Private Nuisance Under the Australian Admission Essay

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348). Pursuant to the Court's holding in Grand Central Car Park Pty Ltd. v Tivoli Freeholders [1969] VR 62 per McInerney J (public nuisance), in order for fault to rise to the level needed for liability for nuisance, the defendant's fault must include the following components:

1. The defendant knew or ought to have known of the nuisance;

2. The interference or damage to the neighbour's property from the nuisance was reasonably foreseeable; and,

3. The defendant did not take reasonable action or steps to end the nuisance (at 72).

Such fault, though, must also rise to an actionable level and cannot typically involve minor, isolated infringements of property rights that are part and parcel of the human condition such as a dog barking once in awhile or a baseball that is accidentally tossed through a window by neighborhood youths. Congruent with the legal definition of private nuisance provided by Black's, the defining characteristic of a private nuisance under Australian tort law would involve its continuous and ongoing nature. For instance, "What might distinguish a claim under private nuisance is the fact that generally the activity needs to be continuing rather than an isolated escape or event" (Private and Public Nuisance 2012).

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Incongruent with Australian tort law, though, was Lord Bingham's suggestion that, "...there is in my opinion a category of case, however small it may be, in which it seems just to impose liability even in the absence of fault" (Transco plc v Stockport MBC [2004] 2 AC at p. 8).

Conclusion

The research showed that a private nuisance is distinguished under the Australian law of torts by being some type of infringement on legitimate property owners to enjoy their rights to their fullest. Such infringements, though, must rise beyond the level of the normal exigencies of human life and must include several elements of fault on the part of the defendant, including the defendant knew or should have known about the nuisance, the interference or damage to the neighbour's property could be reasonably foreseen and the defendant failed to take reasonable action or steps to abate the nuisance. In the final analysis, Australian tort law is congruent with the common law and case law in other Anglo-American countries and there is sufficient precedential case law to evaluate the likely outcomes of cases involving private nuisances today......

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