Elston v Dore

Elston v Dore - [1982] HCA 71 - HCA 1982 case summary — Zoe

[16]

For the purpose of ascertaining whether as here the plaintiff can establish a private nuisance I think that nuisance is sufficiently defined as a wrongful interference with another's enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour's property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word "use". Lord Atkin's judgment suggests that an interference with the enjoyment of lands can be described as "wrongful" if it was deliberate or negligent. In the same case, Lord Wright said [4] : A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. In our respectful opinion, that is the proper test to apply in most cases. Although, as was pointed out in Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. ( "The Wagon Mound"[No.2]) [5] , the wide and uncertain boundaries of the law of nuisance include cases in which negligence in the narrow sense is not essential, fault of some kind is almost always necessary. In the present case the action of the respondent was deliberate, but in our opinion it will only have been wrongful if it was not reasonable in the sense to which Lord Wright refers. However, an anterior question arises, viz., whether the blocking of the drain injured the appellants' property, or interfered with their enjoyment of their property, or otherwise invaded their rights. If it did not, the fact that the respondent's conduct was unreasonable would not give the appellants a cause of action. 1. [1940] A.C. 880. 2. [1940] A.C., at pp. 896-897. 3. [1940] A.C., at p. 903. 4. [1967] 1 A.C. 617, at p. 639.

[20]

If this wall had been erected by the freeholder and taken down by the freeholder the next day, or a week, or a year afterwards, with the result that the flood water took the course which it would have taken if the wall had never been there, I cannot see, on any principle known to me, that the respondents would have been entitled to complain. If it were not so, a person, in putting up a defensive work on his own land, would act at his peril, because by the mere fact of erecting it he would be conferring on his neighbours, or persons in the neighbourhood, rights to insist that he should never remove the wall or building that he had put up. He went on to say that "the respondents had no right to have the wall erected, they had no right to insist on its continuance, they had no ground of complaint whatsoever against anybody who rightfully took it down" [13] . The decision in that case was explained in Leakey v. National Trust [14] on the ground that there was nothing unreasonable in the action of the appellants in taking down the old protective wall on their own land in order to rebuild it. However, it seems to us, with all respect, that the judgment of Sir Wilfred Greene M.R. proceeded on the basis that the appellants had no duty to act reasonably. If there was such a duty, it must, in our opinion, have been created by the fact that the removal of the wall caused the flood water to flow onto the respondent's land. Where a person, by doing something on his own land, causes actual and material damage to another's land, the act of the first mentioned person, although otherwise lawful, may be actionable if it was unreasonable having regard to all the circumstances, including the effect it was likely to have on the other land. For example, the neighbour of a railway company may have no right to require the company to maintain an embankment, and the company may lawfully cut trenches in the embankment, but if it does so when the consequence is to cast flood waters onto the neighbour's land, the company may be liable: see Whalley v. Lancashire and Yorkshire Railway Co. [15] . A landowner may lawfully build a paved driveway on his land, but he may be liable in nuisance if he does so in such a way as to divert storm waters onto his neighbour's land: Bennetts v. Honroth [16] . 1. [1941] 1 K.B. 381. 2. [1941] 1 K.B., at p. 389. 3. [1941] 1 K.B., at p. 393. 4. [1980] Q.B. 485, at p. 522. 5. (1884) 13 Q.B.D. 131. 6. [1959] S.A.S.R. 170.

[24]

A river, creek or stream in which water flows either permanently, intermittently or occasionally in a natural channel or in a natural channel artificially improved or in an artificial channel that has changed the course of the watercourse but in any such case only at every place upstream of the point to which the spring tide ordinarily flows and reflows therein whether due to a natural cause or to an artificial barrier therein. The governing words of this definition are "A river, creek or stream". A creek will still be within the definition if its water flows in an artificial channel that has changed the course of the creek, but if the artificial channel does not form part of the creek it is not a watercourse. The question whether the long drain is a watercourse therefore depends on whether it forms part of Orchard Creek and has changed the course of the watercourse of that creek. If the long drain is a "watercourse" its construction in the first place was probably unlawful, but in the view that we take that matter need not be considered. Although the drain linked two points on Orchard Creek, the loop of the creek at the base of which the long drain was constructed still remained the watercourse of the creek. The creek remained something distinct from the long drain, which was designed to carry, not the waters of the creek, but the waters that came from the lands to the west and that did not normally enter that part of the creek. In these circumstances we agree with the conclusion reached by the learned trial judge and the Full Court that the long drain did not so much change the course of Orchard Creek as create a completely new and artificial system of drainage, and was not a "watercourse" within the meaning of the Water Act. It follows that it has not been established that it was unlawful for the respondent to close the drain. It is therefore unnecessary to consider whether Beaudesert Shire Council v. Smith [18] should be followed. When that question does arise for decision, it will be desirable that a court of seven justices should consider it. 1. (1966) 120 C.L.R. 145. 2. (1966) 120 C.L.R. 145.

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Court

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Before

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Judgment (27 paragraphs)

Parties

Cited By (10)