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Private nuisance is an ancient wrong design as an action between neighbouring landowner to protect a person interest in land from being adversely effected by the activities of his neighbor. The harm is usually indirect, as the tort of trespass protects a person against direct invasion.
Private nuisance also is a tort which deals with dispute between adjacent landowners. It involves drawing a balance between the right of one person to use their land in whatever way they wish and the right of their neighbor not to be interfered with. It is an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it.
A nuisance which consists of an interference with a right in land is dealt with in land law under the heading of servitudes. Although a person who has an interest in land is able to do whatever he wishes on his land, his activities however must not cause inconvenience or damage to another person who similarly as an interest over his land. Thus, the law of nuisance is concern with the balancing of competing interest.
The usual starting point in a discussion of private nuisance is the principle that no man is allowed to use his property to injure another, which was itself is very little use. It does not tell us at what point the use of the property by the defendant may go before the law will in intervene. There is a balance to be sought and if possible achieved between competing private rights as between adjoining landowners and the spurious public interest.
In regard to our proposal on the study on nuisance, the main problem statement is whether that there are any laws which govern the private nuisance issue. The issue arise when the nuisance had occurs and we would looked which provision for the set of law can be related in the public nuisance. In this research we also would discuss about what basis the private nuisance has established as a law to protect the interest of the people in the civil suit and how effective there are to cover the situation occurs. If there is any law related with the private law, how can that law would be applied to the wrongdoer.
In this study, the private nuisance would be discussed in detail for more understanding. This has led to suppose the primary question of whether or not, private nuisance has enough protected the people interest. In this study we would look the parties which can take the legal action to the tortfeasor.
There are also will be discuss the defenses available for rebuttable the claim in private nuisance. In the finishing of this study, the researcher can get more understanding related to private nuisance and be able to give the talk about the significance of the private nuisance in the law to protect the interested person.
Significant Of The Study
Our study is totally based on private nuisance. Private nuisance is one of the portions in Law of Tort. First and foremost, it shall be important to ensure that this research regarding the private nuisance give rise to uphold the right of an individual in enjoying a harmony and peaceful life. This peaceful life includes the life in the neighbourhood which essentially protects land. Thus, private nuisance is a field in law of tort that must be digested in order to ensure the right of individual against nuisance and the remedy such as exemplary damages that may recover if this type of nuisance happens.
The general objective of this research is to get more information pertaining to private nuisance and to enhance the understanding of the subject matter in the studies. This can help people to more understand their rights and enhanced their knowledge regarding private nuisance. Private nuisance may occur in our life, so we need to make full research regarding private nuisance in order to make people aware of their right.
This research also constitutes following specific objectives:
1) To produce distinction between private nuisance with other nuisance.
2) To examine the existing of law and legislation which use in determine on litigation which involve with private nuisance.
3) To draw the attention to the general public about what is their right when the nuisance infringe their right to live in freedom.
4) To examine the existence law, whether it enough to protect the right of person in Malaysia.
The vivid explanation in the legal position particularly in Malaysia in the concerning with private nuisance in the Law of Tort in the Civil litigation. The principle in nuisance based on common law principle which based on the principle raise in the case of Ryland and Flecther which imposes liability when something that is likely to cause mischief escapes from the defendant's land onto the plaintiff's land, causing the damages to the plaintiff. This in itself may give rise to an action for nuisance but it not may not be necessary so.
Nuisance shall prove as valuable to many as profound understanding and inter-relation between people for attained the peacefully and without antagonism. In result of a more fathomable and graphical explanation on significance of the establishment of nuisance in Malaysia, people will generally understand and grasp the idea without belligerence and contention. Failure to furnish the people with an accuracy of their right shall induce the public to act beyond reasonable manner. Despite the fact that Malaysia, being the multi-racial populated country, there are still cases which involved in the litigation arise between the racial which not satisfied with other. The law in Malaysia has followed the nuisance according to common law to prevent any person to infringe another right to live in freedom.
Doctrinal research is a research into pure law. Law can be defined as a set of rules and principles that regulates the relationship between individuals. Its takes one or more legal prepositions which is rules, principles, doctrine, maxim, concepts and terms as a starting point and focus on the study. Research takes place in the law library in a ways of reading and analyzing all materials. Last but not least, a report will be written up which may offer a new formulation in the prepositions or a new model statute.
For the purpose of our research, we shall undertake to use law to further support our research. . In regard to the law we shall undertake to use English common law, local judicial decision, and common law principle which have been codified into local statutes. For instance, we use the most relevant cases whether from English common law or local decided cases in order to explain the several circumstances public nuisance in our lives.
Moreover, the local statute that has been use is Local Government Act 1976 which provides that a local authority has the power to make new public places and enlarge such public places and the owners of occupiers of any land, houses, or buildings which are required for such purpose or which injuriously affected will be compensated in accordance with the provisions of any written law. It is further provided that if the amount of compensation is in dispute the parties may refer the matter to accord of competent jurisdiction. Therefore, damaged caused to a plaintiff's property arising from nuisance created by a local a authority in pursuance of its statutory power will be compensated in the form of damages. An injunction will presumably not be granted against the local authority for the exercise of its powers under the statutes.
Types Of Data
There are three types of data that we use for the purpose of our research. Firstly is the primary source. There are two types of primary source that we plan to gather around in our research that is cases and statutes pertaining to the private nuisance nationally or internationally so that we can also view the laws regarding private nuisance in the Malaysia and United Kingdom.
