Академический Документы
Профессиональный Документы
Культура Документы
Harm
Historical Development
11
14
18
21
22
Nonfeasance Rule
Nuisance
26
26
Private Nuisance
27
Unreasonable Interference
28
Title to Sue
28
29
33
Damage/ Interference
35
Propriety Right
37
38
Material
40
What is Unreasonable
40
Locality
40
41
41
42
Malice
43
1
50
Remedies
54
Mental Harm
What harm is Compensable?
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 394-5
Facts: plaintiff helped injured employees who were badly burnt in an electric fire and
suffered nervous shock. He developed schizophrenia (a recognised mental illness) and sues
his employer
Held:
The duty of care owed was to provide a safe working environment, the question was one of
remoteness of damage, was nervous shock the kind of damage that is foreseeable?
Differentiated from mere sorrow or actual distress, sorrow does no sound in damages,
cannot recover shock no matter how serious, however shock can be the starting point for a
lasting illness for which (it if was a result of a tortuous act) may be recoverable.
at 394 per Windeyer J, quoting Lord Denning from Hinz v Berry Damages are recoverable
for nervous shock, or, to put it in medical terms for recognisable psychiatric illness caused by
the breach of duty by the defendant
In establishing whether a duty of care exists it must be determined whether it is reasonable to have
required the defendant to have foreseen the risk of shock-induced psychiatric injury. Reasonable
foreseeability requires the injury is not far-fetched or fanciful. Sudden shock is not an absolute
requirement.
Tame v New South Wales, Annetts v Australian Stations Pty Ltd [2002] HCA 35 , (2002) 211 CLR 317 at
[168]-[185], [192]-[195], [285]-[297]
Facts: Tame: a police office gave a blood alcohol test to the plaintiff after she was involved in a motor
vehicle collision. The test showed that she had not alcohol in her blood at all, but the police officer
mistakenly recorded the reading as 0.14. Although the error was corrected within a month, the
plaintiff became obsessed by the mistake and developed a psychotic depressive illness, worrying that
people would think that she had been heavily drinking before the accident. She sued the state of NSW,
the police officers employer, alleging that she had suffered emotional harm as a result of his
negligence in recording the test results. Annetts: the plaintiffs suffered an entrenched psychiatric
condition after their son died while working as a jackaroo on the defendants cattle station. They had
been assured by the defendant that their son would work under constant supervision and would be
well looked after but he was assigned to work alone at a remote station. He died of dehydration,
exhaustion and hypothermia after his car became bogged in the desert. The parents sued the cattle
station owner, alleging that their psychiatric condition was caused by its negligence.
Held: The HC heard both appeals together. By a majority of six to one, it held that liability for damages
for psychiatric harm was not limited to cases where the harm was caused by a sudden shock arising as
a result of direct perception of a distressing event or its immediate aftermath.
Where the plaintiffs response to the defendants conduct is so extreme of idiosyncratic as to render
the risk of that response far-fetched or fanciful, the law does not require the defendant to guard
against it.
|The plaintiff is considered to be of normal fortitude unless defendant knew or ought to know
that a plaintiff was abnormally sensitive to risk. Normal fortitude is a convenient means of
determining whether a risk of psychiatric injury is foreseeable, but a duty might arise if the
plaintiff is particularly sensitive.
Foreseeability of the type of injury is not required, all forms of psychiatric injury are
considered to be harm of the same kind
No need for sudden shock requirement, because even though cases of protracted suffering
may raise difficult issues of causation and remoteness of damage, these are better dealt with
by reference to the principles rather than absolute denial.
The court held unanimously that the plaintiffs appeal in Tame should be dismissed, because
the psychiatric injury suffered by the plaintiff was not reasonably foreseeable.
The court held unanimously that the plaintiffs appeal in Annetts should be allowed, because
the relationship between the defendant and the plaintiffs was such that the defendant owed
the plaintiffs a duty of care. The majority thought that the absence of sudden shock did not
affect the result.
Psychiatry recognises a distinction between mere mental distress and psychiatric illness,
although the distinction between the two is a matter of degree rather than kind, and as
medical knowledge advances, changes over time.
Problems: the distinction between mere distress and psychiatric illness is a matter of degree
rather than kind and may change with improved medical knowledge and there is
uncertainty as to what extent clinical criteria for assessing whether a person has suffered a
recognised psychiatric injury are suitable in a legal context.
Examples of psychiatric injury: Post-traumatic stress disorder (PTSD); reactive depression
Examples of mental distress: Sorrow, grief, distress, anxiety, fear, embarrassment
Consequential psychiatric injury: Harm suffered as a result of physical injury under common law
fully compensable (subject to remoteness. Under CLA only compensable if recognised psychiatric
illness
Civil Liability Act 2002 (WA), S5T Liability for pecuniary loss for consequential mental
harm
A court cannot make an award of personal injury damages for pecuniary loss for consequential
mental harm unless the harm consists of a recognised psychiatric illness.
Pure psychiatric injury: Plaintiff only suffers mental harm, eg. As a result of witnessing a traumatic
event, no physical injury. Only compensable when it amounts to a recognisable psychiatric illness
Historical Development
No recovery for pure psychiatric damage. Nervous shock, unaccompanied by physical injury
was too remote a consequence of a negligent accident, to result in damages
Fear of injury to oneself (primary victim cases) For the first time accepted that if the plaintiff
fears for their own safety, but escapes physical injury, the defendant is under of duty of care to
protect against psychiatric injury
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Facts: as a result of helping out, unsuccessfully, the co worker developed psychiatric illness
Held:Plaintiff was successful
The case was different to previous cases because the co-worker was not directly related to the victim,
but here the relationship was between colleagues.
The question that the HC had to answer was whether the harm was foreseeable in the circumstances?
If the shock was foreseeable to the employer then the plaintiff could recover.
The case was distinguished from pervious cases, because it needed to be established that a duty of
care was owed. The relationship was one of employer/employee which is an established relationship.
The reason that this was disputed in the HC was because there was an issue of whether they owed a
duty for this kind of harm, remoteness.
