nuisance table 1
DESCRIPTION
TortTRANSCRIPT
Nuisance
Definition:
The law of nuisance is one branch of law which purpose is to provide comfort to persons who have
proprietary interest in land and to members of society generally through environmental conditions.
The law of nuisance is concerned with the balancing of competing interests.
- Damage
1. Must be proved to succeed in nuisance- not actionable per se
2. Must be reasonably foreseeable.
3. Actual damage need not be established for nuisance caused by smell.
The harm or damage usually occurs in nuisance cases are of 2 types:
1) and
2) interference to personal comfort which is specific to the tort of nuisance .
The rule in Rylands v Fletcher
The Defendants themselves were not negligent and neither were they vicariously liable for the
negligence of their independent contractors, but the HOL held them liable to the P
Elements Principle Case Held
Damage- 2 types:
1. Damage to property( easily indentifiable)
It also includes nuisance by encroachment on a neighbour’s land
Wong Lee Kui v Hong Tin Mining
Damage must be
proven in nuisance,
otherwise action will
fail.
2. Interference to personal
comfort which is specific to
the tort of nuisance .
Dato Dr Harnam Singh v Renal Link
Actual damage need not be proven if nuisance is caused by smell. Injury to health is not a request to proven nuisance by way of smell
Remedy 1. An injunction which
function is to prevent
nuisance from continuing
Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn
2. Monetary compensation
which is usually granted for
damage to property.
3. Report to relevant
authority- Local Govt Act
1976
Bhd
The concept
of
reasonable
ness in
nuisance
The reasonableness or otherwise of
the D’s activity or act is central in
nuisance cases because only when
the interference is deemed
unreasonable will nuisance be
established. Reasonableness in
nuisance does not mean whether D
has taken adequate precautions to
avoid the risk of accident. In tort of
nuisance, reasonableness is
measured by balancing the rights
and interests of both parties which
is a process of compromise.
Syarikat Perniagaan
Selangor Sdn Bhd v
Fahro Rozi Mohdi &
Ors
Almost everyone of us has to tolerate a certain amount of interference from our neighbours and we in turn have right to make a certain amount of noise in the employment of our property. So the ordinary use of a residential property is not capable of amounting to nuisance
MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd
There is no universal or precise formula available, but a useful test for measuring the reasonableness of the defendant’s activity is what is accepted as reasonable according to the ordinary usage of land of others living in that particular society.
Whether an activity amounts on
other factors such as the purpose of
the defendant’s conduct, location,
time, extent of damage, the way in
which the interference occurs,
motive and malice, the effect of the
interference and whether it is
Southwark London BC
v Mills & Ors, Baxter v
Camden London
P affected by noise made by other tenants, not due to their unreasonable behavior D not liable due to poor soundproofing. Not liable for nuisance
continuous or in stages or
intermittent.
Ordinary use of a residential
property is not capable of
amounting to nuisance.
Other factors (reasonableness):
1. Defendant’s conduct
2. Location
3. Time
4. Extent of damage
5. The way in which
interference occur
6. Motive
7. Malice
8. Effect of interference-
whether it is continuous or
intermittent.
Vs
Sampson v Hodson-
Pressinger [1981] 3
All ER 710 CA
Due to flawed
construction of roof
terrace, its ordinary
use caused excessive
noise and was an
actionable nuisance.
In determining the
existence of nuisance
requires the striking
of balance between
on the one hand, the
right of one part to
use his property for
his own lawful use of
enjoyment and on
the other, and the
right of other party to
the undisturbed
enjoyment of his
property.
Public Nuisance
Def: A crime but become actionable in tort law if P suffers particular damage over and above the
damage suffered by public generally. Must prove special damage.
Arises when there is an interference with public rights such as the obstruction of public highways or the selling of contaminated food.
Principle Case Held
The mere fact that an
obstruction has occurred
or that there is an
inconvenience does not of
itself turn into a nuisance.
Nuisance would only be
created if knowing or
having the means of
knowing of its existence, a
person allows it to
continue for an
unreasonable time or in
unreasonable
circumstances.
Attorney- General v PYA Quarries
Ltd
H: public nuisance arises when
an act materially affects the
reasonable comfort and
convenience of life of a class of
the society.
