in any special position in relation to liability for psychiatric injury White v
Chief Constable this can be contrasted to the dissenting judgment in the same case which said
involvement in aftermath sufficient to make rescuer primary victim.
Australian Law: Mount Isa Mines v Pusey: unclear whether plaintiff was owed a duty because he
was employee of the defendant or rescuer or combination of both.

16

White v Chief Constable of South Yorkshire Police [1998] UKHL 45, [1991] 1 All ER 1
(HL) [sub nom Frost v Chief Constable [1991] 2 AC 455]
Facts: police officers some on duty at the time of event, others who were off duty arrived for
the aftermath. The plaintiff was not successful; court found there was no duty of care owed
to employees not to cause psychiatric injury. In this circumstance, apply the ordinary rules of
negligence. Rescuer argument not successful-requirement (in respect of rescuers), that they
must be exposed to, or have a reasonable belief they are exposed to, danger to themselves.

Held:Reluctant for these plaintiffs to succeed when the plaintiffs in Alcock were unsuccessful
(policy), also reluctant to continue expanding liability for psychiatric injury. The application
of the psychiatric injury net (requirements) often seem unjust due to its rigidity.

CLA

Pure Mental Harm

Pure psychiatric harm S5S(1), (2) and (4)
General Principles:
Duty of care does not arise unless

Reasonable foreseeability of psychiatric illness

To a person of normal fortitude
In the circumstances of the case, including:
Whether mental harm suffered as a result of a sudden shock
Whether plaintiff witness, at the scene, a person being killed, injured or put in peril,
Nature of the relationship between the plaintiff and the person being killed, injured or
put in peril
Pre-existing relationship between then plaintiff and the defendant
This is not a restrictive list, only a starting point can go further.
Concept of normal fortitude: is this a different concept to that in Tame/Annetts. It is not
one of the criteria among many; it is the basis of the enquiry. Some people argue that
this is more in line with the minority judgment in Tame/Annetts.. If the defendant knew,
or ought to know the plaintiff cant fail on this factor.

17

What about the defendants knowledge of the plaintiffs fortitude or otherwise? Can court
take into account that employer knows that one of their employees is particularly
prone? S(4) says it can be considered, the court is not required to disregard it.
How does the second subsection tie in with the first? The first asks was there a duty in
light of the circumstances, and subsection 2 outlines some circumstances that might be
considered, but may not be a restrictive list.
The harm that must be proved under the legislation is recognised as opposed to CL
position of recognisable: was this a policy shift or a drafting error? Differences in
medical science, there is no case law on the subject.

Consequential Mental Harm

Consequential Mental Harm S5S(1), (3) and (4)
General Principles:
Duty of care does not arise unless
Reasonable foreseeability of psychiatric illness
To a person of normal fortitude
In the circumstances of the case, including the personal injury suffered by the plaintiff (not
exhaustive list)

No damages for economic loss for consequential mental harm unless the harm consists of
a recognised psychiatric illnessThis limits recovery by defining the illness as recognised,
and adds the normal fortitude requirement, policy issues limit the plaintiffs recovery.

Damages for non-economic loss (eg pain and suffering) not effected.

This section covers liability for pecuniary loss for consequential mental ham.
If someone suffers a psychiatric injury after a personal injury that lose their ability to earn,
they will only be compensated for a recognised psychiatric illness
You wont be able to get damages for a loss of earnings, or any other loss, is merely the
result of being upset and distressed, which falls short of being a recognised psychiatric
illness, you cant get damages for losses caused by that particular harm.
This deals only with pecuniary loss, and this does not include pain and suffering, you will
still be compensable for physical harm.
This does not have a particularly wide scope of application

Other Situations Involving Psychiatric Injury

18

Psychiatric Injury Through Bad News

General Principles:
There is no duty in law to break bad new gently or to do nothing which creates bad news
Windeyer J at 407 Mount Isa Mines v Pusey
But not: In Tame and Annetts Kirby and Gummow JJ noted:
Reiterate that there can be no legal duty to breach bad news gently, at [228)
leave open whether there can be liability for carelessly inaccurate information, at [229]
doubt whether there can be no liability against person who creates bad news, at [230]

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 (CA)

Facts: the plaintiff suffered psychiatric injury as a result of the collapse of their dream home.
The house was badly built and it collapsed. The plaintiffs were a young couple, the overall
anxiety caused by the event created the psychiatric injury.

Held:Action for tort of nervous shock failed: parties accepted that shock was a necessary
precondition of liability; CA found that the plaintiff did not suffer shock.
But the plaintiff could recover damage for psychiatric injury, vexation and distress as part of
the consequential loss in action for negligent damage to property: if psychiatric injury caused
by defendants negligence and if the plaintiffs injury as a result of the collapse of dream home
was reasonable foreseeable (not too remote)

Psychiatric Injury Following Damage to Property

Work stress cases

General Principles:
In cases of work stress, it is critical to define the extent of the employers duty of care. For this
the contractual relationship and relevant statutory duties and general law need to be taken into
account.
Central issue is reasonable foreseeability of the risk of the psychiatric injury to that particular
employee

19

Koehler v Cerebos (Australia) Ltd [2005] HCA 15

Held:Here no duty was owed because the plaintiff had (contractually) agreed to the work
(less significant reason), and
Defendant had no reason to suspect that she would suffer psychiatric injury or that she was
particularly vulnerable.

Where the Defendant is the Immediate Victim

General Principles:
A duty of care is not negated simply because the primary victim is the defendant (contract
FAI Insurance Co Ltd v Lurie [2000] NSWCA 346, (2000) 50 NSWLR 261
Held: The duty of care in this case was based on the immediacy of the plaintiffs involvement
in the accident (ie the fact that the plaintiff was an unwilling participant in the event which
cased the defendants death).
Deane J in Jaensch v Coffey, obiter)

20

Negligence and Omissions

As a general rule the law does not impose liability on people for failing to assist a person who
has sustained an injury or loss or to take steps to prevent a person from sustaining an injury or
loss.

As Gummow J stated in Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761 @
767 whatever its scope, a DOC imposes an obligation to exercise reasonable care; it does not
impose a duty to prevent potentially harmful conduct.

For a duty to act to arise, there needs to be some additional factor present, such as the D
actually inflicting the injury on the P, the D controlling the land on which the plaintiff and the
defendant (eg employer-employee).

Stonvin v Wise [1996] AC 923 discussed the general absence of a duty to act to prevent injury
to others; the recognised legal position is that the bystander does not owe the drowning child
or the heedless pedestrian a duty to take steps to save him. Something more is require than
being a bystander. There must be some additional reason why it is fair and reasonable that one
person should be regarded as his brothers keeper and have legal obligations in that regard.

Misfeasance:
Performing a legal act in an illegal manner, or failing to properly perform a legal act /
performing a wrongful act by affirmative action, as opposed to a failure to act.
Malfeasance:

the doing of a wrongful act, whether a tort or a crime. Malfeasance may be contrasted
with nonfeasance which is the failure to do an act that a person is under a legal duty to
do: Gorringe v Transport Commission (Tas) (1950) 80 CLR 357

Nonfeasance: failure to do an act that a person is under a legal duty to do. The general rule is
that a person is not under any positive obligation to do any act or thing to prevent loss or
damage to a third party, even where it is inevitable that if the person does nothing, loss or
damage will be suffered by the third party.