Plaintiff does not need to be a person of normal fortitude to be able to recover but:
Issue of duty of care is to be determined upon the assumption that he is of a normal standard of
susceptibility, unless:
Plaintiffs extraordinary susceptibility is known to defendant
Plaintiff belongs to a class for which event has a special significance which foreseeably
heightens susceptibility (eg parent who witnesses child being injure in a road accident)
The need for shock induced injury
A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently
inflicted on him by the defendant or if it is induced by shock. Psychiatric illness caused in other
ways attracts no damages[] (Brennan J in Jaensch v Coffey at [561])
On the other hand: [The requirement for nervous shock] is entirely artificial Psychological
injury is a much more complex process. It is rarely (if ever) explicable as the result of an isolated
shock. (Kirby J in Campbelltown City Council v Mackay (1989) 15 NSWLR 501, 504 (CA)).
Arguments for retention of sudden shock requirement: Would open floodgates for litigation;
Proof of causation too difficult.
Arguments against retention: Not in accord with medical opinion on how psychiatric injury is
incurred; harsh effect for carers of accident victims; Unfair discrimination between different
types of psychiatric illness.
The need for direct perception of the distressing event or its immediate aftermath
A psychiatric illness induced by mere knowledge of a distressing fact is not compensable;
perception by the plaintiff of the distressing phenomenon is essential. (Brennan J in Jaensch v
Coffey (1984) at 566)
The shock must come through sight or hearing of the event or its immediate aftermath.
Whether some equivalent of sight and hearing, eg. Through simultaneous television, would
suffice may have to be considered. (Lord Wilberforce in Mcloughlin vOBrian (1983) at 305.)
On the other hand: The question whether the requirement of proximity precludes the recovery
in a case where reasonably foreseeable psychiatric injury is sustained as a consequence of being
told about the death or accident remains, in my view, an open one. (Deane J in Jaensch v Coffey
(1984) 125 CLR 549 at 561)
Main arguments for retention of direct perception: Relative certainty of law; No pressing policy
need for extending liability.
10
Main arguments against retention of direct perception: Witnessing an event is not necessarily
more traumatic than being told; Emotional involvement is more relevant than physical
presence; What about cases where plaintiffs notification is delayed?; What about cases where
there is no aftermath?
The need for a particular relationship to the victim
Originally, only close relatives and rescuers could recover damages for nervous shock
(cf. Windeyer J in Mount Isa Mines v Pusey (1970) 125 CLR 383 (holding a different
view)).
Position from Jaensch v Coffey: : no authoritative statement as to whether a particular
relationship is a separate requirement (of proximity) or merely part of the inquiry as to
whether nervous shock was reasonably foreseeable.
While the relationship of the plaintiff with the threatened or injured person [] may
well be of critical importance on the question whether the risk of mere psychiatric
injury was reasonably foreseeable in a particular case, the preferable view would seem
to be that a person who has suffered psychiatric injury as the result of contemporaneous
observation at the scene of the accident is within the area in which the common law
accepts that the requirement of proximity is satisfied regardless of his particular
relationship with the injured person (Deane J in Jaensch v Coffey (1984) 125 CLR 549 at
561.
Duty of care: A duty of care is established or denied on the basis of the ordinary
principles of the law of negligence, ie Lord Atkinss neighbourhood principle.
A duty of care is owed to persons who are so closely and directly affected by my act that
I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called into question.
11
Tame v New South Wales, Annetts v Australian Stations Pty Ltd [2002] HCA 35 (5
September 2002), (2002) 76 ALJR 1348
Facts: Two situations: Mrs Tame and the Annetts.
Mrs Tame: police officer reported a wrong blood alcohol reading and she became aware of
this she became obsessed by this. She suffered a psychiatric illness. What was different in
this case was that unlike traditional physiological harm cases; where there is usually
someone physically injured and a person close to them suffer mental harm as a result. In this
case as a result of a particular circumstances and a particular vulnerability she was unable to
deal with the situation.
Annets: a 16 year old boy went to be a jackaroo in the outback. The parents asked whether
he would be supervised at all times, they said that he would be. 7 weeks later he was sent to
work alone on a remote property, at some point in time he and another worker went out into
the outback in a jeep and became bogged. It took a long time to find the body. This was
different to other previous cases because there was no direct perception of the harm on the
primary victim, it was not a sudden event it was protracted over time and this elongated the
parents grief.
Held: HC said that the factors used to determine proximity that had been used up to this time
could sometimes lead to unjust results.
The court said that you need to go back to the reasoning in the decision in Donoghue v
Stevenson.
Appeal in Tame failed because: Person of normal fortitude would not have suffered
psychiatric injury in the circumstances
Possibility of conflict between duty of police to investigate crime and a duty to prevent
mental harm from a person under investigation
Risk of incoherence between law of negligence and law of defamation.
Appeal in Annetts succeeded because: Parents were in an existing relationship with
defendant because of undertaking to take quasi-parental care.
It was reasonably foreseeable that parents of normal fortitude would suffer mental harm in
the circumstances.
What is the relevance of reasonableness?: The conduct of the defendant the defendant
needs to take reasonable care; the courts must also be reasonable in imposing a duty of
care the court should not extend a duty to that which is considered outside the publics
wants
The previous control mechanisms are not preconditions of a duty being owed but are to
be considered in this context. People can use these to regulate their conduct, and
whether they should have the plaintiff in contemplation. It is at this point that you use
these factors:
Normal fortitude of plaintiff
Sudden shock
Physical and temporal proximity to the distressing event
Relationship between plaintiff and immediate victim
Lack of direct perception does not preclude recovery: But relevant where the nature of the
relationship is not that of parent and child Gleeson CJ at [18].
13
Distance in time and space from a distressing phenomenon, and means of communication
or acquisition of knowledge concerning that phenomenon, may be relevant to assessing
reasonable foreseeability, causation and remoteness of damage in a common law action for
negligently inflicted psychiatric illness. But they are not themselves decisive of liability.
Gummow and Kirby JJ [at 225]
The High Court decision in Gifford v Strange Patrick Stevedores Ltd: Relevance of the
relationship between the plaintiff and the immediate victim
Relationship of parent and child is important in two respects: Foreseeability of psychiatric injury
Gifford v Strang Patrick Stevedores Pty Ltd [2003] HCA 33; (2003) 198 ALR 100
Facts: Parent killed due to defendants negligence, wife and children suffered psychiatric
injury
Held:HC held that not all parents and children have a close relationship; however defendant
should be reasonably aware that there will be ties of love and affection in some and
psychiatric injury may be likely.
