Title of the project

NUISANCE

TORT

FACULTY OF LAW

JAMIA MILLIA ISLAMIA

SUBMITTED BY:Farhan Ghazi

B. A. LL.B. (Hons.)Class: 1styr

SUBMITTED TO:

Mr. Eqbal Hussain

ACKNOWLEDEMENT

I have taken efforts in this project however it would not

have been possible without the kind support and help of

many individuals and organizations. I would like to extent

my sincere thanks to all of them.

I am highly indebted to Mr. Eqbal Hussain for guidance

and constant supervision as well as for providing

necessary information regarding the project and also for

her support in completing the project.

Farhan Ghazi

B. A. LL.B. (Hons.)

Class: 1st yr

Batch: 2012-17

IntroductionA “nuisance” is defined in The Concise Oxford Dictionary as an annoying action or anything disagreeable or inconvenient. What is considered to be a nuisance to one person may well be, in the opinion of some other person, as their right to do something or to permit something to be done on their property in their capacity as an owner or occupant. In general terms, a nuisance refers to any interference with a person’s enjoyment of their property. The word nuisance is derived from the French word nuire, which means to do hurt, or to annoy.

The tort of nuisance has existed since the reign of Henry III, with few changes, and most of them merely technical. It originally came from the Latin nocumentum, and then the French nuisance, with Henry de Bracton initially defining the tort of nuisance as an infringement of easements. The tort was in line with the economic status quo of the time, protecting claimants against their neighbours' rights to develop land, and thus has been described as "rural, agricultural, and conservative". There were initially four remedies for nuisance; the assize of nuisance, similar to the assize of novel disseisin, which was limited to situations where the defendant's actions interfered with the claimant's seisin; the action guod permittat prosternere, where the land in question was alienated; the writ of trespass; and the "action upon the case for nuisance", which became the main remedy. This was because it was far faster than the other writs and actions, and unlike them did not require that both parties befreeholders. It was, however, limited to damages, and unlike the other remedies did not allow for abatement.

By the 17th century the judicial philosophy had changed to allow the protection of a claimant's enjoyment of their land, with the duty being on the party that caused the nuisance to prevent it: "as every man is bound to look to his cattle, as to keep them out of his neighbour's ground; so he must keep in the filth of his house of office, that it may not flow in upon and damnify his neighbour". During the 19th century and theIndustrial Revolution, the law of nuisance significantly changed; rather than the previous tests a standard of care was instead expected, and applied differently to individuals and companies. In reaching these decisions the courts "effectively emasculated the Law of Nuisance as a useful curb on industrial pollution". In St Helen's Smelting Co v Tipping, for example, several judges "were explicit in suggesting that they were affected by the adverse effect of a more draconian view on the economic welfare of the country's industrial cities". This contrasted with the previous view, which was that when liability was established for a case where the defendant's actions had interfered with the enjoyment of land, the defendant would be liable however trivial the interference.

The decisions reached during this period vary, however, mostly due to the differing judicial philosophies of the time. While A.V. Dicey maintained that the prevalent philosophy was one of laissez faire thanks to the influence of philosophers and economists such as Adam Smith, Michael W. Flinn asserted that:

Another common error... has been the assumption that the classical economists were the only effective influence on social and economic policy in the early and mid-nineteenth century. This is a curiously perverse view, since it ignores powerful voices like those of Bentham, Chadwick, the social novelists, many by no means inarticulate members of the medical profession, the humanitarians, the Christian Socialists and most sections of the many working class movements. There was in short, nothing approaching a consensus of opinion concerning laissez-faire and state intervention, even in the very narrow social sector represented by governments, Parliament, and the press. In practice the ears of ministers were assaulted by a confused babble of voices rather than bewitched by the soft whisper of a single plea for inaction.

Nuisance is a subjective issue – something that is determined by personal opinion. What is considered to be a nuisance by one person may well be considered by some other person as their right to do something or to permit something to be done on their property in their capacity as an owner or occupant.

Stephen defined nuisance to be anything done to the hurt or annoyance of the lands, tenements of another, and not amounting to a trespass.

According to Salmond, the wrong of nuisance consists in causing or allowing without lawful justification the escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.

“Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it” – “Winfield”

Nuisance (also spelled nocence, through Fr. noisance, nuisance, from Lat. nocere, "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") or private.

Principle applicable to Nuisance is ‘SIC UTEROTUO UT ALINUM NON LAEDAS’

“A man can not make such use of his property as unreasonably and unnecessarily to cause inconvenience to his neighbor”.

Nuisance and Trespass DistinguishedA claim in trespass ordinarily seeks damages for a physical intrusion onto property. Where the intrusion is permanent, or if it is serious or persistent, the suit sounds in trespass. In contrast, when the defendant's conduct creates conditions of noise, lights, odor or vibration that interfere with the plaintiff's quiet enjoyment of the property, but do not interrupt the plaintiff's possessory interests, the claim is more properly brought in private nuisance.

Continuing Nuisance and Trespass; Permanent Nuisance and Trespass 

The laws of nuisance and of trespass distinguish between “continuing” and “permanent” nuisance and trespass. A nuisance or trespass is “continuing” (or “temporary”) if it could be discontinued or abated at any time, such as an industrial activity that causes airborne pollution. A “permanent” nuisance or trespass is an interference or an intrusion that has no ready means of abatement.  For a “permanent” condition, a single statute of limitations will apply, while for a “continuing” condition, the statute of limitations is tolled anew each day the activity continues.

▪ Government of Malaysia & Anor v Akasah b Ahad[1986] 1 MLJ 396 SC

P operated a petrol station. D built a federal highway which was on higher ground than the petrol station causing the road to the petrol station to be closed. D offered to build a new road to the petrol station but P refused.Held: P had failed to prove nuisance. With regards to the difference between nuisance and trespass to land, nuisance is of a bigger class than trespass. Whether as act is nuisance or trespass depends on whether there is a direct physical interference. Trespass means direct entry onto one’s land and is actionable per se without proof of special damage, whereas nuisance is interference to P’s interest over his property, and does not necessarily require entry by D and P needs to prove special damage.

▪ Yip Shou Shan v Sin Heap Lee – Marubeni Sdn Bhd[2002] 5 MLJ 113

Trespass is interference with possession of land, whereas nuisance is interference with the use of land.

Nuisance and negligence

There maybe an overlap between nuisance and negligence as a negligent act may give rise to nuisance.

