Published on June 8, 2020
1. AMALIA SULAIMAN UKM LAW SCHOOL 2020 TORT II: NUISANCE (KACAU GANGGU) • A branch of law that gives protection to the land owner on the course of his own property. • It is based on the unreasonableness of the defendant’s act. • Damages can arise in many circumstances; eg: Plaintiff is facing damages towards his own properties/proprietary or nuisance towards his own comfortness (well-being). Types of nuisance: 1. Public nuisance 2. Private nuisance PUBLIC NUISANCE • Arises when there is interference with public rights. • Eg: obstruction of public highways, air pollution, water pollution etc. • Criminal offence and actionable tort Attorney General v PYA Quarries  2 QB 169 Facts The defendants operated a quarry and used a blasting technique which emitted large quantities of dust and noise, as well as causing vibrations which interfered with the enjoyment of land for many individuals in the area. The claimants sought an injunction preventing the continuation of a public nuisance as a result. The defendant’s alleged that what was being carried out was in fact a private nuisance which effected only those in the area and that they were therefore not bound by the injunction prohibiting ‘public nuisance’ as a result. Held The blasting operation was capable of constituting a public nuisance and the injunction could be granted to prevent it. Whilst it was difficult to precisely define the difference between a public and a private nuisance, a public nuisance could be one which materially affected the reasonable comfort or convenience of a class of Her Majesty’s subjects. What constitutes a ‘class’ of people within a neighbourhood depends on the facts of any particular case and it is impossible to define the precise
2. AMALIA SULAIMAN UKM LAW SCHOOL 2020 number of individuals necessarily effected for them to be considered a ‘class’. Neither do all individuals within the class have to be personally affected by the nuisance, as long as a representative cross section have been so effected. A public nuisance is so indiscriminate in its effect that it could not be reasonable to expect one person to take proceedings on their own to stop it. Instead, it was the responsibility of the community at large, and that was what had occurred in this case. As such, the injunction was granted. MAJLIS PERBANDARAN PULAU PINANG V BOEY SIEW THAN (1978) 2 MLJ 156 Temporary- occupation-license (TOL) Facts The defendants were alleged to have made structural alterations to a building and to have used it as a restaurant without the licence of the local authority. The local authority in this case brought an action for an injunction to restrain the defendants to use the premises as an eating house and for damages for nuisance. It also applied for and obtained a temporary injunction against the defendants. The defendants applied to have the temporary injunction dissolved and also applied for an order that the plaintiff's action be struck out. Held (1) if the alleged acts of the defendants amounted to a public nuisance then either the Attorney- General could sue in respect of the public nuisance or his prior consent in writing must have been obtained by two or more persons instituting the suit;(2) if the plaintiffs succeeded at the trial of the action in proving the facts alleged in the statement of claim there could be no order for damages for nuisance as the acts alleged could, if proved, only amount to a public and not a private nuisance. The claim by the plaintiffs for damages for nuisance was therefore misconceived and unmaintainable;(3) the plaintiff in this case could not sue the defendants without the prior consent in writing of the Attorney-General;(4) the action should be dismissed with costs and the temporary injunction dissolved Hakim Gunn Chit Tuan: “…it is clear that a 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.”
3. AMALIA SULAIMAN UKM LAW SCHOOL 2020 See: ZAINAP BT ABDUL MAJID & ORS V GAN ENG HWA & ORS (1995) 1 MLJ 801 PERSONS WHO MAY CLAIM [PUBLIC NUISANCE] Criminal Proceeding: Public Prosecutor on the behalf of the government Section 268 (1) Penal Code: Public nuisance (…causes any common injury, danger, or annoyance to the public…) Civil Proceeding: • [no special damage suffered by any particular individual] Attorney General under Section 8 (1) Government Proceedings Act 1956 (GPA). • [person who suffers special or particular damage] Plaintiff has to prove that he suffered damage and injury over and above the ordinary inconvenience suffered by the public at large. The actions that could be taken against the defendant for public nuisance are: • Injunction • Declaration order • Other reliefs MAJLIS PERBANDARAN PULAU PINANG V BOEY SIEW THAN (1978) 2 MLJ 156 -In this case, the local authorities can take action in a public nuisance tort to obtain an injunction so that the defendant cannot use his land for a restaurant without a license. PACIFIC ENGINEERING V HAJI AHMAD RICE MILL (1966) 2 MLJ 142 Facts: Plaintiffs carry on business selling equipment and construction machinery. The rice husk from the defendant's mill rushed to the plaintiff's factory, causing the plaintiffs' workers to close their mouths and nose. When there is a wind, the flying rice husk also causes the door to be closed. Plaintiff's equipment and machinery were dusted and lubricants became dirty.
4. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Held: Plaintiffs succeeded in proving that he suffered a special injury in which he suffered personal discomfort and property damage. PRIVATE NUISANCE • Unlawful, substantial and unreasonable interference with plaintiff’s comfort and enjoyment of his land. • Private nuisance protects the plaintiff from disruption/interference: 1. Disruption to the plaintiff's use / comfort in securing his land 2. Interference with physical damage to land. TYPES OF DAMAGES CAUSED BY PRIVATE NUISANCE 1. Personal discomfort Eg: Defendant turned the radio too loud every night which disrupts plaintiff’s sleep 2. Physical damage to land Eg: Defendant’s tree branch trespassed to plaintiff’s land or the tree roots damaged the floor tiles of plaintiff’s house. DIFFERENCES BETWEEN PRIVATE AND PUBLIC NUISANCE MPPP v BOEY SIEW THAN (1978) 2 MLJ 156 “…a nuisance is a public nuisance, if within its sphere, which is the neighbourhood, it materially affects the reasonable comfort and convenience of a class of the subjects of the state. A private nuisance… is one which disturbs the interest of some private individual in the use and enjoyment of his property by interference with the usual enjoyment of property by causing or permitting the escape of deleterious substances or things such as smoke, odours or noise.” EVIDENCE OF DAMAGES: IS IT NEEDED? Nuisance that is classified as NOT actionable per se MUST be be proven. Nuisance involving personal discomfort, damages need not be proven (referring to several cases that agrees with this statement.
5. AMALIA SULAIMAN UKM LAW SCHOOL 2020 WOON TAN KAN (DECEASED) &7 ORS v ASIAN RARE RED EARTH SDN. BHD. (1992) 4 CLJ 299 Facts: The plaintiffs, residents of Bukit Merah village sued the defendants, primarily for an injunction to restrain the defendant company (ARE) from operating and continuing to operate its factory which activities the plaintiffs alleged produced dangerous radioactive gases harmful to the residents of Bukit Merah. The High Court granted a quia timet injunction, and held that the tort of private nuisance was established. Peh Swee Chin SCJ stated: Peh Swee Chin J: …There must be substantial interference with the enjoyment of land…In a nuisance of the kind involved in the present case, proof of actual damage, physical or financialor personal injury is not required, the law presumes damage here…injury to health need not be proved…once annoyance and discomfort is established. ELEMENTS OF PRIVATE NUISANCE • Substantial interference HOTEL CONTINENTAL SDN. BHD. V CHEONG FATT TZE MANSION (2002) 3 AMR 3405 Facts: The appellants who owned a hotel were building a 20-storey extension to their hotel. The respondents who owned the adjacent land claimed that the piling works of the appellants caused severe cracks to appear in their heritage building. Their application for an injunction was allowed as it was found that unless an alternative system of piling was adopted, the safety and structural stability of their building would be endangered. Held: The Court of Appeal, on the authority of Rapier v London Tramways Co, held that once the defendant's activity constitutes an acționable nuisance in law, it is no defence that the defendant has taken all reasonable precautions to prevent it. In this case, although the piling works were temporary, it did not exclude the respondents' right to an injunction as the physical damage to their property constituted an (substantial) interference which was actionable. • Unreasonableness ✓ Plaintiffs need to prove that the nuisance was unreasonable ✓ Whether or not that interruption is reasonable is not a question of fact ✓ In determining whether or not the nuisance is reasonable, several factors will be taken into account: i) the location of the plaintiff's premises and the defendant's premises are relevant in considering whether the nuisance is reasonable. ST. HELEN’S SMELTING CO. V TIPPING (1865) 11 HL CAS 642 The plaintiff's rubber estate is located in the industrial area. In this case the smoke released from the defendant's factory damaged the plaintiff's rubber tree.
6. AMALIA SULAIMAN UKM LAW SCHOOL 2020 It is decided that the location factor is irrelevant when the disturbance involves physical damage to the soil. This is because the landlord needs to be protected from physical damage, no matter where he is. Location factors become relevant when disturbances cause personal discomfort (eg, noise, noise). SEDLEIGH-DENFIELD V O’CALLAGHAN  AC 880 HOUSE OF LORDS The council undertook some work on the defendant’s land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The defendant’s workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the claimant and caused substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert. Held: The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance. Lord Maugham: “My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour s land. They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.” STURGES V BRIDGMAN  11 CH D 852 COURT OF APPEAL The defendant ran a confectionary shop which operated a noisy pestle and mortar. It had done so for over 20 years but had no neighbouring property so there were no complaints as to its use. The claimant then built a consulting room for his practice as a physician adjacent to the defendant’s noisy shop. The claimant brought an action in nuisance to obtain an injunction to prevent the continuance of the noise. The defendant, relying on the Prescription Act, argued that he had obtained the right to be noisy by operating the noisy pestle for over twenty years. Held: The use of land prior to the construction of the consulting room was not preventable or actionable and therefore it was not capable of founding a prescription right.
