Richardson v Rix (1989) 12 MVR 522 (NSWSC) car collision D grabbed the keys from the ignition of the car of another could nto amount to assault- was not imminemt harm or assualt

Tuberville v Savage (1669) 86 ER 684 D put his hand upon his sword and said to P: “If it were not assize time, I would not take such language”No assault The threat was a conditional one; and it would not be acted upon (so really, there was no threat)

Rozsa v Samuels [1969] SASR 205 D parked his taxi at the head of a queue. The P remonstrated with D and threatened to punch D in the head. D took a knife from his dashboard and retorted: ‘I will cut you to bits if you try.’Assault The words were not necessary by way of self defence (so, a conditional threat may be sufficient)- there not going to overly dissect the words to see if it was really conditional- need to look at overall context

Where they make threats to the plaintiff if they do a certain thing they will inflict violence

apprehension of imminent harmful or offensive contact (Rixon v Star City [2001] NSWCA 265)

E.g. prisoner in cell NO- we know they couldnt possibly act it out- Over the phone YES

Barton v armstrong= made threats to plaintiff over the phone to sign a deed- held could be an threat

Taylor J at 455 held that it depends on the circumstances- can occur if it is clear they may occur sometime in the futur at times unspecified and uncertain

P’s apprehension is the gist of the action (a person who is asleep or unconscious cannot be assaulted)- no apphrension will be brought about unless they are awae of the threat

Unless the D is aware of the P’s particular vulnerability e.g. timid: MacPherson v Beath (1975) 12 SASR 174

Zanker v Vartokas (1988) 34 A Crim R 11: P accepted a lift from a stranger D. D offered to pay her for sexual favours but P declined and demanded that D stop the vehicle. Instead, D sped up and said that he was taking P to his friend’s house where he “would really fix her up” - plaintiff jumped out of car which was driving 60ks an hour.
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Held:does not matter that the threat may not have been imment- the weight of threat continued “The fallacy in the D’s argument is the assumption that the words have effect only at the time they were uttered and heard, whereas they were ringing presently in her ears as a continuing threat…” (White J)
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It is for the D to negate the presence of fault eg hallucinatory drug and thus has no control over what they say

Does not matter if they have no intention of carrying out the threat rixon v starsy

Bird v Holbrook- D set up a spring gun on his property to catch a robber. P went onto D’s garden to catch a stray pea‐hen and was shot in the leg when he triggered the spring gun .Held:the court allowed recovery. Was

The making of the statement on its own was not wrong ful it only became tortful because the defendant objectively knew the damage to the plaintiff- was a natural and probable result of his conduct - these principles reaffirmed below.

Needs to be viewed up against a reasonable person’s sensitivity unless P’s unusual sensitiy is known

Bunyan v Jordan (1937) 57 CLR 1 P was employee of D . P saw D with loaded revolver . P overheard D saying he would shoot someone . P later heard a shot fired (but D was unharmed) . P suffered nervous shock Held: No cause of action. The intentional words had to be uttered directly to P, or at least in P’s presence; also P was overly sensitive- would have been different if the defendant knew of this.

Carrier v Bonham [2001] QCA 234 D mentally ill. Attempted suicide by stepping in front of a moving bus . P bus driver suffered nervous shock. Held: action on the case and negligence made out

“Calculated” ‐ means “objectively likely to happen”, rather than subjectively contemplated or intended

Bird v Jones (1845) 7 QB 742 Parts of public road (Hammersmith Bridge) enclosed P prevented from walking on that part of the road[I]mprisonment is … a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him” Patteson J

R v Macquarie (1877) 13 SCR (NSW) 264 M owed bank $, secured over his yacht . X tried to take possession .M said: “Let the Bank … have her and be damned!” He set the engines to full speed ahead, and cast the boat off .Was X falsely imprisoned- yes the escape was hazardous.