Secondly, we shall focus our research on the secondary sources which are articles and journals. These articles as well as journals are retrievable at the Malayan Law Journal and from other academic scholars whose ideas private nuisance are irrefutably reputable.
Thirdly, we shall use the online database as our tertiary source as our last sources.
As regards to data collection, those are to be obtained from the law libraries. For the purpose of this research, we intend to visit in completion of our research are University of Utara Malaysia, as well as International Islamic University, Malaysia. Apart from that, the completion of data collection is to be done through online. The databases are Harvard Law, West Law, Review, Malayan Law Journal as well as Lexis Nexis.
In ascertaining that our objectives are within reach and attainable, we intend to use content analysis for our research. The data we gather through the data collection, we shall analysis it in order to get full view of private nuisance.
Limitation Of Study
The researchers would like to study more on this proposal; however there are a few limitations which restrict us from getting deeper into this very particular research. For instance:
Restraint Of Time
Time is essential and important in our research. As the researchers are from the group of students, they are restricted in sense of time as they are allocated a fixed date. They have different learning time such as a different class makes them find difficulties in time management. This very factor makes the outcome or the research result is also limited but it is still compact as they used the allocated time wisely.
Restraint Of Reference
There is also the limit to study in terms of selecting the place to seek and to search for information for this proposal. The researchers are only able to have a close study in the public universities' law libraries which are located nearby such as the University Utara Malaysia Library that is Perpustakaan Sultanah Al-Bahiyah. Since, there are limited of resources and references in the Library, they are only able to find limited information.
Restraint Of Money
Money is the major cause which limits the research. Even though there is a budget provided for the purpose of the research, nevertheless it is still not enough as the budget allocated was small. The money that is received for this proposal is not sufficient as the cost of transportations that includes flight fees and taxi fees are increasing nowadays as the result of the increase in the market price of the petrol and diesel. Besides that, a lot of money is spent in communicating with the party involved as many phone calls have to be made to communicate with important people for the purpose of this proposal.
History Of Nuisance
. In the late 19th and early 20th centuries, it is difficult to administer the law of nuisance, as competing property uses often posed a nuisance to each other, and the cost of litigation to settle the issue grew prohibitive. Most of the country has their owned system of land in planning the use of plan for example zoning that describes what activities are acceptable and appropriate in a certain location. Zoning generally overrules nuisance. For instances, some country uses and industrial zone specifically for a factory to be operated. This industrial zone have their own law and rules where if the factory was operating in the industrial zone, the neighbourhood which lives near the industrial zone can't make claim to the court for nuisance.. Jurisdictions without zoning laws essentially leave land use to be determined by the laws concerning nuisance.
In the same way, there is an adaptation of the doctrine of nuisance to modern complex societies in modern environmental laws are , for example person's use of his property may harmfully affect another's property, or person, far from the nuisance activity and not easily incorporated into historic understandings of the nature of nuisance law.
What Is Nuisance?
According to the oxford dictionary, it means a person or thing that is causing inconvenience or annoyance. From the perspective of law, nuisance is an act which is harmful or offensive to the public or a member of it and for which there is a legal remedy. The purpose of the law of nuisance is to provide comfort to persons who have proprietary interests in land to members of society generally through the control of environmental conditions.
Nuisance Distinguished Between Nuisance And Trespass To Land
These two cause of action that is nuisance and trespass to land does not overlap and can be differentiated. Firstly, the differences between these two is that only a direct act may give a rise to an action for trespass to land but in nuisance a cause of action may be maintained in cases of consequential harm. This can be illustrated in the case of Goverment of Malaysia & Anor v Akasah b Ahad. The plaintiff operated a petrol station and the defendant then built a federal highway which was on higher ground that the petrol station and the road to the station had to be closed. The defendant offered the plaintiff to build a road to the petrol station through the use of another route but the plaintiff refused the offer. In an action for nuisance against the defendant, the Supreme Court held that the Plaintiff failed to prove nuisance. The Court further stated that the differences between nuisances are of a bigger class that trespasses to land.
Another difference is that trespass is an interference with possession of land but in nuisance, it is an interference with the use of land.
Nuisance And Negligence
Negligent act may also give rise to nuisance. For example, landowners owe their neighbours a duty not to disturb or withdraw natural right to support a breach of which give rise to a cause of action in negligence and or nuisance. But it does not mean that negligence is precondition in an action for nuisance. This can be illustrated in the case of Wisma Punca Emas Sdn BHD V Dr Donal, where the plaintiff was doing some construction job beside the plaintiff's clinic. The job included piling and excavation works. As a result of the activist done by the defendant, the plaintiff's clinic wall cracked and tilted. The defendant argued that he had taken all reasonable precaution and measurement. The court allows the plaintiff claim for damages. The defendant appealed that the main issue was negligence and since nuisance was not specifically pleaded, the appeal should be allowed. The court held that the plaintiff need not to prove any negligence in a nuisance case and it is enough just to prove there was damage to his property due to the activities done by the defendant. The appeal was dismissed.
Nuisance And The Rule In Rylands V Fletcher
The rule in Rylands v Fletcher imposes liability when something that is likely to cause mischief escapes from the defendant's land onto the plaintiff's land, causing damage to the plaintiff. This itself may give rise to an action for nuisance but not essentially so. In an action for nuisance, commonly the interference must be something that is constant but in the rule of Rylands v Fletcher, one single act of interference is adequate.
Damage And Remedies
There are normally two types of damages that is damage to property which is simply identifiable or interference to personal comfort which is mainly on tort of nuisance. Damage to property is self explanatory.
