(ix) On 3 December 2006, the defendant intercepted a 40 seater bus operated by "Voyager Coaches" on Bynya Road near the business and carrying patrons bound for the business. The said patrons were guests at a wedding to be conducted on the land (at the business). The defendant blocked the bus and the traffic on Bynya Road with her vehicle by stopping her motor vehicle adjacent to the bus with the door open. As the passengers on the bus attempted to leave the bus, the defendant attempted to block the passengers from leaving the bus and proceeded to take photographs of the passengers, many of whom were elderly. As the passengers were alighting from the bus, the defendant loudly demanded that the passengers tell her their names and addresses. She further demanded that they tell her whether they were "from Jonah's".
14 While it is trite law, I remind myself of what is the purpose of a pleading and what should be contained in a pleading. A pleading is to contain, and contain only, a statement in a summary form of the material facts on which the applicant relies. The material facts are all those facts necessary for the purpose of formulating a complete cause of action - see Bruce v Odhams Press Ltd (1936) 1 KB 697 at p 712; Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72 at 75; and Bega Co-operative Society Limited v The Milk Authority of the Australian Capital Territory 325 FC 39. Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject-matter, to convey to the opposite party the case that party has to meet - see Ratcliffe v Evans (1892) 2 QB 524 at 532; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 417. A pleading must state the facts, that if not specifically pleaded might take the opposing party by surprise.
15 While the method of calculation of the plaintiff's damages may involve the examination of the patronage for the 1999 financial year, so far as the tort of nuisance is concerned it can only have occurred from 18 March 2001. The FASC should reflect this position. The plaintiff says that it will be obtaining further experts reports on the issue of damage.
16 Ms Gold submitted that the alleged damage is particularised as having being (i) a reduction of patronage prior to 18 March 2001 (the date of the first alleged tortious incident) as compared with 1 November 2007; and (ii) a reduction in gross revenue to the plaintiff from 18 March 2001.
17 The criticism of the claim for damages is that, Ms Gold says that a mere change of patronage, or of revenue, over a period of time, cannot establish a reasonably arguable causal nexus between the alleged tortious conduct and the alleged reduction in patronage or revenue and that there could be numerous possible explanations for a mere reduction in patronage or revenue, such as other competitors or changes in level of service.
18 The tort of nuisance has been defined as condition or activity which unduly interferes with the use or enjoyment of land (Clark & Lindsell on Torts, 19th ed at 1162). Damages are recoverable in nuisance for the annoyance, inconvenience and discomfort caused by an interference with the use and enjoyment of land which does not cause material physical damage [Commonwealth v Murray (1988) Aust Torts Reports 80-207]. A plaintiff is not, however, entitled to recover damages for a mere inconvenience until actual damage is caused [Young v Wheeler (1987) Aust Torts Reports 80-126 at 68, 971-2 per Wood J, NSWSC].
19 As the learned author John G. Fleming stated in The Law of Torts, (8th ed at 419-420):
"The gravity of the harm depends not only on the extent, but also the kind of injury. It may consist, on the one hand, in physical discomfort and inconvenience or, on the other, in actual damage to property or injury to health. While both may be equally serious, there is this practical difference between them, that it is appreciably easier to show substantial harm in the latter case, where the injury is more readily observed and measured and the damages are more easily ascertained."
20 The pleadings disclose the conduct that is said to constitute the nuisance. The ordinary principles of causation in tort are applicable to an action in nuisance [Almeroth v W E Chivers & Sons Ltd [1948] 1 All ER 53]. Causation is essentially a question of fact to be answered by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter [March v E & M H Stramare Pty Ltd (1991) 171 CLR 506]. Although a matter for trial, it will be sufficient for the plaintiff to show that a defendant's act was a cause, and need not be the sole cause of the nuisance for damages to be granted [Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 at 492]. It is my view that the causation issue is arguable. It remains a matter for trial as to whether the Plaintiff is able to establish the connection between Ms Gold's conduct and alleged harm.