Wife failed because she couldnt prove a recognisable psychiatric injury (she was in the class
of plaintiff and didnt need to prove direct perception hence would have been successful if
she could prove injury -1994 statute).
Children do not come under the statute (required direct perception) court decided the
common law was not superseded by the legislation (existed side by side), hence no need to
prove direct perception in all cases.
Children were shown to be owed a duty of care, due to relationship involved, that is they
were a class that was reasonable foreseeable. Reasonableness of recognizing a duty of care
on part of defendant: If it is reasonable to require any person to have in contemplation the
risk of psychiatric injury to another, then it is reasonable to require an employer to have in
contemplation the children of an employee.
and reasonableness of recognizing a duty of care on the part of the defendant
14
Primary victims
Those who are involved in the event causing psychiatric injury mediately or immediately as
participants- Alcock
Those within the range of foreseeable physical injury- Frost
Where defendant owes primary victim duty of care not to cause physical injury, defendant may
be liable for psychiatric injury even if it is not itself foreseeable- Page v Smith
Secondary victims
no more than the passive ad unwilling witness of injury caused to others Alcock
Must show:
that psychiatric injury is reasonably foreseeable in persons of normal fortitude;
close tie of love and affection with immediate victim; closeness in time and space to the
incident or its aftermath;
direct perception of the incident or its immediate aftermath (rather than hearing about it
from somebody else)
15
Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 (HL)
Facts: Police allowed excessive numbers of people into a section of a soccer ground causing 95 people
to be crushed to death and many others injured, it was televised live and family members and friends
suffered shock. The individuals filmed were not recognisable. The plaintiffs were parents, brother-inlaw, fianc and friend. There was a breach of negligence to the primary care, each plaintiff suffered
psychiatric injury and the causal link was when the plaintiff had become aware of injury to the
primary victim. The issue was whether the defendant owed a duty of care to the plaintiff concerning
the type of injury concerned.
Held: At first instance most cases were successful, on appeal both CA and HOL found for the defendant.
HOL was will to extend the category of people able to claim (ie beyond parent, spouse, child) to a
loving/caring relationship (dependant on the case), but they rules out those that saw disaster on TV or
learnt from means other than direct perception (being at the scene or aftermath). Aftermath was
defined very narrowly in this case. The brother and brother-in-law (who were at the ground) were
found not to have the requisite relationship.
Proximity- presence at the ground was sufficient, applied strict 2 hour limit, a plaintiff failed (despite a
close relationship) because they arrived 7-8 hours later at the hospital (too far beyond aftermath).
Bystander issue was not completely rule out, has not been recognised in cases following this.
The test is reasonable foreseeability of nervous shock and proximity. Proximity requires closeness of
relationship, physical/temporal proximity to the accident or immediate aftermath, equated to direct
perception. The plaintiffs failed because they either lacked the physical/temporal proximity or were
unable to see relatives on TV.
Rescuers
Originally, defendant seemed to have owed a duty of care to rescuers because of their position-
Chadwick v British Transport Commission: injury as a result of horror of his experience
Now, rescuers can only recover where they expose themselves to physical danger or reasonably
believe to do so (but no need that perception of danger cause psychiatric injury) White v Chief
Constable
Rescuers are not in any special position in relation to liability for psychiatric injury White v
Chief Constable this can be contrasted to the dissenting judgment in the same case which said
involvement in aftermath sufficient to make rescuer primary victim.
Australian Law: Mount Isa Mines v Pusey: unclear whether plaintiff was owed a duty because he
was employee of the defendant or rescuer or combination of both.
16
White v Chief Constable of South Yorkshire Police [1998] UKHL 45, [1991] 1 All ER 1
(HL) [sub nom Frost v Chief Constable [1991] 2 AC 455]
Facts: police officers some on duty at the time of event, others who were off duty arrived for
the aftermath. The plaintiff was not successful; court found there was no duty of care owed
to employees not to cause psychiatric injury. In this circumstance, apply the ordinary rules of
negligence. Rescuer argument not successful-requirement (in respect of rescuers), that they
must be exposed to, or have a reasonable belief they are exposed to, danger to themselves.
Held:Reluctant for these plaintiffs to succeed when the plaintiffs in Alcock were unsuccessful
(policy), also reluctant to continue expanding liability for psychiatric injury. The application
of the psychiatric injury net (requirements) often seem unjust due to its rigidity.
CLA
17
What about the defendants knowledge of the plaintiffs fortitude or otherwise? Can court
take into account that employer knows that one of their employees is particularly
prone? S(4) says it can be considered, the court is not required to disregard it.
How does the second subsection tie in with the first? The first asks was there a duty in
light of the circumstances, and subsection 2 outlines some circumstances that might be
considered, but may not be a restrictive list.
The harm that must be proved under the legislation is recognised as opposed to CL
position of recognisable: was this a policy shift or a drafting error? Differences in
medical science, there is no case law on the subject.
No damages for economic loss for consequential mental harm unless the harm consists of
a recognised psychiatric illnessThis limits recovery by defining the illness as recognised,
and adds the normal fortitude requirement, policy issues limit the plaintiffs recovery.
Damages for non-economic loss (eg pain and suffering) not effected.
This section covers liability for pecuniary loss for consequential mental ham.
If someone suffers a psychiatric injury after a personal injury that lose their ability to earn,
they will only be compensated for a recognised psychiatric illness
You wont be able to get damages for a loss of earnings, or any other loss, is merely the
result of being upset and distressed, which falls short of being a recognised psychiatric
illness, you cant get damages for losses caused by that particular harm.
This deals only with pecuniary loss, and this does not include pain and suffering, you will
still be compensable for physical harm.
This does not have a particularly wide scope of application
18
19
20
the doing of a wrongful act, whether a tort or a crime. Malfeasance may be contrasted
with nonfeasance which is the failure to do an act that a person is under a legal duty to
do: Gorringe v Transport Commission (Tas) (1950) 80 CLR 357
Nonfeasance: failure to do an act that a person is under a legal duty to do. The general rule is
that a person is not under any positive obligation to do any act or thing to prevent loss or
damage to a third party, even where it is inevitable that if the person does nothing, loss or
damage will be suffered by the third party.