Majlis Perbandaran Pulau Pinang v
Boey Siew Than & Ors (give
definition for both public and
private nuisance)
H: it is clear that a public
nuisance, if, within its sphere,
which is the neighbourhood, it
materially affects the
reasonable comfort and
convenience of a class of the
subjects of the state.
Requirement: Interference
with public rights. Only
created if knowing or
having the means of
knowing of its existence, a
Gillingham Borough Council v
Medway (Chatham) Dock
The D’s conduct need not be
independently unlawful, but it
is the effect of his conduct on
the P that is considered.
person allows it to
continue for an
unreasonable time or in
unreasonable
circumstances.
Person who may claim
a) Criminal proceeding
If it is a criminal
proceeding, prosecution
lies at the instance of the
public prosecutor on
behalf of the government.
b) Civil proceeding- person
who suffers special or
particular damage
. A person who has
suffered special damage
can claim for damages for
public nuisance therefore
P need to prove that he
has suffered damage and
injury.
Following factors may be
used as guidance to
determine the existence of
special or particular
damage:
1) The type of extent of
damage is more serious. In
essence the P must suffer
more than what is suffered
by other persons
Pacific Engineering v Haji Ahmad Rice Mill
F: P was in the business of selling
heavy earth equipment and
construction equipment, namely
heavy factors and industrial forklift
trucks. Padi husk from the D’s
factory fly over the P’s premises and
P’s workers had to cover their
mouths and noses to prevent
themselves from inhaling the dust.
The P’s lubricant oil also became
dirty due to the dust from the padi
husk.
H: In an injunction against the
D, court held that there was no
law in this country as in
England, whereby a proceeding
may only be instituted upon the
consent of the Attorney-
General for public nuisance
cases. The court further held
that in an action for public
nuisance, a P may institute
proceedings without obtaining
prior consent from the
Attorney- General if he has
suffered special damage. In
this case the P had proved that
they suffered personal
discomfort therefore an
injunction preventing the D
from burning the rice husks in
the compound of their
premises was granted.
2) The damage must be a
direct consequence and is
substantial. An example of
direct damage is when a P
suffers breathing problems
due to the defendant’s
smoke pollution.
c) Civil proceeding- no
special damage suffered
by any particular
individual
Section 8 (1) of the
Government Proceedings
Act 1956 (GPA) provides
that the Attorney- General,
or two or more persons
who have obtained written
permission from the
Attorney-General (relator
action), may institute a suit
in public nuisance for a
declaration and injunction
or for such other relief as
may be appropriate to the
circumstances of the case.
Koperasi Pasaraya Malaysia Bhd v
Uda Holdings Sdn Bhd & 41 Ors:
H: in a relator action for public
nuisance, consent must first be
obtained from the Attorney-
General. In this case the action
failed as the P did not obtain
such consent. Court
additionally held that in a
relator action brought under
s.8(1) of the GPA, the P must
prove special damage arising
from public nuisance.
The requirement of the
Attorney-General’s
consent as laid down in
s.8(1) of the GPA need not
however, be met if the
claim is brought by a local
authority in the public
interest.
MPPP v Boey Siew Than: High court held that the P could
not sue the D without the
written consent of the
Attorney- General. On appeal
from the P’s, the federal court
held that since the P had
commenced its action based on
S.80 of the Local Government
Act 1976 which allowed a local
authority to take action in its
own name and it therefore
released the local authority
from the obligation stipulated
under s.8(1) of the GPA. This
release was said to be in the
interests of justice and of the
proper functioning of the P as a
local authority.
Private nuisance
Definition:
Read v Lyons & Co Ltd
- an unlawful interference with a person’s use comfort enjoyment and any interest that a person
may have over his land.
- Accepted by Hiap Lee Brickmakers Ltd v Weng Lok Mining
An interference becomes unlawful and constitutes a nuisance when it unreasonably interferes with
the P’s enjoyment of his land.
For neighbours, it is a balancing exercise between competing rights of land owner to use his land as
he chooses and right of neighbour not to have his use or enjoyment of land interfered with.
MPPP v Boey Siew Than – laid down the difference between public and private nuisance:
“ a nuisance is a public nuisance, if, within its sphere, which is the neighbourhood , it materially
affects the reasonable comfort and convenience of a class of the subjects of the state.
A private nuisance … is one which disturbs the interest of some private individual in the use and
enjoyment of property by causing or permitting the escape of deleterious substances or things such
as smoke, odours or noise.
