Category Archives: Nuisance

LAW FIRM, Negligence, Nuisance, Personal Injury

State Government Insurance Commission v Trigwell [1979] HCA 40

ON 19 SEPTEMBER 1979, the High Court of Australia delivered State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617 (19 September 1979).

The High Court confirmed the English common law rule of Searle v Wallbank “that the owner or occupier of a property adjoining the highway is under no legal obligation to users of it so to keep and maintain his hedges, fences and gates as to prevent animals from straying on to it, and that he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying on to it” (at 631).

Since this decision, State legislatures have passed laws to make farmers liable for the actions of their animals.

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LAW FIRM, Negligence, Nuisance, Personal Injury

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PERSONAL INJURY. ON 19 SEPTEMBER 1979, the High Court of Australia delivered State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617 (19 September 1979).

The High Court confirmed the English common law rule of Searle v Wallbank “that the owner or occupier of a property adjoining the highway is under no legal obligation to users of it so to keep and maintain his hedges, fences and gates as to prevent animals from straying on to it, and that he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying on to it” (at 631).

Since this decision, State legislatures have passed laws to make farmers liable for the actions of their animals.

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Damages, Injunctions, LAW FIRM, Negligence, Neighbourhood disputes, Nuisance

Miller v Jackson [1977] EWCA Civ 6

ON 4 JUNE 1977, the England and Wales Court of Appeal delivered Miller v Jackson [1977] EWCA Civ 6 (06 April 1977).  A cricket club was sued in negligence and nuisance caused by cricket balls landing on a neighbour’s property.  Whilst ordering damages, the court refused to grant an injunction to cease the action or further action as the game of cricket itself was considered to be in the public interest.

Lord Denning began with the following:

“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”

http://www.bailii.org/ew/cases/EWCA/Civ/1977/6.html

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Duty of Care, Immunities, LAW FIRM, Nuisance, Occupiers Liability, Personal Injury, Statutory Authorities

Benning v Wong [1969] HCA 58

ON 3 DECEMBER 1969, the High Court of Australia delivered Benning v Wong [1969] HCA 58; (1969) 122 CLR 249 (3 December 1969).

Per Barwick CJ:

“In the construction of statutes authorizing the performance of works, there are cardinal rules, the observance of which is fundamental to our system of law. Firstly, the statute will not be construed to authorize an interference with common law rights without compensation without unambiguous and compelling language. It is for the Parliament to make its will in this respect plain. It is not for the courts to search out implications which so displace or reduce common law rights. Secondly, a statute only authorizes those acts which it expressly nominates and those acts and matters which are necessarily incidental to the acts so expressly authorized or to their execution. Thirdly, a statute which authorizes the doing of an act or the performance of a work in general only authorizes it to be done in a careful manner. If the authority is to extend to a careless execution of an authorized act, the plainest of language must be used.” (at 256)

“There is no magic in the words “statutory authority”. Whether or not a statute exonerates from a liability in tort, which in the absence of the statute would be incurred, depends on the terms of the statute and their effect in the particular case. The question is always one of statutory construction… The mere fact that a statute makes it lawful for a man to bring something to a place and accumulate it there does not to my mind exonerate him from liabilities which the law imposes in consequence of his doing so…

When a statute authorizes the carrying on of an activity which cannot be carried on without creating a nuisance or doing other harm, the nuisance or harm, to the extent that it is an inevitable concomitant of doing the authorized work, is itself made lawful ; and its occurrence will therefore create no liability, except for such compensation, if any, as is provided for in the authorizing statute or by some other relevant enactment. But, except where Parliament has prescribed the place where and the method by which the work is to be done, the authorized undertaker must in choosing the place, time, manner, method, equipment and appliances for the conduct of his operations, use due skill and care and act reasonably to avoid avoidable harm.” (at 308-9)

“…a person who has to justify his otherwise tortious act by an assertion of statutory authority must show as part of this justification in defence that he did the authorised act skilfully and carefully …” (at 381)

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LAW FIRM, Negligence, Nuisance, Torts

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1

ON 25 MAY 1966, the Privy Council delivered Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 (25 May 1966).

http://www.bailii.org/uk/cases/UKPC/1966/1.html

A person is negligent if they fail to prevent a real risk that is reasonably foreseeable. A real risk is one in the mind of a reasonable person “which he would not brush aside as far-fetched”. This does not depend on the actual risk of occurrence.

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Sydney, Australia

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