Burton v Davies [1953] St R Qd 26 • Car driven at speed. If the only means of escape is risk of personal injury to the plaintiff then there is false imprionsme

Brown v GJ Coles (1985) 59 ALR 455 B detained by store detective but later acquitted of larceny store had (on balance of probabilities) reasonable and proper cause to suspect crime had been committed

Myer Stores v Soo [1991] 2 VR 597 - False imprisonment in store, but not at police station

Balmain New Ferry Co v Robertson (1906) 4 CLR 379 • Fee on entry and exit (notice to this effect)- No total restraint

don’t detain beyond sentence Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714

the P need only establish he or she was imprisoned. They need not prove it was unlawful. It is for the D to prove there was a lawful excuse: Myer Stores v Soo

If the interference is reasonably necessary to avert some imminent threatened harm, but only if the harm that the defendant causes is not out of proportion to the harm that she or he seeks to avoid - seen for example in Leigh v Gladstone where it was necessity to feed the prisoner or else they would die 19.2 941

Nuisance protects from other interferences such as noise and vibrations.Protects from outside P’s land eg above, glare…

As private nuisance consists of an interference with ‘recognised rights’ in property, it should follow that only those with right in, or over, property should have standing to sue in private nuisance- 15.27 pg 804

physical damage to property - eg trees killed by fumes intangibles: smoke, noise, fumes, glare, offensive sights(?) … interference with property rights (eg easements)

Interference must be with respect to a recognised right of a property. Cant stop someone from photographing. CL protection on privacy is not clear yet.Being looked at from outside your property is not a nuisance

McKenzie v Powley [1916] SALR 1 ‐ the singing of songs in a Salvation Army Hall at 7am on a Sunday was considered to be a nuisance

Raciti v Hughes (1995) 7 BPR 14,837 – surveillance of P’s land might be nuisance

thompson‐Schwab v Costaki [1956] 1 WLR 151- coming and going of prostitutes- could amount

Broderick Motors v Rothe (1986) ATR 80‐059 (NSW SC)‐ a bomb of a car- unlikeyl to be nusiance- put signs saying not to buy a car out front off dealership where it was bought

Victoria Park Racing v Taylor (1937) 58 CLR 479 platform overlooking racecourse - was unsuccessful- use of racecourse could be used as normal- overlooking did not impact the way occupier could use their land

Hunter v Canary Wharf [1997] AC 655 ‐ lost television reception due to bug building- unsuccessful

Bury v Pope (1586) 1 Cro Eliz 118, 78 ER 375- finished building which prevented sunlight from reaching buries window due to loss of sunlight- pope the landowner had the preogatvie to build whatever he wantedBalance to protect people form nuisance and people to use the full right of their land

May be a single or continuing factor- Balancing exercise so there is a limiting factor

Walter v Selfe (1851) 64 ER 849, 852 (Knight Bruce VC) Ask whether the inconvenience is “more than fanciful, more than one of mere delicacy or fastidiousness, … an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people.”

Bamford v Turnley (1862) 122 ER 25, 33 (Bramwell B) The rule ‘is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of this neighbour’s land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live

Clarey v Women’s College (1953) 90 CLR 170 - C let part of the house to uni students. The students caused noise late at night C complained of nuisance. Held: C could only reasonably expect that uni students would keep late hours and in doing so will make noise. The noises here were only those incidental to the occupation of a house.

798 in corbett v pallas the COA NSW relied on Kraemers case to state that the plaintiff may establish a prima facie case of nuisance simply by proving the fact of damage and the plaintiff does not have to prove that the defendants us eof land was unreasonable and that the burden of proof is on the D to establish that its use of land was reaonabel, in which case it has a defence.

‘Mere interference that causes damage will not constitute nuisance’- riverman orchards v hayden 2017.

15.4 pg 785- To establish that an interference with her or his use and enjoyment of property ocntistutes a nusisance, the plaintiff must show that the interference was unreasonable in all the circumstance.

Balances plaintfiss desire to use and enjoy property without interference against defendants desire to undertake activity that causes the interference 786 15.4

planning legislation has taken over- we wont get noisy factory built in suburbiaComing to a nuisance is no defence- e.g. moving to a night club- authority is Stuges v Bridgman.

Gillingham BC v Medway (Chatam) Dock Co [1992] 3 All ER 923 ‐ port traffic- only access through quiet suburbian street- no nuisance because the report changed the nature of the area so it was reoanble in the new cirucmstances

Feiner v Domachuk (1994) 35 NSWLR 485 ‐ mushroom farm- smells were held to bad because they were unreasonable in a normal ‘rural residential’ area- pg 786 15.5

Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstance; what would be a nuisance in Belgrave square would not necessairyl be so in bermondsey- Thesiger LJ at 865 in sturges v Bridgman

Wherry v KB Hutcherson Pty Ltd- D did construction in business district causing noise and vibration on to P (soliciotr) Property. Held it was a nuisance during business hours but not outside of them- injunction made between certain hours.