The diff between a public and private nuisance is that, in regard to the former , rights which are
common to all subjects are infringed. Such rights are unconnected with the possession of or title to
immovable property.
In an action for private nuisance :
1. P must prove interference with the enjoyment of his land.
2. P must have an interest in land to be able to sue in private nuisance. ( public nuisance does
not require P to have any interest over land)
3. Persons having interest over land: landowner, tenant, licensee etc.
P need not prove special or particular damage.
Element Principle Case
Substantial interference - not actionable per se. Does not
require P to prove special or
particular damage, the P must prove
that he has suffered damage in
order to succeed.
- protects a person from 2 types of
damage/interference:
i. interference with use,
comfort or enjoyment of his
land
ii. physical damage to the land
- substantial interference differs
according to types of damage
(a) Interference with the
use, comfort or enjoyment
of land
-Collectively known as amenity
nuisance.
-Result in Feeling of discomfort –
unable to live peacefully and
comfortably on one’s own land
arising from D’s activity.
-what constitutes substantial
interference depends on facts and
- Loss of one night’s sleep due
to excessive noise – Andrea v
Selfridge & Co Ltd
-Using adjoining premises for
prostitution (Thompson-
Schwab v Costaki
circumstances of each case.
-Examples of substantial
interference: (case-by-case basis
based on surrounding
circumstances)
Woon Tan Kan (Deceased) & 7 Ors v
Asian Rare Earth Sdn Bhd
- P sued the D for an injunction
to restrain the defendant company
from operating and continuing to
operate his factory.
- the operating a factory produced
dangerous radioactive gases
- nuisance established – the
situation shall be something over
and above the normal
inconvenience
- annoyance and discomfort must be
established, but injury to health
does not.
-Persistent telephone calls
– Khorasandjian v Bush
HC: granted an injunction,
holding that the tort of private
nuisance was established.
SC: P’s health was being
affected harmfully and
insidiously, significant and to
substantial degree and
constituted substantial
interference.
Dato’ Dr Harnam Singh v Renal Link
(KL) Sdn Bhd [1996]
F: - the P had for 18 years
operated a clinic and hospital for
the treatment of ENT. The
defendant operated a renal clinic
and which patients receive
haemodialysis on the floor above
the P’s clinic.
The D was found liable for
emitting from their clinic
obnoxious fumes which
escaped downwards into P’s
clinic. P’s staff and patients
were found to have suffered
substantial damage ranging
from skin disease etc.
(b) Material or physical
damage to land or
property
General rule: actual physical
damage to land occurs = substantial
interference and is therefore
recoverable. However, there is no
automatic recovery of damage. It
must be established that the
Physical damage is substantial in
nature.
Amenity nuisance – what amounts
to substantial interference is a
question of fact and determinable
on a case by case basis.
Goh Chat Ngee & 3 Ors v Toh
Yan & Anor [1991] 2 CLJ 1163
-D carried out mining work on
his land – adjacent to P’s land.
-P claim that Mining
constituted unnatural use of
land – P’s land flooded by water
escaped form D’s land
-As a result, caused erosion to
P’s land
H- liable in nuisance for
unreasonable, unlawful &
substantial interference
Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn
A owned a hotel which were
building 20 floors extension.
The R owned the adjacent land
claimed that the piling works of
the A caused severe crack to
appear in their heritage
building. Their application for
an injunction was allowed as it
was found that unless an
alternative system of piling was
adopted, the safety and
structural stability of their
building would be endangered.
The court held that once the
D’s activity constitute an
actionable nuisance in law, it is
no defence that the D has taken
all reasonable precaution to
prevent it. In this case, though
the piling works were
temporary, it did not exclude
the respondent’s right to an
injunction as the physical
damage to their property
constituted an interference
which was actionable
Rapier v London Tramways
Co [1893] 2 Ch 588although D has taken necessary precautions and piling works were temporary – nuisance as physical damage constitutes substantial interference
2. Unreasonableness 2 points to be borne in mind:
- none of the factors are conclusive
of whether the interference is
unreasonable or otherwise. They
are merely relevant considerations
to be taken into account
- Substantial interference may
amount to unreasonable
interference and vice versa., quite
often the courts have held D’s
activities as being actionable
nuisances on the basis that they
constituted both substantial and
unreasonable interferences.