7. AMALIA SULAIMAN UKM LAW SCHOOL 2020 SYARIKAT PERNIAGAAN SELANGOR SDN BHD V FAHRO ROZI, MOHDI & ORS The appellant who had a lease over a piece of land had agreed and promised to use the land as a skating rink, restaurant and a cinema. The appellant subsequently built an open stage and staged some shows. He also opened a discotheque. The court held that people who lived in the urban area must be prepared to accept a LL lot of noise from their neighbours and he himself may make noise; but no one however, has the right to create excessive noise. Similarly, a person is not required to tolerate an excessive level of noise which is unreasonable nuisance. ii) Benefits to the public/ common benefit If the defendant's actions benefit the public, such acts will not amount to unreasonable acts. MILLER V JACKSON 3 WLR 20 COURT OF APPEAL The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a development of Wimpey homes was put up in close proximity to the cricket ground. Mrs Miller purchased one of the houses and brought an action against the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced to nine over a two year period. There had been no personal injuries resulting from the balls but some property damage had been caused which the cricket club had paid for. Mrs Miller complained that she could not use her garden during matches and would often stay out of the house altogether. Held: The defendants were liable in both negligence and nuisance (Lord Denning dissenting) However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs Miller received the benefit of being adjacent to an open space. Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves the assumption that it is no defence for the defendant to show that they came to the nuisance. PERBADANAN PENGURUSAN TAMAN BUKIT JAMBUL V KERAJAAN MALAYSIA The defendant renovated some units in a flat managed by the plaintiff in order to set up a government clinic. The plaintiff argued that the renovation was not only conducted without their approval, but that caused pipe and drain blockages. Further, the renovated units intruded to the common five-foot pathway, thereby causing nuisance. The court denied the plaintiff's claim. An inconvenience does not necessarily give ice to an actionable nuisance. The purpose of the renovation provided substantial public benefit. On the facts, the defendant had provided a new Eve-foot way and so no nuisance was created in this aspect. On the issue of approval, it was found that consent was given to the defendant by the plaintiff's predecessor and on the principle of equitable estoppel the plaintiff was estopped from going back on the consent given by their predecessor.
8. AMALIA SULAIMAN UKM LAW SCHOOL 2020 iii) Duration of interruption. The interruption should continue -Only there are cases where there is a single incident. SPICER V SMEE  1 ALL ER 489 A fire broke out on the defendant’s property caused by faulty wiring. The fire spread to neighbouring property owned by the claimant. The claimant’s action for nuisance succeeded. The faulty wiring was classed as a continuing state of affairs. iv) Extraordinary sensitivity. -If the plaintiff / his property has extraordinary sensitivity, the court will not allow the disturbance to be brought against the defendant. ROBINSON V KILVERT (1889) 41 CH D 88 COURT OF APPEAL The defendant carried on a business of making paper boxes. This required a warm dry atmosphere. The defendant operated from the basement of their premises and let out the ground floor to the claimant. The claimant used the premises for storage of brown paper. The heat generated from the defendant’s operations damaged the brown paper belonging to the claimant. Held: The defendant was not liable. The damage was due to the special sensitivity of the paper. Cotton LJ: "It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is heat such as to incommode the workpeople on the Plaintiff's premises. I am of the opinion, therefore, that the Plaintiff is not entitled to relief on the ground that what the Defendants are doing is a nuisance." Lopes LJ: "I think the Plaintiff cannot complain of what is being done as a nuisance. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade." iv) Defendant's intentions If the malice is proved behind the defendant's actions, the defendant's harassment will be considered a nuisance even if the harassment is reasonable. CHRISTIE V DAVEY (1893) 1 CH 316 The claimant was a music teacher. She gave private lessons at her home and her family also enjoyed playing music. She lived in a semi-detached house which adjoined the defendant’s property. The
9. AMALIA SULAIMAN UKM LAW SCHOOL 2020 defendant had complained of the noise on many occasions to no avail. He took to banging on the walls and beating trays and shouting in retaliation. Held: The defendant’s actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions. HOLLYWOOD SILVER FOX FARM V EMMETT  2 KB 468 The claimant bred silver foxes for their fur. Silver foxes are particularly timid and if disturbed when pregnant they are prone to miscarry. If alarmed when they have young they may devour them. The defendant was the claimant’s neighbour. He objected to the fox farm and fired a gun on his own land close to the breeding pens with the intention to scare the foxes and impede breeding. The claimant brought an action in nuisance. Held: The defendant was liable despite the abnormal sensitivity of the foxes because he was motivated by malice.