QUESTION
You are a junior solicitor in the employ of Borgan & Botts Solicitors. A paralegal in the firm has recently taken the below statement from a new client, Mr Chuck Ganter. A partner of the firm, Ms Felicity Abbott, has asked you to review the statement and prepare a written advice for the client’s file to assist her with the next appointment scheduled with Mr Ganter.
STATEMENT OF CHUCK GANTER
I retired from my occupation as a motor mechanic in 2010. Since then, I have lived on a large block of land that was once a farm, purchased immediately upon my retirement, in a small country town called Couch. The town lies just outside of Brisbane, Queensland and has a long history of agricultural farming activity. In the past, Couch has been filled with the sound of tractors and other farming equipment. However, over the past ten years, all of the other current and former farms in Couch have been progressively sold and their land sub-divided and turned into housing estates. My large block has not been sold or sub-divided.
Since retiring and moving to Couch, I volunteer at a soup kitchen in Brisbane five afternoons a week. Wendy Low owns the soup kitchen and operates it each weekday with my assistance and no other staff or volunteers. One week ago, after finishing my volunteer work, I was tired. I told Wendy that I was going to lie down in the soup kitchen’s staff breakroom to have a sleep before driving home. When I awoke at 7pm, I realised that the door to the breakroom through which I had entered was now locked. As Wendy knew, although I had a key to the soup kitchen’s other doors with me, I did not have a key to that door. I could not see, hear, or communicate with anyone, and I soon realised that the soup kitchen had closed for the day. The next morning, I was still in the breakroom when Wendy opened the door and admitted to having locked it as a joke when she closed the soup kitchen and left at 6pm.
I live by myself in an old house in the middle of my block of land in Couch. My block is surrounded by a barbed-wire fence. Although I have never farmed my block since purchasing it, I have always liked go-karting as a hobby. In 2010, I built a go-kart track and shed entirely on my block, near my block’s western boundary. Since then, whenever I have spare time, I spend it either in my shed working on my many go-karts and testing them by revving their engines, or by racing go-karts around my track. I also often prefer to do things once it is dark and not so hot outside – and this includes go-karting. My go-karts have engines which are the same as the engines used in motorcycles. I have however modified my go-karts by removing the baffles from their exhaust pipes to give their engines a deeper, louder, and more powerful sound. When my go-karts traverse the track’s corners at speed, their tyres also screech.
Since 2010, my block of land in Couch has become surrounded by housing estates. More recently, Lewis Mars purchased and moved into one of the estate houses next to my block’s western boundary. Since then, every time I see Lewis in town, he complains about my go-karts. Lewis says that he has a genetic condition that makes him sensitive to noise, and that the go-karts disturb his sleep. I do not intend to disturb Lewis. There has been no personal injury to Lewis or material damage to his land, or house, or to any of his property. Lewis has not touched, threatened, or otherwise interfered with me, in any way.
Two months ago, I installed a cubbyhouse (or outdoor children’s playhouse) for my nephews to use when they visit at the end of the year. The cubbyhouse is on the eastern boundary of my block and sits high above the ground on a platform. The platform is supported by vertical metal posts going into the ground on my side of the barbed-wire fence – but, while nothing touches the fence, the cubbyhouse itself protrudes over the fence and into the property where Roslyn Peach lives. Yesterday, Roslyn advised me that she is going to sue me in trespass to land in relation to my cubbyhouse. She is claiming that she has suffered psychiatric injury as a result of its installation.
In relation to the cubbyhouse, I only seek advice on an action in trespass to land brought by Roslyn.
Part-A- Identify what possible trespass to person and/or trespass to land and/or private nuisance action(s) (successful or unsuccessful) relevantly arise on the facts of the statement (only those action(s) that Mr Ganter may bring against a party specifically named on the facts, and those which may be brought against Mr Ganter by a party specifically named on the facts).
Part-B- On the basis of your analysis in Part A above, draft six (6) questions that your partner, Ms Abbott, would need to ask your client, Mr Ganter, in order to obtain additional information identified as needed in relation to an element / issue of an action, defence or remedy relevantly raised. For each question, you must indicate what type of question it is (e.g., open, closed etc).
SOLUTION
PART A
A perusal of the statement given by Mr Ganter indicates that various potential actions in tort by and against Mr Ganter are likely to arise. All the trespass actions have their own elements which are required to be established in order to succeed and receive a remedy. The potential trespass actions identified from the given facts, i.e., trespass in person, private nuisance and trespass to land, with the test of their elements, are given below:
1. GANTER V WENDY: FALSE IMPRISONMENT ARISING OUT OF LOCKING UP IN THE BREAKROOM
The elements of the tort of false imprisonment are direct interference with the plaintiff's liberty; total restrain in all directions, and fault of the defendant.