21
Nonfeasance Rule
Modbury Triangle Shopping Centre Pty Ltd v Anzil
The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in
the absence of some special relationship, the law does not impose a duty of care to prevent
harm to another from the criminal conduct of a third party even if the risk of such harm is
foreseeable. The possibility that knowledge of previous, preventable criminal conduct, or
even threats of such conduct, could arguably give rise to an exceptional duty, appears to have
been suggested in Smith It suffices to say two things: first, as a matter of general principle,
such a result would be difficult to reconcile with the general rule that one person has no legal
duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the
situation postulated
Rationale for the Rule
Personal autonomy: Stuart v Kirkland Veenstara (2009)
Political moral and economic rationales: Stovin v Wise (1996)
Mere foreseeability insufficient: Sutherland Shire Council v Heyman (1985)
Effect of the Rule
Generally Ds do not have to act to save Ps
Hargrave v Goldman: the law casts not duty upon a man o go to the aid of another who is in peril
or distress, not casue by him. The call of common humanity may lead him to the recue. This the law
recognises for it give the rescuer its protection when he answers that call. But it does not require
that he do so. There is no general duty to help a neighbour whose house is on fire. @ 66
Assumption of Responsibility
Brennan J in Sutherland Shire v Heyman referred to circumstances where a duty to act positively
arise:
1) undertaking of some task which leads another to rely on its being performers
a. teacher who takes child to beach, under duty to save
b. lifesaver: Swain v Waverly Muncipal (DOC to swimmers not an issue, issues
breach and casuation)
22
c.
Three categories are identified in which the duty of care may so be attracted.
(i)
(ii)
Where the particular circumstances of an authoritys occupation of premises or
its ownership or control of a structure attracts to it a duty of care. In these cases the
statute facilitates the existence of a duty of care.
(iii) Where a public authority acts so that others rely on it to take care for their
safety.
Creating a Danger
SB v New South Wales (2004) 13 VR 527; [2004] VSC 514
A duty of care will be imposed where an authority having created or increased the risk of
foreseeable damage, then fails to exercise its statutory powers to prevent the damage. Where
the authority has used powers in a field of activity and has thereby increased the risk of harm, a
duty of care will ordinarily be attracted
Occupation of Land
McHugh J said in Cole v South Tweed Heads Ruby Club: like employers, teachers, profession
persons, guardian, crowd controller, security gaurds, jailers and others who had RIGHTS OF
CONTROL OVER PERSONS, property or situations, the duty owed by clubs to those to whom the
duty is owed. It may extend from the giving of advice and warnings to the forcible ejection from
the premises of one or more of those present
Hargrave v Goldman (1963) 110 CLR 40; [1964] ALR 377 (HCA)
Liable for not staying and making sure fire was put out. (tree caught fire 30 mts
up, had it cut down, in process another tree caught on fire. Owner left before logs
were complete out, ended up being catastrophics fire, spread to neighbours land
200km away)
Goldman v Hargrave (1966) 115 CLR 458; 40 ALJR 182 (HL)
Nagle v Rottnest Island Authority (1993) 177 CLR 432
23
Reliance on public authority
Mercer v South Eastern & Chatham Railway Companies' Managing Committee [1922] 2 KB
549
Special relationships
Employer / employee
Mt Isa Mines v Pusey
Teacher / student
Richards v Victoria [1969] VR 136
Parent / child
Robertson v Swincer (1989) 52 SASR 356
Control of Children
Smith v Leurs (1945) 70 CLR 256; [1945] ALR 392
It is, however, exceptional to find in the law a duty to control anothers actions to prevent harm
to strangers. The general rule is that one man is under no duty of controlling another man to
prevent his doing damage to a third. There are, however, special relations which are the source
of a duty of this nature. It appears now to be recognised that it is incumbent upon a parent who
maintains control over a young child to take reasonable care so to exercise that control as to
avoid on his part exposing the person or property of others to unreasonable danger.
Control of the conduct of others
Modbury Triangle Shopping Centre v Anzil
it is rare for the law to fin a duty to control the conduct of a third persons in the interest of
the P must be a special relationship to find such a duty.
L v Commonwealth (1976) : P was putin a cell with 2 prisoners known to have a history of
violence. P was sexually assaulter and injured. The D had a DOC to the P to keep prisoners safe.
Good Samaritans
Civil Liability Act 2002 (WA)
Section 5AB
Section 5AD
24
25
Nuisance
Structure for answers:
a)
b)
c)
d)
26
Private Nuisance
Is an unreasonable interference with a Ps use or enjoyment of a proprietary right in land:
Hargrave v Goldman (1963) 110 CLR 40 / The very nature of the tort of nuisance is that it is
founded on the use of land in such a way as to diminish the enjoyment of another landowner:
Octavia Hill Housing Trust v Brumby [2010] EWHC 1793
Can include:
loud noise from construction work heard in a Ps hotel room: Andreae v Sefridge & Co
[1983] 1 Ch 1
subsidence to a home due to excavation next door: S J Weir v Bijok (2011) 112 SASR
127
27
1)
2)
3)
4)
Unreasonable Interference
Two types:
1) material damage to land;
2) damage to the utility/ amenity/ enjoyment of property
Title to Sue
P must have sufficient interest in the land which is being unreasonably interfered with..
-
Owners in exclusive possession: yes, title exists: Oldham v Lawson (no 1) [1976]
Non-owners in exclusive possession: YES: McLeod v Rub-a-dub Car Wash (Malvern)
Pty Ltd (1972 unreported) P was a company that leased premises, court held they
were proper Ps.
Mere licensees; controversial. Traditionally; No: Malone v Laskey [1907] 2 KB 141,
affirmed in Oldham v Lawson. However there are cases that say otherwise:
Khorasandjian v Bush [1993] and Deasy Pty Ltd v Monrest Pty Ltd (1996 unreported)
current authority is in Hunter v Canary Wharf (1997): mere licensees have
sufficient title.
Also see Stockwell v Victoria [2001]: mere licensees cannot sue.
Hunter v Canary Wharf LTD [1997] AC 655 House of Lords
Facts: canary wharf tower was 250m high and covered 50 sqm built next to river
Thames by D. Allegedly blocked TV reception of hundreds of people living in
shadow area An action was brought by about 700 owners and occupiers in that
area.
Issue: did each P have sufficient title to sue? Some were owners of the land, some
had exclusive possession of the land by not ownership rights and some were mere
licensees.