Halsey v Esso Petroleum- balances against the duration of the interference caused 15.8 pg 788

Harris v Carnegie’s Pty Ltd [1917] VLR 95 Material damage caused by dust from renovations. Simple solutions to fix will not look favourably. Even if has taken steps not necessary or relevant

Didnt want to give injunction - so was a nuisance but only damages

Christie v Davey [1893] 1 ch 316 Banging against wall to interrupt P’s music lessons

Hollywood Silver Fox Farms v Emmett [1936] 2 KB 468; [1936] 1 All ER 825- d wanted to develop but neighbour run fox farm and had a sign- D fired a gun to startle the fox and he claimed he did it just to shoot his gun- was held to be a nusiance because was a bad motiv

Marsh v Baxter- an interference with an abnormally sensitive use of land would nevertheless constitute a nuisance if done maliciously- 15.10- ph791

Robinson v Kilvert (1889) 41 Ch D 88 - Hot air that rose from D property ruined Brown papers stored on P apartment. Hot air wasnt nuisance because it wouldnt have interfered unduly with any ordinary use of the plaintiffs premises

Walter v Selfe- Knight Bruce VC said that the unreasonablness of an interference is judged ‘not merely according to elegant or dainty modes and habits of loving but according to plain and sober simple notions’. 15.9

15.50 pg 819- The usual remedy that a plaintiff seeks in an action in private nuisance is an injunction to restrain the D.

Before trial = They can also seek an interlocturary injunction before trial- see for example Yakilt v national union of works- this will only be satisfied is there is a ‘serious question to be tried’ American cyanamid co v Ethicon Ltf 820 15.50.

grant an injunction known as ‘quia timet’ injunction, to restrain a threatened nuisance, even though no nuisance exists at the time of the injunction granted e.g. Barbagallo v J & F- this will only be granted if the threat is imminent or highly likely to occur

If successful= Grant permanent injunction but only if it is a continuing one stromer v ingram

Power to order damages in equity in lieu of an injunction- awarded ‘in respect of an injury which is still in the future’ bankstown city council v Alamdo Holdings 15.54 -h 821

The test for remoteness of damage in private nuisance is the sasme as the CL test for remoteness of damage in negligence, so the plaintiff may recover damages for all reasonably foreseeable consequences of the nuisance for which the D is liable.

Where the nuisance has foreseeably affected the market value of the plaintiffs property, the diminution in value of the property provides the primary measure of damages 15.55 823.

If it does affect markert value= nominal damages for loss of amenity- for example McKenzie v Powley 15.55 823.

Damages only reflect damage the interferences cause after the D became aware or ought to have become aware 15.560 pg 823-E.g. Valherie v Strata Corp.

Occupier faced with a hazard accidently arising on his land must act with reasonable prudence so as to remove the hazardSedleigh‐Denfield v O’Callaghan [1940] AC 880 Blocked pipe flooded P’s land

Goldman v Hargrave (1966) 115 CLR 458 Fire not extinguished- could have easily extinguished the fire- was unreasonable

ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 Failed action re public right to fish

Unlike private nuisance, it is not necessar for the plaintiff to have property rights in or over land 15.60 pg 827

Kent v Johnson [1973] 21 FLR 177 Would tower be a public nuisance because it is unsightly and will attract more traffic (includes a restaurant)? Held: CL can’t prohibit the construction of a building because some consider it to be unsightly. (Increased traffic could be managed adequately so not to amount to a public nuisance).

Penfolds Wines Ltd v Elliott (1946) 74 CLR 204/Bailor out of possession suing for conversion/Perpetual Trustees v Perkins (1989) ATR 80‐295

Wilson v New Brighton Panel Beaters [1989] 1 NZLR 74- D towed away P car mistaken it was paid for by 3rd party.

Intention: to deny the owner’s rights, or to assert inconsistent rights

D need not be aware of true owners rights and can be acting in good faith

Obtaining possession lawfully but then transferring it to someone else unlawfully: Glass v Hollander (1935) 35 SR(NSW) 304= Required to keep up with payments or will be sold- sold to auctioneer- auctioneer took them and so they had committed conversion

Wrongfully detaining goods: Flowfill Packaging v Fytore (1993) ATR 81-244Not all detention amount to conversion- D knew P owned the goods.