▪ Seong Fatt Sawmills Sdn Bhd v Dunlop Malaysia Industries Sdn Bhd [1984] 1 MLJ 286 FC

Inadequate precautions during earthworks led to the collection of water which eventually escape onto, and damage P’s property. Land owner owe a duty not to disturb or withdraw natural right to support, breach would give rise to a cause of action in negligence and/or nuisance. 

Negligence is not a prerequisite in an action for nuisance. --> We can choose either negligent or nuisance

▪ Wisma Punca Emas Sdn Bhd v Dr Donal [1987] 1 MLJ 393 SC

D was doing some construction job beside P’s clinic. The job included piling and excavation works. P’s wall cracked and tilted due to these activities. D contended that all reasonable precaution has been taken. Court allowed P’s claim and granted damages. D appealed and contended that the main issue in the case was one of negligence and since nuisance was not specifically, the appeal should be allowed.

SC: Negligence is not a requirement in a nuisance case. All that is necessary is proof of special damages which would be damage to his property due to the activities of D on the adjoining land. The Cause of action in this case was founded on the natural right of support, in the context of this case, it was the same as saying the claim was based on nuisance. Appeal dismissed.

Nuisance and the rule in Rylands v Fletcher

Rule in Rylands v Fletcher imposes liability when something that is likely to cause mischief escapes from D’s land onto P’s land, causing damage to P. This may give rise to an action for nuisance but not necessarily so.In nuisance, there is generally a continuous interference while in the rule of Rylands v Fletcher, one single act of interference is sufficient.

Rule in Rylands v Fletcher applies only to cases where there has been some special use of land bringing with it increased danger to others. It does not include causing damage to adjoining owners as a result of ordinary use of land. 

Nuisance in English Law

Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his use or enjoyment of that land", and public nuisance, where the defendant's actions "materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects"; public nuisance is also a crime. Both torts have been present from the time of Henry III, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual's rights. Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.

Private nuisance has received a range of criticism, with academics arguing that its concepts are poorly defined and open to judicial manipulation; Conor Gearty has written that "Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone". In addition, it has been claimed that the tort of private nuisance has "lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence", and that private and public nuisance "have little in common except the accident of sharing the same name".

Law related to nuisance, by country

United Kingdom

The boundaries of the tort are potentially unclear, due to the public/private nuisance divide, and existence of the rule in Rylands v Fletcher. Writers such as John Murphy of the University of Manchester have popularised the idea that Rylands forms a separate, though related, tort. This is still an issue for debate, and is rejected by others (the primary distinction in Rylands concerns 'escapes onto land', and so it may be argued that the only difference is the nature of the nuisance, not the nature of the civil wrong.)

Under English law, unlike US law, it is no defence that the claimant "came to the nuisance": the 1879 case of Sturges v Bridgman is still good law, and a new owner can bring a claim in nuisance for the existing activities of a neighbour.

United States

Many states have limited instances where a claim of nuisance may be brought. Such limitation often became necessary as the sensibilities of urban dwellers were offended by smells of agricultural waste when they moved to rural locations. For example: many states and provinces have "right to farm" provisions, which allow any agricultural use of land zoned or historically used for agriculture.

There are two classes of nuisance under the American law: a nuisance in fact, or "nuisance per accidents", and a nuisance per se. The classification determines whether the claim goes to the jury, or gets decided by the judge. An alleged nuisance in fact is an issue of fact to be determined by the jury, who will decide whether the thing (or act) in question created a nuisance, by examining its location and surroundings, the manner of its conduct, and other circumstances. A determination that something is a nuisance in fact also requires proof of the act and its consequences.

By contrast, a nuisance per se is "an activity, or an act, structure, instrument, or occupation which is a nuisance at all times and under any circumstances, regardless of location or surroundings.” Liability for a nuisance per se is absolute, and injury to the public is presumed; if its existence is alleged and established by proof, it is also established as a matter of law. Therefore, a judge would decide a nuisance per se, while a jury would decide a nuisance in fact.

Most nuisance claims allege a nuisance in fact, for the simple reason that not many actions or structures have been deemed to be nuisances per se. In general, if an act, or use of property, is lawful, or authorized by competent authority, it cannot be a nuisance per se. Rather, the act in question must either be declared by public statute, or by case law, to be a nuisance per se. There are few state or federal statutes or case law declaring actions or structures to be a nuisance in and of themselves. Few activities or structures, in and of themselves and under any and all circumstances, are a nuisance; which is how courts determine whether or not an action or structure is a nuisance per se.

Over the last 1000 years, public nuisance has been used by governmental authorities to stop conduct that was considered quasi-criminal because, although not strictly illegal, it was deemed unreasonable in view of its likelihood to injure someone in the general public. Donald Gifford argues that civil liability has always been an "incidental aspect of public nuisance". Traditionally, actionable conduct involved the blocking of a public roadway, the dumping of sewage into a public river or the blasting of a stereo in a public park. To stop this type of conduct, governments sought injunctions either enjoining the activity that caused the nuisance or requiring the responsible party to abate the nuisance.

In recent decades, however, governments blurred the lines between public and private nuisance causes of action. William Prosser noted this in 1966 and warned courts and scholars against confusing and merging the substantive laws of the two torts. In some states, his warning went unheeded and some courts and legislatures have created vague and ill-defined definitions to describe what constitutes a public nuisance. For example, Florida's Supreme Court has held that a public nuisance is any thing that causes "annoyance to the community or harm to public health."

A contemporary example of a nuisance law in the United States is the Article 40 Bylaw of Amherst, Massachusetts known as the Nuisance House Bylaw. The law is voted on by members of the town at town meetings. The stated purpose of such a law is "In accordance with the Town of Amherst’s Home Rule Authority, and to protect the health, safety, and welfare of the inhabitants of the Town, this bylaw shall permit the Town to impose liability on owners and other responsible persons for the nuisances and harm caused by loud and unruly gatherings on private property and shall discourage the consumption of alcoholic beverages by underage persons at such gatherings."

In practice, the law works so that if one member of the neighborhood feels that a neighbor's noise level is annoying or excessively loud, that neighbor is instructed to inform the town police so that they can respond to the location of the noise. "The responding officer has some discretion in how to deal with the noise complaint.... When determining the appropriate response, the officer may take many factors into consideration, such as the severity of the noise, the time of day, whether the residents have been warned before, the cooperation of the residents to address the problem."

The term is also used less formally in the United States to describe the non-meritorious nature of frivolous litigation. A lawsuit may be described as a "nuisance suit", and a settlement a "nuisance settlement", if the defendant pays money to the plaintiff to drop the case primarily to spare the cost of litigation, rather than because the suit would have a significant likelihood of winning.

