Objectives of Public Nuisance
In order to be a successful tort in its operation, public nuisance must meet the objectives of tort law as well as the objectives of public nuisance, which consists of protecting the public rights.
"The objectives of public nuisance are to protect the public against the consequences of acts or omissions which interfere with public rights and inconvenience or endanger the lives, safety or health of the public." This view is reflected in the influential American ‘Restatement of the law,’ torts, 2d, (1979).[i]
[i] Bryson; & Macbeth, 1972, p. 244
"The objectives of public nuisance are to protect the public against the consequences of acts or omissions which interfere with public rights and inconvenience or endanger the lives, safety or health of the public." This view is reflected in the influential American ‘Restatement of the law,’ torts, 2d, (1979).[i]
[i] Bryson; & Macbeth, 1972, p. 244
Objectives of tort law:
There are three main objectives of tort law, which are to compensate those who have suffered, to discourage harmful, negligent and risky behaviours and to shift responsibility to the wrong doers.
Compensate
Compensate those who have suffered because of the action or inaction of other people and shift the cost of those sufferings to the person or companies responsible for them.
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Discourage
Discourage harmful, negligent and risky behaviour in the future as it seeks to vindicate legal rights that have been undermined.
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Responsibility
Put the responsibility for compensation upon wrongdoers.
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Does public nuisance meet these objectives?
Compensate:
Public nuisance does not adequately compensate the individual who suffered loss because of two main reasons. Firstly, public nuisance fails to compensate the individual when the defendant argues the loss occurred under the business realities. Secondly, if the loss which is suffered by the individual is no different to the community at large, the case is dismisssed.
Compensation from large companies or business operations is only successful to an extent, as the realities of business and commercial life are taken into account. An example of this is the Silverservice Pty Ltd v Supreme Bread Pty Ltd in 1949, when the plaintiff, who owned a cafe suffered obstruction to his business from a queue of people from the adjoining bread shop every Friday. The case was dismissed taking into account the commercial and business realities prevalent in public nuisance and distinguishing factors from the precedent R v Carlile in 1934. Hence, despite suffering damages from the action of another, compensation was not given to the plaintiff; rather it was excused on the grounds of commercial realities.
Compensation may also not be shifted to the defendant in public nuisance because of the definition and practice of ‘special damage.’ The more people seeking compensation in public nuisance, at one time the less likely the case is to be successful, as there is not one person who can show more damage. As seen in previous cases such as Hickey v Electricity Reduction (1970.) The reasoning behind this rule is to ensure that the wrongdoer does not have to face multiple claims, compensating all those affected. This is seen in the Ball v Consolidated Rutile Ltd, as seen in the law report above.
Discourage:
Public nuisance successfully protects the public rights and if breached attempts to punish the wrongdoers to deter the people from interfering with public rights. In this respect it encourages landowners and the public to act in a safe way that does not interfere with the rights of the public or breach statutory duty. The other instance when public nuisance has not discouraged public authorities is seen in ‘Brodie v Singleton Shire Council’ (2001) where due to a significant overlap, public nuisance was subsumed by negligence, in all public road cases, involving local authorities.
An example of a successful case, which discourages harmful, negligent and risky behaviour, is Walsh v Ervin in 1952. In this case the defendant and plaintiff were faming neighbours whose land was divided by a highway. The plaintiff took action after the defendant ploughed up part of the road blocking access to his property for a substantial time. In this circumstance it is clear that the remedies for the damage deterred the defendant from reoffending and discouraged other breaches of public rights.
Responsibility on Wrongdoer:
This tort aims to put the responsibility on those who cause interferences that harm public rights. Public nuisance compensates intangible inconveniences or delays, not just the physical damage and loss. In contrast negligence has traditionally only compensated for actual loss and in this respect it successfully puts responsibility on the wrongdoers. However it fails to put responsibility on the wrongdoers when it is unclear whether the plaintiff suffered damage more than the public at large this is seen in the fishing case as above (Ball v Consolidated Rutile Ltd).