1. REMEDIES – DAMAGES PERSONAL INJURY/DEATH
LAW OF TORTS
WEEKEND LECTURE 2B
NEGLIGENCE
DEFENCES
REMEDIES – DAMAGES PERSONAL INJURY/DEATH
NUISANCE

2. LAW OF TORTS
NEGLIGENCE DEFENCES

3. DEFENCES TO ACTIONS IN NEGLIGENCE
COMMON LAW
Contributory negligence
Voluntary assumption of risk
Illegality
CIVIL LIABILITY ACT
Pt 1A - ss5F to I: Assumption of Risk
- ss5R to T: Contributory Negligence
Pt 5- s45 “Highway Immunity” restored
Pt 6- Intoxication
Pt 7- Self-Defence & Recovery by Criminals

4. Contributory Negligence
Earlier approaches in Common Law:
- The last opportunity rule
- The complete defence
The development of apportionment legislation
- Wynbergen -v- Hoyts Corporation P/L (1997) per Hayne J (Gaudron, McHugh, Gummow & Kirby JJ agreeing)

5. Contributory Negligence: The nature of the P’s conduct
To plead the defence D bears the onus of proof and must prove the requisite standard of care that has been breached by P.
It would seem that courts apply the standard leniently to P, and whether P’s action by reason of D’s negligent conduct constitutes an unreasonable risk to him/herself will depend on the circumstances of each case

6. The Substance of Apportionment Legislation
Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage (Law Reform (Miscellaneous) Act 1965 (NSW) s10

7. Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34
Facts - Mr Berryman drank enough alcohol in the company of Ms Joslyn on Friday evening, 25 October 1996, to be so intoxicated as to feel "fairly crook" on the following morning.
- He worked during the day on Saturday, rested for a time, and then, at about 9pm went to a party at a property near Dareton in south-western New South Wales. With one interruption, at about 11.30pm, Mr Berryman spent his time at the party, until about 4am, drinking alcohol. By that hour he admitted that he was beyond doubt, quite drunk. He went to sleep on the front seat of his utility motor vehicle. In his evidence he claimed to have no further recollection until he heard a scream, and realized that he was a passenger in his vehicle which was turning over.
- Mr Berryman had been friendly with Ms Joslyn before the Friday night preceding the accident. He was aware that she had lost her driving licence on her conviction for driving a motor vehicle with a blood alcohol content of 0.15g/100ml.

8. Joslyn v Berryman
- Early in the morning of the Sunday Ms Joslyn had placed her swag on the ground beside Mr Berryman's vehicle and had gone to sleep. Ms Joslyn woke not long after daylight, having heard Mr Berryman moving about in his vehicle. No one else was up at that time. - Mr Berryman then drove, Ms Joslyn as a passenger into Mildura, along the road upon which the vehicle was later to overturn. The journey took some 15 to 20 minutes. When they arrived at a McDonald's café, Mr Berryman entered, ordered food, paid, drove towards the river, stopped and ate the food. He did not drink alcohol in that time. - Ms Joslyn said Mr Berryman had commenced the drive back to Dareton, but, at some time after they entered Hollands Lake Road she noticed he was dozing off. She must have reproached him for doing so for he said, "Well, you drive the car then." - He stopped the vehicle and exchanged places with Ms Joslyn. She then commenced to drive it and did so to the point of the accident.

9. Joslyn v Berryman
- Ms Joslyn said that she and Mr Berryman spent the Friday evening drinking together until after midnight at hotels in Wentworth. Afterwards they returned to Ms Joslyn's residence where they continued drinking. - Ms Joslyn took a bottle of whisky with her to the party on the following Saturday evening. She travelled as a passenger in a car with three other women. Ms Joslyn drank from the bottle at the party. She too was seriously affected by alcohol, and the blood alcohol reading, some hours later, was 0.102g/100ml. Indeed Ms Joslyn was observed by others at the party to be "quite drunk and staggering about" at 4.30am.