Remedy for nuisance is commonly monetary damages. An injunction or abatement may also be applied under certain circumstances. An injunction orders from the court is used to order the defendant to stop, remove, restrain, or restrict a nuisance or abandon plans for a threatened nuisance. In public nuisance cases, a fine or sentence may be imposed, in addition to abatement or injunctive relief if the defendant refused to obey the injunction order.
Injunction is a drastic remedy, used only when damage or the threat of damage is permanent and not satisfactorily compensable only by monetary damages. The judge in court examines the interest of the public economic hardships to the parties and in allowing the continuation of the enterprise. This function of remedies is to prevent nuisance from continuing. In the case of Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd, that a person injured by a nuisance may bring an action and claim damages against the defendant for the injury alone or together with the claim of an injunction. In an English case, Shelfer v City of London Electric Lighting Co, the defendant was causing vibration and noise due to their activities. The defendant claim that the plaintiff should be limited to damages as the award of an injunction would deprive many Londoners of electricity. The court held that the discretion not to award the injunction should be exercised only in four exceptional circumstances that is where the injury to the plaintiffs legal right is small, is capable of being estimated in money terms, is one which can be adequately compensated by a small money payment, and it would be oppressive to the defendant to grant an injunction. In the case of Bone v Seale, the defendants pig farm was adjacent to the plaintiff's land. The plaintiff's sought an injunction and damages in nuisances in respect of smells caused by pig manure and the boiling of pig swill. The court held that there was no damage to the plaintiff's property or his health and awarded damages of $ 1,000 based on the amount that would have been awarded in a personal injuries action for loss of sense of smell. Lord Hoffman in Hunter v Canary Wharf Ltd, disapproved of this approached to quantifying damages in private nuisance cases as nuisances is a tort against land not against person. Lord Hoffman suggested that damages should be fixed by the diminution in capital value of the land as a result of the amenity damage.
A self-help remedy, abatement by the plaintiff, can be obtainable under restricted conditions. This advantage must be exercised within a reasonable time after knowing the existence of the nuisance and normally require to give notice to the defendant and the defendant's had fail to act. Reasonable force may be used to employ the abatement, and a plaintiff may be liable for unreasonable or unnecessary damages. For example, dead tree limbs extending dangerously over a neighbours' house may be removed by the neighbour in danger, after notifying the offending landowner of the nuisance. In circumstances, where an immediate danger that is affecting the health of the people, property, or life exists, no notification is necessary to be given to the defendant regarding the nuisance.
Private nuisance may be defined as unlawful interference with a person's use, comfort, enjoyment and any interest that a person may have over his land.
As with the definition of public nuisance, in private nuisance too, ‘unlawful interference' does not mean that the activity or conduct of the defendant is inherently unlawful. An interference becomes unlawful and constitutes a nuisance when it unreasonably interference with the plaintiff's enjoyment of his land.
In an action for private nuisance the plaintiff must prove interference with the enjoyment of his land. Therefore a plaintiff must have an interest in land to be able to sue in private nuisance, unlike a claim based on public nuisance which does not require the plaintiff to have any interest over land.
Persons who have an interest over land are a landowner, a tenant and a licensee who has been granted a license to use the land for a particular purpose
Establishing Private Nuisance
A plaintiff in a private nuisance action need not prove special or particular damage. The elements required to establish private nuisance are:
Nuisance is not a tort which is actionable per se. Although it does not require the plaintiff to prove special or particular damage, the plaintiff must prove that he has suffered damage in order to succeed in his claim. As stated earlier, and derived from the definition of nuisance itself, the tort protects a person from two types of damage or interference – interference with the use, comfort or enjoyment of his land, and physical damage has materialized, the plaintiff must prove that there has been substantial interference.
What constitutes substantial interference differs according to which of the two recognized types of damage or interference the plaintiff has suffered.
Interference With The Use, Comfort Or Enjoyment Of Land
This interference is collectively known as an amenity nuisance. They result in a feeling of discomfort whereby one is unable to live peacefully and comfortably on one's own land arising from the defendant's activity.
What constitutes substantial interference depends on the fact and circumstances each case. A trivial interference does not give rise to nuisance. The court have held that the loss of one night's sleep due to excessive noise, using adjoining premises for prostitution or a sex shop and persistent telephone calls all constitute substantial interference. There is no formula upon which a situation may conclusively be said to amount to substantial interference or otherwise. Decisions have to be made on a case-by-case basis, and the courts have to take into account, whether the plaintiff's complaint is reasonably justified in the context of the surrounding circumstances.
In the case of Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd the plaintiff residents of Bukit Merah village sued the defendants, principally for an injunction to restrain the company (ARE) from operating. The plaintiffs alleged that the acivities from the factory produced dangerous radioactive gases harmful to the residents of Bukit Merah. The court granted a quia timet injunction and held that private nuisance was established. It was also held that the plaintiff's health was being affected harmfully, to a substantial degree.
In Dato Dr Harman Singh v Renal Link( KL) Sdn Bhd where the plaintiff's had for eighteen years operated a clinic and hospital for the treatment of ear, nose and throat ailments. The defendant operated a renal clinic at which patients receive haemodialysis on the floor above the plaintiff's clinic. The defendant was found liable for emitting from their clinic obnoxious fumes which escapes downwards into the plaintiff's clinic. The plaintiff, his staff and patients were found to have suffered substantial damage ranging from skin diseases, red and swollen eyes, headaches, lethargy and breathing difficulties.
