QUESTION Wendy is fond of the local wildlife around her home, and

QUESTION

Wendy is fond of the local wildlife around her home, and each day she fills the several dedicated platforms in her backyard with seed to attract an array of local cockatoos and lorikeets. Each morning up to a hundred birds, which she calls her ‘darlings’, come to feed in her garden. They squawk and screech loudly for about an hour before leaving.

Shortly after moving in, Rupert constructs a new deck extending into his own backyard. On the deck he places expensive antique furniture. Within days the furniture has been peppered with bird droppings. If not cleaned up quickly, the droppings stain the upholstery on the antique chairs.

Angry about the noise in the morning and the stains on his furniture, Rupert confronts Wendy to complain. During their argument Wendy commented on the stench of the lacquer which Rupert used on the new deck, and how worried she is about inhaling chemical fumes. In retaliation for the disturbance caused by the birds, Rupert decides to bombard the fenceline with chemicals.

During the week he organises for a painter to come and paint several coats of highly smelly paint on his side of the fence. The following week he sprays chemical pesticides along his side of the fenceline. ‘Can you smell that Wendy?’ he shouts over the fence. ‘Mmmm… breathe it in!’

Early the next morning, while Rupert is still sleeping, Wendy moves her car from her own driveway and parks in the road in front of Rupert’s house. She has parked so as to block his driveway, making it impossible for him to leave in his car to go to work in the morning. She then sets off for a long walk in nearby bushland.

Sample answers below are based on students’ submitted assignments in LAW5PTO Principles of Tort Law in 2018.

SAMPLE ANSWER 1 (C)

Nuisance

In terms of the judgement delivered by the High Court of Australiain Hargrave v Goldman, an unlawful interference with a person’s use or enjoyment of land or of some right over or in connection with it, is called ‘private nuisance’. This is one kind of private nuisance. In the said case there was a tall red gum tree on defendant’s land and it caught fire as a result of lightening. The defendant failed to prevent the spreading of fire even over the next few days and it spread to plaintiff’s property. The defendant was liable for his omission.The issues in the present case are whether Wendy was able to prevent the noise of the birds and thereby avoid the occurrence of nuisance. According to said decision in 1963, private nuisance on the part of Wendy is established as she was not able to prevent the disturbance caused to Rupert by loud squawks and screeches and bird droppings of cockatoos and lorikeets by making them do not come to feed in her garden. In the case of St Helen’s Smelting Co v Tipping, the claimant’s house was situated in an industrial area and as a result of emission of fumes by the defendant’s factory, trees on his land were harmed. The argument put forward by the defendant was that the claimant must bear such harmful consequences as he lives in an industrial city. The House of Lords rejected this argument and placed its concern on ‘sensible personal discomfort’ which recognizes that a person’s private property could not be affected merely because of his locality. Thereby, an injunction was granted against the defendant. In the present case, Rupert and Wendy live in a semi-rural area on the outskirts of Melbourne. Rupert moves to this new area with the intention of having a change from his prior city lifestyle. It indicates that this area is a peaceful residential area in contrast to an industrial estate. As per the said decision, even in an industrial area one cannot act in a way interfering with another’s private land. Consequently, Wendy by allowing birds to feed in the garden who made unbearable noises cannot put up personal discomfort and disruptthe Rupert’s right of enjoying his residential premises peacefully.

Further, there are necessary factors to be established in order to make a person guilty of his or her acts of interfering with another’s rights which are unreasonable. Locality is one of them. In the landmark case of Sturges v Bridgmandecided by the Court of Appeal, a doctor moved to a new house of which the next-door neighbour was a confectioner. The confectioner was used to make sweets in the kitchen of his house for sale for over twenty years. The doctor built a shed on the boundary of the two lands for his private practice. However, he was unsuccessful in carrying out consultation peacefully due to the loud noises produced from the industrial mortars used by the confectioner. Thereby, he requested an injunction. The plaintiff’s argument was that the use and enjoyment of his property was interrupted by the defendant. The defendant counter argued that he has acquired a right being an uninterrupted user for years. Determination of the court was that the mere fact of not causing any harm to anyone for more than twenty years was no defence and it would not diminish the plaintiff’s legal right to bring nuisance to an end. Therefore, decision of granting an injunction to the plaintiff was upheld in the Appellate court. In the present case, although Wendy has lived in her house for over 40 years without causing any harm to anyone before, interrupting the use and enjoyment of land by Rupert is sufficient to grant an injunction against her as held in Sturges. Thereby, causing nuisance gives her no defence. When considering ‘time’ as a factor, it is evidenced that sounds of the birds remain for about an hour each day. Nuisance is thus continuous. Further, their loud noise in the morning is in excessive degree and interrupts enjoyment of Rupert’s property rights. Therefore, in the eyes of a reasonable man, Wendy is liable for private nuisance filling the platforms in her backyard with seed to attract the particular birds.