10. Joslyn v Berryman
- Ms Joslyn had last driven a vehicle three years earlier. She had at some time previously told Mr Berryman of that. She did not see the curve until the last minute. "It was just there all of a sudden and it turned really sharply and the car wouldn't go round the bend."
- By the time the vehicle entered the curve Ms Joslyn had been driving, she estimated, for a couple of minutes at most. She could not say at what speed she travelled as the speedometer of the vehicle was broken.
- Describing the curve where the vehicle left the road and overturned, she said that it looked as if it were just a simple curve "and then it goes right back around sharply". That was something she realized when she was already in the curve. Mr Berryman suffered serious injuries in the accident.
Trial – Boyd-Boland ADCJ found for Mr Berrymen but reduced damages by 25% for contributory negligence.

11. Joslyn v Berryman
NSWCA - Priestley JA, Meagher JA and Ipp AJA upheld Mr Berryman's appeal by holding that he was not guilty of any contributory negligence at all. The leading judgment was given by Meagher JA with whom the other members of the Court agreed.
"His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff. The only action of his which could possibly have amounted to contributory negligence was permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as they stood at the time of handing over control of the car, (not as they were in the previous 24 hours), a task which his Honour did not really undertake. One must also, if one concludes that at the time of handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to which there is no evidence in the present case, judge the question of contributory negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But, although at the time of the accident the blood alcohol levels of Miss Joslyn and Mr Berryman were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication. Indeed, quite to the contrary. Of the people who were present who gave evidence, all said that Miss Joslyn showed no signs of intoxication. His Honour so found. Despite, therefore, one's reluctance to overrule a trial judge's finding on apportionment (Podrebersek v Australian Iron and Steel Pty Ltd), it seems quite impossible to justify his Honour's conclusion on contributory negligence. I would be in favour of reducing it from 25% to 0%."

12. Joslyn v Berryman
HC – McHugh, Gummow, Callinan, Kirby & Hayne JJ allowed the appeal (ie. Overturned the decision of the NSWCA)
Besides criticism of the NSWCA for not referring to s.74 MAA 1988 (ie. contrib neg shall be made unless found not to have contributed), Gummow and Callinan JJ found the NSWCA erred in fact.

13. Joslyn v Berryman Gummow & Callinan JJ –
“A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that. Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol”.

14. Motor Accidents Compensation Act 1999 s 138
A finding of contributory negligence must be made in the following cases:
where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident…
Where the driver’s ability to control vehicle was impaired by alcohol and the P as an adult voluntary passenger was/ought to have been aware of this…
Where the injured party was not wearing set belt/protective helmet, and was required by law to wear such belt/helmet

15. Civil Liability Act 2002
s5S – a court may determine a reduction of 100% if it is just and equitable to do so
: compare Wynbergen –v- Hoyts Corp (1997) 149 ALR 25
s5T – a court may reduce a claim for damages under the Compensation to Relatives Act 1897 for contributory negligence of the deceased
S50(4) – a presumption of contributory negligence of 25% if the plaintiff was intoxicated at the time of injury

16. Contributory Negligence of Rescuers
Azzopardi v Constable; Azzopardi v Thompson [2006] NSWCA 319
The NSW Court of Appeal has found that two rescuers hit by a motor vehicle contributed to their injury by not taking due care when assisting another motorist. The two rescuers were dressed in dark clothing, neglected to turn on their vehicles' hazard lights and were not alert to oncoming traffic. Hodgson JA and McColl JA both reduced the damages payable to the rescuers from 75% to 50%. Ipp JA dissented, finding that the rescuers ought to have been more careful when in a position of such obvious danger, and would have reduced the damages to 25%. 

17. Voluntary Assumption of Risk
In general where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain an action against D for negligence in relation to that situation
The elements
P must have perceived the danger
P must have fully appreciated the danger
P must have voluntarily accepted the risk

18. Voluntary Assumption of Risk
Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR 289 (P contracted lung cancer by allegedly smoking D’s cigarettes, D sued for negligently and misleadingly advertising cigarettes)
If it is to be the case that the smoking of the said cigarettes involved risk of injury as alleged… the P knew or ought to have known that the smoking of the said cigarettes involved such risk and the P accepted, consented to and voluntarily assumed the same (extract from D’s statement of defence)