21


Nonfeasance Rule
Modbury Triangle Shopping Centre Pty Ltd v Anzil
The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in
the absence of some special relationship, the law does not impose a duty of care to prevent
harm to another from the criminal conduct of a third party even if the risk of such harm is
foreseeable. The possibility that knowledge of previous, preventable criminal conduct, or
even threats of such conduct, could arguably give rise to an exceptional duty, appears to have
been suggested in Smith It suffices to say two things: first, as a matter of general principle,
such a result would be difficult to reconcile with the general rule that one person has no legal
duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the
situation postulated

Rationale for the Rule
Personal autonomy: Stuart v Kirkland Veenstara (2009)

Political moral and economic rationales: Stovin v Wise (1996)

Mere foreseeability insufficient: Sutherland Shire Council v Heyman (1985)

Effect of the Rule
Generally Ds do not have to act to save Ps
Hargrave v Goldman: the law casts not duty upon a man o go to the aid of another who is in peril
or distress, not casue by him. The call of common humanity may lead him to the recue. This the law
recognises for it give the rescuer its protection when he answers that call. But it does not require
that he do so. There is no general duty to help a neighbour whose house is on fire. @ 66

Assumption of Responsibility
Brennan J in Sutherland Shire v Heyman referred to circumstances where a duty to act positively
arise:
1) undertaking of some task which leads another to rely on its being performers
a. teacher who takes child to beach, under duty to save
b. lifesaver: Swain v Waverly Muncipal (DOC to swimmers not an issue, issues
breach and casuation)
22

c.

police officer who takes care of an accident scene, could be under an

obligation to supervise carefully even without specific reliance: Ansett
Transport v State of NSW (1998)
d. police could be liable when with statutory power to detain under mental
health legislation, they failed to prevent suicide after they had entered the
field : Kirkland-veenstra v stuart (2008)

Reliance of the plaintiff on the D to take a positive action
Amaca v NSW (2004)
(a)
Generally, a public authority, which is under no statutory obligation to exercise a
power, owes no common law duty of care to do so.
(b)
An authority may by its conduct, however, attract a duty of care that requires the
exercise of the power.
(c)

Three categories are identified in which the duty of care may so be attracted.

(i)

Where an authority, in the exercise of its functions, has created a danger.

(ii)
Where the particular circumstances of an authoritys occupation of premises or
its ownership or control of a structure attracts to it a duty of care. In these cases the
statute facilitates the existence of a duty of care.
(iii) Where a public authority acts so that others rely on it to take care for their
safety.
Creating a Danger
SB v New South Wales (2004) 13 VR 527; [2004] VSC 514
A duty of care will be imposed where an authority having created or increased the risk of
foreseeable damage, then fails to exercise its statutory powers to prevent the damage. Where
the authority has used powers in a field of activity and has thereby increased the risk of harm, a
duty of care will ordinarily be attracted

Occupation of Land
McHugh J said in Cole v South Tweed Heads Ruby Club: like employers, teachers, profession
persons, guardian, crowd controller, security gaurds, jailers and others who had RIGHTS OF
CONTROL OVER PERSONS, property or situations, the duty owed by clubs to those to whom the
duty is owed. It may extend from the giving of advice and warnings to the forcible ejection from
the premises of one or more of those present

Hargrave v Goldman (1963) 110 CLR 40; [1964] ALR 377 (HCA)
Liable for not staying and making sure fire was put out. (tree caught fire 30 mts
up, had it cut down, in process another tree caught on fire. Owner left before logs
were complete out, ended up being catastrophics fire, spread to neighbours land
200km away)
Goldman v Hargrave (1966) 115 CLR 458; 40 ALJR 182 (HL)
Nagle v Rottnest Island Authority (1993) 177 CLR 432
23

Romeo v Conservation Commission (NT) (1998) 192 CLR 431

Duty to warn where risk is not ovbious. But also balance against the fact that the
ridge of rock was ovbious. Cant ruin the natural beauty of the place by putting
signs everywhere,
Club Italia () (Inc) v Ritchie (2001) 3 VR 447Geelong
Duty to warn: cop was assaulted by drunk patron.

Reliance on public authority

Mercer v South Eastern & Chatham Railway Companies' Managing Committee [1922] 2 KB
549

Special relationships

Employer / employee
Mt Isa Mines v Pusey
Teacher / student
Richards v Victoria [1969] VR 136
Parent / child
Robertson v Swincer (1989) 52 SASR 356

Control of Children
Smith v Leurs (1945) 70 CLR 256; [1945] ALR 392
It is, however, exceptional to find in the law a duty to control anothers actions to prevent harm
to strangers. The general rule is that one man is under no duty of controlling another man to
prevent his doing damage to a third. There are, however, special relations which are the source
of a duty of this nature. It appears now to be recognised that it is incumbent upon a parent who
maintains control over a young child to take reasonable care so to exercise that control as to
avoid on his part exposing the person or property of others to unreasonable danger.
Control of the conduct of others
Modbury Triangle Shopping Centre v Anzil
it is rare for the law to fin a duty to control the conduct of a third persons in the interest of
the P must be a special relationship to find such a duty.
L v Commonwealth (1976) : P was putin a cell with 2 prisoners known to have a history of
violence. P was sexually assaulter and injured. The D had a DOC to the P to keep prisoners safe.

Good Samaritans
Civil Liability Act 2002 (WA)

Section 5AB

Section 5AD

24

25

Nuisance
Structure for answers:
a)
b)
c)
d)

Who is the P, do they have title to sue?

Who is the D, is there more than one?
What is the nuisance? Does it interfere with a Proprietary right?
Is it unreasonable?
a. Frequency
b. Duration
c. Time
d. Extent
e) Location?
f) What are the applicable defences?
g) What are the remedies?

Nuisance is actionable per se
Nuisance is much broader in scope then trespass/negligence. Its not restricted to physical
intrusions, includes ephemeral stuff like noise, smell and vibrations.

Public Nuisance
It is concerned with the protection of public rights: healthy & safe envrionement.
Public nuisance is a crime in CL. It is not actionable by an individual unless he or she can show
to have suffered some particular damage beyond that suffered by the rest of the community.
Action brought by the Attorney-General on behalf of Her Majestys Subjects Many rules for
private nuisance are also relevant to public nuisance.
The action in tort is not necessarily linked with an interest in land (eg obstruction of the
highway causing particular damage to the plaintiff) The rules of who can be held liable are the
same for private and public nuisance. Defences are contributory negligence and remedies are
abatement, injunction and damages Once the plaintiff has established damage/nuisance then
burden shifts to the defendant to show it was unnatural and unreasonable in the circumstances

26

Attorney-General v PYA Quarries Ltd [1957] 2 QB 169, 191

Facts: the attorney-general sought injunctions restraining the defendant, a quarry company,
from causing nuisance to Her majestys subjects by noise, dust and vibration form its
quarry.

Held:
The TJ granted an injunction, and th edefendant appealed, arguing that the interference it
caused was not a public nuisance by was, if anything, a private nuisance affecting a few
residence living near the quarry.
The COA held that the injunction was properly granted I the circumstances.
A public nuisance is a nuisance which is so widespread in its range or so indiscriminate in
its effect that it would not be reasonable to expect one person to take proceedings on his own
responsibility to put a stop to it, but that it should be taken on the responsibility of the
community at large

Private Nuisance
Is an unreasonable interference with a Ps use or enjoyment of a proprietary right in land:
Hargrave v Goldman (1963) 110 CLR 40 / 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 landowner:
Octavia Hill Housing Trust v Brumby [2010] EWHC 1793


Can include:
loud noise from construction work heard in a Ps hotel room: Andreae v Sefridge & Co
[1983] 1 Ch 1
subsidence to a home due to excavation next door: S J Weir v Bijok (2011) 112 SASR
127

Elements to action must be proved on BOP:

27

1)
2)
3)
4)

there has been unreasonable interference;

the interference is with proprietary right;
the plaintiff has title to sue the defendant; and
the defendant is liable.

Unreasonable Interference
Two types:
1) material damage to land;
2) damage to the utility/ amenity/ enjoyment of property

Title to Sue
P must have sufficient interest in the land which is being unreasonably interfered with..
-

Owners in exclusive possession: yes, title exists: Oldham v Lawson (no 1) [1976]
Non-owners in exclusive possession: YES: McLeod v Rub-a-dub Car Wash (Malvern)
Pty Ltd (1972 unreported) P was a company that leased premises, court held they
were proper Ps.
Mere licensees; controversial. Traditionally; No: Malone v Laskey [1907] 2 KB 141,
affirmed in Oldham v Lawson. However there are cases that say otherwise:
Khorasandjian v Bush [1993] and Deasy Pty Ltd v Monrest Pty Ltd (1996 unreported)
current authority is in Hunter v Canary Wharf (1997): mere licensees have
sufficient title.
Also see Stockwell v Victoria [2001]: mere licensees cannot sue.