No clear-cut definition as to what constitutes unreasonable interference:
Hunter v Canary Wharf Ltd (HL)
F: The P claimed damage in
respect of interference with
their tv reception, for a period
of 2 years, caused by the D’s
nearby building which was 250
metre high. The court held that
in the absence of an easement,
the mere presence of a
neighbouring building did not
give rise to an actionable
nuisance. The court
acknowledge that interference
with TV reception may amount
to an amenity nuisance in
appropriate circumstances.
Held;Generally, for an action in
private nuisance to lie in
respect of interference with
the P’s enjoyment of his land, it
has to arise from something
emanating from the D’s land,
such as noise, dirt, fumes,
smell, vibrations and suchlike.
(a) Damage and location of the
plaintiff’s and defendant’s premises
The location of the P and D’s
premises are relevant
considerations in assessing whether
the def’s acitivity is unreasonable
and amounts to substantial.
St Helen’s Smelting v
Tipping [1865] 11 HL Cas 642
F:The P owned a rubber estate
which was situatied in an
industrial area. The Smoke from
the d’s copper-smelting factory
had caused considerable
damage to the P’s trees.
Held:Distinguished between
“sensible injury to the value of
the property” or “material
injury” (physical damage), and
injury in terms of personal
discomfort (non-physical
damage). For the latter type of
damage , his lordship stated
that the level of interference
must be balanced with
surrounding circumstances, and
the nature of the locality must
be taken into account.
Syarikat Perniagaan Selangor
Sdn Bhd v Fahro Rozi, Mohdi &
Ors [1981] 2 MLJ 16 FC
There was a lease of land – use
for skating, cinema and
restaurant. But D built an open
stage and staged some shows
and opened discotheque.
H- Living in urban area must
accept a lot of noise but no one
has the right to create
excessive noise.
(b) Public benefit of the
defendant’s activities
If the object of D’s conduct benefits
the society generally, it is more
likely that the conduct will not be
deemed unreasonable. But D’s
activity which benefits the public
will still constitute actionable
nuisance if the activity causes
damage to property or substantial
interference to P’s enjoyment of his
land.
Perbadanan Pengurusan
Taman Bukit Jambul v
Kerajaan Malaysia [2000] 1
AMR 228 (building government
clinic)
The D renovated some units in
a flat managed by the P in
order to set up a government
clinic. The P argued that the
renovation was not only
conducted without their
approval, but that it caused
pipe and drain blockages.
Further, the renovated units
intruded into the common five-
foot pathway, thereby causing
nuisance.
H: The court denied the P’s
caim.Whether something
amounted to nuisance or not
must be considered with
reference to local
circumstances and
surroundings. An inconvenience
does not necessarily give rise to
an actionable nuisance. The
purpose of the renovation
provided substantial public
benefit. On the facst the D had
provide a new 5-foot way and
so no nuisance was created in
this aspect. On the issue of
predecessor and on the
principle of equitable estoppels
the P was stopped from going
back on the consent given by
their predecessor.
Even if D’s activity gives rise to
public benefit, this does not
automatically mean that his
activity is not actionable.
Adams v Ursell [1913] 1 Ch
269 (trade of selling fried fish –
smell)
- The D was in the trade of
selling fried fish. The shop was
located in the residential part
of a street. Faced with a claim
for an injunction. He argued
that his business benefited the
public, especially the poor and
therefore the smell produced
by his trade was justified. The
court rejected the defence as
P’s comfort and convenience
also had to be considered.
(c) Extraordinary sensitivity on the
part of the plaintiff
The law of nuisance is not
sympathetic to a P who is extra
sensitive, whether the sensitivity is
related to P himself or to his
property.
Sensitivity cannot be used as a basis
for claiming that D’s conduct
constitutes an unreasonable and
substantial interference, but once
unreasonable and substantial
interference is established,
sensitivity will not deprive P from
obtaining a remedy.
Robinson v Kilvert [1889] 41
Ch D 88
F:D – business of making paper
boxes; and P lived in the floor
above the same premises was
in the business of selling special
paper which was sold according
to weight. The hot air from the
D’s place caused the moisture
in the P’s paper to dry up. The
raise in temperature in P’s
premises did not cause
inconvenience to P’s workers
and it would not have affected
normal paper.
H: not liable as that ordinary
paper would not have been
affected by hot air and
therefore the P’s property was
extra sensitive.