Element 1: Was there a direct interference by Wendy with Ganter's liberty?
There must be direct interference with the liberty of the plaintiff by the defendant.[1] Wendy locked Ganter inside the breakroom when she locked soup kitchen and left at 6 pm, thereby actively causing direct interference with Ganter's liberty.
Element 2: Whether Ganter was totally restrained in all directions?
The plaintiff must have totally restrained in all directions without reasonable means of escape.[2] The fact that Ganter did not have a key to the breakroom door indicates that there were no other reasonable means for Ganter to escape. However, the facts are insufficient to establish that there were no other means to escape from the breakroom, such as windows. If there was a window, it could have been a reasonable means to escape. Nonetheless, it will also depend upon the danger to self or property, distance, Ganter's abilities, etc.[3] Hence, additional information from Mr Ganter is required to determine this issue.
[1] Myer Stores Ltd v Soo (1991) 2 VR 597; New South Wales v Le (2017) NSWCA 290.
[2] Bird v Jones (1845) 7 QB 742; Burton v Davies (1953) 26 St R Qd 30.
[3] McFadzean v CFMEU (2007) 20 VR 250.
Element 3: Whether Wendy was at fault while locking the breakroom?
The defendant must be at fault for interfering with the plaintiff's liberty, either intentionally or unintentionally.[4] Wendy was aware that Ganter did not have a key to the breakroom, and by locking the breakroom, he would be deprived of any means to get out of the soup kitchen. Therefore, Wendy's interference with Ganter's personal liberty was voluntary and intentional.
Conclusion
Therefore, it is possible that Ganter may pursue an action of false imprisonment against Wendy. However, the success of the same would be subject to whether there were any other means to escape from the breakroom.
Remedy
Ganter will be awarded nominal damages if no loss or harm from the false imprisonment.[5] However, if any bodily injury or consequential loss of earning capacity was suffered by Ganter, he will be awarded compensatory damages. He may also be awarded aggravated damages to compensate injury to his feelings.[6] In this regard, additional information is required as to whether there was any suffering due to false imprisonment.
2. LEWIS V GANTER: PRIVATE NUISANCE ARISING OUT OF NOISE OF GO-KARTS
[4] McHale v Watson (1964) 111 CLR 384.
[5] Law v Wright [1935] SASR 20.
[6] Trevitt v NSW TAFE Commission [2001] NSWCA 363; Myer Stores Ltd v Soo [1991] 2 VR 597.
The elements of private nuisance are title to sue, interference with the plaintiff's legally recognised right attached to the land, and material damage or substantial and unreasonable interference.
Element 1: Whether Lewis has the title to sue?
The plaintiff must have a legally recognised interest in the land.[7] He must be either the owner of the land or a lessee. In the present case, Lewis is the owner of his land as he recently purchased and moved to an estate house adjacent to Ganter's western boundary. Therefore, Lewis has the title to sue Ganter for the private nuisance created by the loud noise of go-karting.
Is Ganter a proper defendant?
Ganter is the proper defendant as the nuisance by go-karting derives from the land owned and occupied by him. Therefore, Ganter can be sued.
Element 2: Is there an interference with a legally recognised right to use and enjoyment of land?
The interference by the defendant must be with a legally recognised right of the plaintiff attached to the land, which included the right to enjoy their land free from unreasonable noise and vibration.[8] Moreover, loud noise at night has been held as unreasonable.[9] In the present case, Lewis has complained that his sleep has been disturbed by the noise of go-karts. Therefore, there is an interference with Lewis' right to sleep comfortably without unreasonable noise.
Element 3: Is there a substantial and unreasonable interference with the use and enjoyment of land?
An interference is substantial when it causes inconvenience materially interfering with the ordinary physical comfort of the plaintiff.[10] Furthermore, unreasonable interference includes loud noise at night.[11]
In the present case, the given facts are insufficient to determine whether go-karting by Ganter is a regular activity at night. Ganter's statement indicates that he prefers to go go-karting once it is dark and not so hot outside. Therefore, additional information, such as the duration and frequency of go-karting, is required to establish that go-karting continues regularly during the night so as to disturb Lewis' sleep ordinarily.
[7] Hunter v Canary Wharf Ltd (1997) 2 All ER 426.
[8] Ibid.
[9] McKenzie v Powley (1916) SALR 1.
[10] Walter v Selfe (1851) 64 ER 849.
[11] McKenzie v Powley (1916) SALR 1.
It is irrelevant that Ganter's block used to be a farm filled with the sound of tractors and other farming equipment, as the nature of the locality has changed over the years from being farms to residential blocks.[12]
Defence
The abnormal sensitivity of the plaintiff to loud noise is a relevant defence.[13] As Lewis has a genetic condition that makes him sensitive to noise, the interference may be regarded as not substantial. In this regard, Ganter will have to prove that the alleged noise of go-karts would not be an interference for a reasonable man.[14] This requires additional information as to whether any other estate members have ever complained over the alleged nuisance.