Decision: Majority of court held; mere licensee have title to sue. Lord Hoffman: at
702: nuisance is a tort against land, including interests in land such as easements
and profits. A plaintiff must therefore have and interest in land affected by nuisance.
woul
d
appe
ar
that
Aust
ralia
n
court
s are
likel
y to
adhe
re to
the
tradi
tiona
l
approach: outlined in Malone v Laskey, affirmed in oldhamd v Lawsom (No1) and Hunter v
28
Canary Wharfs has been expressly cited with favour by: stockwell v Victoria [2001] VCS 497
and Robson v Leischke [91]-[92] and Hoxton Park Residents Action Group Inc v Liverpool City
Council [86]
however none of these cases has expressly dealt with the issue of a mere licensees right to
sue.
take note of the Hoxton Park case; here although it did not deal expressly with mere licensee;
judges commented that the association was separate to the 1000 or so residents within it, and
the Assoc did not hold land within the area, and therefore did not have sufficient title to sue. The
assoc had no interest in the land alleged to be suffering a nuisance. The members did, but not
the assoc.
Does the nuisances have to be continuing/recurrent?
Hargrave v Goldman: in most cases it will be, but it is not neccessaty.
Isolated interference: single explosion of gas in Midwood v Manchester Corporation. Will be
necessary if the plaintiff is seeking in junctive relief OR where seeking to establish interference
with enjoyment rather then physical damages; because infrequent interferences will be less
likely to support damages or an injunction Bamford v Turnley,
29
that fault is a fact required for ALL manifestations of nuisance, although it seems safe to say that
it is required for MOST manifestations of nuisance.
type of conduct that will give rise to liability for nuisance will depend on how the nuisance has
come about:
30
D will be liable where they have not created the nuisance, but it emanates from their
land; when they continue or adopt a nuisance as in: Sedleigh Denfeild (see summary
Sedleigh-Denfield v OCallaghan [1940] Ac 880
Facts: D were the owner sof a ditch. Local council without consent of Ds
(therefore trespassing) laid a drainage pipe in the ditch. Pipe was laid
incorrectly and due to this could become clogged with leaves and other debris,
causing the ditch to overflow. This happened and caused damage to Ps property.
P sued D ( not local council). There was a lapse of 3 years between laying of the
pipe.
Issues: Where the Ds liable for the nuisance even though they did not create it?
Held: Yes. Ds had knowledge that pipe had been laid incorrectly and that
because of the knowledge they had continued/ adopted the nuisance and thus
liable for it.. Lord Atkin: if a man permits an offensive thing on his premises to
continue to offend that is if he knows that it is operating offensively is able to
prevent it, and omits to prevent it, he is permitting the nuisance to continue, in
other words he is continuing it.
below)
knowledge on behalf of the D is an important element to the concept of continuing/
adopting the nuisance. Without knowledge be said to continue/adopt: Torette House
Pty Ltd v Berkman (1940) 62 CLR 637
Torette House Pty Ltd v Berkman (1940) 62 CLR 637
Issues: Had the D continued or adopted the nuisance?
Held: No. They did not know, nor could have been expected to knowof
the disused water pipe. Dixon J spoke of the necessity for a fault
element. Here there was no fault.
taking of
steps to
eliminate a
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32
Give & take, live and let live
Type of nuisance and the locality
Principal factors:
o Duration
o Time
o Frequencey Extent
Undue Sensitivity has to be considered
Malice in the actions of the D will make it automatically unreasonable.
Material:
acid smuts that had damaged the paintwork of the Ps car
acid smuts that damaged laundry when hung out: stains & holes
Utility:
noise during night shifts (10pm-6am) caused by up to 15 trucks into depot
noise during the night shift from boilers and pumps causing vibrations
an occasional background smell of oil
occasional pungent and nauseating smell
Determining if it is unreasonable involves a balancing of the right of the P against those of the D.
33
34
Damage/ Interference
Two types:
1) material damage to land;
2) damage to the utility/ amenity/ enjoyment of property
Material
Examples:
-
acid smut from factory damaging laudry and washing : Halsey v Esso Petroleum
water escaping from Ds property and damaging Ps property: Sedleigh-Denfeild v
OCallagahn[1940] / Torette House v Berkaman (1940)
- Killin trees through noxious gasses: St Helens
- excavation of neighbours property causing subsidence: SJ Weird v Bijok
- development of land with inadequate drainage pooling in neighbours property:
Corbett v Pallas; Gales Holdings Pty Ltd v Tweed Shire Council [2011]
Traditionally the courts have distinguished between failure to act: nonfeasance and damages
caused by an action: misfeasance.
This was changed in Hargrave v Goldman Now non feasance can result in actionable
nuisance:
Misfeasance has in the past caused strict liability. Unclear wether this is the case in Australia, HC
yet to rule on it. However the ruling in Bankstown City Council v Almado Holdings Pty Ltd
(2005); Elton v Dore: show there is support for the need to have
the abandonment of the rule in Rylands v Fletcher means P must establish fault on
behalf of D who has introduced, retained or done on their land something dangerous there is
no longer strict liability for that things escaping.
Material Damage: Will always amount to an unreasonable interference
(exception: unduly sensitive use: Robinson v Kilvert (1889) 41 H D 88)
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36
Propriety Right
Nuisance is concerned with a interference with a Ps PR; use and enjoyment of the land:
Hargrave v Goldman.
occupation:
-use and enjoyment of the land through occupation as a home: Halsey v Esso Petroleum
Co Ltd; SJ Weir Ltd v Bijok;
- business : Wherry v KB Hutcherson Pty LTd
proprietary right which can be protected with action in Nuisance
Access to land:
-
use anf enjoyment of land through free access to that land is a right which can be
protected through an action in nuisance.
- Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 : nuisance casued by besetting
and picketing of portestort outside a circus, making it impossible for patrons to
enter the circus without walking the gauntlet
- Deasey Pty Ltd v Montrest Pty Ltd ( BS9605947): use of Ps carpark at invitation of D
to his customers constituted a nuisance.
Views of the Ps Land:
- views of a plaintiffs land are NOT a PR capable of protection via tort of nuisance.
established by HC in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor.
