Alcan Australia Ltd v Eker

In *Alcan Australia Ltd v Eker and Anor* [1998] NSWCA 9, the New South Wales Court of Appeal considered an appeal by Alcan Australia Ltd against a judgment of the Supreme Court of New South Wales. The dispute concerned the entitlement of the respondents, Mr and Mrs Eker, to compensation for damages arising from the discharge of aluminium fluoride into the atmosphere from Alcan's manufacturing plant. The Ekers alleged that this discharge caused damage to their property, specifically their orchard.

The primary legal issues before the Court of Appeal were whether the Supreme Court had erred in finding Alcan liable for nuisance and whether the damages awarded were excessive. Specifically, the court had to determine if the discharge of aluminium fluoride constituted a legal nuisance, and if so, what the appropriate measure of damages should be for the loss of yield and the cost of remediation of the orchard.

The Court of Appeal upheld the finding of nuisance, reasoning that the discharge of aluminium fluoride was an unreasonable interference with the Ekers' use and enjoyment of their land. The court applied the principles of nuisance law, considering the nature of the locality, the intensity of the interference, and the duration of the discharge. Regarding damages, the court found that while the Supreme Court had correctly identified the heads of damage, the quantum awarded for the loss of yield was excessive and not sufficiently supported by the evidence. The court therefore varied the damages awarded, reducing the amount attributable to the loss of yield.