As you may know I am teaching Torts at the moment. We recently covered trespass to the person, which I admittedly have a soft spot for. I like it because trespass to the person actions are easily relatable. I also like it because it shows us how a number of areas of...
Private Nuisance….Hammering, Organic Farming and Electric Guitar Playing!!
Recent Blog Posts
Cruising, Pregnancy and Miscarriage- Waine v Carnival PLC t/as P&O Cruises Australia [2022] NSWDC 650
I recently read Waine v Carnival PLC t/as P&O Cruises Australia [2022] NSWDC 650. This case may be of interest to students in my Torts Law class. The plaintiff was 15 weeks pregnant when she started to show signs of losing her baby. At the time she was enjoying a...
Medical Negligence, Causation and Bariatric Surgery!!!
Woohooo…I am teaching causation in negligence actions again!! Causation is kinda cool but can also be super tricky… Essentially causation in a negligence action, relates to whether or not the defendant (alleged wrongdoer) caused the harm to the plaintiff (person who...
Duty of Care and Climate Change…
Nothing gets people more excited than talking about owing duties of care. For the uninitiated, duty of care in a negligence action relates to whether or not a defendant owes a legal duty to another. Within a negligence action, finding a duty of care is often easily...
I spent much of my weekend hammering away whilst fixing my front deck…I thought about how annoying this must be for my neighbours… but then remembered the many times I have listened to their leaf blowers or chain saws…My neighbours are a respectful and quiet bunch…so wild parties don’t appear to be the order of the day..
Anyway- one of the key components of private nuisance is the notion of give and take- it is all about balancing the interests of occupiers of land. Of course, this is often easier said than done and a number of elements need to come into play. One of those elements is locality…historically how salubrious your neighbourhood is was relevant to an assessment of whether or not there had been a private nuisance. How long the nuisance goes for and the timing of the alleged annoyance is also relevant. What may be a nuisance at 2am is potentially not a nuisance at 2pm!!!
Private nuisance in tort should not be confused with public nuisance which is a criminal offence. Instead it relates to an action/s which interferes with a possessor’s use of land. Private nuisance isn’t as big an issue as it used to be given the zoning laws and regulations which are now in force. It is still relevant though …one fairly recent case which spoke about private nuisance in its modern context was Marsh v Baxter (2015) 59 WAR 1. In this case organic farmers launched an action against their GMO (genetically modified organism) farming neighbours. The GMO farmers sprayed their crop with herbicide and then the crop was swathed and left in the field for several weeks. The GMO seeds and plant residue were dispersed over the neighbouring organic farm. This meant the organic farmers lost approximately $85,000 from the sale of their crops as they lost organic certification.
Perhaps contentiously in March v Baxter, Newnes and Murphy JJA noted Canola swathing was a ‘common and ordinary’ use of land. Thus, a neighbour couldn’t expect further protection because they use their land in an ‘abnormally sensitive’ way….
OK my son has just arrived and he is about to serenade me on his electric guitar…I wonder what is the order of the day…hopefully Gunners or Metallica- my neighbours will love that!!