Material Or Physical Damage To Land Or Property
Where actual physical damage to land occurs, the general principle is that it amounts to substantial interference and is therefore recoverable. But the actual physical damage is not recoverable automatically. The physical damage must be establish substantial in nature and it appears that what amounts to substantial interference is also a question of fact and determinable on a case by case basis.
As in the case Darley Main Colliery Co v Mitchell minor subsidence on the plaintiff's land was not actionable. A clear example of substantial interference is found in Goh Chat Ngee & 3 Ors v Toh Yan & Anor. The defendant who held a mining licence carried on mining work on his land. The plaintiff whose land was adjacent to the defendant's land alleged that through mining activities the defendants had committed negligence and nuisance. The mining activities constitute unnatural use of land as water had escaped and flooded the plaintiff's land causing to collapse and sink, subsequently causing flooding , erosion and settlement. The court found that a landowner had a common law obligation not to interfere with the support structure of his neighbour's land, which is provided under s44(1)(b) of the National Land Code 1965. The defendant had breached this statutory duty was also liable in nuisance for the unreasonable, unlawful and substantial interference with the use and enjoyment of his neighbour's land.
Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd is another useful example. In this case the appellant who owned the hotel were building a 20-storey extension to their hotel. The respondent 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 injunction was allowed as it was found that unless an alternative system of piling was adopted, the safety and structural stability of their building would be endangered. The Court of Appeal, on the authority of Rapier v London Tramways Coheld that once the defendant's activity constitutes an actionable 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 respondent right to an injunction as the physical damage to their property constituted a substantial interference which was actionable.
The first thing in establishing nuisance is to prove that the interference is substantial in nature. The plaintiff must prove the interference to be unreasonable. The unreasonableness of the defendant activity is the second requirement in establishing nuisance. The following factors have been used as guidelines by the courts in order to determine whether interference is unreasonable and therefore substantial and actionable.
There are two important points that have to be considered in these factors. One is that, unless otherwise stated; none of the factors are conclusive of whether the interference is unreasonable or otherwise. They are merely relevant consideration to be taken into account. Secondly because a substantial interference may amount to unreasonable interference and vice versa, quite often the court have held defendant's activities as being actionable nuisance on the basis that they constituted both substantial and unreasonable interferences. It is important to realise that the two elements of nuisance are interconnected and interdependent.
There is no clear cut definition as to what constitutes unreasonable interference may be seen in the HOL decision in Hunter v Canary Wharf Ltd. The plaintiff claimed damages in respect of interference with their television reception for a period of two years, caused by the defendant's nearby building which was 250 meters high. The court held that in the absence of an easement the mere presence of a neighbouring building did not give rise to an actionable nuisance. The court however, acknowledged that interference with television reception may amount to an amenity nuisance in appropriate circumstances. Generally, for an action in private nuisance to lie in respect of interference with the plaintiff enjoyment of his land, it has to arise from something emanating from the defendant's land, examples being, noise, dirt, fumes, a noxious smell, vibration and such like.
Damages and Location of the Plaintiff's and Defendant's Premises.
The location of the plaintiff's and defendant's [remises are relevant consideration in assessing whether the defendant's activity is unreasonable and amounts to substantial interference.
In the case of St Helen Smelting Co v Tipping the plaintiff owned a rubber estate which was situated in an industrial area. The smoke from the defendant's copper-smelting factory had caused considerable damage to the plaintiff's trees. Lord Westbury LC distinguished between ‘sensible injury to the value of the property' or ‘material injury' and injury in term of personal discomfort. His lordship stated that the level of interference must be balanced with surrounding circumstances, and the nature of the locality must be taken into account. For instance a person cannot aspect the air in an industrial area to be fresh and clean as in the mountains. If however the interference causes physical damage to property, then the locality or surrounding circumstances is irrelevant. An occupier of land must be protected from physical damage no matter where he is. Location is therefore an important factor when the interference is merely to the use, comfort and enjoyment of land as opposed to the physical damage to property.
For non-physical damage, Lord Wright in the case of Sedleigh-Denfield v O' Callaghan laid down the 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. His Lordship stated that a balance has to be maintained between the right of the occupier to 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 said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in a particular society.
This ‘balancing exercise in cases of non-physical damage was in plaintiff's favour in Bliss v Hall. In this case, the defendants managed a factory for three years and during this time smoke, smell and other remittances came from the factory. The plaintiff moved into a house near the factory. In action against the defendant, the latter raised the defence that it (the factory) had been there before the plaintiff. The court held that a defence that an activity has been going on before an action is brought to halt the activity is inapplicable as the plaintiff too, had his right: one of which was the right to clean air.
Certainly in amenity nuisance cases, the location of the premises would give an indication whether the defendant's activity actually constitutes an unreasonable and substantial interference to the plaintiff. What is regarded as excessive within that locality would generally be actionable. For instances in the case of Syarikat Perniagaan Selangor Sdn Bhd v Fahro Razi Mohdi & Ors, the appellant who had lease over a piece of land had agree 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 are must be prepared to accept a lot of noise from their neighbour 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 and is nuisance.
The general principle remains what is regarded as excessive in a particular locality would generally be accepted as unreasonable and amounts to a substantial interference. However the balancing of conflicting interest can sometimes give rise to unpredictable and unexpected outcome. Murdoch v Glacier Metal Co Ltd is one such case, where it was held that despite being exposed to continuous loud noise from a factory during the night , the plaintiff's claim in nuisance could not succeed. The court found that there was no automatic common law nuisance when sleep was disturbed. In this case the proximity of the plaintiff's property to a busy bypass played a role in negativing the actionability of the plaintiff's claim.