19. VAR in the Work Place
Smith v Baker & Sons P (injured by falling rock while working a drill, fellow workers had complained of the danger previously, issue whether P voluntarily accepted the risk, held defence not applicable)
The defence is not constituted by knowledge of the danger and acquiescence, but by an agreement to run the risk and to waive your rights to compensation

20. Physical and Legal Risk
By engaging in a sport or pastime the participants may be held to have accepted the risk which are inherent in the sport… but this does not eliminate all duty of care of the one participant to the other

21. Civil Liability Act 2002 Assumption of Risk
s5F – “obvious risk” defined
s5G – injured person presumed to be aware of obvious risk unless proven otherwise
s5H – no proactive duty to warn of obvious risk in certain circumstances
s5I – no liability for materialisation of “inherent risk” (as defined)

22. Swain – Insight to how the HC may view “recreational activity”
MR MENZIES QC: ... obviously the defendant, in considering its duty, has to take into account that sometimes people do do risky manoeuvres and that may be the simple explanation for it. Of course, so far as closing every beach in Australia, that is of historical interest, certainly in New South Wales, because as a result of the Civil Liability Act the chances of this plaintiff, were he to proceed now and succeed in tort against the defendant, are nil.
KIRBY J: It cuts a little both ways, that it is Parliament saying that the approach of the courts in the past has been too generous or as Justice Thomas said “too Santa Claus”.
MR MENZIES QC: Your Honour, what it demonstrates, in our respectful submission, is the legislature doing its job as it perceives it to be and that is, there is a policy decision made, policy decisions generally speaking are for the legislature, not for courts. The legislature has decided as a matter of policy that these torts are no longer sound in damages in New South Wales for whatever reason. It is not a bad example of the separation of powers and the appropriate organ of Government.
KIRBY J: How is that done? Have you the section of the civil liability? Has that passed into law in New South Wales?
MR MENZIES QC: It is now, your Honour, yes. It was not relevant at the time. I did not include it on our list or provide copies, but it is the Civil Liability Act 2002 and it Division 5 “Recreational Activities” - - -

23. Swain – Insight to how the HC may view “recreational activity”
GUMMOW J: What does it say? What is the critical provision?
MR MENZIES QC: Well, 5J applies only in respect of liability in negligence for harm to a person (“the plaintiff”) resulting from a recreational activity engaged in by the plaintiff. Recreational activity is divided into two kinds. There is;
“dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm. That is in the definition section 5K, and:
“recreational activity” includes: (a) any sport . . .  (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach . . .  5L No liability for harm suffered from obvious risks of dangerous recreational activities . . .  5M No duty of care for recreational activity where risk warning – so that liability would seem to be excluded if a risk warning is put up, assuming this is a recreational activity. If, on the other hand, as Chief Justice Gleeson points out, this might well be regarded as a dangerous recreational activity, you do not even have to put a sign up, that is the end of it.

24. Swain – Insight to how the HC may view “recreational activity”
KIRBY J: It does not sound as though this is categorised. That is paragliding and things of that kind, I would have thought, because they say, “such as on a beach” in the definition of “recreational activity”.
MR MENZIES QC: True.
GLEESON CJ: What about recreational activities that are dangerous for some people, like people who cannot swim, and not dangerous for others?
MR MENZIES QC: I have no doubt that at some point that is going to entertain your Honours.
GUMMOW J: Here we are again, more imperfect law reform.

25. Illegality
There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally he does not become a caput lupinum (an outlaw) ( per Latham CJ: Henwood v Municipal Tramsways Trust

26. The Test to Disentitle the Defence
In each case the question must be whether it is part of the purpose of the law against which the P has offended to disentitle a person doing the prohibited act from complaining of the other party’s act or default
Gala v Preston (no proximity)
Italiano v Barbaro (1993) 114 ALR 21(injury sustained while parties were in the process of looking for a spot to stage accident; Neaves & Whitlam JJ not “appropriate” to fix a standard of care in the circumstances )

27. Civil Liability Act 2002 Illegality
S54 – criminals not to be awarded damages if:
(a) on the balance of probabilities, the conduct constitutes a “serious offence”, and
(b) that conduct contributed materially to the risk of death, injury or damage.

