Can Chloe Sue Burnside Council For Private Nuisance? - Analysis Under Law Of Tort

Chloe is a naturopath practitioner whose business is steadily picking up. Recently she has been thinking of opening a meditation studio in the leafy suburb of Burnside. She found a perfect place but before signing the 2 year lease with the landlord, she went to the Burnside Council to check if there were any building works scheduled to happen close to her intended premises as she needed a quiet environment for her meditation practice. She spoke to the person sitting in the front desk attending to general enquiries and told him about her business and that she wanted to check before signing the 2 year lease. The council officer checked on the computer to see if there were any planning approvals close to Chloe’s intended studio. While doing this he was called away to attend to another matter. Upon returning to his desk, he has a cursory glance at the screen and said “it should be fine”. Chloe signed the 2 year lease. 6 months after opening her business, big heavy machineries arrived at the property next door. When Chloe asked the workmen what was happening, she was told that they were doing a major renovation next door including knocking down a few walls. The noise made it impossible for Chloe to continue her practice. With the on-going noise and the failure of her business Chloe is now suffering a nervous disorder. Had she known there was going to be building work next door she would not have leased the premises. Chloe has moved out of the premises and stopped paying rent. She wants to get out of her contract with her landlord as she is now no longer able to continue her practice. The landlord is threatening to sue Chloe for breach of contract. Chloe comes to you for advise. She wants to sue the Burnside Council. Will she be successful?

In provided case, Lead issue is that Chloe became unable to continue her meditation studio due to the conduct of Burnside Council and also got suffered from nervous disorder. Now, she wants to sue the Burnside Council, will she get the success in her action under Law of Tort? In addition to this Chloe moved out from meditation studio and stopped paying rent of premises as required according to lease deed. Now, the landlord of the property wants to sue Chloe for the conduct of breach of contract done by her. Will he be successful in doing the same under Contract law?

Rules

Nuisance is a kind of Tort. Majorly there are two types of nuisance, one is public nuisance and other one is Private Nuisance (e-lawresources, 2018). When a person affects the right of another person in his/her property without any justifiable reason, this is call private Nuisance. Generally in Private Nuisance, right of a person in his/her property gets affected. For this, such person whose right gets affected must have interest in the said property (Wright, 2011).

Whereas in Public Nuisance, interest of public at large is involved and such cases are need not be related to property. Scope of public nuisance is wider than private nuisance (Victoria Law Foundation, 2018).

Nuisance in general term is interference. It can be intentional or unintentional (Mackesy Smye Lawyers, 2018). If by an act of a person, somebody becomes unable to possess his/her right, such act shall be called Nuisance. Nuisance is one of the ways to conduct a civil wrong under Law of Tort.

There are also other types of tort such as negligence and defamation. Under negligence, one of the parties fails in performing his/her duty with due care and responsibility. In some cases of negligence, people make some statements which are not true and correct and on the basis of such statement, other people precede their action. Such Statements are known as “Misstatement” which can be with or without malafide intention (Darlingtones Solicitors LLP, 2012).

It was held in the case of Malone v Laskey 1907 2 KB 141 that one must have right to enjoy of the facilities related to property in case of private nuisance, it means a non-related person cannot initiate an action under this law. Further, private nuisance can be held due to any of the factors such as flooding, bad smell, encroachment by tree roots or branches, disturbance from cricket balls or from noise.

 In the case Kennaway v Thompson [1981] QB 88 Court of Appeal, it was held that nuisance created by noise makes huge disturbance and person suffered from the same can initiate action against defendant. But the same can only be done in the circumstances where defendant making unreasonable or extra-ordinary noise. If someone is getting affected by basic and general sounds of outside activities, no element of nuisance is there. Court decides the unreason ability of noise in such cases.

According to Law of Tort, a person can get suffered from personal injury, financial loss and psychiatric injury due to tort committed by other person. In personal injury cases one gets directly affected and get injured cause of other person, whereas in some cases claimant does not get injured but can suffer from a financial loss. In addition to this, sometimes a person neither get direct physical injury nor he/she get suffer from financial loss but there he/she get an impact on his/her mind, this situation called psychiatric injury (Lawteacher, 2018).

Application

Sometimes, in the cases of negligence, plaintiff also neglects his/her duty similar as defendant. This act of plaintiff is known as “Contributory Negligence.” As peer the case Parlin v Choiceone Pty Ltd [2012] WASCA 19, in cases of contributory negligence, plaintiff can only demand partial compensation from defendant.