The concept of reasonableness

Reasonableness is an important concept in nuisance, only when an act or activity is deemed to be unreasonable will nuisance be established. The reasonableness here is not the same as that in the tort of negligence. It does not mean whether D has taken adequate precautions to avoid the risk of accident.

Reasonableness under nuisance is measured by balancing the rights and interests of either parties or better know as a compromise process.

▪ Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors [1981] 2 MLJ 16 at 17 FC

Chang Min Tat FJ stated that almost every one of us has to tolerate certain amount of interference from our neighbours and we in turn have a right to make a certain amount of noise in the enjoyment of our property. A person may use his property in a reasonable way but no one has the right to create intense noise just as no one should be asked to put up with such a volume which by any reasonable standard becomes nuisance. So the ordinary use of a residential property is not capable of amounting to nuisance.

Ordinary use of a residential property is not capable of amounting to nuisance.

▪ Southwark London BC v Mills & Ors, Baxter v Camden London BC [1999] 4 All ER 449 HL

P affected by noise made by other tenants, not due to their unreasonable behaviour but due to poor soundproofing. Not liable in nuisance.

▪ Sampson v Hodson-Pressinger [1981] 3 All ER 710 CA

P affected by noise made by D due to flawed construction of roof terrace, its ordinary use caused excessive noise and was actionable nuisance. 

No universal or precise formula available, but a useful test for measuring the reasonableness of the D’s activity is what is accepted as reasonable according to the ordinary usage (of land) of others living in that particular society.

▪ MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No 2) [1998] 4 CLJ 136

▪ Singapore Finance Ltd v Lim Kah Ngam Associates (3rd Party) [1984] 2 MLJ 202 HC

Other factors: D’s conduct, location, time, extent of damage, the way in which the interference occurs, motive and malice, the effect of interference, whether it is continuous or in stages or intermittent. 

KINDS OF NUISANCE

Nuisances are usually divided into two classes, Public and Private.

PUBLIC OR COMMON NUISANCE

The classic black-letter definition of a public nuisance is "an act or omission which obstructs or causes inconvenience or damage in the exercise of rights common to all."2 As discussed in the last module, the concept of public nuisance is poorly understood and has been the subject of heated debate for more than a century. Much of this current confusion can be traced to the Restatement (Second) of Torts, beginning with Section 821B which states that:

1. A public nuisance is an unreasonable interference with a right common to the general public.

2. Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

a. whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

b. whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

c. whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

3. The key element in this definition of public nuisance claim (in contrast to a private nuisance claim) is that the "inconvenience," "damage," or "interference" must be to a public right - not a private one. This requires proof that the injury is common to the general public. Historically, public nuisances were generally restricted to obstructions of public highways or navigable waterways.5 Over time, the list of what could be considered a public nuisance grew to include: noxious and offensive trades that interfered with health and comfort (1700s); noxious trades or business that polluted navigable waterways and polluted air (mid to late 1800s); and disorderly taverns and similar enterprises on moral grounds (late 1800s).6 As this list illustrates, a public right is collective in nature.

4. The Restatement (Second) of Torts also states that a " person's"...[c]onduct does not become a public nuisance merely because it interferes with the use and enjoyment of land by a large number of persons. There must be some interference with a public right. A public right is one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.

5. Not all interferences with public rights, however, are public nuisances. The nuisance must also produce a common injury, or be dangerous or injurious to the general public. Numerous commentators, including authors who favor the expansion of public nuisance, severely criticize courts that allow plaintiffs to use public nuisance as a means to address what are essentially personal injury cases. The "key inquiry" is whether the public will be injured by the offending conduct while exercising their common rights.

6. Consider the classic public nuisance claim against a party for allowing a tree to block a public road. Everyone would agree that the fallen tree interferes with the public right to drive on that road. Thus, a government could seek an injunction to stop the blockage even if no one ever actually drove down the road. Conversely, if the tree blocked a neighbor's driveway, or the entrance to a commercial shopping plaza or church, a governmental entity could not bring a public nuisance claim because no public right was violated because the public does not own the property on which the tree fell, and there is no public right of access to private property.

7. This is why the manufacture and distribution of lawful products will rarely, if ever, cause a violation of a public right. Products tend to be purchased and used by individual consumers. Therefore, any harm a product causes is to an individual or a discrete group of individuals. This is true even if the use of the product is widespread and the manufacturer's or distributor's conduct is unreasonable. For example, say a fast-food chain sold millions of defectively produced cheeseburgers, causing millions of people who ate them to become obese, have poor health or just become ill. Regardless of the number of person affected, the injuries caused by fast-food chain are still to the private rights of individuals (i.e., standard consumer tort or contract rights), and not a violation of the rights of the general public (even if described as an .unreasonable interference. to the nation's health). The sheer number of persons affected cannot transform individual injuries into a communal injury unless the term "public right" is altered and expanded beyond its understood boundaries of the past 900 years.

Public Nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is interference with the right of the public in general and is punishable as an offence.

Section 268 of The Indian Penal Code defines Public Nuisance “A person is guilty of a public nuisance who does not act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or advantage.”

Obstructing a public way by digging a trench or constructing structures on it are examples of public nuisance. Although such obstructions may cause inconvenience to many persons but none can be allowed to bring a civil action for that otherwise there may be hundreds of actions for a single act of public nuisance. To avoid multiplicity of suits, the law makes public nuisance only an offence punishable under criminal law.

However in certain cases, when any person suffers some special or particular damage different from what inflicted upon public as a whole, a civil right of action is available to the person injured. Thus what is otherwise a public nuisance becomes a private nuisance too. The proof of special damage entitles a plaintiff to bring an action for what may be otherwise a public nuisance.

Public nuisance arises when there is an interference with public rights. 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.

▪ Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109

▪ Gillingham Borough Council v Medway (Chatham) Dock Ltd [1992] 3 WLR 449, at 458

Other public interests protected include: public comfort, safety and health [the last type of interest is now statutorily governed –Penal Code (Revised 1997) Act 574, Chapter XIV.

Definition:

▪ Attorney-General v PYA Quarries Ltd [1957] 2 QB 169, at 184 per Romer LJ

Stated that public nuisance arises when an act materially affect the reasonable comfort and convenience of life of a class of the society.

▪ Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors [1978] 2 MLJ 156

Gunn Chit Tuan J (at 158): … it is clear that 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.