Wrongful use of goods: Penfolds Wines v Elliott (1946) 74 CLR 204 Bottles embossed with these words: “This bottle is the property of Penfold Wines” Not trespass Narrow majority held there was conversion

Look at the character of the acts done. Eg Bunnings v CHEP Australia [2011] NSWCA 342 (numerous timber pallets owned by P hired out and in commercial circulation)

Parker v British Airways Board [1928] QB 1004- found gold bracelet asked to be called if owner not found- bracelt sold by airport- the founder had better right other then the owner- the airport did not manifest a right to possession off all the premises and everything left on it

“you will at once deliver to [the P] or her agent all sheep [with the relevant brand] … which you unlawfully withhold from her.

Might be reasonable if the identity of the person cannot be confrimed

Deprives P of possession, or results in the chattel being unusable

Right to sue- immediate right to possession

Entry under licence is not a trespass- e.g. taking normal route of entry to knock on front door- case entry okay for back door

Slightest entry may be trespass: Westripp v Baddock [1939] 1 All ER 279 (ladder against wall)

Broad licence given to certain public officials: Plenty v Dillon (1991) 171 CLR 635-

Entering needs to be voluntary act (or negligent):

Not necessary to prove intention to trespass- e.g. accidently mow somoeons land

Pushing substance onto land: Watson v Cohen [1959] Tas SR 194 (bulldozer pushing soil) even though bulldozer itself didnt go on

Block of land ‘The Grove’, Woollahra - owned by deceased estate.Someone wrongfully in possession can sue a person who cannot maintain a better right to possession Although D werent the ownerss- they had employed people to maintain and even paid rates- the had the better right to protection

Bernstein v Skyviews & General Ltd [1978] QB 479

his balance is in my judgment best struck in our present society by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he had no greater rights in the airspace than any other member of the public.” (Griffiths J)

LJP Investments P/L v Howard Chia Investments P/L (1989) 24 NSWLR 490 Adjoining commercial properties in Double Bay - d erected scaffolding 4/12 metres high and 1 ½ over- P removed unless payment- D relied on Bernstein- Court disagreed- test is not whether it does interfere or whether it may interfere- P could use that airspace at some time,No actual interference but still trespass

Davies v Bennison (1927) Tas LR 52 D shot cat on roof of P’s shed • Bulet went through airspace but didnt touch the ground- Held it was trespass .Unwanted intrusion at rooftop height was interference with P’s dominio

Di Napoli v New Beach Apartments [2004] NSWSC 52 Ad coelum idea not to be taken literall. For subterranean rights, a person has substantial control over land underneath his or her soil for a considerable depth

Plenty v Dillon (1991) 171 CLR 635 Police entered P’s farm without consent to serve summons on 14y/o daughter. Went into dwelling . Went further then power of arrest

Lincoln Hunt Australia P/L v Willesee (1986) 4 NSWLR 457. TV crew entered property and filmed inside offices. Trespass, but damages awarded rather than injunction on screening- deciding damages were more appropriate
Injunction because would affect their business

Rinsale P/L v ABC (1993) ATR 81‐231; Emcorp P/L v ABC [1988] 2 Qd R 169 Reporters interrogated P’s about alleged criminal activity . Injunctions

TCN Channel Nine v Anning [2002] NSWCA 82 - ACA entered farm with police and EPA officers. Gate was only unlocked to allow delivery driver to enter P didnt lock the gate again- So current affair came in- P asked to leave, P suffered hurt to feelings and trauma . What was the scope of the implied licence to enter? . Cj spieglamn- means of access not blocked by was entry beyond the implied scope to enter- looked at purpose of the tv show- not enough that they are pursuing a story. She already had cameras rolling before and while P didnt want them on their land..No implied or express right to enter • $50,000 damages

Need actual possession- Intend to hold + have sufficient control

Immediate right to possession: Where P needs to show a better right to possession then D

Cressy v Johnson- P took document and 2 phones belonging to D to use in Family court- D committed trespass and P awarded nominal damages

Damaging P’s goods (Hamps v Darby [1948] 2 KB 311)- direcitn a missile was interference

Mere touching?- not much authority- nelgignet trivial touching was not- how ever intentional could- e.g. museums- use this tort to prevent damage

Actionable per se- actionable without proof of loss or damage 18.6 pg 907- cressy v Johnson.

Cannot be trespass by a mere accidental touching- everitt v Martin 18.8 909

National Coal Board v Evans [1951] 2 KB 861- Underground electricity cables severed . Not trespass because not at fault- he didnt know or ought to have known the presence of the cable 18.8 909,

Wrong to possession rather than ownership- 18.90 909

Dixon J in penfolds wines v elliot- the right to possession, as a title for maintaining trespass, is merely a right in one person to sue for a trespass done to another’s possession.