Public benefit of the defendant's activity
If the object of the defendant's conduct benefits the society generally, it is more likely that the conduct will not be deemed unreasonable. Nevertheless, the defendant's activity which benefits the public will still constitute actionable nuisance if the activity causes damage to property or substantial interference to the plaintiff's enjoyment of his land. So a claim in nuisance for the building of schools, factories, government hospitals and power stations, although giving rise to interference in the form of noise and dust to nearby residents, would probably be denied on the basis of the utility derived from the construction of the facilities.
Perbadanan Pengurusan Taman Bukit Jambul v Kerajaan Malaysia is illustrative. 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 it caused pipe and drain blockages. Further, the renovated units intruded into the common five-foot pathway, thereby causing nuisance.
The court denied the plaintiff's claim. It held that whether something amounted to nuisance or not must be considered with reference to local circumstances and surroundings. An inconvenience does not necessarily give rise to an actionable nuisance. The purpose of the renovation provided substantial public benefit. On the facts the defendant had provided a new five-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 estoppels the plaintiff was stopped from going back on the consent given by the predecessor.
Even if the defendant's activity gives rise to public benefit, this does not automatically mean that his activity is not actionable. An example is Adams v Ursell. The defendant was in the trade of selling fried fish. The shop was located in the residential part of street. Faced with a claim for an injunction, he argued that his business benefited the public, especially the poor and therefore the smell produced by his trade was justified. The court rejected the defence as the plaintiff's comfort and convenience also had to be considered.
Extraordinary sensitivity on the part of the plaintiff
The law of nuisance is not sympathetic to a plaintiff who is extra sensitive whether the sensitivity is related to the plaintiff himself or to his property. If the only reason why a plaintiff complains of dust is because he has an unusually sensitive skin, his claim will probably fail. Sensitivity however, is irrelevant once unreasonable and substantial interference is proved, for once nuisance is established, and the fact that the damage is more than what is reasonably expected, due to the sensitivity of either the plaintiff or his property, becomes irrelevant. In short, sensitivity cannot be used as a basis for claiming that the defendant's conduct constitutes an unreasonable and substantial interference, but once unreasonable and substantial interference established, sensitivity will not deprive the plaintiff from obtaining a remedy. In McKinnon Industries Ltd v Walker the defendant's factory emitted noxious fumes which damaged the plaintiff's commercially grown and delicate orchids. The court found the defendant liable as the fumes would have damaged flowers of ordinary sensitive.
By contrast, in Robinson v Kilvert, the defendant was in the business of making paper boxes. The process involved using hot air. The plaintiff who lived in the floor above the same premises was in business of selling special paper which was sold according weight. Naturally, the hot air dry up. The raised temperature in the plaintiff's premises did not inconvenience the plaintiff's workers and it would not have affected normal paper. The court denied the plaintiff's claim for compensation on the ground that ordinary paper would not have been affected by hot air and therefore the plaintiff's property was extra sensitive.
Interference must be continuous.
The interference must be something that is continuous or occurs very often as generally a continuous activity will constitute substantial interference. This requirement is not conclusive but it is certainly a factor in deciding whether the interference is substantial or otherwise. For instance, where the roots of a tree belonging to the defendant had spread to the neighbouring property and caused structural cracking to that property, such interference amounted to continuing nuisance until the completion of remedial works. Yet a temporary interference has been held to constitute a nuisance. An isolated incident has also been held to constitute a nuisance, if the incident is due to a dangerous state of affairs on the defendant's premises. In any case the recurrence of the interference is a relevant consideration.
Temporary interference and isolated incident.
It has been stated above that one of the relevant consideration in establishing nuisance is that the interference must be continuous. As stated, this factor is not conclusive and that a temporary interference or an isolated incident may constitute nuisance. The general principle is that more serious the interference, the more likely the court will regard it as unreasonable. In MBF Property Services Sdn Bhd v Madhill Development Sdn Bhd, the construction of a road over the defendant's land for the purpose of connecting two pieces of the plaintiff's land was an actionable nuisance as the road was tarred, pre-mixed and thus permanent in nature. A mandatory injunction was accordingly granted to the defendant.
In cases of temporary interference, the court are likely to be reluctant to grant an injunction except in extreme cases, for instance where damages will not be an adequate remedy. If the plaintiff is claiming for damages as opposed to an injunction, the nature of injury suffered by him will be a relevant factor in determining whether the temporary interference is an actionable nuisance. If his injury is temporary the court may hold that the interference is too trival to be considered as a nuisance. An example is where a person suffers inconvenience while his neighbour is renovating his house.
In Sedleigh-Denfield v O' Callaghan the defendants were held liable in nuisance when a result of allowing a culvert on their hand to remain blocked, the plaintiff's adjoining property was flooded. The court held that flooding on the plaintiff's land was foreseeable as result of the state of affairs on the defendant's land.
In British Celanese Ltd v AH Hunt (Capacitors) Ltd, the defendant, a manufacturer of electrical components kept string of metal foil in his factory. These strips of metal foil were blown away by the wind to an electrical powerhouse and caused a disruption to the electrical supply in the area, which consequently damaged the plaintiff's machines and materials resulting in the loss of production.