Hunter v Canary Wharf LTD [1997] AC 655 House of Lords
Facts: canary wharf tower was 250m high and covered 50 sqm built next to river
Thames by D. Allegedly blocked TV reception of hundreds of people living in
shadow area An action was brought by about 700 owners and occupiers in that
area.

Issue: did each P have sufficient title to sue? Some were owners of the land, some
had exclusive possession of the land by not ownership rights and some were mere
licensees.

Decision: Majority of court held; mere licensee have title to sue. Lord Hoffman: at
702: nuisance is a tort against land, including interests in land such as easements
and profits. A plaintiff must therefore have and interest in land affected by nuisance.

woul
d
appe
ar
that
Aust
ralia
n
court
s are
likel
y to
adhe
re to
the
tradi
tiona
l

approach: outlined in Malone v Laskey, affirmed in oldhamd v Lawsom (No1) and Hunter v
28

Canary Wharfs has been expressly cited with favour by: stockwell v Victoria [2001] VCS 497
and Robson v Leischke [91]-[92] and Hoxton Park Residents Action Group Inc v Liverpool City
Council [86]
however none of these cases has expressly dealt with the issue of a mere licensees right to
sue.

take note of the Hoxton Park case; here although it did not deal expressly with mere licensee;
judges commented that the association was separate to the 1000 or so residents within it, and
the Assoc did not hold land within the area, and therefore did not have sufficient title to sue. The
assoc had no interest in the land alleged to be suffering a nuisance. The members did, but not
the assoc.

Does the nuisances have to be continuing/recurrent?
Hargrave v Goldman: in most cases it will be, but it is not neccessaty.
Isolated interference: single explosion of gas in Midwood v Manchester Corporation. Will be
necessary if the plaintiff is seeking in junctive relief OR where seeking to establish interference
with enjoyment rather then physical damages; because infrequent interferences will be less
likely to support damages or an injunction Bamford v Turnley,

Who may be liable?

Fault of some kind necessary:
High Court has held: a fault of some kind is almost always necessary on the part of the D : Elston
v Dore (1982) 149 CLR which affirmed the principles outlined in Sedleigh-Denfield v
OCallaghan [1940] AC 880.

Sedleigh-Denfield: the occupier or owner is not an insurer; there must be something more
than the mere harm done to a neighbours property to make the party responsible. Deliberate
act or negligence is not an essential ingredient, but some degree of personal responsibility is
required.

Therefore not a strict liability tort: fault of some kind is almost always necessary: Elston v
Dore.

although the court in Robson v Leischke [46] in obiter said that liability for nuisance is not
strict, treat this with care because the HIGH COURT has not yet ruled/ unanimously declared

29

that fault is a fact required for ALL manifestations of nuisance, although it seems safe to say that
it is required for MOST manifestations of nuisance.

type of conduct that will give rise to liability for nuisance will depend on how the nuisance has
come about:

Creator of the nuisance

Where a D has created the unreasonable interference that affects use/enjoyment
of Ps land, D will be liable regardless of the type of interest they have in the land where
the nuisance is emanating from: Fennell v Robson Excavation Pty Ltd [1977] 2 NSWLR
486

Fennel v Robson Excavations Pty Ltd [1977] 2 NSWLE 486

Facts: D a contractor, excavated soil froma block of land. Developer was

then supposed to put up retaining wall, but went into liquidation and
didnt. Over time neighbours property started to subside due to the
excavation. P sued contractor for nuisance.

Issues: was the D, being a mere licensee and not the owner/occupier
liable for the nuisance?

Adopter and/or continuer of the Nuisance.

30

D will be liable where they have not created the nuisance, but it emanates from their
land; when they continue or adopt a nuisance as in: Sedleigh Denfeild (see summary
Sedleigh-Denfield v OCallaghan [1940] Ac 880
Facts: D were the owner sof a ditch. Local council without consent of Ds
(therefore trespassing) laid a drainage pipe in the ditch. Pipe was laid
incorrectly and due to this could become clogged with leaves and other debris,
causing the ditch to overflow. This happened and caused damage to Ps property.
P sued D ( not local council). There was a lapse of 3 years between laying of the
pipe.

Issues: Where the Ds liable for the nuisance even though they did not create it?

Held: Yes. Ds had knowledge that pipe had been laid incorrectly and that
because of the knowledge they had continued/ adopted the nuisance and thus
liable for it.. Lord Atkin: if a man permits an offensive thing on his premises to
continue to offend that is if he knows that it is operating offensively is able to
prevent it, and omits to prevent it, he is permitting the nuisance to continue, in
other words he is continuing it.

below)

knowledge on behalf of the D is an important element to the concept of continuing/
adopting the nuisance. Without knowledge be said to continue/adopt: Torette House
Pty Ltd v Berkman (1940) 62 CLR 637
Torette House Pty Ltd v Berkman (1940) 62 CLR 637

Facts: D owned premises adjoining Ps. Sometime before D occupied

premises, a water pipe on the Ds premises whas shut off form the mains
by a stopcock. When the D were in occupation a plumber undertaking
work on their premises at their request accidently turned on the
stopcock. As a result water escaped form the open end of the pipe
causing substantial damage to the P. P sued D for nuisance.

Issues: Had the D continued or adopted the nuisance?

Held: No. They did not know, nor could have been expected to knowof
the disused water pipe. Dixon J spoke of the necessity for a fault
element. Here there was no fault.

taking of
steps to
eliminate a
31

nuisance, even if ineffective does not amount to continuing or adopting a nuisance:

Hargrave v Goldman (1963) 110 CLR 40.

Liability for acts of 3rd Parties
An owner or occupier of premises will be liable for the nuisance created by a 3rd party where
there is a special danger of nuisance.
De Jager v Paynehamd & Magill Lodges Hall Inc (1984) 36 SASR 498. Ruled that a hall rented
out for functions had a special danger of creating nuisance by noise. So even though they fitted
a regulator to speakers they were still liable for the acts of people who rented the hall and
where noisy.

Naturually Occurring Hazards and nuisance
If you are/ought to be aware, you need to take reasonable steps
Hargrave v Goldman: Left log burning, neighbouring properties on fires.
Leakey v National Turst: Soil falling from hill onto another property

32

What is unreasonable interference?

Factors in what is unreasonable:

Give & take, live and let live
Type of nuisance and the locality
Principal factors:
o Duration
o Time
o Frequencey Extent
Undue Sensitivity has to be considered
Malice in the actions of the D will make it automatically unreasonable.

Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145

clearly distinguishes between material damage/ enjoyment of property
Facts: P live in Fulham residential area. D operated oil distribution depot in premises near
the Ps residence, in an industrial zoned area. The P alleged a number of unreasonable
interferences including:

Material:
acid smuts that had damaged the paintwork of the Ps car

acid smuts that damaged laundry when hung out: stains & holes

Utility:
noise during night shifts (10pm-6am) caused by up to 15 trucks into depot
noise during the night shift from boilers and pumps causing vibrations
an occasional background smell of oil
occasional pungent and nauseating smell

Determining if it is unreasonable involves a balancing of the right of the P against those of the D.

33

Sedleigh-Denfeild v OCallaghan [1940] AC 880, 903: a balance is to be maintained between the

right of the occupier [D] to do what he likes with his own , and the right of the neighbour[ P] to
not be interfered with.
Hunter v Canary Wharf [1997] AC 655 at 688

Definition of unreasonable interference to Utility

Facts: Massive development 50ms high and 250 wide. Built it by a plan granted to
them by the authority. But the people who already had residential properties
there all lost their TV reception because the new building was so big. Issues in the
case included who was able to actually bring the action? The P were an assortment
of tenants/ landlords and residents. At p 695 they said 3 types of nuisance:
1) nuisance by encroachment
2) nuisance by direct physical injury
3) nuisance by interference with a neighbours quiet enjoyment of their land.
(this is a division of the one head of action in the St Helens Smelters Case)

at 688 Lord Goff: in true cases of nuisance the interest of the P which is invaded is
not the interest of bodily security but the interest of liberty to exercise rights over
the land in the amplest manner. A sulphurous chimney in a residential area is not a
nuisance because it makes householders cough and splutter but because it
prevents them taking their ease in their gardens.
Overarching principal: the interference must not be trivial, but substantial: Munro v Southern
Dairies Ltd [1955] VLR 332.