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Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 HCA
Facts: D erected a platform on his land that enabled him to see into the Ps racecourse. From
this platform the D broadcasted the results of the races conducted on the Ps land. P brought
action in nuisance, seeking an injunction. P claimed that the Ds conduct interfered with the
use and enjoyment of their land as the broadcastin go f race results by the D meant people
were discourages from attending the Ps racecourse, and therefore P was missing out on entry
fees as a benefit.
Issue: Was the lost entry fees an interference with the Ps PR that could be protected by an
action in Nuisance?
Held: NO. HC found there was not interference with Ps PR and there fore Ds conduct
nuisance.
Dixon J: the essence of the wrong [in nuisance] is the detraction from the occupiers
enjoyment of the natural rights belonging to the occupation of land diversion of custom
from a business carried on upon the land may be brought about by noise, fumes, obstruction of
the frontage, or any other interference with the enjoyment of recognised rights arising from
the occupation of property; and; if so it forms a legitimate head of damage recoverable for
wrong; but it is not the wrong itself. The existence or the use of a microphone upon
neighbouring land is, of course, no nuisance it si the obtaining a view of the premises which
is the foundation of the allegation. But English law is rightly or wrongly, clear that the natural
rights of an occupier do not include freedom from the view and inspection of neighbouring
occupiers, or of other persons who enable themselves to overlook the premises
although the plaintiffs ability to make a profit form the land may have been affected, THE
LAND WAS NOT.
38
building though this may seriously detract from the enjoyment of the land in relation to
spoiling view, air flow and light.
HOWEVER; there are a few cases where views FROM Ds property have been held to be an
interference with the Ps use and enjoyment of land.
-
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Material
What is Unreasonable
To determine if interference occasioning substantial loss of enjoyment is unreasonable start at
a premise of give & take Bamford v Turnley: trivial interferences are treated as part of the
everyday incidents of life: Stormer v Ingrham
There are factors that are considered:
1.
2.
3.
4.
5.
locality
Duration, time and frequency
Extent and intensity
Motive malice?
Undue sensitivity.
Locality
Nature & character of a neighbourhood are to be considered in determining reasonableness of
interference; what is reasonable in one may be unreasonable in another : Halsey v Esso
Petroleum @ 151.
Munro v Southern Dairies [1955] VLR 332: when dairy started was semi-rural, but when action
Sturges v Bridgman (1879) 11 Ch D 852
Facts: P owned a house in a fashionable area. The rear of Ds house abutted Ps garden. D was a
confectioner who for over 26 years had used pestles and mortars which were noisy and
caused vibrations. Ds father had done the same for 60 years prior. In 1873 the P built a
doctors consulting room in the garden, so there was only a wall separating the Ps consulting
room from Ds kitchen. Noise and vibrations of D caused disturbance to P who could not
examine properly. Timing: 10am-1pm. P sought injunction.
Issue: did the location of nuisance affect the viability of Ps action?
Decision: Court found nuisance. Character of locality (fashionable/ residential) was a
persuasive factor in finding the presence of nuisance.
@ 865: whether anything is a nuisance or not is a question to be determine not merely by an
40
brought nature of location had changed so impact was increased. WHAT COUNTS IS THE
LOCALITY AT TIME OF LITIGATION, NOT HISTORICAL USE OF AREA.
41
generally the longer and more frequent an interference; more likely it will be considered
unreasonable: Halsey v Esso Petroleum Co Ltd: continuous noise of pumps and boilers.
also there are some times of day when some interferences are less reasonable; Halsey v Esso
Petroleum Co Ltd: the night shift truck traffic..
Seidler v Luna Park Reservce Trust BC9505507 SC NSW
Held: YES. Hodgson J (SC NSW) found it to be unreasonable interference. Granted injunction
between the hours of 8am -1pm and 2pm-5pm so the P could reasonably undertake his work.
Facts: Amusement park operating with rollercoasters etc. First opened at Milsons
point site in Sydney in 1935. Park closed and reopened a number of times over th
years and housed a number of rollercoasters which where also closed and replaced
during that time. In 1995 a new one opened and it was proposed to operate during
business and evening hours.
Issue: was the duration, time, frequency and extent of the noise enough to make it
unreasonable?
Facts: P owned and occupied office on Clarence St in CBD of Sydney. P conducted practise as
solicitor. D have been engaged to undertake excavation work on neighbouring land. P evidence
was that the noise created by the defendant in undertaking the excavation work was so great
that he could not carry out a normal conversation/ concentrate on work & noise continued all
day. Sound level was ~ 75 db. Austrailian standard for office areas= 40-45 db. D argued that
the noise was appropriate for a developing CBD are and that it was ony temporary.
The P (neighbours) in nearby commercial and residential areas.complained about the
amount of noise emanating from the ride; both mechanical and the screams. Noise was
measured to be about 5 db above background noise levels. And occurred about 2-6
times every 3 minutes. P argued that it was nto the type of noise to which normal
people become accustomed over time, instead ti tended to become more annoying the
longer it persisted. D argued that the locality was such that this sort of noise should be
expected, such noise had been present since the park had opened in 1935 and the area
also experienced a large amount of traffic noise due to proximity of harbour bridge
and train line
Issue: did the frequency, duration, time and extence of the noise make the interference
unreasonable?
Held: Hodgson J found there was unreasonable interference amounting to nuisance.
Held; even when regard was had for the locality, and noise level that could reasonably
be expected it was still a nuisance. Made comment if current coaster did not have a
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Private
Mali
ce
Exist
ence
of
Malic
e will
rend
er an
other
wise
reaso
nable
act
unre
ason
Nuisance -
Defences
Issues: was the Ds act reasonable, and how did presence, if any, of malice affect
the reasonableness?
Consent
If plaintiff consents to
nuisance (eg late night
Held: Affirmation of the comments of Lord Selborne in Gaunt v Fynney (1872) Lr 8
Ch 8 @ 12 if what had taken place had occurred between two sets of persons
both perfecty innocent, I should have taken an entirely different view of the case.
But I am persuaded that what was done by the D was done only for the purpose of
annoyance and in my opinion it was not a legitimate use of the Ds house to use it
for the purpose of vexing and annoying his neighbours.
43
Here court found that malice existed (bird cartridges, threat) so that otherwise
reasonable act of shooting on own land, was made unreasonable.
44
In cases of permissive statuary provisions, the scope of authority depends on the construction
of the Act.
General principles:
There is a presumption that the legislature intended the authorised activity to be conducted
without creating a nuisance.