In Thean Chew v The Seaport(Selangor) Rubber Estate Ltd, the plaintiff's husband suffered injuries from which he later died when a diseased rubber tree belonging to the defendant fell onto the highway, and onto the lorry in which the deceased was travelling. The defendant was found liable in nuisance as he had failed to remedy the dangerous state of his property within a reasonable time after he did or ought to have become aware of it.
Therefore if a person has not caused or permitted to exist on his premises a source of danger which may give rise to material injury to the property of his neighbour, he cannot be liable in nuisance.
The circumstances in which a temporary or isolated interference may constitute an actionable nuisance may be summarised thus:
The general principle is that length of time and therefore persistence of the interference is taken into consideration in establishing nuisance. If the interference is continuous, it is very likely to constitute an unreasonable and substantial interference, except if the plaintiff suffers from an abnormal or extraordinary sensitivity. If the interference is temporary or occasional, the general rule is that there will be no liability as we are expected to put up with a certain amount of interference from our neighbour such as if a neighbour conduct repairs to his house for the duration of two weeks or even a month, provided that he has taken all reasonable precautions to avoid any inconvenience to his neighbour.
A temporary interference may give rise to an actionable nuisance if the interference causes physical damage, thereby making the interference substantial. With regards to remedies, an injunction might not be readily granted if the interference is temporary or occurs intermittently. This because an injunction is an equitable remedy and will not be granted if an award of damages would be insufficient. When damages are prayed for, the length of time of the interference is an important factor. The court will then consider whether the defendant's activity is reasonable or otherwise in the circumstances.
If the interference occurs only once, thereby making it an isolated interference, the principle is that the defendant will only be found liable if and only if, there is a pre-existing dangerous state of affairs on his premises for which damage to the property of the plaintiff is reasonably foreseeable.
The existence of malice may cause the defendant's act to be unreasonable. This is not a certainty in all cases and the facts of each case have to be considered.
In Christie v Davey the plaintiff was a music teacher who conducted music classes at her house. Her neighbour, the defendant, did not like the sounds from the musical instrument and in turn shouted, banged the adjoining walls and clashed pots and pans whilst the plaintiff was conducting her classes. The court found that the defendant was malicious in his action and an injunction was granted to the plaintiff.
In Hollywood Silver Fox Farm v Emmett, the plaintiff bred special foxes which were extremely sensitive during their breeding season. The defendant intentionally let out a few gunshots near foxes' cages with the aim to cause damage. The court found the defendant liable. Even though the plaintiff here used his premises for a particular purpose which was extraordinarily sensitive, nevertheless the defendant's act was unnecessary and malicious, rendering it unreasonable and therefore the fact that the plaintiff's property was sensitive was irrelevant.
The two cases above must be distinguished from Bradford Corporation v Pickles where the defendant deliberately the flow of water on his land so that the plaintiff's land received less water. The court held that since the plaintiff did not have a right to an unlimited and continuous supply of water, the defendant was not interfering with any right of the plaintiff that was recognised by the law. The defendant's act was in fact lawful and his bad motive was irrelevant.
The distinguish factor is in Bradford's case the defendant's act was lawful and did not constitute any actionable interference to the plaintiff's right as the plaintiff had no such right. In contrast, in both Christie v Davey and Hollywood Silver Fox Farm v Emmett the defendant interfered with a legally protected interest of the plaintiff which was to indulge in their interest on their land, namely to conduct music lessons on her premises and to breed special foxes on his land, respectively. Since the existence of interference was established the only issue was whether the interference was unreasonable for it to constitute a nuisance.
Who May Sue
One of the issues recently is whether a claimant must have an interest in the land to be able to sue. The traditional view is that the function of nuisance was to protect a person who has an interest over the land in enjoyment of his property. These claims include not only free holders, but also lesses and even tenants at will but it excluded those with no property interest.
In the case of Malone v Laskey, the Plaintiff was using a toilet. The lavatory cistern fell on her head because of vibrations from machinery on adjoining property. Her claim failed as she was merely the wife of a mere licensee, and had no proprietary interest herself in the land. However, today she would be able to claim in negligence. The House of Lords in Hunter v Canary Wharf over ruling the Court of Appeal decision in Khorasandjian v Bush. In Hunter v Canary Wharf, confirmed this rule with the consequence that, actions for personal injuries and damage to chattels must be brought in negligence.
However, the wife of a homeowner would be able to sue as she has a beneficial interest in the matrimonial home, jus tertii the right of a third person is not a defence to an action of nuisance. A person who is in exclusive possession of land may sue even though he cannot prove title to it
Who Can Be Sued
There are three categories of person that are potentially liable in private nuisance.
The source or creator who creates the interference, whether or not he occupies the land from which the interference emanates, will be liable for the nuisance. For instance, if an employee rears animals on a piece of land for his employer-licensee, and he latter does not ensure that the waste of animals are properly channelled out of the land, he will be liable even though it is the employee and not the licensee himself, who is in occupation of the land. This is because the licensee will be deemed to have been invested with the management and control of the premises. There is no requirement that the defendant creator must have an interest over the land or that the land belongs to him.
Marcic V Thames Water Utilities Ltd, the defendant company was a statutory sewerage undertaker. It was responsible for the removal of the sewage in the area where the 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. The court held that as owner and those in control of the sewers, the defendant company had a duty to do whatever was reasonable in the circumstances to prevent such hazards from damaging property belonging to others. The court found that the company had or should have had knowledge of the hazard and it was within their capabilities to abate the nuisance.