Substantial interference; one that is more than fanciful, more than one of mere delicacy or
fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically
of human existences, not merley according to elegant or dainty modes and habits of living, but
according to plain and sober and simple notions among the English people: Walter v Selfe
(1851) 64 ER 849, 852.

Therefore the duty is to do what is reasonable. The criteria of reasonableness include in respect
to a duty of this nature, the factor of what the PARTICULAR man, not the AVERAGE man, can be
expected to do, having regard amongst other things Hargrave v Goldman

look at shirt calculus: gravity of risk vs expense, also look at what the persons knowledge,
skill and resources were (in Hargrave v Goldman, it was not reasonable for a farmer to leave
smouldering logs unattended)

34

Damage/ Interference
Two types:
1) material damage to land;
2) damage to the utility/ amenity/ enjoyment of property

Material
Examples:
-

acid smut from factory damaging laudry and washing : Halsey v Esso Petroleum
water escaping from Ds property and damaging Ps property: Sedleigh-Denfeild v
OCallagahn[1940] / Torette House v Berkaman (1940)
- Killin trees through noxious gasses: St Helens
- excavation of neighbours property causing subsidence: SJ Weird v Bijok
- development of land with inadequate drainage pooling in neighbours property:
Corbett v Pallas; Gales Holdings Pty Ltd v Tweed Shire Council [2011]
Traditionally the courts have distinguished between failure to act: nonfeasance and damages
caused by an action: misfeasance.

This was changed in Hargrave v Goldman Now non feasance can result in actionable
nuisance:

Goldman v Hargrave: failure to extinguish fire

Stockwell v Victoria: failure to exterminate wild dogs

Misfeasance has in the past caused strict liability. Unclear wether this is the case in Australia, HC
yet to rule on it. However the ruling in Bankstown City Council v Almado Holdings Pty Ltd
(2005); Elton v Dore: show there is support for the need to have

RF Cambridge Water Co v Eastern Counties Leather PLC

Fault: Wagon Mound (No 2)

the abandonment of the rule in Rylands v Fletcher means P must establish fault on
behalf of D who has introduced, retained or done on their land something dangerous there is
no longer strict liability for that things escaping.

Material Damage: Will always amount to an unreasonable interference
(exception: unduly sensitive use: Robinson v Kilvert (1889) 41 H D 88)

35

Interference with enjoyment

Must be unreasonable and substantial.: Munro v Southern Dairies
Cf; in the same case it said that a single nights loss of sleep could amount to substantial
interference
.
can be things like:
neighbours drunken singing and swearing : Vincent v Peacock [1973]
smells form a brick kiln: Bamford v Turnley
Vibration from a factory: Sturges v Bridgeman
The opening of a sex shop: Laws v Florin-Place [1981]
The substantial interference must be with aa recognised proprietary right. -> keep in mind that
the courts can recognise new rights

Interference occasioning substantial loss of enjoyment is unreasonable start at a premise of
give & take Bamford v Turnley: trivial interferences are treated as part of the everyday
incidents of life: Stormer v Ingrham

36

Propriety Right
Nuisance is concerned with a interference with a Ps PR; use and enjoyment of the land:
Hargrave v Goldman.

occupation:
-use and enjoyment of the land through occupation as a home: Halsey v Esso Petroleum
Co Ltd; SJ Weir Ltd v Bijok;
- business : Wherry v KB Hutcherson Pty LTd
proprietary right which can be protected with action in Nuisance
Access to land:
-

use anf enjoyment of land through free access to that land is a right which can be
protected through an action in nuisance.
- Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 : nuisance casued by besetting
and picketing of portestort outside a circus, making it impossible for patrons to
enter the circus without walking the gauntlet
- Deasey Pty Ltd v Montrest Pty Ltd ( BS9605947): use of Ps carpark at invitation of D
to his customers constituted a nuisance.
Views of the Ps Land:
- views of a plaintiffs land are NOT a PR capable of protection via tort of nuisance.
established by HC in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor.

37

Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 HCA

Facts: D erected a platform on his land that enabled him to see into the Ps racecourse. From
this platform the D broadcasted the results of the races conducted on the Ps land. P brought
action in nuisance, seeking an injunction. P claimed that the Ds conduct interfered with the
use and enjoyment of their land as the broadcastin go f race results by the D meant people
were discourages from attending the Ps racecourse, and therefore P was missing out on entry
fees as a benefit.

Issue: Was the lost entry fees an interference with the Ps PR that could be protected by an
action in Nuisance?

Held: NO. HC found there was not interference with Ps PR and there fore Ds conduct
nuisance.
Dixon J: the essence of the wrong [in nuisance] is the detraction from the occupiers
enjoyment of the natural rights belonging to the occupation of land diversion of custom
from a business carried on upon the land may be brought about by noise, fumes, obstruction of
the frontage, or any other interference with the enjoyment of recognised rights arising from
the occupation of property; and; if so it forms a legitimate head of damage recoverable for
wrong; but it is not the wrong itself. The existence or the use of a microphone upon
neighbouring land is, of course, no nuisance it si the obtaining a view of the premises which
is the foundation of the allegation. But English law is rightly or wrongly, clear that the natural
rights of an occupier do not include freedom from the view and inspection of neighbouring
occupiers, or of other persons who enable themselves to overlook the premises
although the plaintiffs ability to make a profit form the land may have been affected, THE
LAND WAS NOT.

Structures on and emanations form the Ds property

complex area
whilst views OF are not a PR capable of being protected b nuisance, views FROM the Ps
property may be. The law here is unclear.
general rule is that D have regard to P when building on own land, instead ony restrained by
rules and regulations/ easement over land.
thus prima facie a P cannot complain that a D has interfered with a view from the Ps property :
Hunter v Canary Wharf [1997] AC 655 @ 685: his neighbout generally cannot complain of the

38

building though this may seriously detract from the enjoyment of the land in relation to
spoiling view, air flow and light.

HOWEVER; there are a few cases where views FROM Ds property have been held to be an
interference with the Ps use and enjoyment of land.
-

view of prostitutes and clients entering a brothel: Thompson-Schwab v COstaki

[1965] 1 WLR 335
- deflection of light from Ds glass veranda which created a dazzling glare too bright
for the human eye to handle: Bank of NZ v Greenwood [1984] 1 NZLR 525.
- Emanation of particularly offensive will provide an exception to the general rule :
Hunter v Canary Wharf
- this was recently affirmed in Robson v Leischke (2008) 72 NSWLR 98: cases
where actionable nuisance has been held to exist where there are been no
emanation, such as use of land that is morally offenses to neighbours, are special and
may go to the limit of the law of nuisance.
The principle (clarified in Hunter v Canary Wharf: interruption to TV signal nuisance) is
that the P cannot complain about the MERE PRESENCE of a structure on the Ds land. for it to
be a sufficiently unreasonable interference; it must have to do with an emanation . (special
cases: morally offensive/ reflections)
Hunter v Canary: held that the interruption of the TV signal was due to the presence of the
new building, not a result of emanations from the Ps land.

Onus v Telstra Corp Ltd [2011] NSWCA 33
Facts: D (Telstra) received permission to build 35m tower on land near P. Ps
land used as an airfield, had been in operation since WWII and was a heritage
listed site. There were aprox 200 aircraft movements per day and 80% of
which was done by STUDENTs. P argued that construction of tower would not
pose significant threat to safety of those flying. P argued it would have to close
a runway if erected for safety. Action was for both Public and Private
nuisance.

Issue: Was the presence of a 35m tower an interference to Ps use and
enjoyment of land (private nuisance)

Held:court acknowledged the rarity of recognising this type of nuisance
(structure without emanation) Court found that danger to safety of aircraft
operations was much more serious than objections to the erection of
structures that spoil the view or restrict flow of air or take away light or
interfere with the enjoyment of TV signals. Therefore: special case. mere
presence of the tower constitutes actionable nuisance.

