Documente Academic
Documente Profesional
Documente Cultură
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
Introduction
A 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 persons 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 persons 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.
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 ones land and is actionable per se without proof of special damage, whereas nuisance is interference to Ps 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.
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 Amhersts 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.
Other factors: Ds 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.
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 Ds factory would fly over to Ps premises when D burns the husk. Ps workers had to cover their mouths and noses to prevent themselves from inhaling the dust and machines on display became dusty quickly. Ps 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)
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 ones own land arising from Ds 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 nights sleep due to excessive noise Thompson-Schwab v Costaki [1956] 1 All ER 652 for prostitution Laws v Florinplace Ltd [1981] 1 All ER 659 Khorasandjian v Bush [1933] QB 727 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: Ps health was being affected harmfully and insidiously, significant and to a substantial degree and constituted substantial interference for this damage is presumed. Using adjoining premises
as a sex shop
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 Ps clinic. HC: D liable for emitting obnoxious fumes from clinic which escape downwards into Ps 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 Ds activity as actionable nuisance, particularly if Ds activity brings benefit to public (Brindlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436) or if Ds 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 Ps right to be involved in recreational activities on his own land against Ds 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 Ps 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 neighbours 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 Ps 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 As 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 Rs 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 Ds 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 Ds 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 Ps enjoyment of his land, it has to arise from something emanating from Ds land.
i) Damage and location of the plaintiffs and defendants premises St Helens 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 Ds copper-smelting factory had cause considerable damage to Ps 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 OCallaghan [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 Ps 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 neighbours confectionery business. Court took into consideration the fact that the area consisted of many medical specialists consulting rooms and Ps claim allowed. In amenity nuisance case, the location of the premises (particularly of Ps) would give an indication whether the Ds 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 defendants activities If the object of Ds conduct benefits the society generally, it is more likely that the conduct will not be deemed unreasonable. But Ds activity which benefits the public will still constitute actionable nuisance if the activity causes damage to property or substantial interference to Ps 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 5foot 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 Ps predecessor and on the principle of equitable estoppel P was estopped from going back on the consent given by their predecessor. Even if Ds 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 Ps comfort and convenience also had to be considered Kennaway v Thompson [1981] QB 88 Held: Even if the Ds activity gives benefit to the society generally, it does not justify substantial interference to P. If P suffers any physical damage, then Ps 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 Ds 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) Ds factory emitted noxious fumes which damaged Ps 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 Ds place caused the moisture in Ps papers to dry up. The raised temperature did not inconvenience Ps workers and it would not have affected normal paper. Held: Court denied Ps claim for compensation on the ground that, ordinary paper would not have been affected by hot air. Ps 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 Ps 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 Ds 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 OCallaghan [1940] 3 All ER 349 Held: D had allowed culvert on their land to remain blocked, causing Ps adjoining property to flood. Flooding on Ps land was foreseeable, and was a result of the state of affairs on Ds land, thus liable. Spicer v Smee [1946] 1 All ER 489 Ps house was burnt down due to a defective wiring system in the defendants adjoining house. Held: D liable as there was a dangerous state of affairs on the defendants land. Atkinson J (at 493): private nuisance arises out of a state of things on one mans property whereby his neighbours 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 Ds land f or the purposes of connecting 2 pieces of the Ps lands was an actionable nuisance as the road was tarred, premixed 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 Ds 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 Ps 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 Ds factory building. Fire spread next door which was owned and occupied by P, destroying Ps building. Held: Since there was no dangerous state of affairs on Ds property, D was not liable. vi) Malice The existence of malice may cause Ds 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 foxess 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 Ds act was unnecessary and malicious, rendering it unreasonable. Therefore the fact that Ps 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 Ps 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. Ds 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 occupiers family member (challenged by subsequent case) Khorasandjian v Bush [1993] 3 All ER 669; [1993] QB 727 CA D could not accept the plaintiffs 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 claimants 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 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 Liable although he is not the
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 Ps house was burnt down due to a defective wiring system in the defendants adjoining house. Held: The court found D liable as there was a dangerous state of affairs on Ds 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 Ps 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 OCallaghan [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 Ps land, which was adjacent to Ds 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 councils 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 Ps 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 Ps 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 defendants 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 Ps property, causing damage. Held: D liable as there was proof that damage was foreseeable as a result of the Ds 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 Ps houses. P complained but no action was taken. Several weeks later the bank fell near Ps 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 anothers 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 Ps 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 Ps land. Ps applying Leakeys 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 Ds activity and not due to the latent defect of the limestone hill. Following this pre-Leakey principle, Ps 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 authoritys land. Held: D was found liable when the gypsies activities caused a nuisance to Ps 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 Ds 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 Ds 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
Generally there are 2 types of damages: i) Damage to property - Easily identifiable and self-explanatory - Includes nuisance by encroachment on a neighbours 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 Ds 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