In Pride of Derby and Derbyshire Angling Association v British Celanese Ltd, fishing in a river was ruined by pollution from several factories, but the defendants could not escape liability by pleading that they were not the only polluters. A landlord may be liable for nuisance emanating from land in certain exceptional circumstances, for example if the landlord had knowledge of the nuisance before letting, or where the landlord reserved the right to enter and repair the premise.
In private nuisance suits, it is usually the case that the defendant is the occupier of the land from which the interference emanates. He will be liable for all positive acts of interference, including omissions which give rise to a nuisance. The occupier may also be liable for the acts and omissions of third parties in the following situations:
Servant or employee
An occupier is liable for nuisances caused by persons who are subject ti his control, based on the principles of vicarious liability.
An occupier may also be liable for the act or omission of the independent contractor in circumstances when the duty is ‘non-delegable'.
In the case of Bower v Peate the defendant was found liable when his independent contractor undetermined the supports for the plaintiff's adjoining house. The principle that arose from this case is, if the nature of works that a man employs another to do is expected to give rise to injurious consequences to his neighbor, 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'.
A defendant who has statutory authority to interfere or conduct works on the highways owes a duty to the general public to exercise his statutory authority carefully, and this duty cannot be delegated to an independent contractor. So, if the contractor causes interference or creates danger, or is negligent with the result that someone suffers special damage, the defendant will be held liable.
The leading case is Sedleigh Denfield v O'Callaghan where the defendant 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 the defendant, but the person who was responsible for cleaning the ditch knew about the piping of the ditch. No proper precautions were taken to ensure that the pipe would not be clogged up with leaves. During one extraordinary heavy rainfall the pipe was clogged and the plaintiff's land which was adjacent to the defendant's land was flooded. The heavy rain in fact occurred three years after the pipe were placed in the drain. The court found the defendant 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 the knowledge was imputed to the defendants. It was stated that when a nuisance has been created by an 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.
The question of whether an occupier, a highway authority may be liable for interference committed by a third party on the highway arose in Parimala a/l Muthusamy & Ors v Projek Lebuhraya Utara Selatan. The defendant was the highway authority responsible for the construction, maintenance, management and the safety of the North-South Highway. The plaintiffs were travelling in a car driven by the deceased when it hit a stray cow which had found its way onto the highway through the breach in the fencing system. 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. However, an occupier of land upon which a nuisance has been created by another person if only liable if only he continues the nuisance. The occupier is deemed to continue a nuisance if with knowledge or presumed knowledge of its existence, he fails to take any reasonable means to bring it to an end though with ample time to do so. In this case the court found that it could not be ascertained that the defendant knew or could be presumed to know that at the relevant time a breach of the fence had occurred or that a cows was strolling on the highway. Consequently the defendant could not be said to continue the nuisance since its foreknowledge was not conclusive.
In the English case of Lippiatt v South Gloucestershire Council, a group of travellers had for a few years occupied the defendant's council land. The plaintiff who were tenant farmers of adjacent land alleged that the travellers had frequently trespass on their land and carried out various activities including dumping rubbish which ultimately interfered with the plaintiffs' use and enjoyment of their farmland. They further alleged that the council was aware of and tolerated the travellers' conduct. The court found the travellers to be licencees, which meant that the defendant council was the legal occupier of the land. Thus it may be said that it has created the nuisance by allowing the licencees 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 the plaintiff's land.
Liability for nuisance due to interference caused by acts of nature shares the same principle as that for interference caused by trespassers or third parties. The occupier will be liable if the occupier knows or ought to know of the interference.
In Goldman v Hargrave a tree, a hundred feet high, on the defendant's land was struck by lighting and started to burn. The defendant requested the third party to fell the burning tree and to saw it into sections. Due to a strong wind and a rise in temperature, the fire spread to the plaintiff's property, causing damaged. The court held the defendant liable as there was proof that damaged was foreseeable as the result of the defendant's inaction. Thus an occupier must take reasonable steps to remedy a potentially hazardous state of affairs, including those that arise naturally.
Principle in Goldman was adopted in Leakey v National Trust. In this case, the defendant owed a piece of land consisting of a conical shaped hill composed of soil made it peculiarly liable to cracking and slipping as a result of weathering. The plaintiffs were the house owners who lived at the base of the hill. For many years the plaintiff had to 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 defendants' land onto one of the plaintiff's houses. The plaintiff complained but no action was taken. Several weeks later the bank fell near the plaintiff's house and in fact further fall would have put the house at risk. The defendant refused to clear the fallen earth and the debris and claimed that they were not responsible for what had happened. The plaintiff then spent money to clear to clear the material and to conduct some protective works and prayed for an injunction requiring the defendant to remove some debris and to prevent future falls of earth, soils and tree-stumps, and damages for nuisance. The court of Appeal upheld the earlier decision in favour of the plaintiff 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 minimise the risk of damage from materialising. The plaintiff must prove that the occupiers knows or ought to know of the risk of encroachment.
In Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd & Ors, the plaintiff's plant nursery was destroyed when a natural limestone hill collapsed and fell onto it. The landslide occurred after a heavy rainfall and thunderstorm. The plaintiff sued, among others, the first defendant, the operator of a quarry on the limestone hill on a plot adjacent to the plaintiff's land. The plaintiff case in nuisance was that Leakey applied-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 minimise a known or foreseeable damage. The court however held that Leakey is inapplicable in Malaysia by virtue of s3 Civil Law Act 1956 and the common law position as it existed before April 7, 1956 was applicable, that the plaintiff must prove that the damage to his property is the result of defendant's activity and not due to the latent defect of the limestone hill. Following this pre-Leakey principle, the plaintiff's claim could not succeed as he could not prove decisively that the collapsed of the hill was caused by quarrying operation. The court further held that even if Leakey is applicable, the plaintiff would not have been able to prove that the first defendant knew or ought to have known that the hill will collapsed.