This presumption can be rebutted if the effect of the legislation was to confer upon the
authority the discretion to determine [] whether and to what extent the interests [of the
public] were to be served in preference to, and if necessary, at the expense of the plaintiff;
The defendant is liable if he or she is acting outside the scope of authority to impose on an
individual the detriment that is a consequence of a socially beneficial activity. The defendant
must show that there is no other alternative practical means of carrying out the work available
at the time.
The underlying issue is does the Act confer authority on the defendant to impose on an
individual the detriment that is the consequence of a socially beneficial activity?
Symons Nominees Pty Ltd v RTA (NSW) [1997 Aust Torts Rep 81-413
Facts: A hundred-year flood broke banks of river, the bridge constructed was not high
enough and caused damage.
Held:
But the bridge was built according to government regulations so interference has defence of
statutory authority.
Law will infer that the authority is authorised to build or undertake an activity of the kind
which will not damage anothers property,
if authority has a choice it will be assumed that they will choose the kind of activity that will
not or will cause the least amount of damage.
Contributory Negligence
General Principles:
In WA, the apportionment legislation does not apply to nuisance, ie contributory negligence can
be a complete defence to an action in nuisance.
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Common law says that CN is complete defence. IF the plaintiff contributes they cannot sue the
defendant. Overtime this has come to be considered unfair.
Reasonable Use
General Principles:
If the nuisance causes material injury to the plaintiffs property, the defendant is prima facie
liable for this damage (strict liability).
However, the defendant can rely on the defence of reasonable use if the nuisance is the result of
a natural user and The injury could not have been prevented by taking reasonable
precautions,
The burden shifts to the defendant to show reasonable nuse
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47
48
49
50
51
The court will look at the public interest in the activity amongst other things in determining
whether to grant an injunction, whether the defendants behavior eminent and will cause
substantial damage to the plaintiff.
The grant of permanent injunction;
The grant of interlocutory and quia timet injunctions;
The award of damages in lieu of an injunction (equitable damages)
Interlocutory injunction
Before the trial or during the trial because you cant bear to live with the nuisance for the whole
period of the trial.
Permanent injunction
At the end of the trial, once the courts have heard all the evidence
Quia timet injunctions
The nuisance hasnt started, but get an injunction to stop it because you fear the nuisance when
it comes. Very hard to get because you have to persuade the court that what you far is likely to
happen.
3. Damages
General Principles:
(Common Law) damages are the appropriate remedy for past losses P has suffered.
The plaintiff is only able to recover those damages that were reasonably foreseeable as a
consequence of the defendants act for which they were found liable in nuisance.
The plaintiff can also recoup damages for interference with use and enjoyment of land
(compensatory)
Damages aim to compensate for any detriment suffered as a result of the interference ie Loss as
a result of damage to the land and Diminution in utility of the land
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discussion of whether there were any difficulties in his way. Dicta suggests that the costs of
abatement are not recoverable: Young v Wheeler (1987) Aust Torts Reps 80-126 (NSW SC).
Proprietors Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478: it was held that the costs of
reasonable steps to mitigate the damage are recoverable.
Relationship between Nuisance and Other Torts
Nuisance and Negligence
Nuisance is concerned with the invasion of an interest in the enjoyment iof land. Negligence is
concerned with particular forms of conduct.
This means that the scope of protected interests is wider in negligence, whereas the scope of
actionable forms of conduct is wider in nuisance.
Same conduct can constitute nuisance and negligence.
Influence of negligence law/principles is strongest (ie liability depends on negligent conduct)
where:
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Remedies
DAMAGES
Judicial Remedies
Principle Equitable remedies:
-
Equitable Remedies
Unlike relief by way of damages at CL, ER are at the discretion of the court. Thus the court can
refuse to exercise its discretion:
because another equally or more appropriate remedy is at hand: Forster v Jododex
Aust (1972)
because the issue is theoretical: Draper v British Optical Association [1938]
because P has no real connection with/interest in the matter: Anderson v
Commonwealth (1932)
Because of traditional equitable principles:
o P must approach court of equity with clean hands
Because public interest weighs agains the exercise of the discretions: Miller v Jackson
Because it would impossible for the D to obey the decree
Because the damage is not substantial
Declaration
Will state the rights of the parties but does not order anything to be done.
Since the fusing of the courts of equity and CL both can make a declaration.
Jurisidiction is almost unlimited. Advantages:
binding on the parties and cannot be re-litigated res judicata
it is comparatively speedy remedy and as such uslally cheaper than other remedies.
Avoids protracted litigation
Enables negative relief to be given: declaration that someone is NOT in breach of a
rule
It can be given in circumstances where other relief might not be available.
Disadvantage:
provides no consequential relief and will therefore not bea satisfactory remedy
where substantial damage has occurred (they need compensation)
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it is not appropriate for cases of negligence, but may be appropriate in some cases of
disputed title to goods or land in respect of nuisance.
Account
Particularly useful in commercial matters such as industrial property cases. Subject matter of
the decree is the profit made by the defendant improperly from the wrongdoing against the P.
Account of profit is not available in tort unless exemplary damages are available: Hospitality
roup v Australian Rugby Union (2001)
Injunction
Since fusion of the courts both CL and equity can make an injunction. The aprty prohibited or
enjoined was commanded not to do or to cease from doing some wrongful act.
Prohibitory injunction may be granted at the discretion of a court: to prohibit the doing of some
tortious acts.
Quia timet(because he fears) injunction: restrain the threatened act
Mandatory in junction: to compel the D to perform some positive act. (courts are reluctant to
give these, requires policing outside of the court)
Perpetual: granted permanently to compel the D to, or prohibit from some action
Interlocutory: temporary/provisional, granted summarily pending the hearing of the trial. They
will only be granted where the P can show probable entitlement to relief on the full hearing.
most relevant in cases of nuisance, trespass to land/chattels ,occasionaly defamation
Damages at CL
Nominal Damages: symbolic, plaintiff makes out a cause of action but hasnt really sustained any physical
injury or property damage. The tort of battery is a good example where you havent sustained actual damage.
works to acknowledge that some damage has occurred.
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Contemptuous Damages: this is where the court is satisfied that the parties to the litigation have misused
the court processes. frivolous or vexatious litigation.