39



Material

What is Unreasonable
To determine if interference occasioning substantial loss of enjoyment is unreasonable start at
a premise of give & take Bamford v Turnley: trivial interferences are treated as part of the
everyday incidents of life: Stormer v Ingrham

There are factors that are considered:
1.
2.
3.
4.
5.

locality
Duration, time and frequency
Extent and intensity
Motive malice?
Undue sensitivity.

Locality

Nature & character of a neighbourhood are to be considered in determining reasonableness of
interference; what is reasonable in one may be unreasonable in another : Halsey v Esso
Petroleum @ 151.
Munro v Southern Dairies [1955] VLR 332: when dairy started was semi-rural, but when action
Sturges v Bridgman (1879) 11 Ch D 852
Facts: P owned a house in a fashionable area. The rear of Ds house abutted Ps garden. D was a
confectioner who for over 26 years had used pestles and mortars which were noisy and
caused vibrations. Ds father had done the same for 60 years prior. In 1873 the P built a
doctors consulting room in the garden, so there was only a wall separating the Ps consulting
room from Ds kitchen. Noise and vibrations of D caused disturbance to P who could not
examine properly. Timing: 10am-1pm. P sought injunction.

Issue: did the location of nuisance affect the viability of Ps action?

Decision: Court found nuisance. Character of locality (fashionable/ residential) was a
persuasive factor in finding the presence of nuisance.
@ 865: whether anything is a nuisance or not is a question to be determine not merely by an

40

brought nature of location had changed so impact was increased. WHAT COUNTS IS THE
LOCALITY AT TIME OF LITIGATION, NOT HISTORICAL USE OF AREA.

Extent and Intensity

Another factor to be considered in determining the reasonableness of the interference.
note: the occasional background smell of oil was not enough to amount to nuisance in Halsey v
Esso Petroleum CO Ltd, but the intermittent noise of the trucks and boilers(up to 83 decibels)
allowed a finding of unreasonable interference, as in Feiner the nauseous and pungent smell
was held to be unreasonable, despite it not being continuous.

Walter v Selfe (1851) 4 De G & SM 315 , Haley v Esso Petroleum Co Ltd p1961] 2 All ER 14:
considerable interference for a short period of time may be unreasonable, or a slight interference for a
considerable period of time.

Feiner v Domachuk (1994)35 NSWLR 485

Facts: D and P were neighbours who live in an area zoned semi-rural where allotments of land were a
minimum of 2 hectares. Agricultural uses were permissible in the area without the need for separate
approval. The D grew mushrooms in compost which was made from waste material containing stable
straw saturate with urine and faeces from horse and other animals. The compost gave off a smell that
caused nausea and asthma-like symptoms, and was so strong that often the Ps daughter had to sleep
and play elsewhere and social activities were cancelled.

Issue: Was smell enough to amount to a nuisance even though mushroom growing was permissible?

Decision: Was held that despite the rural nature of the area, the intensity of the smell was more then
could be ordinarily expected in a rural/ semi area. Was found that the activities were unreasonable.

use this case to show that each element (location/intensity etc) must be balanced against each
other

Munroe v Dairy: ONE NIGHTS LOST SLEEP CAN BE ACTIONABLE

Duration, time and frequency

41

 generally the longer and more frequent an interference; more likely it will be considered
unreasonable: Halsey v Esso Petroleum Co Ltd: continuous noise of pumps and boilers.

also there are some times of day when some interferences are less reasonable; Halsey v Esso
Petroleum Co Ltd: the night shift truck traffic..
Seidler v Luna Park Reservce Trust BC9505507 SC NSW

Held: YES. Hodgson J (SC NSW) found it to be unreasonable interference. Granted injunction
between the hours of 8am -1pm and 2pm-5pm so the P could reasonably undertake his work.

Facts: Amusement park operating with rollercoasters etc. First opened at Milsons
point site in Sydney in 1935. Park closed and reopened a number of times over th
years and housed a number of rollercoasters which where also closed and replaced
during that time. In 1995 a new one opened and it was proposed to operate during
business and evening hours.

Issue: was the duration, time, frequency and extent of the noise enough to make it
unreasonable?

Facts: P owned and occupied office on Clarence St in CBD of Sydney. P conducted practise as
solicitor. D have been engaged to undertake excavation work on neighbouring land. P evidence
was that the noise created by the defendant in undertaking the excavation work was so great
that he could not carry out a normal conversation/ concentrate on work & noise continued all
day. Sound level was ~ 75 db. Austrailian standard for office areas= 40-45 db. D argued that
the noise was appropriate for a developing CBD are and that it was ony temporary.
The P (neighbours) in nearby commercial and residential areas.complained about the
amount of noise emanating from the ride; both mechanical and the screams. Noise was
measured to be about 5 db above background noise levels. And occurred about 2-6
times every 3 minutes. P argued that it was nto the type of noise to which normal
people become accustomed over time, instead ti tended to become more annoying the
longer it persisted. D argued that the locality was such that this sort of noise should be
expected, such noise had been present since the park had opened in 1935 and the area
also experienced a large amount of traffic noise due to proximity of harbour bridge
and train line

Wherry v KB Hutchinson Pty Ltd (1987) Aust Torts Reports 80-107

Issue: did the frequency, duration, time and extence of the noise make the interference
unreasonable?

Held: Hodgson J found there was unreasonable interference amounting to nuisance.
Held; even when regard was had for the locality, and noise level that could reasonably
be expected it was still a nuisance. Made comment if current coaster did not have a

Undue Sensitivity of the plaintiffs utility

Where P uses land or an unduly sensitive purpose, an interference with that land WILL NOT BE
UNREASONABLE unless it would have been so with ordinary use of the land. (in which case
eggshell skull will be applied at damages stage if action is made out)
This applies even when there is material damage, not just damage to utility of the land.

42

Robinson v Kilvert (1889) 41 Ch D 88 Court of Appeal

Facts: D (landlord) owed a building and leased the ground floor to the P who used the
floor for a paper warehouse business. D retained the cellar where there was a box
manufacturing business. D required hot dry air for his business, so heated the air in
the cellar. As a consequence the air on the Ps floor became heated as well, but not
significantly. Howeever the heat dried the Ps brown paper, making it less valuable
(paper was sold by weight, and drying it removed the moisture lighter). None of the
other types of paper were affected, nor the workers.

Issue: was the materal damage suffered by the P enough to amount to an
unreasonable interference, or was the P unduly sensitive.

Held: heat was NOT excessive; it did ot interfere with the workers or with any of the
other paper in the Ps premises. There was NO NUISANCE.
able. So if D sets out to
cause material
damageto the P/
interfere with utility of
their land
unreasonable
interference. EVEN IF
THE USE OF THE LAND
IS UNDULY SENSITIVE.

Private

Mali
ce
Exist
ence
of
Malic
e will
rend
er an
other
wise
reaso
nable
act

unre
ason

Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468

Facts: P operated a silver fox farm on property and erected a noticeboard which
read hollywood silver fox farm. This board could be seen from the Ds property.
D protested at the presence of the board as he was about to develop his land intoa
building estate and thought it would be detrimental to the development. D
requested board was removed. P refused. D requested again a few days later, again
refused. This time the D said to the P that if the sign was not remover he would,
during the breeding season shoot black powder near the breeding pens and I
guarantee you will not raise a single cub. (Vixens during mating season are
nervous and loud noises can make them refuse to breed/ miscarry/ devour their
young)
The P did not remove the sign and the D carried out his threat ( shot from his own
property but near the pens). The D claimed the shooting was to keep down rabbit
numbers. Was establish the cartridges used were bird cartridges. One vixen did
not mate another ate 4 cubs. P sued D for nuisance.

Nuisance -

Defences

Issues: was the Ds act reasonable, and how did presence, if any, of malice affect
the reasonableness?

