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Negligence vs Nuisance

In certain situations, both the law of negligence and the law of nuisance may apply to damages caused by one party to another. Have you ever wondered what is the difference between the law of negligence and the law of nuisance?

Negligence

 Negligence has been a long-established principle often used in the recovery of damages caused by an act or omission.

To succeed in a claim in negligence, the following elements must be fulfilled:

  1. A duty of care must exist between the parties, namely that one party has a relationship and legal duty to take reasonable care (for example, being an owner of a house owing a duty to your neighbours not to cause damage to their property).
  2. A breach of this duty of care must have occurred (using the house example, if the house owner started a fire at their property without proper precautions preventing its spread, and the fire then spreading to the neighbour’s property).
  3. There must have been damage caused as a result of the breach of duty (using the above example, that the fire that spread to the neighbour damaged the neighbour’s property).

The relevant considerations in establishing the breach of duty of care are the exact precautions that a reasonable person would take, and the knowledge that the fire would spread if the precautions are not taken.

Nuisance

Nuisance on the other hand balances the relationship between the right of an occupier to use their land freely, and that of any ‘neighbour’ to enjoy the use of their land without interference.  The elements required for a nuisance claim are that:

  1. One party owns or leases land.
  2. A party performs an act that interferes with the owner’s use and enjoyment of the land.
  3. The interference with the use or enjoyment was substantial and unreasonable.

It is the nature of the interference on the land that is the crux and is assessed on the basis of being substantial and unreasonable.

While nuisance usually involves direct neighbours, the focus is on the interest in land and interference, thus should not be limited by the proximity of the parties as long as the elements are fulfilled.

Using the above fire example, the neighbour will have a claim in nuisance for the spread of the fire to their property as there was an act by the neighbour who started the fire, and the fire caused an interference to the property that was substantial and unreasonable.

 The principles in practice

 The difference between the principles is that negligence focuses on the duty of care and its subsequent breach causing damage, while nuisance focuses on the act that interferes with the use or enjoyment of the land between the parties.

Nuisance can arise where no duty of care exists – one simply needs to establish that the parties were parties with interests in land and that there was an interference that was substantial and unreasonable.

This makes nuisance a useful tool in certain areas where negligence might fall short.  For example:

  • A duty of care may not be easy to establish, especially as it is required that it is reasonably foreseeable that the action or omission could cause injury, and a reasonable person in the same position would not act the same way.
  • In certain jurisdictions, there may be legislation increasing the threshold to establish a duty of care. For example, in NSW, section 42 of the Civil Liabilities Act 2002 prescribes that to establish a duty of care on public authorities, certain factors such as the financial and resource constraints must be considered, and the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions.

Using nuisance, a plaintiff may overcome these hurdles and find it easier to recover damages caused to their property.

In summary, the basis of the liability in nuisance is on the creation of the state of affairs that resulted in the substantial and unreasonable interference with the Plaintiff’s property. This is distinguished from the elements of a duty of care in negligence, where a duty of care must be established.

About me (Vincent Hui) – I am an Associate in the William Roberts’ Sydney Insurance Team with experience in motor vehicle and property recovery litigation across the Sydney Local Court and District Court. Having grown up in Singapore, I am bilingual in English and Chinese, and in my spare time I enjoy playing badminton as my competitive fix.

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