Number of persons required to constitute “a class of the subject of the State” is a question of fact.

Persons who may claim

1. Criminal proceedings – the Public Prosecutor on behalf of government

2. Civil proceeding - person who suffers special or particular damage

- P need not have an interest in land.

- P must have suffered special damage

Guidance to determine the existence of special or particular damage:

i) Type or extent of damage is more serious (personal injury or damage to property)

ii) Damage must be a direct consequence and is substantial.

▪ Pacific Engineering v Haji Ahmad Rice Mill [1966] 2 MLJ 142

P was in business of selling heavy earth-moving equipment and construction equipment. Padi husk from D’s factory would fly over to P’s premises when D burns the husk. P’s workers had to cover their mouths and noses to prevent themselves from inhaling the dust and machines on display became dusty quickly. P’s lubricant oil also became dirty.

Held: There was no law in this country as England, whereby a proceeding may only be instituted upon consent of AG for public nuisance cases. In an action for public nuisance, P may institute proceedings without obtaining prior consent from AG if he has suffered special damage. P in this case had suffered personal discomfort and injury to property, thereby satisfying the requirement of ‘special damage’. An injunction preventing D from burning husks was granted. 

3. Civil proceeding – no special damage suffered by any particular individual

s8(1) Government Proceedings Act 1956 (Revised 1988), Act 359  AG or 2 or more persons who had written consent from AG may institute a suit in public nuisance for declaration of injunction of any relief appropriate to the circumstances. Related action available if P did not suffer special damage

▪ Koperasi Pasaraya Malaysia Bhd v Uda Holdings Sdn Bhd & 41 Ors [2002] 4 AMR 4701

Held: In a relator action for public nuisance, consent must first be obtained from AG. Action failed here because P did not obtained such consent. In a relator action, P must also prove special arising from public nuisance.

However, consent of AG is not need in a related action if the claim is brought by a local authority in the public interest. 

CASE LAWS

- Dr. Ram Raj Singh v. Babulal AIR (1982)

- Rose v. Milles (1815)

Furthermore, if the plaintiff cannot prove that he has suffered any special damage, he cannot claim compensation for the same. This may be explained by referring to Winterbottom v. Lord Derby (1857)

PRIVATE NUISANCE OR TORT OF NUISANCE

In a private nuisance, a defendant engages in some activity that interferes with the plaintiff's right to enjoy his property. A land owner is entitled to a certain level of comfort that is free from interference while on his private property. Private nuisance can come in the form of physical damage to the property or the disturbance of comfort. 

Tort law distinguishes a public nuisance from a private one based on the amount of people that are effected; a private nuisance may only effect a small amount of people.  A private land owner can bring action against another for private nuisance, as long as he can prove the defendant interfered with his ability to enjoy the land.

Definition:

▪ Read v Lyons & Co Ltd [1945] KB 216 at 236

…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 [1974] 2 MLJ 1 PC.

Its essential elements

Substantial and Unreasonable Interference:

In order for a defendant's interference to be considered a nuisance, it must be both substantial and unreasonable. A complaint by an overly sensitive plaintiff will not be considered a nuisance on the part of the defendant, because the offense must be something that would disturb the average, reasonable person. The interference must cause substantial damage to the plaintiff, and the interference with the plaintiff's comfort must be greater than the benefits of the defendant's conduct. 

Because nuisance is a tort that is based on the reasonable person standard, it is very dependent on the individual circumstances of a situation. A nuisance per se is an act that is always considered to cause a nuisance, while a nuisance in fact depends entirely on the situation. A judge or jury will make the decision as to whether the defendant's actions constitute a nuisance.

Nuisance is not actionable per se. P need not prove special or particular damage but need to prove that he has suffered some form of damage in order to succeed in his claim.

Nuisance protects the person from

i. interference with the use, comfort or enjoyment of land

ii. physical damage to land or property

P need only prove substantial interference in either one of the categories. Thus in discussing this element, it can be divided into 2 parts: 

i) Interference with the use, comfort or enjoyment of land

Collectively known as amenity nuisance which results in the feeling of discomfort whereby one is unable to live peacefully and comfortably on one’s own land arising from D’s activity.

What constitutes substantial interference in this depends on facts and circumstances of each case.

▪ Andrea v Selfridge [1937] 3 All ER 255 CA – Loss of a night’s sleep due to excessive noise

▪ Thompson-Schwab v Costaki [1956] 1 All ER 652 Using adjoining premises for prostitution

▪ Laws v Florinplace Ltd [1981] 1 All ER 659  as a sex shop

▪ Khorasandjian v Bush [1933] QB 727 Persistent telephone calls

▪ Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 229; [1992] 3 CLJ (Rep) 786, HC

P (residents of Bukit Merah village) sued D for an injunction to restrain D (company ARE) from operating and continuing to operate its factory. P alleged that activities from factory produced dangerous radioactive gases harmful to the residents.

HC: Granted a quia timet injunction, holding that the tort of private nuisance was established.

Held: P’s health was being affected harmfully and insidiously, significant and to a substantial degree and constituted substantial interference for this damage is presumed.

▪ Dato’ Dr Harnam Singh v Renal Link (KL) Sdn Bhd [1996] 1 AMR 1157 HC; [1997] 3 AMR 2430 CA

P operated clinic and hospital for 18 years to treat ear, nose and throat ailments. D operated a renal clinic at which patients receive haemodialysis on the floor above to P’s clinic.

HC: D liable for emitting obnoxious fumes from clinic which escape downwards into P’s clinic.

CA upheld HC decision. P (staff and patients) where found to have suffered substantial damage from skin diseases, red and swollen eyes, headaches, lethargy and breathing difficulties.

Courts are more reluctant to pronounce D’s activity as actionable nuisance, particularly if D’s activity brings benefit to public (Brindlington Relay Ltd v Yorkshire Electricity Board   [1965] Ch 436) or if D’s act of building on his own land, without any further activity, causes the interferences (Hunter v Canary Wharf Ltd   [1997] AC 655).

Courts would have to balance of P’s right to be involved in recreational activities on his own land against D’s equal right to build on his land, particularly if his activity is deemed to be of greater significance to say, the government and society generally.

ii) Material or physical damage to land or property

General rule: Actual physical damage to land = substantial interference, therefore is recoverable. However, there is no automatic recovery of damagesit must still be established that damage is substantial in nature.

For Amenity nuisance – What amounts to substantial interference is a question of fact and determinable on a case by case basis.