In addition,private nuisance can be caused by material physical damage. Whether or not the bird droppings on Rupert’s expensive antique furniture amount to material physical damage is an issue to be determined. In here, strict liability is imposed on Wendy irrespective of the factors such as duration, locality and sensitivity since material damage itself is considered unreasonable in nuisance.

Furthermore, according to the facts of the case Robinson v Kilvert, ‘the defendant’s factory manufactured paper boxes. They were required to be kept warm and dry for their good condition. The ground floor was rented to the claimant to stock special brown paper. The claimant complained that brown papers which are unusually sensitive to heat were damaged from the heat of the defendant’s factory. When the defendant was sued for nuisance it was held that there was no nuisance. The ratio was that the heat from the defendant’s factory would not be harmful to ordinary paper.’When this reasoning is adopted to the current case, Wendy’s comment on the stench of the lacquer which Rupert used on the new deck and the difficulty of inhaling chemical fumes are significant. Even having knowledge that Wendy would be unhappy with it, Rupert makes the fence line painted with highly smelly paint and sprays chemical pesticides along his side of the fence line. An issue arises as to whether nuisance is caused by Rupert. The particular activity is undertaken by Rupert for the purpose of annoying Wendy and in revenge for the disturbance caused by the birds. However, in Wendy’s case, she is an elderly person who is unusually sensitive to smell of chemicals. The factor of malice is there on the part of Rupert and his act is therefore unreasonable. It could be argued that nuisance is caused by Rupert in contrast to the decision in Robinson.

Further, in Munro v Sothern Dairies Ltd. the plaintiff was granted an injunction to restrain the defendant from keeping the horses in his premises. Based on this judgement, Wendy becomes liable for nuisance by parking her car in front of Rupert’s house blocking his driveway as it interrupts the use and enjoyment of his property rights.

SAMPLE ANSWER 2 (C)

The Tort of Nuisance

According to St Helen’s Smelting Co v Tipping, there are two types of private nuisance which may occur by either “interference with use and enjoyment of property rights” or “material damage to property”.

The first issue is whether Rupert and/or Wendy are liable for a tort of the nuisance as to the following situations:

I. The issue of being liable for nuisance by Wendy as to the noise and the furniture’s stains (resulted from feeding an array of local lorikeets and cockatoos) which happened to Rupert may be considered from two aspects.

The issue of birds’ making noise: As it is stated in the case, Wendy feeds birds every day in the morning; it takes about one hour that they make a loud noise before leaving Wendy’s backyard. Although feeding the birds is a reasonable enjoyment in the view of Wendy, it would be an unreasonable interference in the view of Rupert who is in the neighbourhood. It can be mentioned as a matter of locality that gathering an array of birds in a residential area may be an unreasonable interference for the neighbours especially the next door one. As Wendy repeats the same thing every day in the morning which is the time that Rupert is still at home and it is completely hearable by him, it can be said that the frequency, time, duration and extent of Wendy’s interference is against Rupert’s use and enjoyment of his property. It is mentioned in the present case that the noise of the birds is “loud”, so, considering the notion of “question of degree” as to the noise, bring us to this conclusion that it is really annoying for Rupert and he does not exaggerate it. Being malicious may directly change a reasonable interference to an unreasonable one; it is clear that Wendy’s conduct is a result of being fond of the local wildlife and is not maliciously.

In the result, all of the factors which are necessary to determine that interference made by Wendy’s conduct are unreasonable, are clear in the case except being malice that cannot be recognised in her manner. So, it seems unlikely to reach a reasonable balance between the aforementioned interferences by the court; Wendy as the defendant in this issue will not be liable for the tort of nuisance.

