The applicant and respondent were neighbours. The applicant alleged that smoke coming from the respondent's balcony created a nuisance by interfering with his use and enjoyment of his property, in breach of s167 of the Body Corporate and Community Management Act. The applicant's complaint was upheld by an Adjudicator in a lower court, who ordered that the respondent take reasonable steps to ensure that her cigarette smoking did not cause nuisance to the applicant. The respondent appealed from that decision.
The Queensland Civil and Administrative Tribunal upheld the appeal, holding that the Adjudicator had misapplied the legal test. The relevant legal test was objective rather than subjective: the Adjudicator should not have had regard to the applicant's particular sensitivity to cigarette smoke, but rather whether the cigarette smoke would constitute a nuisance to a person of ordinary sensitivity.
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
The applicant and respondent were neighbours. The applicant alleged that smoke coming from the respondent's balcony created a nuisance by interfering with his use and enjoyment of his property, in breach of s167 of the Body Corporate and Community Management Act. The applicant's complaint was upheld by an Adjudicator in a lower court, who ordered that the respondent take reasonable steps to ensure that her cigarette smoking did not cause nuisance to the applicant. The respondent appealed from that decision.
The Queensland Civil and Administrative Tribunal upheld the appeal, holding that the Adjudicator had misapplied the legal test. The relevant legal test was objective rather than subjective: the Adjudicator should not have had regard to the applicant's particular sensitivity to cigarette smoke, but rather whether the cigarette smoke would constitute a nuisance to a person of ordinary sensitivity.