▪ Darley Main Colliery Co v Mitchell [1886] 11 App Cas 127

Held: Minor subsidence on Ps land not actionable.

▪ Goh Chat Ngee & 3 Ors v Toh Yan & Anor[1991] 2 CLJ 1163

D hold a mining licence and caries on mining work on his land. P (adjacent land) claimed that D through their mining activities committed negligence and nuisance. Mining activities constitute unnatural use of land as water has escape and flooded P’s land causing it to collapse and sink, subsequently causing flooding erosion and settlement.

Held: Land owner had a common law obligation not to interfere with support structure of his neighbour’s land and provided under s44(1)(b) National Land Code 1965. D had breached statutory duty and liable in nuisance for unreasonable, unlawful and substantial interference with the use and enjoyment P’s land.

▪ Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd [2002] 3 AMR 3405 CA

Appellants owed a hotel and were building a 20-storey extension. Respondent owned adjacent land claimed that piling works on A’s land had caused severe cracks to appear in their heritage building.

Held: Application for injunction was allowed. It was found that unless a safe system of piling was adopted, the safety and structural stability of their building would be endangered. Applying the decision in Rapier v London Tramways, although piling was temporary, it did not exclude R’s right to an injunction as the physical damage to constituted an interference which was actionable.

▪ Rapier v London Tramways Co [1893] 2 Ch 588

Held: Once D’s activity constitutes an actionable nuisance in law, it is no defence that D has taken all reasonable precaution to prevent it.

b) Unreasonableness

Unreasonableness is relevant but not a conclusive factor of whether the interference is unreasonable or otherwise. Substantial interference may amount to unreasonable interference and vice versa, both are 2 elements of nuisance and are interconnected and interdependent.

No clear-cut definition as to what constitutes unreasonable interference

▪ Hunter v Canary Wharf Ltd (HL)

P claimed damages for interference of television reception for 2 years due to D’s building which was 250m high.

Held: In the absence of an easement the mere presence of a neighbouring building did not give rise to an actionable nuisance. 

Generally, for an action in private nuisance to lie in respect of interference with P’s enjoyment of his land, it has to arise from something emanating from D’s land. 

i) Damage and location of the plaintiff’s and defendant’s premises

▪ St Helen’s Smelting v Tipping [1865] 11 HL Cas 642, Lord Westbury LC

P owned a rubber estate which was situated in an industrial area. Smoke from D’s copper-smelting factory had cause considerable damage to P’s trees.

Lord Westbury LC distinguished between “sensible injury to the value of the property/material injury” (physical damage), and injury in terms of personal discomfort (non-physical damage). For non-physical damage, the level of interference must be balanced with surrounding circumstances and the nature of the locality must be taken into account. A person cannot expect the air in an industrial area to be clean and fresh as in the mountains. If the interference causes physical damage to property, then the surrounding circumstances is irrelevant.Occupier of land must be protected from physical damage no matter where he is.  

Location is an important factor when the interference is merely to the use, comfort and enjoyment of land as opposed to physical damage to property.

▪ Chan Jet Chiat v Allied Granite Marble Industries[1994] 3 MLJ 495

Test of liability as being what is reasonable in accordance with common and usual needs of mankind in a society, or in a particular area.

▪ Sedleigh-Denfield v O’Callaghan [1940] AC 880; [1940] 3 All ER 349

Lord Wright (at 903):

“A balance has to be maintained betweenthe right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with . It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usage of mankind living in … a particular society…”

“Balancing Exercise” in cases of non-physical damage (or amenity nuisance) was in P’s favour in the following cases:

▪ Bliss v Hall [1838] 4 Bing NC 183

D managed a factory for 3 years and during this time smoke, smell and other remittance came from the factory. P moved into a house near the factory.

Held: A defence that an activity has been going on before an action brought to halt the activity is inapplicable as P had his rights too, one of which is clean air.

▪ Sturges v Bridgman [1879] 11 Ch D 852

P (physician) claimed against his neighbour over the noise arising from neighbour’s confectionery business. Court took into consideration the fact that the area consisted of many medical specialists consulting rooms and P’s claim allowed. 

In amenity nuisance case, the location of the premises (particularly of P’s) would give an indication whether the D’s activity actually constitute an unreasonable and substantial interference to P.

▪ Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi, Mohdi & Ors [1981] 2 MLJ 16 FC

Appellant who had a lease over a piece of land had agreed and promised to use the land as a skating rink, restaurant and cinema. A subsequently built an open stage and staged some shows, and also opened a discotheque.

Held: People who lived in the urban area must be prepared to accept a lot of noise from their neighbours and he himself make noise; but no one however, has the right to create excessive noise.

▪ Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923

Planning permission had been given to D to build a commercial port. Reason being that it would benefit in terms of creating employment. It was agreed D would have unrestricted access to the area for construction purposes. Construction done 24-hours and heavy vehicles had to pass through a residential area to get to the site. 5 years after permission was granted, P alleged that D was interfering with the comfort of the residents in the area thus committing a public nuisance.

Held: Whenever planning permission is granted, it is for the purposes of either renewing or changing the use of the area, and whether an act gives rise to a public nuisance or not must be measured with the circumstances in that same area in line with the renewal or changed use of that area, at that time and not the time before it. 

ii) 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

D renovated some units of flat managed by P in order to set up a government clinic. P argued the renovation was not only conducted without their approval, but also caused pipe and drain blockages. The renovated units had also intruded into the common 5-foot pathway, thereby causing nuisance.

Held: Whether something amounted to nuisance or not must be considered with reference to local circumstances and surroundings. Inconvenience does not necessarily give rise to an actionable nuisance. The purpose of the renovation provided substantial public benefit. D here had provided a new 5-foot way and so no nuisance was created in this aspect. On the issue of approval it was found that consent was given to D by P’s predecessor and on the principle of equitable estoppel P was estopped from going back on the consent given by their predecessor.

Even if D’s activity gives rise to public benefit, it does not automatically mean it is not actionable.

▪ Adams v Ursell [1913] 1 Ch 269

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.

Held: Court rejected the defense as P’s comfort and convenience also had to be considered

▪ Kennaway v Thompson [1981] QB 88

Held: Even if the D’s activity gives benefit to the society generally, it does not justify substantial interference to P. If P suffers any physical damage, then P’s right to comfort and enjoyment overrides any public benefit that may be derived from that activity.

iii) 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.

▪ McKinnon Industries Ltd v Walker [1951] 3 DLR 577 PC (liable)

D’s factory emitted noxious fumes which damaged P’s commercially grown and delicate orchids.