The issue of material damage to the furniture: As to staining the upholstery of Rupert’s antique chairs by the birds, another issue may arise is whether a tort of nuisance caused by Wendy against Rupert.

In opposition to the first type of the nuisance, in the second category which is related to material damage of the property, the court does not seek a balance between other factors and it is as a strict liability. Burbury CJ in Kraemers v Attorney-General (Tas) said that “Where material or substantial injury to property is caused nothing more need be shown by the plaintiff. The criterion the law applies to the plaintiff’s entitlement to sue is a material injury to his property.” As we know, for recognition a tort of nuisance, it is necessary to find an unreasonable interference; the onus of proof is on Rupert as a plaintiff and if he proves a material damage on his antique furniture which caused by dropping of the birds, it will be sufficient.

It will be most likely that the court determines Wendy as a liable person in this regard.

II. After conversation and argument which take place between Rupert and Wendy, a series of conduct which are performed by both of them bring a question in mind that whether there is a tort of nuisance which they are liable for it respectively in making the strong smell by painting and chemical pesticides and/or blocking the driveway by parking the car in the road.

In the present case, as Rupert finds Wendy is annoyed with chemical fumes of the new deck’s painting of his house, he decides to make a disturbance in a way which will be annoying to her; in fact, he decides to retaliate Wendy’s disturbance. Following this decision, he uses a highly smelly paint for the fences of his house and also a chemical pesticide. The next day in the morning, Wendy decides to do a counter conduct and in retaliation, she parks her car in the road so that it blocks the driveway of Rupert and makes a problem for him for going to his workplace.

Heretofore Rupert has been as a plaintiff, but after that he will be liable for annoying Wendy and in following, Wendy is again liable for making disturbance for Rupert.

There are many authorities as case law that demonstrates the activities of people who are living in the neighbourhood of each other and one of them perform some conduct in the retaliatory of other one’s conduct which caused a disturbance at first.

One of the cases is Stoakes v Brydges. Townley J has followed the idea that the defendant has a liability as to a tort of a nuisance when he decides to telephone the latter’s employers to retaliate the noise disturbance which was made by a milkman; he has stated in this regard that:

“The fact that the plaintiff might be committing a nuisance does not mean that the defendant is entitled to commit a nuisance in retaliation.”

Another case which can be as an authority in the present case is Christie v Davey; the court recognised a liability of a tort of a nuisance for the defendant as his start to retaliate the plaintiff’s noise disturbance with a malicious intention.

In conclusion, it is highly probable that Rupert and Wendy are recognised liable by the court for a tort of a nuisance as they have done some counter conduct maliciously to each other in retaliation in the hope of alleviating the other’s annoyance.

SAMPLE ANSWER 3 (B)

Nuisance

Rupert has a potential liability in the tort of nuisance, more specifically, private nuisance since it can be argued that his actions are interfering with Wendy’s use and enjoyment of property rights. It can be inferred that his actions of spraying the fence line with harsh chemicals in retaliation for the argument he had with Wendy, and after she had explicitly voiced her concern of inhaling the fumes produced by the chemicals, amount to a nuisance since it results in a considerable inconvenience for Wendy and her enjoyment of the property..

Rupert could argue that Wendy was being ‘unduly sensitive’ to the painting of his fence. Relying on the principle of Walter v Selfe that an interference is considered a nuisance ‘not merely according to the elegant or dainty modes and habits of living, but according to plain a sober and simple motions’. However, his excessive use of paint and chemicals can be seen as unreasonable by any person of ‘normal sensitivity’. Moreover, the frequency and degree of Rupert’s actions can be taken into account to determine whether his actions amount to a nuisance. The fact that over two weeks he organised for a painter to do several coats of highly smelling paint and also sprayed the fence with chemical pesticides can be regarded as an unreasonable interference for Wendy, since although the interference did not occur over an extended period of time, the frequency in which it occurred over those two weeks was considerable enough to amount to a nuisance.