Exemplary Damages can get these at common law but not under the defamation act of 2005. These are
intended to PUNISH the tortfeasor. Egregious/contumelious behaviour. This kind of conduct will not be
tolerated, will be severely punished. Cotogono v Lamb: the plaintiff was a process erver was trying to serve
process on the defendant. Didnt want to talk to the server/ be served. Hoped in his car and ran away. Ran over
him didnt stop. Such outrageious behaviour that it warranted an award of exemplary damages.
Aggravated damages typically awarded in defamation actions, this is where the defendants behaviour or
conduct has added to the plaintiffs injury. Or where the court has satisfied that the defendant has flagarantly
ignored the plaintiffs rights. The plaintiff willget a premium damages over and above what they would have
received for the defamation.
Eg: SA CASE Bob Gilbert case: used car salesman, channel 7 had a vendetta aginst him. In one of his programs
they sunk their boots inot bob and defamed him. He was incnsed. Disputed the allegatsion tried to contact
channel 7. They had not interest in hearing his side fo the story and had no interest hearing it. Info was false.
Court was satisfied that channel 7 had breached the rules of natural justice, by not listening to him.
Compensatory Damages Resitutio in intergrum: principle of putting the plaintiff back where they would
have been court asks what level of damages would be award if the tortious conduct had not occurred or casued
injury
Abatement: (more of a remedy) ancient remedy goes back about 500 years, Batens Case
(1610) &7 ER 810. Once the abator tires to abate, they lose an recourse to damages or injuction
for that particular cause of action. This is a uniquie remedy because ti is extra-judicial ( no
recourse to a court before hand) Courts carefully circumscribed how the remedy is to be
excercised.
Must not use: unreasonable force
Must not cause unreasonable damage
If possible required to give notice of intention to enter neighbouring property
Burton v Winters [1993] 3 all ER 847- abatements is confined to 3 areas:
1) clear and simple cases (waste of time and money to go to court)
a. emergency situation: if neighbour goes on a holiday and they leave the
outside tap on and your property is below, so if you dont turn off thetap
your house will be flodded. -
b. every day is a single cause of action. So if self help isnt helping, next day is a
new day of action.
Principles of Assessment of Compensatory Damages
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5 fundamental principles apply to the assessment of compensatory damages at common law:
1) Eggshell Skull
The D must take the plaintiff as the find them, with all of the weaknesses, beliefs, capacities
and attributes: Nader v UTA (1985) As soon as damage is established as reasonably
foreseeable, the plaintiff can recover for the entire amount including their egg shell issue.
2) The indemnity Principle
Dictates that a plaintiff receive only net, rather then gross, sums and that advantages
flowing to the P be brought to account as set-offs.
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on the day of the verdict, is the proper day to assess damages: OBriens v McKean
(1968)/ at the time of the tort: lenmont Investments v OLoughlin: depends on court,
current attitude is flexible.
Costs will generally follow the unsuccessful party.
5) Duty to mitigate
P has an obligation to mitigate damages and may be denied compensation or a filaure to
fulfil this obligation. The burden lays with the D to prove that P has not mitigated.
There are policy considerations in this requirement. And any additional loss or expense
incurred by the P in attempting to minimise the damage by reasonable means in mitigation
may be recovered by that party as part fo the compensation for the tortious act. Eg Boyd v.
SGIO (1978)
failure to agree to a blood transfusion, because of parents belief was unreasonable (sort of
contradicts the eggshell skull principle).
burden of proof on the defendant;
Property Damage
Simpler then for Personal Injury. Restitution fro the loss of value of property usually represents
the difference in the value fo the property before and after the interference:
-
Interest
Set Offs
Monies paid by employer as sick pay and workers compensation paymetns will be set off (ie
deducted) from the damages award.
Social security and medicare payments must be repaid to government and so will not be set off.
Charity intended to benefit the Plaintiff will not be set off.
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Calculated by reference to what would have earned nett and after expenses deducted:
Wynn v. NSW Insurance
should future childcare and housekeeping expenses be deducted?
No because essentially private or domestic in character
If would not have worked then no award.
Very difficult to assess for younger people.
The total is discounted to take into account the fact that it is received as a lump sum and can be
invested immediately.
In Queensland the rate is set by s16 Supreme Court Act 1995 at 5%.
The investment option is also supposed to compensate for future inflation.
The amount may be further reduced to take into account the vicissitudes of lefe.
Malec v. Hutton
Wynn v. NSW Insurance
Medicare subsidies will have to be repaid to the government for past expenses.
There is some authority that inflation may be taken into account for future expenses but today would
probably be regarded as too speculative.
Care Expenses
In recent years the most contentious area has been the Griffiths v. Kerkemeyer component for
gratuitious care.
Van Gervan v. Fenton 1992 HC
Lynch v. Lynch 1991 NSWCA
Kars v. Kars 1997
Ps wife provided gratuitious care for her husband who injured by Ds negligence;
gave up full time job as a nurses aid
at first instance and on appeal damages were assessed based on her loss of wages minus travelling
expenses
P successful in appeal to HC
the market cost, as a gneral rule, is the amount to which the defendent must pay as
damages...in some cases the market cost may be too high...the case will be rare indeed where
income forgone by the carer will be the appropriate rate.
Lynch v. Lynch
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Common law rule that could not recover because then the tortfeasor would be paying twice, once in
kind and once in money
but D was compulsorily indemnified by the third party insurer.
Kars v. Kars
The same situation arose in Queensalnd with P being the wife and d being the driver in the MVA and
the gratuitious carer.
HC unanimously dismissed the appeal by D (insurance company).
A review of the relevance of insurance to the common law development of liability in tort may be
relevant and timely.
The problem for this principle operating outside the area of compulsory insurance is more apparent
that real.
Need to protect P against the vicissitudes of life ie husband unable to care for her.
Griffiths v. Kerkemeyer
Non-pecuniary loss
Death
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Actions for or against the deceased survive for or against the estate.
Deceased P cannot receive:
non-pecuniary damages;
future probable earnings;
calculated without reference to loss or gain to the estate.
ss17 - 22 basically action can be brought for the losses suffered by the dependants (including de facto
spouses) of the deceased P
Nguyen v. Nguyen
loss of wifes and mothers gratuitous services
Jones v. Schiffman
age, appearance, inclination, experience, obligations to children and parents and the
value of freedom to remarry.
62