(d) Interference must be
continuous
Continuous or occurs very often as
generally a continuous activity will
constitute substantial interference.
It is not conclusive requirement but
it is certainly a factor in deciding
whether the interference is
substantial or otherwise.
Delaware Mansions Ltd v
Westminster City
Council [2001] 4 All ER 737 HL
H:Roots of a tree belonging to
D had spread to the
neighbouring property and
caused structural cracking to
that property amounted to
continuing nuisance until the
completion of remedial works.
Matania v National Provincial
Bank Ltd and Elevenist
Syndicate Ltd [1936] 2 All ER
633
H: Yet a temporary noise and
dust held to constitute a
nuisance.
(e) Temporary interference and
isolated incident
General principle: the more serious
the interference, the more likely the
court will regard it as unreasonable.
MBf Property Services Sdn Bhd
v Madihill Development Sdn
Bhd (No2 )[1998] 4 CLJ 136
F:The construction of a road
over D’s land for the purposes
of connecting 2 pieces of P’s
lands was an actionable
nuisance as the road was
tarred, pre-mixed and thus
permanent in nature.
H:A mandatory injunction was
accordingly granted to D.
In cases of temporary
interference, courts are likely to
be reluctant to grant an
injunction except in extreme
cases, (eg. damages will not be
an adequate remedy).
Hotel Continental Sdn Bhd v
Cheong Fatt Tze Mansion Sdn
Bhd [2002]
If P is claiming for damages as
opposed to injunction, the
nature of injury suffered by him
will be a relevant factor to
determine whether the
temporary interference is an
actionable nuisance. If his injury
is temporary interference, the
court may hold that the
interference is too trivial to be
considered as a nuisance. [eg.
renovation of house]
Sedleigh-Denfield v
O’Callaghan [1940
H: It is a nuisance as a result of
allowing a culvert on their land
to remain blocked, P’s adjoining
property was flooded.
Spicer v Smee [1946]
F:P’s house was burnt down
due to a defective wiring
system in D’s adjoining house.
H: D is liable as there was a
dangerous state of affairs on his
premises. The court held that
private nuisance arises out of a
state of things on one man’s
property whereby his
neighbor’s property is exposed
to danger.
Thean Chew v The Seaport
(Selangor) Rubber Estate Ltd
F: P’s husband suffered injuries
from which he later died when
a diseased rubber tree
belonging to the D fell onto
highway, and onto the lorry in
which the deceased was
travelling.
H: D liable in nuisance as he
had failed to remedy the
dangerous state f his property
within a reasonable time after
he did or ought to have become
aware of it.
(f) Malice
The existence of malice may cause
D’s act to be unreasonable.
Christie v Davey [1893]
F: P was a music teacher who
conducted music classes at her
house. Her neighbor, D, did not
like the sounds from the
musical instruments and in turn
shouted, banged at the
adjoining walls, and clashed
pots and pans whilst P was
conducting her classes.
H: D was malicious in his
actions and an injunction was
granted to P.
Hollywood Silver Fox Farm v
Emmett [1936]
F:P bred special foxes which
were extremely sensitive during
their breeding season. D
intentionally let out a few
gunshots near the cages with
the aim of causing damage.
H: Liable even though P here
used his premises for a
particular purpose which was
extraordinarily sensitive,
nevertheless the D’s act was
unnecessary and malicious,
rendering it unreasonable; thus
the fact that the P’s property
was ‘sensitive’ was irrelevant.
Distinguished case:
Bradford Corporation v Pickles
F:D deliberately prevented the
flow of water on his land so
that P’s land received less
water.
H:not liable coz P has no right
to unlimited water supply. D’s
act was in fact lawful and his
bad motive was irrelevant.
Defences: 1. prescription. Eng: 20 yrs,
Malaysia: easement, not
prescription is a good
defence – S282(1), (2), (3)
and 284 NLC
2. statutory powers. Local
authority – need to prove
interference cannot be
avoided even though
reasonable precautionary
measures has been taken.
Goh Chat Ngee v Toh Yan
Other defences 1. Necessity
2. Consent
3. Defence of property
4. Contributory negligence S12
(1) CLA
5. A plea that P came to a
nuisance, in that D’s
operation has been carried
out before P moved into a
varsity is not a good
defence.
Bliss V Hall, Miller v Jackson