Supreme Court Injuction against bird-scarer

Press, 29 April 1978, Page 4

Supreme Court Injuction against bird-scarer

An interim injunction restraining a Kaiapoi farmer from using an explosive bird-scaring device in his orchard was granted on certain terms by Mr Justice Somers in the Supreme Court yesterday. The application for the temporary injunction, pending the hearing of the main action, was made by Bernard O'Neil Thomson, a farmer, of Greggs Drain Road. Kaiapoi,. and his wife, Iris Thofnson, who were represented by' Mr K. G. Hales. The injunction was sought against Terence John Holland, a farmer, of Kaiapoi, who was represented by Mr M. J. French. The interim injunction will not come into force until May 6. Mr and Mrs Thomson have been ordered to give an undertaking to nay damages to Mr Holland if they do not succeed when the main action , is heard. Mr Hales said that the plaintiffs sought the interim injunction to restrain Mr, Holland from using an Exid Thunder bird-scarer on his ■ property in Tram Road,! where he had an apple or- i chard. An expert in the field of. noise, Professor Walter Eversman had given evi- j dence by way of affidavit I and so had Mr A. R. Alloway, a grower of 20 years experience. who found the bird-scaring device of limited use. A doctor had also given evidence about Mr Thomson’s health. The bird-scaring device j

;- made a noise like a shotgun r blast at intervals varying bee tween three and 10 minutes - and was used by Mr Holland - for about 12 hours a day. e Mr Thomson had thoroughelbred horses on his property | and the explosions made e handling them difficult. One! - horse had reared up and ini iured a tendon. It was estabd lished law that noise could . be an actionable nuisance. , I The plaintiffs, who lived j i in a rural area, sought peace; - and quiet. Mr Thomson had' suffered a loss of weight and t general anxiety because of -Ithe bird scarer, Mr Hales , said. r Mr French submitted that i there was no nuisance, as! i was shown in affidavits! j from a number of Mr Hol-j ; land’s neighbours. On the' I balance of convenience the II interim injunction should | I not be granted and the mat-! liter left for decision after they (full hearing of the action. I; :. Mr Holland was making I reasonable use of an item of; (farm equipment for the pre-1 Iservation of his crop. The i j doctor had given evidence I that Mr Thomson was of a|i j general nervous disposition j i and counsel quoted a legal;; i decision which said that then law should not give remedy! j to a person of unusual or; I particular disposition but|s should consider the standards of the person of average and 11 reasonable disposition. i The crop was virtually It harvested and the use of the if bird-scaring device would It end in less than four weeks, r (At this time of the year the!

ii sugar content in the frui; ■was high and that made il apples more prone to attack I by birds. If the interim injunction • was granted and the plaintiffs failed to succeed ■Jn the main action it would Jbe very difficult to assess ■the loss incurred if Mr Holland was prevented front using the scarer, Mr French said After the luncheon adjournment, Mr French told I his Honour that the device would not be used after Max 14. His Honour said that it | was not the function of the (Court at this stage to deterImine whether there was a 'nuisance. Such a decision j would be made after hearing all the evidence at the hearling of the main cause of action. ' The plaintiffs’ need for | protection had to be weighed I against the defendant’s need Ifor protection against the ; damage which would result j from the issue of the interlim injunction. | In this case, the balance lof convenience was between (the health of the plaintiff land the harvesting of the I defendant’s crop. : Weighing all this up as best he could, his Honour ’said, he thought the interim [injunction should be granted but that it should not come into force before May 6 so that Mr Holland could" either harvest the rest of his crop or make alternative arrangements to scare the birds. Costs were reserved.