Read the following fact-based scenario and then complete the assignment.
David and Lena had lived in their house in Ermington, Sydney, for 15 years. They have neighbours on both sides and one at the back. Up until now they had had no problems with their neighbours.
Last year the house bordering the right side of their property was sold, and the new owners, Tanya and Fred, demolished the house and rebuilt. The builders start work early in the morning, banging, drilling or sawing. This disturbs David and Lena, whose bedroom is on the ground floor of their house along this border. It wakes them up. This is planned to continue for eight months, Monday to Saturday, until the house is built.
The neighbour on the left side of David and Lena’s property is Meredith. She had installed motion sensor outdoor spotlights to light up her backyard. One of these spotlights, when it turned on, shone straight into the upstairs bedroom of David and Lena’s son, Damian. This annoyed and disturbed Damian when he was in his bedroom, waking him from his sleep.
Meredith went on an overseas trip so asked a friend to housesit for her. This friend, Tom, owned a dog. The spotlight was now coming on every night several times as the dog moved around the backyard. One day when Tom was out walking his dog, Damian climbed over the fence, with a broom, and pushed the spotlight so it would shine straight up. The light no longer disturbs Damian and Tom did not notice the change.
The neighbour at the back of David and Lena’s property, Frank, called out one day when Lena was in her backyard, to draw her attention. Lena went over to the fence. Frank asked Lena to remove one of her trees which had grown taller than their dividing fence, as it was casting a shadow over his pool. Lena said she liked the tree and did not intend to remove it. Frank said “You’ll be sorry if you don’t”. Lena asked him what he meant by that. Frank replied “You work it out” and turned away. Lena was concerned and told David about this incident as soon as he came home. David was angry with Frank for causing Lena to be worried and upset. He immediately walked around the street and knocked on Frank’s front door. Frank did not open the door. David, seeing the side gate was open, walked around into the backyard to see if Frank was there. Frank was watering his flower garden. He had not heard David approach him. The first he knew was when David heavily clamped his shoulder. In reflex Frank spun around, soaking David with the water coming out of the hose. David, in retaliation, pushed Frank on the chest, which caused Frank to fall over. David walked home.
Two days later, when Lena was going to drive to the shopping centre to meet a girlfriend for lunch, she found Frank’s distinctive four-wheel drive vehicle parked across her driveway denying her access to the road. Lena immediately went back inside and locked the doors and windows. She then called David, who was at work in the city, crying and said she was afraid and stuck inside.
Provide advice about any relevant civil causes of action in Tort available on these facts. Refer only to materials you have studied in this subject. Include in your answer advice as to whether the causes of action will be successful (considering any arguments and counterarguments), any possible defences, and remedies.
JD students only:
Consider what effect it may have on your answer if David had said to Frank, ‘You have convinced me to plant more trees along our fence line’ before he walked home.