Another factor that can be taken into account regarding Rupert’s actions is malice, since an act or interference that might be considered reasonable is rendered unreasonable when performed with malicious intention. Malice can be inferred from Rupert’s actions since he started bombarding the fence line in retaliation for the argument and did so knowing that Wendy was worried about inhaling the fumes, as well as the fact that he shouted to Wendy: ‘can you smell that Wendy?… Mmmmm breathe it in!’. The intent with which Rupert performed these acts can be regarded as constituting malice.

On the other hand, Wendy can also be potentially found liable in private nuisance, since her actions interfered with Rupert’s right of enjoyment of his property. Firstly, the fact that up to a hundred birds were coming early in the morning to be fed by Wendy, squawking and screeching for about an hour; and secondly, the fact that this ultimately resulted in actual material physical damage to Rupert’s expensive antique furniture by the bird droppings can amount to a considerable interference with Rupert’s enjoyment of his property. Wendy could argue that before Rupert moved in, there had been no problems in regards to the birds’ noise or droppings, and also that she had been feeding the birds long before Rupert moved in. The duration, time and frequency of this interference also weights in when ascertaining what constitutes a nuisance, taking into account that the screeching of the birds and the droppings on the furniture occurred every morning, it can be inferred that this constitutes a considerable interference with Rupert’s enjoyment. Considering that the area where Rupert and Wendy live is semi-rural but still residential, and that there is not a lot of distance between the two residences, her argument of Rupert coming to the interference of the bird noise cannot be used by Wendy as a valid defence for nuisance.

Like Rupert’s case, another factor that contributes to Wendy’s possible liability in private nuisance is the malicious intent she had when she moved her car from her own driveway and parked it in front of Rupert’s property, therefore blocking his way and making it impossible for him to leave for work. It can be inferred that malicious intent was present on Wendy’s part as she moved her car in front of Rupert’s driveway and decided to go on a bush walk knowing that Rupert had to go to work and that it would have not been possible for him to leave the house if his driveway was blocked by her car. The fact that the purpose Wendy had when she moved the car to Rupert’s driveway was to annoy and inconvenience him, provides proof for malicious intent.

SAMPLE ANSWER 4 (A)

NUISANCE

Nuisance is the interference of a person in the enjoyment of another person’s property which endanger lives, safety, health, property or comfort of the public or by which the public are obstructed in the exercise or enjoyment of any right common to all. There are two alleged counts of nuisance caused by Rupert: before the argument which started when Rupert applied the lacquer and after the argument when he applied the highly smelly paint and sprayed the chemical pesticide.

Before the argument, Rupert decided to construct a new deck extending to his own backyard. The consideration of the area and the duration and extent of the activity is essential in determining whether or not nuisance took place. The pungency of smell may be held a nuisance if it is not reasonable, was not a common practice that was held in a ‘non-urban’ location provided that the activity is foreseeable to not have an effect to a normally sensitive person.26 To say that the application of the lacquer is not reasonable is to characterise whether the duration of the activity is not acceptable. The activity is temporary and not permanent rendering it reasonable for the duration, however, the location is ‘non- urban’. If Wendy can prove that the temporary activity is not reasonable in a ‘non-urban’ location, then there is a potential nuisance. Moreover, the extent of the nuisance considers the sensitivity of Wendy to the smell because of her age. If Wendy can prove that she is a normally sensitive person and that the application is not a common practice, then Rupert’s activity may potentially constitute nuisance.

After the argument, in retaliation, Rupert decided to do two things: hire a painter to apply a highly smelly paint and intentionally spray a chemical pesticide. Whether or not these constitute to nuisance is dependent on the nature of these activities. If there is a malicious intent to annoy other people in conducting an activity, there is nuisance. The presence of insulting words from Rupert causing an irritation to Wendy while doing the activities display a malicious intent resulting to a nuisance. Moreover, Rupert’s application of paint does not need to be highly smelly in nature, but, he decided to apply highly smelly paint in vengeance to their earlier argument. This activity may potentially constitute nuisance to Wendy.

There are two alleged counts of nuisance caused by Wendy: before the argument and after the argument.

