Category Archives: Nuisance

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 | 25 May 1966

ON THIS DAY in 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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Miller v Jackson [1977] EWCA Civ 6 | 6 April 1977

ON THIS DAY in 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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Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 | 24 MARCH 1994

ON THIS DAY IN 1994, the High Court of Australia delivered Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520; (1994) Aust Torts Reports 81-264; (1994) 120 ALR 42; (1994) 68 ALJR 331 (24 March 1994). The rule in Rylands v Fletcher was abolished so that the determination of liability for harm caused by dangerous substances or activities on premises comes under the principles of negligence rather than strict liability.

http://www.austlii.edu.au/au/cases/cth/HCA/1994/13.html

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State Government Insurance Commission v Trigwell [1979] HCA 40 | 19 September 1979

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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Civil Liability Act 2002 (NSW) | 18 June 2002

ON 18 JUNE 2002, the NSW Civil Liability Act 2002 was enacted.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.

The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.

The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.

The significant features of the Act include:

  • Statement of principles for determining negligence.
  • Modification of causation test.
  • No duty to warn of obvious risk.
  • No liability for materialisation of inherent risk.
  • No liability for harm suffered from obvious risks of dangerous recreational activities.
  • No duty of care for risk warning of dangerous recreational activity.
  • Standard of care for professionals.
  • Contributory negligence can defeat a claim.
  • Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
  • Limiting interest.
  • Restrictions for persons in custody.
  • Restrictions for mental harm.
  • Allocation of proportionate liability for concurrent wrongdoers.
  • Limiting liability of public authorities.
  • Restricting recovery for intoxicated persons.
  • Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
  • Apologies not to affect liability.
  • Limiting damages for birth of a child.
  • Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
  • Costs restrictions.

The Act does not apply to claims (or parts of claims) regarding:

  • Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
  • Dust diseases.
  • Tobacco.
  • Motor Accidents and public transport accidents.
  • Workers, Victims and Sporting Injuries compensation.

 

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Civil Liability Act 2002 (NSW)

ON 18 JUNE 2002, the NSW Civil Liability Act 2002 was enacted.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.

The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.

The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.

The significant features of the Act include:

  • Statement of principles for determining negligence.
  • Modification of causation test.
  • No duty to warn of obvious risk.
  • No liability for materialisation of inherent risk.
  • No liability for harm suffered from obvious risks of dangerous recreational activities.
  • No duty of care for risk warning of dangerous recreational activity.
  • Standard of care for professionals.
  • Contributory negligence can defeat a claim.
  • Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
  • Limiting interest.
  • Restrictions for persons in custody.
  • Restrictions for mental harm.
  • Allocation of proportionate liability for concurrent wrongdoers.
  • Limiting liability of public authorities.
  • Restricting recovery for intoxicated persons.
  • Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
  • Apologies not to affect liability.
  • Limiting damages for birth of a child.
  • Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
  • Costs restrictions.

The Act does not apply to claims (or parts of claims) regarding:

  • Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
  • Dust diseases.
  • Tobacco.
  • Motor Accidents and public transport accidents.
  • Workers, Victims and Sporting Injuries compensation.

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Sydney, Australia

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Lewis v The Council of Mosman [2001] NSWSC 1144

Lewis v The Council of Mosman [2001] NSWSC 1144 (13 December 2001).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/1144.html

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Sydney, Australia

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