P should be advised that the Wrongs Act 1958 (Vic) imposed limits on awards that may be made to plaintiffs in cases of personal injury.

However, no limits will apply if D intended his/her act to cause death or injury, or the act for which the award is made was sexual assault or other sexual misconduct (Wrongs Act s 28C(2) and s 28LC(2)).

Damages will be awarded only if the damage caused by the nuisance was a reasonably foreseeable consequence of D’s act (Cambridge Water v Eastern Counties Leather Plc).

• Compensatory damages are normally awarded.

• However in suitable cases (such as where there is malice) aggravated or possibly exemplary damages may be awarded (Willoughby Municipal Council v Halstead), though there have been doubts whether they can be awarded (see, eg, Harris J in Oldham v Lawson).

There is disagreement on whether the costs of abatement are available as damages.

• Cases such as Corbett v Pallas and (in dicta) Proprietors Strata Plan No 14198 v Cowell indicate that such costs will be available, while Young v Wheeler and City of Richmond v Scantelbury suggestion they will not.

• City of Richmond also held that the costs of preventing further damage could be included in an award of damages, but indicated that if the plaintiff had already carried out the work, the costs of abatement could not be claimed.

Accordingly, it is uncertain what the outcome would be in a claim for costs of abatement.

Where the damage done is to amenities (sensibilities), the occupier ‘is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted’ (Lord Hoffman in Hunter v Canary Wharf).

• The occupier can also claim for economic losses flowing from the disruption of business activities by the nuisance [lost profits etc] if D has also invaded a protected interest of P [eg where dust/fumes pollute P’s premises, driving away customers].