Consent
If plaintiff consents to
nuisance (eg late night

Held: Affirmation of the comments of Lord Selborne in Gaunt v Fynney (1872) Lr 8
Ch 8 @ 12 if what had taken place had occurred between two sets of persons
both perfecty innocent, I should have taken an entirely different view of the case.
But I am persuaded that what was done by the D was done only for the purpose of
annoyance and in my opinion it was not a legitimate use of the Ds house to use it
for the purpose of vexing and annoying his neighbours.
43
Here court found that malice existed (bird cartridges, threat) so that otherwise
reasonable act of shooting on own land, was made unreasonable.

party) cannot sue for it later (fairly limited

Statutory Authority
The most significant defence it can arise when: the Act expressly creates a defence from liability
in nuisance or the Act creates a defence by implication

Statutory Authority by implication
In cases of mandatory statutory provisions, authority to create a nuisance can be implied, if the
nuisance is the inevitable result of compliance with a statutory provision.
A nuisance is not inevitable if there are other sensible ways of carrying out the authorised act
if it causes unnecessary damage to others ie. A failure to take reasonable care can defeat this
defence;
You cannot rely on this defence if you are engaging in something that creates an unnecessary
risk or harm.

Lester-Travers v City of Frankston [1970] VR 2

Facts: the City of Frankston built a golf course, stray balls were struck onto the plaintiffs
property. The plaintiff claimed it was an unreasonable use of the land. There was statuary
authority that the local government could provide a place of leisure and recreation on the
land and have a defence from nuisance.

Held:
The court held that the statutory authority was too vague, the City was not obliged to build a
golf course, the words of the statute could not must distinguish between mandatory and
permissive use of land.
A nuisance is not inevitable if there are other sensible ways of carrying out the authorised
act or it causes unnecessary damages to others ie failure to take reasonable care can
defeat this defence.
The city did not take reasonable care in constructing the layout of the course to avoid
nuisance.

44

In cases of permissive statuary provisions, the scope of authority depends on the construction
of the Act.

General principles:
There is a presumption that the legislature intended the authorised activity to be conducted
without creating a nuisance.
This presumption can be rebutted if the effect of the legislation was to confer upon the
authority the discretion to determine [] whether and to what extent the interests [of the
public] were to be served in preference to, and if necessary, at the expense of the plaintiff;
The defendant is liable if he or she is acting outside the scope of authority to impose on an
individual the detriment that is a consequence of a socially beneficial activity. The defendant
must show that there is no other alternative practical means of carrying out the work available
at the time.
The underlying issue is does the Act confer authority on the defendant to impose on an
individual the detriment that is the consequence of a socially beneficial activity?

Symons Nominees Pty Ltd v RTA (NSW) [1997 Aust Torts Rep 81-413
Facts: A hundred-year flood broke banks of river, the bridge constructed was not high
enough and caused damage.

Held:
But the bridge was built according to government regulations so interference has defence of
statutory authority.
Law will infer that the authority is authorised to build or undertake an activity of the kind
which will not damage anothers property,
if authority has a choice it will be assumed that they will choose the kind of activity that will
not or will cause the least amount of damage.

Contributory Negligence

General Principles:
In WA, the apportionment legislation does not apply to nuisance, ie contributory negligence can
be a complete defence to an action in nuisance.
45

Common law says that CN is complete defence. IF the plaintiff contributes they cannot sue the
defendant. Overtime this has come to be considered unfair.

Reasonable Use
General Principles:
If the nuisance causes material injury to the plaintiffs property, the defendant is prima facie
liable for this damage (strict liability).
However, the defendant can rely on the defence of reasonable use if the nuisance is the result of
a natural user and The injury could not have been prevented by taking reasonable
precautions,
The burden shifts to the defendant to show reasonable nuse

Kraemers v A-G (Tas) [1966] Tas SR 113

Held:
The onus is on the plaintiff to make a prima facie case that damage cause was a result of the
defendants act, burden is not on plaintiff to show that the act was unreasonable or
unnatural, rather burden is on the defendant (if they want to rely on this defence), to show
that this is the case.
In determining whether the act was reasonable the court will look at all the circumstances
including the use of land and manner in which damage came about. The defendant needs to
show that the damage would have been cause even if all reasonable steps had been taken.
In this case it was found that the water was a nuisance as it was not an actual use of the land.

46

Corbett v Pallas [1995] Aust Torts Rep 81-329

Facts: P installed an inground swimming pool in suburban home. The redeveloped surronds
of the pool had inadequate drainage. This concentrated the flow of rainwater from her
property on to that of her neighbor Mr Pallas. He built a much more expensive retaining wall
to prevent the water flow into his house, and sued Corbett for it. Trial judge ruled in his
favour, Corbett appealed.

Held: That a construction of a swimming pool with inadequate drainage is not natural and
reasonable use.

The defendant can rely on the defence of reasonable use if the nuisance is the result of a natural
use and the injury could not have ben prevented by taking reasonable precautions.
Plaintiff only needs to show that damage was caused by the defendant act not that the
defendants use of the law was unreasonable.


Coming to the Nuisance is not a defence.

General Principles:
It is not a defence to argue that the plaintiff brought the nuisance upon themselves by moving
into an area that was already affected by the defendants activity.

47

Sturges v Bridgman (1879) 11 Ch D 852

Facts: the defendant was a confectioner who had used pestles and mortars in the back of his
premises for about 20 years. Their noise and vibration did not, in that period, bother the
plaintiff, who was a doctor whose consulting rooms were in the adjacent building. However,
when the plaintiff built an extra consulting room at the back of his premises, he found that
the noise and vibration of the defendants pestles and mortars did interfere with the use of
his new consulting room, and he sued the defendant in nuisance.

Held:Found in favour of the plaintiff
The plaintiff came to the nuisance by extending his consulting rooms into n area where the
defendants activity had already created an existing interference, but that fact was held to be
irrelevant to the outcome of the case.
The important factor was not who was there first, plaintiff or defendant, but rather what was
the nature of the area at the time the plaintiff complained.

48

Miller v Jackson [1977] QB 966

Facts: Famous case (Donoghue v Stevenson level) for the way in which the judgment by Lord
Denning was written. Some people moved into a newly built house, next to a cricket club that
had been there for some 70 years. Village life in England in the context of a conflict between
the negligence and people moving in next door due to a housing development. The housing
development appears to be to close to the oval. Whose use of land should be preferred over
the other? Does the fact that one party was there before the other affect the right to complain
of a nuisance, if the occupancy of the place occurs when the nuisance is already in
occurrence?

Held:
If there has been an established use for a long period of time, it may form part of the
character of the area. It may also show what is a reasonable use of the land.
The defendant was able to say they had had always done what they were doing, its because
someone has moved in next door that is has become a nuisance.
The court held that you could rely on it as a defence.
And I this he implicitly said it was a nuisance, but not a nuisance you could complain about.
However, the neighbours use was compromised though.
The defence was available, but did it succeed?
It would not be right that just because one person takes offence from a cricket ground
enjoyed by the rest of the public should be closed.
The majority said that you look at the case at the time that the nuisance takes place.
The plaintiff sought a remedy of an injunction a court order to no longer interfere with the
plaintiffs use of land.
The majority of the court held that she had established her case in nuisance, and the cricket
club had not proved their defence.
She didnt get the injunction, because the court said the plaintiff was successful in proving
the cause of action. However exceptionally they will exercise their right not to grant an
injunction. They did this because there was nothing that could be done to prevent the
nuisance on the plaintiffs property other than moving. This would inhibit on the defendants
use of land and was too unreasonable. They took into account the public interest and the
interests of the cricket club.
Damages were awarded instead, however these were of a marginal amount.
Economically was this the appropriate result? If she got hit by a ball later, she would
always be able to sue in negligence still.

49

 50

Private Nuisance - Remedies

1. Abatement (Self-Help)

General Principles:
Where the occupier of land is subject to nuisance they may be able to take reasonable steps to
abate it (to end or reduce it)
Abatement is justified only in clear and simple cases, or in urgent cases (ie emergencies where
legal proceedings would be too slow and expensive), it must be exercised within a reasonable
time and it must be proportionate to the damage suffered.

Burton v Winters [1993] 2 All ER 847

Facts: Winters were predecessors in title to land on which a garage was built, wall of garage
was four inches onto Burtons land.

Held:
The court refused to allow Burton to demolish the wall, did not rant injunction but wanted to
determine diminution of land value to calculate damage.
Burton started to build a wall on her side and damage the garage, Winters obtained
injunctions for these trespasses which Burton ignored and was therefore imprisoned for
contempt of court.
The CA found that because the judge had refused to grant her the mandatory injunction any
right she had to self-help ceased.