28. DAMAGES: PERSONAL INJURY
SPECIAL DAMAGES
out of pocket expenses
loss of income up to the date of verdict less any deductions (This may be included in loss of earning capacity)
GENERAL DAMAGES
future medical and hospital expenses
future economic loss
loss of amenities and enjoyment of life
Pain and suffering
loss of expectation of life

29. OUT-OF-POCKET EXPENSES
Not affected by Pt 2 of the Civil Liability Act
In general this includes all expenses incurred by the plaintiff on account of the breach up to the date of verdict (Paff v Speed (1961) 105 CLR 549, 558-9)
medical expenses
surgical fees
Transportation
Special needs etc

30. LOSS OF INCOME [See ss.12 & 14 Civil Liability Act]
Loss of past & future superannuation
Nett loss of pay plus overtime:
less any savings to be made as a result of the injury (eg cost of transport to work)
less any boarding and lodging savings eg for being in hospital (Sharman v Evans (1977) 138 CLR 563
less allowance for income tax deductions (Cullen v Trappell (1980) 146 CLR 1)

31. FUTURE (HOSPITAL AND MEDICAL/CARE) EXPENSES
P is entitled to recover the future cost of hospital, medical, nursing and home care.
P is entitled to recovery of such cost even where the care (nursing/home care) is provided gratuitously by a spouse or relative Griffiths v Kerkemeyer (1977) 139 CLR 161
The damages for such expenses are calculated by reference to the market cost of the services

32. LOSS OF EARNING CAPACITY
The onus is on P to provide evidence of real possibility of the potential/capacity yet unexploited that would have been exploited in the future but for the injury suffered (Mann v Elbourn (1973) 8 SASR 298 ( police officer who was aspiring to be a lawyer)
Where D maintains that P retains the capacity to earn, the onus is on D to provide the relevant evidence and the range of work open to P

33. NON-ECONOMIC LOSS
Non-economic loss is traditionally claimed under three main heads of damage:
Pain and suffering
loss of amenities
loss of expectation of life
"is not the prospect of length of days, but the prospect of a predominantly happy life The ups and downs of life, its pains and sorrows as well as its joys and pleasures have to be allowed for in the estimate" Benham v. Gambling (1941) AC 157: (p 166 )

34. ASSESSMENT OF NON-ECONOMIC LOSS
There is no acceptable criteria for assessing what is fair compensation for a particular non-economic loss
(Sharman v Evans) – P was 20 yrs old injured in MVA rendered a quadraplegic:
Her ability to breathe, eat, speak, move, control her excretions, have social and sexual intercourse, bear or look after children is either greatly impaired or destroyed. She also went through the ordeal of releasing the young man from his promise to marry her…The estimate in respect of pain and suffering is seldom adequate( Murphy J)
She has suffered and will continue to suffer for the rest of her life in her left shoulder, another of her few remaining sensory areas…Pain and suffering and loss of amenities of life is a head of damages which is particularly difficult to assess (Gibbs and Stephen JJ)

35. The Issue of Thresholds
A threshold is the level of personal bodily impairment/suffering that an injured person must reach to receive compensation for their injuries.
This is usually expressed in terms of a percentage of a ‘most extreme case’

36. Civil Liability Act 2002 Pt 2 Non-economic loss:
No damages for non-economic loss unless assessed at 15% of a most extreme case (eg. 15% = 1% or $3,500, 16% = 1.5% or $5,250, …26% = 8% or $28,000, …33% = $115,500, …100% = $350,000): Section 16(1) & (3)
Maximum non-economic loss = $350,000: Section 16(2)
Courts/parties may refer to other awards of non-economic loss in earlier court decisions: Section 17A

37. Civil Liability Act 2002 Exemplary, punitive & aggravated damages:
A court cannot award exemplary, punitive or aggravated damages in an action for personal injury resulting from negligence : s21

38. Civil Liability Act 2002 Economic Loss:
Maximum for gross loss of earnings = 3 times average weekly earnings: s12
5% discount rate for future economic loss: s14
Gratuitous Attendant Care:
No damages awarded if services provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months: s15(3)
Geaghan v D’Aubert [2002] NSWCA 260
Harrison v Melhem [2008] NSWCA 67 