Conclusion
The possible action in private nuisance against Ganter by Lewis for Ganter's act of go-karting and the loud noise thereof is likely to be unsuccessful as the facts do not establish material damage or substantial and unreasonable interference.
Remedy
In this action, Lewis may seek a mandatory injunction to stop go-karting as his right is infringed.[15] Additionally, he may be awarded compensation for his inconvenience resulted from the nuisance.[16]
[12] Munro v Southern Dairies Ltd. (1955) VLR 332.
[13] Hollywood Silver Fox Farm Ltd v Emmett (1936) 2 KB 468.
[14] Ibid.
[15] Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149.
[16] Bone v Seale [1975] 1 All ER 787.
3. ROSLYN PEACH V GANTER: TRESPASS TO LAND ARISING OUT OF PROTRUSION OF CUBBYHOUSE
The elements of trespass to land are title sue, direct and unauthorised interference with the land, and fault of the defendant.
Element 1: Whether Roslyn has the title to sue?
An action in trespass to land requires the plaintiff's exclusive possession of land at the time of interference.[17] The facts indicate that Roslyn Peach lives on the property to which the cubbyhouse protrudes. Therefore, Roslyn may have exclusive possession of land, and she can sue for trespass. However, further information as to whether Roslyn is the owner, licensee or tenant of the land is required to prove her exclusive possession.
Element 2: Is there a direct interference with the land?
There must be direct interference with the plaintiff's land which means intrusion onto the land as an immediate consequence of the defendant's act.[18] Ganter has not done any act which results in immediate intrusion onto Roslyn's land. Therefore, there is no direct interference by Ganter.
Is there an actionable transient interference with the land?
Where there is an intrusion into airspace, it is called transient interference, and it is actionable only if the airspace is within reasonable space of the plaintiff.[19] Additionally, the right to airspace is limited to such a height as is necessary for the reasonable use and enjoyment of the land and the structures on it.[20]
Since the cubbyhouse sits high above the ground on a platform, its intrusion into Roslyn's airspace would amount to an actionable transient interference with her land if such an intrusion is within the reasonable height necessary for the enjoyment of the land and other structures thereon. Therefore, the height of the cubbyhouse is a determinative fact for deciding actionable transient interference with the land.
[17] Newington v Windeyer (1985) 3 NSWLR 555.
[18] TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.
[19] Konskier v B Goodman Ltd (1928) 1 KB 421.
[20] Bernstein v Skyviews & General Ltd (1978) 1 QB 479.
Whether the interference is unauthorised?
The interference must be unauthorised, i.e., such interference is without lawful authority or consent of the plaintiff.[21] Roslyn has never consented to the protrusion of the cubbyhouse over the fence and into her property; hence it is unauthorised.
Element 3: Is Ganter at fault?
The defendant must be at fault.[22] This element requires a voluntary act which is either intentional or unintentional.[23] The installation of the cubbyhouse was not intended to cause trespass. However, carelessness while installing the cubbyhouse to prevent it from protruding over to adjacent property can be an unintentional fault by Ganter.
Conclusion
Therefore, there is a possible action in trespass to land against Ganter brought by Roslyn. However, the success of such action depends upon her exclusive possession of the land and the height of the cubbyhouse, as it will determine whether there is an actionable transient interference or not.
Remedy
In actions of trespass to land, compensatory damages may be awarded for actual damage suffered by the plaintiff.[24] Roslyn claims that she has suffered a psychiatric injury due to the installation of the cubbyhouse. Therefore, she may be awarded compensatory damages.
An injunction is also possible where the award of damages is not adequate. Roslyn may seek an injunction order which requires Ganter to remove the cubbyhouse or part of it which protrudes to her land.
All the abovesaid actions are actionable per se. Therefore, the plaintiff does not need to prove any loss or damage to succeed in their actions.[25]
[21] Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.
[22] Public Transport Commission of NSW v Perry (1977) 137 CLR 107.
[23] TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.
[24] Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Gardiner v Doerr (2022) QSC 188.
[25] Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343.
PART B
1. Was there any other means to escape from the breakroom to outside or the soup kitchen, for example, windows? (Closed)
2. Have you suffered any loss or damage, or personal injury due to being locked up in the breakroom? (Closed)
3. You mentioned that you prefer going go-kart once it is dark and not so hot outside. Are you saying that you go go-karting regularly during the night? (Check)
4. Has anyone other than Lewis ever complained to you regarding the noise of go-karting? (Closed)
5. How much is the height of the cubbyhouse? (Narrow)
6. Is Roslyn a tenant or licensee of the property to which the cubbyhouse protrudes? (Choice)