General Information about Public Nuisance
Public nuisance is an action that interferes with the public rights which affects a group of people, threatening their health, welfare or safety.
Overview
Common Law:
Public nuisance is part of common law in Australia. It is not a strict liability tort, which means that plaintiffs must prove that the wrongdoer has caused his or her particular damage, which is greater than that suffered by the public.
History:
Public nuisance originates from common law criminal prosecutions, specifically when unreasonable behaviour or a breach of statutory duty interfered with public rights. It is now more relevant in common law, rather in its origins as a criminal action.
Public nuisance is part of common law in Australia. It is not a strict liability tort, which means that plaintiffs must prove that the wrongdoer has caused his or her particular damage, which is greater than that suffered by the public.
History:
Public nuisance originates from common law criminal prosecutions, specifically when unreasonable behaviour or a breach of statutory duty interfered with public rights. It is now more relevant in common law, rather in its origins as a criminal action.
Protection of the public
Public nuisance as a tort:
An individual takes action to court after suffering ‘particular loss’ from a breach of public right.
Public nuisance as a crime:
The Attorney- General takes action on behalf of a group of people if the nuisance interferes with the public rights and affects her ‘majasty’s subjects.
The Attorney General can sue on behalf of a group of people whose public rights have been interfered with. This, however, is infrequent in the current application of the tort. It must be noted that it is not necessary for the Attorney- General to show a particular damage to an individual.
Public Rights
The public rights protected by public nuisance include:
The public rights protected by public nuisance include:
- Unpolluted air and water
- Unobstructed highways
- Unobstructed waterways
- Other rights defined in statute
“The purpose of this law is not to protect the property interests of the public. It is true that the same conduct can amount to a private nuisance and a public nuisance. But the two torts are distinct and the rights protected by them are different” [i]
[i] As cited in: Richards, De Zwart; & (et al), 2013, p.539
[i] As cited in: Richards, De Zwart; & (et al), 2013, p.539
Elements
The elements that must be successfully proven for public nuisance include:
- Conduct of the defendant interferes with a public right
- The interference is unreasonable (taking into account the realities of business)
- The interference is substantial (which may relate to the duration or impact)
- Plaintiff must show they suffered particular loss or damage ‘more than the public at large’
Nuisance
Differences between public and private:
- Public nuisance is not necessarily tied to the plaintiff’s use of his or her land
- Private nuisance protects the rights of landowners
- Public nuisance can be a crime
- Public nuisance plaintiffs must be able to prove ‘particular damage’ which is different in kind or degree from that suffered by the public at large, this is not necessary in private nuisance
- The damage suffered in public nuisance can be intangible not physical, the plaintiff sue for substantial delay or inconvenience
Case examples
Leading case:
The leading case establishes ‘rule,’ which is used as precedent for future cases globally. The leading case in Australia is Seidler v Luna Park Reserve Trust,’ (1995) this case set up a binding precedent for Australian jurisdictions and is seen on the third page (operation). However, Attorney General v PYA Quarries Ltd defined public nuisance and is seen as the leading case globally.
Attorney General v PYA Quarries Ltd (1957):
This was an action in the UK. The plaintiff wanted an injunction to stop the quarrying activity that showered the town with splinters and stones causing dust and vibrations. The question arose regarding what constituted a public nuisance and how it differed from a private nuisance. This is an example of a case taken by the Attorney General on behalf of a group. The injunction was successful because it was proved the damage affected the health, safety and comfort of life to a class of her majesty’s subjects. Both of the below statements set out the ruling which as used as precedents.
Lord Justice Romer LJ stated that
“Any nuisance is ‘public’ which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects… It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected.” [i]
Lord Justice Denning reiterated
“Public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own… but it should be taken on the responsibility of the community at large.” [ii]
[i] As cited in: Stewart; & Stuhmcke 2009,p. 473
[ii] As cited in: Stuhmcke, 2001, p. 132
“Any nuisance is ‘public’ which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects… It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected.” [i]
Lord Justice Denning reiterated
“Public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own… but it should be taken on the responsibility of the community at large.” [ii]
[i] As cited in: Stewart; & Stuhmcke 2009,p. 473
[ii] As cited in: Stuhmcke, 2001, p. 132
Actions that were dismissed:
In contrast multiple cases have been dismissed because they have failed to successfully establish the elements of public Nuisance, examples of this include
Kent v Johnson was an action involving the Commonwealth’s proposal to build Black Mountain Tower, to provide communication services, as well as a public viewing platform. The plaintiffs wanted an injunction, arguing that the tower would obstruct the skyline, which belonged to the public. Hence taking action under public nuisance.
This action was unsuccessful for two reasons. There is no ‘public right’ to the skyline and the plaintiff could not prove ‘interfering circumstances’ or particular damages.
- Kent v Johnson (1973)
- Ball v Consolidated Rutile Ltd (1991)
Kent v Johnson was an action involving the Commonwealth’s proposal to build Black Mountain Tower, to provide communication services, as well as a public viewing platform. The plaintiffs wanted an injunction, arguing that the tower would obstruct the skyline, which belonged to the public. Hence taking action under public nuisance.
This action was unsuccessful for two reasons. There is no ‘public right’ to the skyline and the plaintiff could not prove ‘interfering circumstances’ or particular damages.
Listen to the Law Report with Sue Mitchell, to get further information on a public nuisance case that was dismissed.
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Transcript:
Case referenced:
Julia: Good morning and welcome to the law report, what a fine morning it is. I'm Sue Mitchell filling in for Anita Barraud while she is on long service leave. Today the tort of public nuisance gets thoroughly analysed as we look at cases where it has failed to meet it's objective as a tort within Australia. Bruce Cooper joins us as a professor of torts at UNSW, to help discuss this issue. Good morning Bruce and thanks for coming this morning, we are delighted to have you Bruce: Good morning thanks for having me Julia: Bruce what do you think about the restatement of torts claiming public nuisance has an inability to consistently protect the public. Bruce: Well Sue, to answer this question we must look at a controversial case in 1991. Ball v Consolidated Rutile Ltd involved a commercial fisherman and a mining company who had polluted a public waterway with earth and Slurry. Both commercial and recreational fisherman used this waterway, both were prevented from fishing. The companys actions caused a loss of livelihood to the commercial fisherman, which damaged his business. The plaintiff sued under public nuisance, argued on the grounds of interference with the waterway, which was a public right. He further argued that he suffered pure economic loss, which was particular because it was more than the public at large. Julia: Why was this action controversial Bruce: This action was controversially unsuccessful as the judge said his ‘particular loss’ both economic and his ability to fish was not different from the damages suffered by the recreational fisherman.[iv] Hence this action was dismissed. The fisherman’s greater economic losses were not taken into account. Julia: Please explain the explain the economic loss provision Bruce: The economic loss provision accounts for the financial loss suffered from the defendant’s action, which would otherwise not have occurred. Public nuisance usually covers pure economic loss, unlike the tort of negligence. Julia: What an interesting thing to think about....up next the high court challenges the NT arrest power [i] Sappideen; & Vines 2011,p.491 |