Held: D liable as the fumes would have damages flowers of ordinary sensitivity.

▪ Robinson v Kilvert [1889] 41 Ch D 88 (not liable)

D was in the business of making paper boxes. The process involved using hot air. P who lived in the floor above the same premises was in the business of selling special paper which was sold according to weight. Naturally, hot air from D’s place caused the moisture in P’s papers to dry up. The raised temperature did not inconvenience P’s workers and it would not have affected normal paper.

Held: Court denied P’s claim for compensation on the ground that, ordinary paper would not have been affected by hot air. P’s property was extra sensitive. 

▪ Bridlington Relay v Yorkshire Electricity Board[1965] 1 All ER 264

P owned a television and radio station. D was the Board responsible for the supply of electricity in the area erected an electrical powerhouse in the area. P applied for injunction believing the power line could cause interference with reception of television.

Held: A person cannot hold his neighbour liable just because he uses his property in a special way. Use of P’s aerial for this kind of business was special, which was particularly vulnerable to interference. Claim denied.

▪ Nor-Video Services Ltd v Ontario Hydro [1978] 84 DLR (3d) 221

Held: The decision in Bridlington Relay would not stand today as television is more common. 

iv) Interference must be continuous

Interference that is continuous or occurs very often would constitute substantial interference. This is not conclusive but is an important factor.

▪ Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 HL

There was constant nuisance in the sense that the tree roots caused structural damage to neighbouring property.

▪ Matania v National Provincial Bank Ltd and Elevenist Syndicate Ltd [1936] 2 All ER 633

Held: Temporary noise and dust was nuisance.

▪ Spicer v Smee [1946] 1 All ER 489

Isolated incident can also constitute a nuisance if it is due to dangerous state of affairs on D’s premises

v) Temporary interference and isolated incident

General principle: the more serious the interference, the more likely the court will regard it as unreasonable.

▪ Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349

Held: D had allowed culvert on their land to remain blocked, causing P’s adjoining property to flood. Flooding on P’s land was foreseeable, and was a result of the state of affairs on D’s land, thus liable.

▪ Spicer v Smee [1946] 1 All ER 489

P’s house was burnt down due to a defective wiring system in the defendant’s adjoining house.

Held: D liable as there was a dangerous state of affairs on the defendant’s land.

Atkinson J (at 493):

“… private nuisance arises out of a state of things on one man’s property whereby his neighbour’s property is exposed to danger.” 

▪ MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No2 ) [1998] 4 CLJ 136

The construction of a road over the D’s land for the purposes of connecting 2 pieces of the P’s lands was an actionable nuisance as the road was tarred, pre-mixed and thus permanent in nature. Mandatory injunction was accordingly granted to D.

▪ SCM (UK) Ltd v WJ Whitall & Son Ltd [1970] 3 All ER 245; [1971] 1 QB 337

Held: A single-escape may give rise to nuisance, but it must be proved that the nuisance is the result of   a dangerous state of affairs   on D’s premises/land or arising from the activities carried out on the land. Gravity of harm and frequency of escape are taken into account in determining whether dangerous state of affairs exists.

▪ Thean Chew v The Seaport (Selangor) Rubber Estate [1960] 26 MLJ 166

P’s husband died when a diseased rubber tree belonging to D fell onto highway and onto the lorry deceased was travelling. D was liable in nuisance as he failed to remedy the dangerous state in his property within a reasonable time after he did or ought to become aware of it. 

▪ Leong Bee & Co v Ling Nam Rubber Works[1970] 2 MLJ 45, PC

Fire broke out in the early hours in D’s factory building. Fire spread next door which was owned and occupied by P, destroying P’s building.

Held: Since there was no dangerous state of affairs on D’s property, D was not liable. 

vi)  Malice

The existence of malice may cause D’s act to be unreasonable.

▪ Christie v Davey [1893] 1 Ch 316

P was a music teacher who conducted music classes at her house. D (neighbour) 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 classes.

Held: Court found that D was malicious in his actions and an injunction was granted to P.

▪ Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468; [1936] 1 All ER 825

P bred special foxes whish were extremely sensitive during their breeding season. D intentionally let out a few gunshots near the foxes’s cages with the aim of causing damage.

Held: Court found that D liable. Even though P here used his premises for a particular purpose which was extraordinarily sensitive, nevertheless D’s act was unnecessary and malicious, rendering it unreasonable. Therefore the fact that P’s property was ‘sensitive’ was irrelevant.

▪ Bradford Corporation v Pickles [1895] AC 587 HL

D deliberately prevented the flow of water on his land so that P’s land received less water.

Held: P did not have a right to unlimited and continuous supply of water. D was not interfering with any right of P that was recognized by law. D’s act was lawful and his bad motive was irrelevant.

Who can sue

Generally, persons who has some proprietary, possessory or some other interest in the land.

i. Landowner

ii. Occupier  whether tenant, lessee or person who is in actual possession

▪ Foster v Warblington UDC [1906] 1 KB 648 CA

iii. Reversioner  a landowner who is not in occupation at the time the interference takes place but who is expected to resume occupation at a future date

▪ Malone v Laskey [1907] 2 KB 141 CA

occupier’s family member (challenged by subsequent case)

▪ Khorasandjian v Bush [1993] 3 All ER 669; [1993] QB 727 CA

D could not accept the plaintiff’s rejection of his advances towards her and began to harass her. He pestered her with telephone calls.

Held: Following Javier v Sweeney, P could suffer illness though cumulative effect of continued and unrestrained harassment. Telephone harassment is actionable interference with her ordinary and reasonable use and enjoyment of her property. Injunction granted without further proof of damage. 

Who can be sued

3 categories:

a) Creator

The source or creator of the interference, whether or not he occupies the land from which the interference emanates, will be liable for the nuisance.

▪ Southport Corporation v Esso Petroleum Ltd [1953] 2 All ER 1204

Test: Who authorised the activity and whether interference is foreseeable from that activity?

▪ Telley v Chitty [1986] 1 All ER 663

There is no requirement that D creator must have an interest over the land or that the land belongs to him.

▪ Marcic v Thames Water Utilities Ltd [2002] 2 All ER 55 CA

D company was a statutory sewerage undertaker. It was responsible for the removal of sewage in the area where claimant lived. Over time, the sewers became inadequate for removing surface and foul water which had on occasion been discharged into the claimant’s front and back garden. His house was also damaged.