According to Contract law, a person who enters into a contract and later on denied to perform his/her obligation, such act termed as “Breach of Contract”. In these cases another party of contract is entitled to sue and get compensation from the defaulting party. Although if first party breaches the contract for a non-avoidable reason, then it is the outlook of other party to whether discharge the first party from his/her obligation or not (AustralianContractLaw, 2018)

In the given case, Chloe asked to Burnside Council about their future work schedule in the area where she was intended to open her meditation studio, but the concerned person negligently confirmed her that no project is going to work in that area in coming years. By believing upon this statement, Chloe signed a lease deed of 2 years for premises on respected area and thereafter got suffered from nervous disorder which is a kind of psychiatric injury.

Here Burnside Council failed to perform it is duty with due care and responsibility. It was the duty of Burnside Council to carefully check the record and then to make a statement to Chloe, as on the basis of statement Chloe was intended to take further decision. But Burnside Council has made negligent Statement to Chloe. In the given case although, council has not made fraudulent misstatement but has made a statement which could be change if proper research could be done.

Unlike the case Malone v Laskey, here Chloe had an interest in the property and also had right to use the same as she took the premises on lease for 2 years. Similar to the case Kennaway v Thompson, Chloe was getting disturbed by terrible noise generated from site work of Burnside Council near to her studio. Here the generated noise was extra ordinary. This is a case of Private Nuisance.

 In the studied case, Chloe has already asked of Burnside Council about the schedule and she had a reason to believe on the fact that no renovation or other such task would happen in next 2 years in the area nearby to her meditation studio as the concerned person of council told her that “it should be fine”. If she would be aware with the same she must not have signed the deed. In this case, action of Burnside council was of the manner that makes Chloe completely unable to continue the purpose for which she has taken the premises on lease. Chloe is the primary victim against Burnside council as due to their act, she got suffered from psychiatric injury and lost her mental peace.

Unlike the case Parlin v Choiceone Pty Ltd, in the given case Chloe has performed her duty by asking about work schedule of Burnside Council, so she cannot be held responsible for contributory Negligence

In the studied case, Chloe has stopped to pay rent to her landlord and now wants to terminate the lease contract. By doing this she will breach the contract. Although she could not continue with the said lease agreement due to some non-avoidable reason but as here landlord did not agree  to accept her partial performance, she will be held liable to breach the contract.

Conclusion

After the study of given case, it may be stated that here that Chloe will be entitled to sue Burnside Council for making negligent misstatement as well as in conducting nuisance. As she got suffered with nervous disorder due to act of Burnside council, she can entertain a case against the same for this reason. Further, Chloe was liable to pay rent of complete 2 years to landlord of meditation studio. As she stopped paying rent after 6 month, she is liable for breach of contract and her landlord can bring an action against her.

References

AustralianContractLaw. (2018)  Overview of Australian contract Law [online] Available from: https://www.australiancontractlaw.com/law.html [Accessed on 19/05/18]

Darlingtones Solicitors LLP. (2012) Negligent Misstatement [online] Available from: https://www.darlingtons.com/blog/negligent-misstatement [Accessed on 19/05/18]

e-lawresources. (2018) The Tort of Nuisance [online] Available from: https://e-lawresources.co.uk/Nuisance.php  [Accessed on 18/05/18]

Kennaway v Thompson [1981] QB 88  Court

Lawteacher. (2018) Law of Tort is civil wrong [online] Available from: https://www.lawteacher.net/free-law-essays/tort-law/law-of-tort-is-civil-wrong.php [Accessed on 18/05/18]

Mackesy Smye Lawyers. (2018) Personal Injury: What are Intentional Torts? [online] Available from: https://www.mackesysmye.com/articles-resources/general-personal-injury/what-are-intentional-torts [Accessed on 19/05/18]

Malone v Laskey 1907 2 KB 141

Parlin v Choiceone Pty Ltd [2012] WASCA 19

Victoria Law Foundation.  (2018) Nuisance laws, including pollution  [online] Available from: https://www.victorialawfoundation.org.au/nuisance-laws-including-pollution[Accessed on 18/05/18]

Wright, R.W. (2011) Private Nuisance Law: A Window on Substantive Justice [online] Available from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1909312 [Accessed on 19/05/18]