2. Injunction

General Principles:
An injunction to restrain the defendant from continuing the activity which constitutes the
nuisance is the standard remedy for nuisances

51

The court will look at the public interest in the activity amongst other things in determining
whether to grant an injunction, whether the defendants behavior eminent and will cause
substantial damage to the plaintiff.
The grant of permanent injunction;
The grant of interlocutory and quia timet injunctions;
The award of damages in lieu of an injunction (equitable damages)

Interlocutory injunction
Before the trial or during the trial because you cant bear to live with the nuisance for the whole
period of the trial.

Permanent injunction
At the end of the trial, once the courts have heard all the evidence

Quia timet injunctions
The nuisance hasnt started, but get an injunction to stop it because you fear the nuisance when
it comes. Very hard to get because you have to persuade the court that what you far is likely to
happen.

3. Damages

General Principles:
(Common Law) damages are the appropriate remedy for past losses P has suffered.
The plaintiff is only able to recover those damages that were reasonably foreseeable as a
consequence of the defendants act for which they were found liable in nuisance.
The plaintiff can also recoup damages for interference with use and enjoyment of land
(compensatory)
Damages aim to compensate for any detriment suffered as a result of the interference ie Loss as
a result of damage to the land and Diminution in utility of the land

52

The Wagon Mound (No. 2) [1967] 1 AC 617

Remoteness of damage (at 617) where damage is not reasonably foreseeable.
The issue of remoteness is similar to that in negligence
You ask whether the damage is of the kind that the defendant should be liable for.
Replaced the precious rule that any damage is damage, and directness is a relatively easy
test. This older test of directness is still used in Trespass. The test in nuisance and negligence
is not as wide.

Damages for personal injury are only recoverable in negligence (nuisance is concerned with
injury to land)

Hunter v Canary Wharf [1997] UKHL 14; [1997] AC 655

It is unclear whether damages for damage to chattels (and livestock) because this was allowed
in Hasley v Esso Petroleum but cf now Hunter v Canary Wharf

Damages for interference with enjoyment of land which does not amount to personal injury are
recoverable only as far as utility of land is affected Hunter v Canary Wharf- no reference to
number of persons on the property and the extent of their individual determinant. The

Damages: Common law damages are available, including those respecting damage to
chattels: Moss v Christchurh Rural District Council [1925] 2 KB 750.


Material Damages to Property: P entitled to recover damages in reduction to the value
of the property: Minter v Eatcott (1952) 69 WN (NSW) 93; Young v Wheeler (1987) Aust Tort
Rep 80-126.


Interference with Amenity/ Utility: Can recover if the interference causes some sort of
loss: Young v Wheeler; Hunter v Canary Wharf Ltd [1997] AC 655.


Costs incurred in effecting abatement: In Corbett v Pallas (1995) Aust Torts Reps 81329; 86 LGERA 312; BC9504329 Court of Appeal (NSW): the plaintiff recovered as damages the
cost of erecting the wall on his own property to prevent the incursion of water. There was no
53

discussion of whether there were any difficulties in his way. Dicta suggests that the costs of
abatement are not recoverable: Young v Wheeler (1987) Aust Torts Reps 80-126 (NSW SC).
Proprietors Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478: it was held that the costs of
reasonable steps to mitigate the damage are recoverable.
Relationship between Nuisance and Other Torts

Nuisance and Negligence
Nuisance is concerned with the invasion of an interest in the enjoyment iof land. Negligence is
concerned with particular forms of conduct.
This means that the scope of protected interests is wider in negligence, whereas the scope of
actionable forms of conduct is wider in nuisance.
Same conduct can constitute nuisance and negligence.
Influence of negligence law/principles is strongest (ie liability depends on negligent conduct)
where:

a) Defendant did not create nuisance

b) Plaintiff claims damages for personal injury/property damage

Nuisance and Trespass to Land

There is no overlap between nuisance and trespass (to land).

Trespass is reserved for direct interferences with the plaintiffs land (ie defendant has to enter
the plaintiffs land). Nuisance is the appropriate action for indirect interferences (in particular
from acts from outside the plaintiffs property.
In nuisance, only unreasonable interferences are actionable.
In nuisance, damages depend on proof of actual damage; trespass is actionable per se.,

54

Remedies
DAMAGES

Judicial Remedies

Principle Equitable remedies:
-

the declaratory judgement

account
injunction

Equitable Remedies

Unlike relief by way of damages at CL, ER are at the discretion of the court. Thus the court can
refuse to exercise its discretion:
because another equally or more appropriate remedy is at hand: Forster v Jododex
Aust (1972)
because the issue is theoretical: Draper v British Optical Association [1938]
because P has no real connection with/interest in the matter: Anderson v
Commonwealth (1932)
Because of traditional equitable principles:
o P must approach court of equity with clean hands
Because public interest weighs agains the exercise of the discretions: Miller v Jackson
Because it would impossible for the D to obey the decree
Because the damage is not substantial
Declaration

Will state the rights of the parties but does not order anything to be done.
Since the fusing of the courts of equity and CL both can make a declaration.

Jurisidiction is almost unlimited. Advantages:
binding on the parties and cannot be re-litigated res judicata
it is comparatively speedy remedy and as such uslally cheaper than other remedies.
Avoids protracted litigation
Enables negative relief to be given: declaration that someone is NOT in breach of a
rule
It can be given in circumstances where other relief might not be available.
Disadvantage:

provides no consequential relief and will therefore not bea satisfactory remedy
where substantial damage has occurred (they need compensation)
55

it is not appropriate for cases of negligence, but may be appropriate in some cases of
disputed title to goods or land in respect of nuisance.

Account
Particularly useful in commercial matters such as industrial property cases. Subject matter of
the decree is the profit made by the defendant improperly from the wrongdoing against the P.
Account of profit is not available in tort unless exemplary damages are available: Hospitality
roup v Australian Rugby Union (2001)
Injunction
Since fusion of the courts both CL and equity can make an injunction. The aprty prohibited or
enjoined was commanded not to do or to cease from doing some wrongful act.

Prohibitory injunction may be granted at the discretion of a court: to prohibit the doing of some
tortious acts.

Quia timet(because he fears) injunction: restrain the threatened act

Mandatory in junction: to compel the D to perform some positive act. (courts are reluctant to
give these, requires policing outside of the court)

Perpetual: granted permanently to compel the D to, or prohibit from some action

Interlocutory: temporary/provisional, granted summarily pending the hearing of the trial. They
will only be granted where the P can show probable entitlement to relief on the full hearing.

most relevant in cases of nuisance, trespass to land/chattels ,occasionaly defamation

Damages at CL

Nominal Damages: symbolic, plaintiff makes out a cause of action but hasnt really sustained any physical
injury or property damage. The tort of battery is a good example where you havent sustained actual damage.
works to acknowledge that some damage has occurred.

56

Contemptuous Damages: this is where the court is satisfied that the parties to the litigation have misused
the court processes. frivolous or vexatious litigation.

Exemplary Damages can get these at common law but not under the defamation act of 2005. These are
intended to PUNISH the tortfeasor. Egregious/contumelious behaviour. This kind of conduct will not be
tolerated, will be severely punished. Cotogono v Lamb: the plaintiff was a process erver was trying to serve
process on the defendant. Didnt want to talk to the server/ be served. Hoped in his car and ran away. Ran over
him didnt stop. Such outrageious behaviour that it warranted an award of exemplary damages.

Aggravated damages typically awarded in defamation actions, this is where the defendants behaviour or
conduct has added to the plaintiffs injury. Or where the court has satisfied that the defendant has flagarantly
ignored the plaintiffs rights. The plaintiff willget a premium damages over and above what they would have
received for the defamation.

Eg: SA CASE Bob Gilbert case: used car salesman, channel 7 had a vendetta aginst him. In one of his programs
they sunk their boots inot bob and defamed him. He was incnsed. Disputed the allegatsion tried to contact
channel 7. They had not interest in hearing his side fo the story and had no interest hearing it. Info was false.
Court was satisfied that channel 7 had breached the rules of natural justice, by not listening to him.