Held: D as owner and person in control of the sewers, had a duty to do whatever was reasonable in the circumstances, to prevent such hazards from damaging property belonging to others. The court found the company had or should have had knowledge of the hazard and it was within their capabilities to abate the nuisance.

▪ Thompson v Gibson (1841) M & W 456  Liable although he is not the occupier/landlord

b) Occupier

Occupier will be liable for

a) All positive acts of interference, including omissions which give rise to a nuisance (McGowan & Anor v Wong Shee Fun & Anor   [1966] 1 MLJ 1 )

b) The acts and omissions of third parties in the following situations: servant or employee; independent contractor; trespasser; licensees; natural causes; conduct of previous occupier

i) Servant or employee

Liable for persons who are subject to the occupier control, based on the principle of vicarious liability

▪ Spicer v Smee [1946] 1 All ER 489

P’s house was burnt down due to a defective wiring system in the defendant’s adjoining house.

Held: The court found D liable as there was a dangerous state of affairs on D’s land.

ii) Independent contractor

Occupier is also liable for independent contractor where duty is “non-delegable”.

▪ Bower v Peate [1876] 1 QBD 321;

Held: D was found liable when his independent contractor undermined the support for P’s adjoining house.

The principle that arose from this case is: If the nature of work that a man employs another to do is expected to give rise to injurious consequences to his neighbour, he must do all that is necessary to prevent the injury from materializing and he cannot pass over this burden to the independent contractor. The duty of care on his part is ‘non-delegable’

▪ Matania v National Provincial Bank [1936] 2 All ER 633

Held: Occupier was liable to P who lived on higher floors on the same building when his independent contractors produced a lot of dust and noise in the performance of their job. There was a special danger of nuisance arising from the work and the occupier was therefore liable for the failure of his independent contractors to take precautions.

▪ Salsbury v Woodland [1970] 1 QB 324; Holliday v National Telephone Co [1899] 2 QB 392

iii) Trespasser

▪ Sedleigh Denfield v O’Callaghan [1940] 3 All ER 349 HL at 357

D owned a piece of land on which there was a big ditch. A trespasser subsequently placed a pipe in the ditch without the knowledge of D, but the person who was responsible for cleaning the ditch knew about the piping of the

ditch, but no proper precautions were taken to ensure that the pipe would be not be clogged up with leaves. During one extraordinarily heavy rainfall the pipe was clogged and P’s land, which was adjacent to D’s land, was flooded.

Held: D liable as his employee, who cleaned the ditch should have known that the condition of the pipes gave rise to a risk of flooding and this knowledge was imputed to D. It was stated that when a nuisance has been created by the act of a trespasser or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement.

iv) Licensees

▪ Parimala a/l Muthusamy & Ors v Projek Lebuhraya Utara Selatan [1997] 4 AMR 3274

D was the highway authority responsible for the construction, maintenance, management and safety of the North-South Highway. P were travelling in a car driven by the deceased when it hit a stray cow which had found its way onto the highway through a breach in the fencing system.

Held: The court reiterated the principle that “a person can claim in nuisance if his right of free passage or some rights connected to it have been interfered with”. It could not be ascertained that D knew or could be said to presume to know that at the relevant time a breach of the fence had occurred, or that a cow was strolling on the highway. Consequently, D could not be said to continue the nuisance since its foreknowledge was not conclusive.

Whether an occupier, a highway authority, may be liable for interference committed by a third party on the highway? 

 Lippiatt v South Gloucestershire Council [1999] 4 All ER 149 CA

A group of travellers had for a few years occupied D council’s land. P who were tenant farmers of adjacent land alleged that the travellers had frequently trespassed on their land, and carried out various activities including dumping rubbish which ultimately interfered with P’s use and enjoyment of their farmland. They further alleged that the council was aware of, and tolerated the travellers’ conduct.

Held: The court found the travellers to be licensees, which meant that D council was the legal occupier of the land. Thus it may be said that it has created the nuisance by allowing the licensees to occupy his land and use it as a base for

causing unlawful disturbance to his neighbours. It did not matter that the activities took place on P’s land.

v) Natural causes

Same principle as that for interference caused by trespassers or third parties, i.e. occupier will be liable if the occupier knows or ought to know of the interference.

▪ Goldman v Hargrave [1967] 1 AC 645 PC

A tree (100-feet high) on the defendant’s land was struck by lightning and started to burn. D requested a 3rd party to fell the burning tree and to saw it into sections, but he did not take any reasonable steps to douse the burning tree after it was felled and sawn into sections. Due to a strong wind and a rise in temperature, the fire spread to P’s property, causing damage.

Held: D liable as there was proof that damage was foreseeable as a result of the D’s inaction.

An occupier must take reasonable steps to remedy a potentially hazardous state of affairs, including those that arise naturally. The principle in Goldman was adopted in:

▪ Leakey v National Trust [1980] 1 All ER 17 CA

D owned a piece of land consisting of a conical shaped hill composed of soil which made it peculiarly liable to cracking and slipping as a result of weathering. P (house owners) lived at the base of the hill and had for many years, put up with slides of soil, rocks, tree-roots and other debris on their land from the hill. The weathering process finally caused a large crack on the bank from which the hill rose and there was a danger of collapse of that part of the Ds’ land onto one of the P’s houses. P complained but no action was taken. Several weeks later the bank fell near P’s house and in fact further falls would have put the house at risk. D refused to clear the fallen earth and debris, and claimed that they were not responsible for what had happened. P spent money to clear the material and to conduct some protective works and prayed for an injunction requiring D to remove some debris and to prevent further falls of earth, soil and tree-stumps, and damages for nuisance.

Held: Court upheld the earlier decision in favour of P and stated that a general duty is imposed on occupiers in relation to hazards occurring on their land, whether the hazards were man-made or natural. If an occupier knows that there is a natural hazard on his land, whether it is in the form of something growing on the land, the soil itself or something on the land and this hazard encroaches

or threatens to encroach onto another’s land so that the other person might suffer damage, the occupier is under a duty to prevent or minimize the risk of damage from materializing. P must prove that the occupier knows or ought to know of the risk of encroachment.

▪ Noble v Harrison [1926] 2 KB 332; [1926] 1 All ER Rep 284

Rowlatt J (at 338/287):

“…a person is liable for a nuisance constituted by the state of his property: 1) if he causes it; 2) if by the neglect of some duty he allowed it to arise; 3) if, when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did or ought to have become aware of it”.

▪ Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 All ER 705 CA  appliedLeaky.

