Hunt Leather Pty Ltd v Transport for NSW

Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840
Supreme Court of New South Wales
Cavanagh J
Nuisance – Transport for NSW was the NSW Government agency which planned, designed, and managed the construction of the Sydney Light Rail from Circular Quay to Randwick and Kensington – major roads including George Street were closed during construction – construction was prolonged for over a year beyond that contemplated, and many business suffered adverse effects – a CBD business and a Kensington business, and their principals, commenced representative proceedings against Transport for NSW on behalf of all persons who had suffered from either private nuisance or public nuisance during construction – a hearing took place to determine liability to the lead plaintiffs, damages, and agreed common questions relevant to other group members – held: to succeed, the plaintiffs had to establish an interference with their land that constituted a legally actionable nuisance, and that Transport for NSW was liable for that nuisance – there are three types of interference with land constituting nuisance: (1) causing encroachment short of trespass on the neighbour’s land; (2) causing physical damage to the neighbour’s land; and (3) unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land – this case was concerned with the third type – the plaintiffs had to show a substantial and unreasonable interference with their use of their land – in assessing reasonableness, the Court does not determine whether the defendant acted negligently or failed to take reasonable care – interference may be unreasonable even though the defendant took reasonable care, although this may be a relevant factor – nuisance is not two-tier tort, where uncommon or not ordinary use of land gives rise to strict liability, and common or ordinary use requires unreasonableness – fault is established if the defendant created the circumstances which led to the substantial and unreasonable interference, where that interference was foreseeable – s43A of the Civil Liability Act 2002 (NSW) did not apply, as it merely sets the standard of care which applies in an action for a breach of a duty of care in the exercise of a statutory power – Transport for NSW knew that construction had the potential to, and was likely to, severely impact the businesses along the route – the interference was substantial and unreasonable and the plaintiffs would succeed, subject to establishing Transport for NSW should bear personal responsibility for the interference – given Transport for NSW’s knowledge of the risk occasioned by the presence of utilities along the route, and the risk of interference with businesses, the delay and its effects were plainly foreseeable by Transport for NSW – this utilities risk was so high that the other party to the relevant project contracts was not prepared to accept it – Transport for NSW contracted on terms with the relevant contractors that provided relief to contractors in respect of the utilities risk, but provided no real deterrence for delay – during the course of the project, the relevant contractor discovered nearly as many unknown utilities as had been discovered before entry into the project agreements – the businesses succeeded in their claim for private nuisance – the claim in public nuisance failed, as s141 of the Roads Act 1993 (NSW) applied – common questions answered – matter listed for further directions with a view to finalising damages and consider whether any further common questions should be answered.
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