39. INJURY TO RELATIONAL INTERESTS
Negligence - Remedies
INJURY TO RELATIONAL INTERESTS

40. THE SCOPE OF THE ACTIONS
Dependents may sue for loss
actual or expected benefits
Death
Parent/master may sue for
wrongful deprivation of the
Services of a child/servant
Loss of services
Loss of consortium
An action that permitted
the husband to sue
for wrongful deprivation of the
wife’s consortium

41. COMMON LAW AND THE SURVIVAL OF ACTIONS
In the event of death from a wrongful act there are two potential plaintiffs:
the estate; and
dependants
Traditionally in Common Law, a personal action ‘died’ with the victim

42. The Estate: Lord Campbell’s Act (1846)
The Act modified the Common Law rule in England.
The effect of the legislation was to give to the estate the action which the deceased would have had she or he survived
Australian States and Territories have adopted similar statutes with modifications

43. SURVIVAL OF ACTIONS: NSW
Law Reform (Miscellaneous Provisions) Act (NSW) 1944 Part 2 Survival of Causes of Action After Death
Subject to the provisions of this section, on death of any person …all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate;...

44. QUALIFICATIONS
Section 2(2) of the Law Reform (Miscellaneous Provisions) Act (NSW) 1944 does not allow for recovery of the following types of damages:
exemplary damages
loss of earning capacity/loss of future probable earnings
loss of expectation of life
pain and suffering
Incidental losses or gains except for funeral expenses will not affect the quantum of damages

45. HEADS OF DAMAGES NON-ALLOWABLE ALLOWABLE DAMAGES
loss of earning capacity
Non-economic loss
ALLOWABLE DAMAGES
Needs created; reasonable expenses incurred before death
Reasonable funeral expenses

46. DEPENDENTS’ CLAIMS
Compensation to Relatives Act 1897 (NSW)
3(1) Whenever the death of a person is caused by a wrongful act, neglect, or default, and the act , neglect or default is such as would ( if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof , then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages

47. DEPENDANTS: STANDING Compensation to Relatives Act 1897 (NSW) S4:
spouses
parents (including those in loco parentis)
de factos Compensation to Relatives Act (De facto Relationships )Amendment Act 1984
children (including step children)
siblings (half and full)

48. SCOPE OF LOSS Public Trustee v Zoanetti (1945) 70 CLR 266
‘The basis for the action is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for pecuniary loss’
What must be ascertained is whether any and what loss has been sustained by the relatives of the deceased … (Dixon J , 279)

49. HEADS OF DAMAGES
Loss of economic support/loss of reasonable expectation of financial benefit
Loss of domestic services

50. LOSS OF REASONABLE EXPECTATION OF FINANCIAL BENEFIT
The benefit is a ‘chance’ that is lost. P must therefore establish such ‘chance’ in accordance with the principles of reasonable certainty. (Taff Vale Railway Co v Jenkins (1913)AC 1, 7
All that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact from which the inference can be reasonably drawn...
It may be immaterial that the deceased was unemployed prior to his/her death
In the case of a young child, there has to be evidence sufficient to establish the potential to provide the benefit

51. DOMESTIC SERVICES
Nguyen v Nguyen (1990) CLR 245 (held gratuitous services of deceased spouse for the benefit of husband & children had a monetary value)
The claim: ‘loss of the deceased’s domestic capacity being the value of services such as child care, cooking, washing, ironing and cleaning’
The definition of ‘services’ is broad:
‘There is no reason why ‘services’ in this context should be given an unduly narrow construction, as if a wife is no more than a house keeper’ Per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen)

52. LOSS OF CONSORTIUM
The traditional common position permitted a husband to maintain an action under three heads for loss of consortium (actio per quod consortium amisit)
Loss of the wife’s company including sexual companionship
Loss of her domestic services
Medical and other expenses incurred as a result of the injury to the wife
In Qld & SA the action is available to both spouses; in NSW, Tas and WA, the action has been abolished

53. LOSS OF SERVICES
Traditionally the common law allowed a cause of action (actio per quod servitium amisit) for the loss of services of:
Children
Servants
While the action for loss of services in the case of the child is rare today, action for loss of services from a servant remains a feature of the common law

54. TORTS LECTURE
NUISANCE

55. WHAT IS NUISANCE?
An unreasonable conduct that materially interferes with the ordinary comfort of human existence

56. THE TWO ‘SIDES’ OF NUISANCE
PRIVATE
PUBLIC NUISANCE

57. PRIVATE NUISANCE Unlawful interference with P’s interest in land
The tort protects against interferences with the enjoyment of land

58. Conduct or something that emanates from D’s land
THE NATURE OF THE TORT
Conduct or something that emanates from D’s land
Noise
Dirt
Fumes
Noxious smell
Vibrations etc
(interference with TV signals)?