Compensatory Damages Resitutio in intergrum: principle of putting the plaintiff back where they would
have been court asks what level of damages would be award if the tortious conduct had not occurred or casued
injury

Abatement: (more of a remedy) ancient remedy goes back about 500 years, Batens Case
(1610) &7 ER 810. Once the abator tires to abate, they lose an recourse to damages or injuction
for that particular cause of action. This is a uniquie remedy because ti is extra-judicial ( no
recourse to a court before hand) Courts carefully circumscribed how the remedy is to be
excercised.
Must not use: unreasonable force
Must not cause unreasonable damage
If possible required to give notice of intention to enter neighbouring property
Burton v Winters [1993] 3 all ER 847- abatements is confined to 3 areas:
1) clear and simple cases (waste of time and money to go to court)
a. emergency situation: if neighbour goes on a holiday and they leave the
outside tap on and your property is below, so if you dont turn off thetap
your house will be flodded. -
b. every day is a single cause of action. So if self help isnt helping, next day is a
new day of action.


Principles of Assessment of Compensatory Damages
57


5 fundamental principles apply to the assessment of compensatory damages at common law:

1) Eggshell Skull
The D must take the plaintiff as the find them, with all of the weaknesses, beliefs, capacities
and attributes: Nader v UTA (1985) As soon as damage is established as reasonably
foreseeable, the plaintiff can recover for the entire amount including their egg shell issue.
2) The indemnity Principle
Dictates that a plaintiff receive only net, rather then gross, sums and that advantages
flowing to the P be brought to account as set-offs.

Achieving the indemnity principle:

discount rate: legislated at 6% Discount deduction is done to reflect the value of a
lump sum and that you will invest it and gain form the investment Todorovic v
Waller (1981) 150 CLR 402 which said you had to deduct 3% but in WA you have
to deduct 6% which has been legislated. Also the value of the dollar will be worth
less

viscissitudes Vicissitude is done to reflect the wear and tear of life. negative
vissiscitudes: accident , chronic illness and disease, losing your job. there are also
positive vissicitudes.
Both principles are designeed to ensure that plaintiffs are not over compensated.
Typically when you receive a common law lump sum award. It may well be that a
court will deduct on the basis of 10-30 % of the damages of your word. current
trend is to only discount about 10%. Flynn v Minister (NSWCA) deducted 30% ,
went to HC, they brought it down to 12%.--> leonie Wynn was young woman hard
working worked in her favour.

3) Once and for all rule

Single cause of action must be assessed at CL once and for all: Fitter v Veal (1701). An
appellate court can only admit new evidence in exceptional case to reopen previous award:
Murphy v Stone Wallwork. This can build in unfairness, because the future compensation is
measured at one temporal point only this means that what is given is guaranteed to be
either too much or too little: Mundyv Govt Insurance Office (NSW)

4) Lump Sum Rule
Must be awarded in lump sum. Not permissible at common law without statutory
authorisation to order the D to pay period sums: Todorovic v Waller. Note that structured
Settlements are allowable not, but note this wont apply where parties settle before going to
court

When is the amount assessed?

58

on the day of the verdict, is the proper day to assess damages: OBriens v McKean
(1968)/ at the time of the tort: lenmont Investments v OLoughlin: depends on court,
current attitude is flexible.
Costs will generally follow the unsuccessful party.

5) Duty to mitigate
P has an obligation to mitigate damages and may be denied compensation or a filaure to
fulfil this obligation. The burden lays with the D to prove that P has not mitigated.

There are policy considerations in this requirement. And any additional loss or expense
incurred by the P in attempting to minimise the damage by reasonable means in mitigation
may be recovered by that party as part fo the compensation for the tortious act. Eg Boyd v.
SGIO (1978)
failure to agree to a blood transfusion, because of parents belief was unreasonable (sort of
contradicts the eggshell skull principle).
burden of proof on the defendant;

Property Damage
Simpler then for Personal Injury. Restitution fro the loss of value of property usually represents
the difference in the value fo the property before and after the interference:
-

cost of repair if partial destruction: Murphy v Brown (1985)

the diminuation in value in the case of partial destruction: Davidson v JS Gilbert
Fabrications
Total replacement costs in the case of total deprivation or destruction: Wheeler v
Riverside Coal Transport.

Interest

Is paid on monies awarded to date of judgement;

In Queensland:
the rate is discretionary - the Supreme Cout Act 1995 s.47
for pecuniary loss the usual rate is half the commercial rate ie about 6%
for non-pecuniary loss the usual rate is one quarter of the commercial rate ie about 2-3%

Set Offs

Monies paid by employer as sick pay and workers compensation paymetns will be set off (ie
deducted) from the damages award.
Social security and medicare payments must be repaid to government and so will not be set off.
Charity intended to benefit the Plaintiff will not be set off.

Future Earning Capacity

59

Calculated by reference to what would have earned nett and after expenses deducted:
Wynn v. NSW Insurance
should future childcare and housekeeping expenses be deducted?
No because essentially private or domestic in character
If would not have worked then no award.
Very difficult to assess for younger people.
The total is discounted to take into account the fact that it is received as a lump sum and can be
invested immediately.
In Queensland the rate is set by s16 Supreme Court Act 1995 at 5%.
The investment option is also supposed to compensate for future inflation.
The amount may be further reduced to take into account the vicissitudes of lefe.
Malec v. Hutton
Wynn v. NSW Insurance

Hospital, medical and care

Medicare subsidies will have to be repaid to the government for past expenses.
There is some authority that inflation may be taken into account for future expenses but today would
probably be regarded as too speculative.

Care Expenses

In recent years the most contentious area has been the Griffiths v. Kerkemeyer component for
gratuitious care.
Van Gervan v. Fenton 1992 HC
Lynch v. Lynch 1991 NSWCA
Kars v. Kars 1997

Van Gervan v. Fenton

Ps wife provided gratuitious care for her husband who injured by Ds negligence;
gave up full time job as a nurses aid
at first instance and on appeal damages were assessed based on her loss of wages minus travelling
expenses
P successful in appeal to HC
the market cost, as a gneral rule, is the amount to which the defendent must pay as
damages...in some cases the market cost may be too high...the case will be rare indeed where
income forgone by the carer will be the appropriate rate.

Lynch v. Lynch

P was seriously injured in a MVA

Her mother was bothe the driver/D and the gratuitious carer

60

Common law rule that could not recover because then the tortfeasor would be paying twice, once in
kind and once in money
but D was compulsorily indemnified by the third party insurer.

Kars v. Kars

The same situation arose in Queensalnd with P being the wife and d being the driver in the MVA and
the gratuitious carer.
HC unanimously dismissed the appeal by D (insurance company).
A review of the relevance of insurance to the common law development of liability in tort may be
relevant and timely.
The problem for this principle operating outside the area of compulsory insurance is more apparent
that real.
Need to protect P against the vicissitudes of life ie husband unable to care for her.

Griffiths v. Kerkemeyer

Kars v. Kars: we prefer to reduce the anomalies and absurdities

But:
Queensland - severely reduced in work place actions because of WorkCover.
Victoria - abolished for MV or work place actions
Tasmania - abolished entirely.
NSW, SA & WA limited quantification.

Non-pecuniary loss

With non-pecuniary dmages generalyy, the trend is towards standardisation.

But for past and future pain and suffering the award is entirely subjective so if unconscious P receives
nil
Generally see => Sharman v. Evans and Skelton v. Collins
for past and future loss of expectation of life, subjective and ibjective components with a standardised
sum for the objective.
For past and future loss of amenities it is the same but for the objective it is minimal because of
overlap with loss of expectation and often combined.

Death

At common law if P or D died the cause of action died with them.

In Queensland see s66 of the Succession Act 1981 and ss17-23 of the Supreme Court Act.

61

Succession Act s66

Actions for or against the deceased survive for or against the estate.
Deceased P cannot receive:
non-pecuniary damages;
future probable earnings;
calculated without reference to loss or gain to the estate.

Supreme Court Act

ss17 - 22 basically action can be brought for the losses suffered by the dependants (including de facto
spouses) of the deceased P
Nguyen v. Nguyen
loss of wifes and mothers gratuitous services
Jones v. Schiffman
age, appearance, inclination, experience, obligations to children and parents and the
value of freedom to remarry.

62