▪ Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd & Ors [1999] 4 CLJ 339

P’s plant nursery was destroyed when a natural limestone hill collapsed and fell onto it. The landslide occurred after a heavy rainfall and severe thunderstorm. P sued, amongst others, D1 the operator of a quarry on the limestone hill on a plot adjacent to P’s land. P’s applying Leakey’s case claimed that a person in control of land which has a natural hazard which encroached into the land of another and caused damage, is liable in the absence of reasonable measures to prevent or minimize a known or foreseeable damage.

Held: The court however held that Leakey is inapplicable in Malaysia by virtue of s3CLA 1956 and the common law position as it existed before April 7, 1956 was applicable. P must prove that the damage to his property is as a result of the D’s activity and not due to the latent defect of the limestone hill. Following this pre-Leakey principle, P’s claim could not succeed as he could not prove precisely that the collapse of the hill was caused by the quarrying operation. Even if Leakey was applicable, P would not have been able to prove that the D1 knew or ought to have known that the hill would collapse.

Liability will be established

i. Where the type and the extent of the harm is foreseeable

ii. Adopt or continue the nuisance only after he is aware or should be aware of the danger such state of affairs is posing to neighbouring property, and the occupier omitted to take reasonable steps to remove or reduce the threat.

iii. Danger must be patent and obvious, and not latent danger.

vi) Conduct of previous occupier

Liable if the interference had existed before D occupier acquired the property, if P can prove that D knows or ought to know of its existence, but not otherwise. 

a) Landowner or landlord

General rule: A landowner who has surrendered possession and control of certain premises

There are 3 situations or exceptions where landowner will be liable:

 i) If he has authorized the nuisance

Authorisation can be express or implied authorization:

▪ Hussain v Lancaster City Council [1999] 4 All ER 125 CA

▪ Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd & Ors [1999] 4 CLJ 339

Test: Whether the nuisance is something that is normal and natural as a result of the tenancy or lease?

▪ Tetley v Chitty [1986]1 All ER 663

A local authority was held liable when nuisance arose from go-karting activities on land which was let by it. Tenant may also be found liable.

▪ Smith v Scott [1973] Ch 314 (criticized by Merritt[1973] JPL 154)

D local authority had rented out a house to a family who had domestic problems. This family caused a lot of nuisance to P who eventually had to move from their house.

Held: D not liable for although they were aware of the activities of the tenants, the tenancy agreement stipulated that tenants could not cause any nuisance to other people. Furthermore, the nuisance was not as a result of the tenancy, but due solely to the acts of the tenants themselves.

▪ Page Motors Ltd v Epsom & Ewell Borough Council [1982] 80 LGR 337

A group of gypsies occupied D local authority’s land.

Held: D was found liable when the gypsies’ activities caused a nuisance to P’s business, as D was aware of the gypsies on its land. Subjective test ought to be applied to an occupier for the act of 3rd parties who were not under his control in that if the occupier knows that a 3rd party is causing nuisance to others, he must take reasonable steps to stop the nuisance.

In Page, D was the occupier while in Smith D was the landlord who was not in occupation. It is submitted that there should not be any watertight distinction between the liabilities of an occupier or of a landlord not in occupation especially where the occupier or landlord knows of the interference.

ii) If he knew or ought to have known of the nuisance before the tenancy became effective

Principle: Creator of the nuisance is liable even though he does not occupy the land himself. Thus, knowledge of the existence of the nuisance before the premises is let will make the landlord liable.

The test is objective. Interference of possible interference should be known and damage to property or discomfort must be reasonably foreseen by persons in D’s position.

The tenant may be liable for ‘accepting’ or ‘continuing’ the nuisance and on the basis of his occupation.

▪ Brew Brothers Ltd v Snax (Ross) Ltd [1970] 1 QB 612

iii) If he has covenanted to repair or has a right to enter the premises to conduct repair works

General rule: If the nuisance occurs after the tenant has occupied the premises, liability of the landlord depends on the degree of control that he has over the premises.

Agreement that the landlord will conduct repair works will make the landlord liable for any interference that arises as a result of any disrepair.

▪ Payne v Rogers [1794] 2 H B1 350.

▪ Robert Chin Kick Chong & Anor v Pernas Otis Elevator Co Sdn Bhd & Ors [1992] 4 CLJ 1907 (failure to repair lifts)

Defences

1. Prescription

England: applicable to private nuisance. Continuous private nuisance for 20 years is a good defence.

Malaysia: Easement, and not a prescription, is a good defence: s282(1)(2)(3) & s284 NLC

2. Statutory authority

If a statute confers power to D to conduct a particular activity, D will usually escape liability notwithstanding that the activity gives rise to interference.

D need to prove the interference cannot be avoided even though reasonable precautionary measures have been taken.

▪ Goh Chat Nge Ors v Toh Yan eAnor [1991] 2 CLJ 11633

3. Other defences

- necessity

-   consent

-   defence of property

-   contributory negligence

P came to the nuisance, in that D’s operations has been carried out before P moved into the vicinity is not a good defence

▪ Bliss v Hall [1838] 4 Bing NC 183; Miller v Jackson[1977] 3 All ER 338 CA

c) Landowner or landlord

General rule: A landowner who has surrendered possession and control of certain premises

There are 3 situations or exceptions where landowner will be liable:

i) If he has authorised the nuisance

Authorisation can be express or implied authorization:

▪ Hussain v Lancaster City Council [1999] 4 All ER 125 CA

Damage and remedies

Generally there are 2 types of damages:

i) Damage to property

- Easily identifiable and self-explanatory

- Includes nuisance by encroachment on a neighbour’s land

ii) Interference with personal comfort Specific to the tort of nuisance

Generally measure for damage would be the cost of reinstatement, though not always necessary. Damage must be proved otherwise the action may fail. Furthermore, damage must be a kind that is reasonably foreseeable to arise from D’s wrongful conduct.

Remedies:

i) Injunction

Function is to prevent the nuisance from continuing and is suitable for continuing nuisance

ii) Monetary compensation

Easy for physical damage to property

▪ Pacific Engineering Ltd v Haji Ahamd Rice Mill Ltd[1996] 2 MLJ 142 at 146

Held: A person injured by nuisance may bring an action and claim for damages for the injury alone or together with a claim for injunction.

▪ Renal Link v Dr Harnam Singh [1997] 3 CLJ 225

iii) Report to the relevant authorities

- Most widely use as there are many organization and government bodies whose activities are statutorily governed (Local Government Act 1976, Act 171, Part IX)

iv) Self-help: abatement