59. INTERESTS PROTECTED
The tort centres on interest in the land that is affected
D’s conduct must impact on P’s land as a form of interference to the enjoyment of the land in question
Victoria Park Racing v Taylor (D constructs a platform on his land to view and comment on races taking place on P’s land)
Thomson-Schwab v Costaki (prostitutes in the neighbourhood)
Raciti v Hughes (1995) (flood lights and camera equipment overlooking P’s backyard)

60. TITLE TO SUE
P must have proprietary interest in the affected land to be able to sue
Blay, ‘The House of Lords and the Lord of the House: Making New sense of Nuisance’ ALJ ( 1999) Vol. 73, 275

61. THE NATURE OF D’S CONDUCT
D’s conduct must be unreasonable.
In general, acts which are reasonably necessary for the normal use of the land would not be considered unreasonable
Munro v Southern Dairies ( smells from D’s property where he keeps 5-7 horses with associated smells, noise and flies held to constitute a nuisance)

62. ABNORMAL PLANTIFFS
Where D’s conduct is neither unreasonable nor excessive P cannot claim
Robinson v Kilvert (27 degree heat generated as a result of D’s work in lower floor causing damage to P’s sensitive paper)
But where D’s conduct even though slight, but is malicious, P can claim
Hollywood Silver Fox Farm Ltd v Emmett (gunshots to frighten P’s vixen and to discourage P from setting up- farm. Pretext that the shooting was to keep rabbits off the property was not accepted)

63. WHO MAY BE SUED? The creators of the nuisance Occupiers
Fennell v Robson Excavations (1977)
Occupiers
De Jager v Payneham & Magill Lodges (1984) 36 SASR Occupier may be liable for the acts of a party who resides on the property with occupiers permission
Hargrave v Goldman ( an occupier may be held liable where they allow the continuation of a nuisance from the land even though they may not have created it initially)

64. PUBLIC NUISANCE
Any nuisance that materially affects the reasonable comfort and convenience of a class of people
P may sue in public nuisance only if he/she can establish special damage above and beyond that suffered by other members of the affected public
Walsh v Ervin ( D ploughs up part of highway obstructing access to P to the highway, D held liable)

65. QUEUES OBSTRUCTING PUBLIC HIGHWAYS AND ROADS
Silservice Pty Ltd v Supreme Bread Pty Ltd (queues to buy bread on George Street)
Queues do not necessarily provide a basis for an action even where they seem to obstruct a public access way that affects the P
However D may be liable if
the crowd is attracted by something done by D which is not bona fide necessary for the conduct of his/her business
the facility for the purpose of D’s trade is inadequate or not suitable to hold or control the crowd
D could employ some other reasonable means within his control to minimize or prevent the damage to P

66. THE DEGREE OF INTERFERENCE
It is not every interference however slight that constitutes an actionable nuisance; the interference must be substantial and material (York Bros v Commissioner of Main Roads: construction of a bridge across a river obstructs navigation by P, held nuisance)

67. PUBLIC BENEFIT AND PUBLIC NUISANCE
In general public benefit is not a defence that can defeat P’s objections to D’s conduct
Where the interference to P is not substantial, the public benefit argument may be used to reinforce the justification to the inconvenience caused to P

68. REMEDIES Abatement of nuisance (self-help remedy)
Who bears the cost of abatement?
Normally the abater does as often there is little or no cost, but see Proprietors-Strata Plan No v Cowell where it was held that D may be required to bear cost if the steps taken by P to abate were in reasonable mitigation
Injunction to prevent the continuation
Damages

69. End