Before the argument, Wendy has lived in her house for 40 years and every day she fills the several dedicated platforms in her backyard with seed to attract an array of birds. This activity caused an alleged nuisance to Rupert, who shortly moved to the neighbourhood, because of the bird’s droppings and the presence of noise every morning. Whether or not Wendy’s feeding of birds constitute to nuisance is dependent on the nature of the area at that time Rupert complained. The type of neighbourhood matters in defining whether or not an act constitutes a nuisance. Rupert constructed a new deck extending to his own backyard bearing in mind that he can enjoy the peace that a ‘semi-rural’ area can offer. Since it is a ‘semi-rural’ area, the presence of birds may not be an issue, but the presence of hundreds of birds may be an issue. Coming to nuisance is no defence. Even if Wendy has been there for 40 years, the nature of the area is not a wildlife reservation, it is a residential area. Therefore, Wendy’s act of feeding hundreds of birds may potentially constitute a nuisance to Rupert.

After the argument, as an exchange of retaliation to Rupert, Wendy decided to move her car and parked it in front of Rupert’s house so as to block the driveway of Rupert where he cannot use his car going to work. Whether or not this parking of car constituted nuisance is dependent on the nature of the interference of Wendy. Nuisance is present in the event that the defendant interfered with the plaintiff’s right of free access into and out of his property and an act to interfere with malice. Wendy can argue that she parked outside the property of Rupert, however, her decision to move her car from her driveway to Rupert’s driveway to restrict him of his free access out of his property with an intent of annoying him is a clear display of interference with malice on the part of Wendy. Therefore, the act of Wendy may potentially constitute a nuisance to Rupert.

SAMPLE ANSWER 5 (A)

Wendy’s Potential Liabilities

Private Nuisances

Private nuisance is a tort law which concerns the protection of people’s recognised rights over properties. It consists of two categories: private nuisance by interference with use and enjoyment of land; private nuisance by material property damage. This brings up two key issues to Wendy. Firstly, whether Wendy’s act of bringing a hundred birds in her backyard, which causes noise amounts to an interference with Rupert’s use and enjoyment of the land. Secondly, whether or not the stain on the Rupert’s antique chair caused by the birds can entitle him to claim material damage to property against Wendy.

Private Nuisance by Interference with Use and Enjoyment

To succeed in this claim, the plaintiff has to show that the defendant’s activity was unreasonable under all circumstances. To decide unreasonableness, the court will balance the use of the plaintiff and the interests of the defendant’s activity. Thus, factors such as locality, duration, time, frequency, extent, sensitivity and malice are all to be considered.

Locality and Time

Sturges v Bridgman suggested that the standards of what amount to interference with use and enjoyment of land are different between different residential blocks. As Wendy and Rupert live in a semi-rural area on the outskirts of Melbourne, the court is likely to hold the standards a bit higher that what it was in Sturges. However, apart from location, the court will take into account timing issue too. Seidler v Luna Park Reserve Trust suggested that interference by noise outside business hours might be unreasonable if the plaintiff’s premise is residential. Therefore, it is more likely to be a nuisance if Wendy’s activity occurs outside of business hours. The detailed facts about timing needed.

Duration, Extent and Frequency

As to duration and extent, Halsey v Esso Petrolem Co Ltd suggested that short durations but substantial interference or less substantial interferences but long duration can both be unreasonable. In this case, the squawking and screeching are loud and last one hour. This is likely to suffice. On top of that, Wendy pursues this activity every single morning, which is a really high frequency. So these facts all support Rupert’s claim against Wendy.

Sensitivity

In addition to the above, the sensitivity of the plaintiff is also a factor. It was suggested in Walter v Selfe that the unreasonableness is judged against simple life style, instead of an elegant one. However, there is no indication that Rupert has an elegant life style nor he is overly sensitive to noise.

So putting all those factors together, Rupert is likely to have a strong claim against Wendy in interference with use and enjoyment of his property.

1.2 Private Nuisance by Material Damage

This is a tort of strict liability. Kraemers v Attoerney-Genral (Tas) suggested that the only proof a plaintiff has to demonstrate is the material damage to his or her property. Thus, in order to succeed, Rupert has to show the upholstery stain on his expensive antique chair is a material damage. The detailed damaging facts is needed.

However, even if Rupert can prove the damage is material, Wendy can defend herself by arguing that her activity is of reasonable use.

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