In England the principles governing liability of occupiers of natural nuisances has been further refined in Holbeck Hall Hotel Ltd v Scarborough Borough council. Here the claimants owned a seaside hotel which stood on a cliff on which is rested slipped into the sea. The Court of appeal affirmed the lower's court finding that the defendants were or should have been aware of the danger, that they owned a duty to take a reasonable step to reduce any threat to the claimants' property caused by the potential failure of the support provided by their own land.
The court applied Leakey- that an occupier could be liable for damage to neighbouring property which is caused by a state of affairs arising naturally on his own property.
However, liability will only be established subject to these factors : where the type and the extent of the harm is foreseeable. Secondly, the occupiers is said to 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 omitted to take reasonable steps to remove or reduce the threat.
Conduct of previous occupier
If the interference had existed before the defendant occupier acquired the property, he will be liable if the plaintiff can prove that he knows or ought to know of it existence, but not otherwise. So if an occupier has not created the interference and does not know about it he will not be held liable. If he has created it, he will be liable even after he has left the premises.
The general principle:
An occupier is not liable for the act of, or condition created by a trespasser or due to natural causes. He will however be liable if he “accepts” the situation for his own purpose, or if he continues the interference.
An occupier is deemed to continue the interference if he aware of, or ought to be aware of the interference and he does not take reasonable steps to rectify the situation.
“What amount to reasonable step is subject to his capability in the circumstances”
THE TEST OBJECTIVE ONE: would a reasonable man be aware that interference may result from prevalent circumstances? The test become subjective in that the particular defendant's ability and means to rectify the interference is taken into account in order to determine whether he has discharged his responsibility in combating or lessening the interference.
Landowner Or Landlord
General principle: a landowner who has surrendered possession and control of a certain premises will not be held liable for any nuisance that occurs on those premises. There are three situations where the landlord may be held liable:
If he has authorised the nuisance
Where the landlord authorise the nuisance either expressly or impliedly, he will be held liable. A tenant or lessee who uses the land in accordance with and with connection with the tenant or lessee's profession or the purpose for which the land is leased has every right to use the premises for the agreed purpose, but if the agreed purpose give rise to an unreasonable and substantial interference, the nuisance will also be attributed to the landlord.
The test whether the nuisance is something that is normal and natural as a result of the tenancy or lease.
For instance in Tetly v Chitty, a local authority was held liable when nuisance from go-karting activities on land which was let by it. In these circumstances the tenant may also be found liable.
If the landowner has an agreement with the tenant or lessee, and the tenant or lessee creates a nuisance in breach of agreement, the landowner will be excluded from liability.
Smith v Scott, the defendant local authority had rented out a house to a family who had some domestic problems. This family had caused a lot of nuisance to the plaintiffs who eventually had to move from their house. The court found the defendant not liable for although they were aware of the activities of the tenants, the tenancy agreement stipulated that tenant could not caused any nuisance to other people. Furthermore, the nuisance was not as a result of the tenancy, but solely due to the acts of the tenants themselves.
By contrast in Page Motors Ltd v Epsom & Ewell Borough Council, it was held that a subjective test ought to be applied to an occupier for the acts of third parties who were not under his control in that if the occupier knows that the third parties is causing nuisance to others, he must take reasonable steps to stop the nuisance.
In this case, a group of gypsies occupied the defendant local authority's land and the defendant was found liable when the gypsies' activities caused a nuisance to the plaintiff's business, as the defendant was aware of the gypsies' activities on its land. In Page the defendant was an occupier whereas in Smith v Scott the defendant was the landlord who was not in occupation. It is submitted that there should not be any watertight distinction between the liability of an occupier or a landlord not in occupation especially where the occupier or landlord knows of the interference.
b) If he know or ought to have known of the nuisance before the tenancy became effective
Knowledge of the existence of the nuisance before the premises is let will make the landlord liable. This is based on the principle that the creator of the nuisance is liable even though he does not occupy the land himself.
The tenant himself may be liable for “accepting” or ‘continuing” the nuisance and the basis of his occupation. Even if the tenant has agreed to improve the condition of the premises, the landlord will nevertheless be liable if the nuisance is not abated, as it is his responsibility and not the tenant's to remedy the nuisance before it causes injury to another.
The landowner or landlord is also liable if he ought to have known the nuisance at the time the tenancy commenced. This rule does not apply if it is not reasonable for him to have known of the situation giving rise to an actionable nuisance. The test is therefore objective. The interference or possibility of interference ought to be known.
The type of interference, be is it physical damage to property or personal discomfort must be reasonably foreseeable by a person in the defendant position.
c) If he has covenanted to repair or has a right to enter the premises to conduct repair works
Generally, if the nuisance occurs after the tenant has occupied the premises, liability of the landlord depends on the degree of control he has over the premises. If there is an agreement that the landlord will conduct repair works, then he will be liable for any interference that arises as a result of any disrepair.
The duty is owed to anyone who is reasonably expected to be adversely affected by the defect in the state of the premises. A developer of a condominium may be liable in nuisance to resident-owners of apartment if he has covenanted to repair any defect on the premises and has reserved the right to enter the premises to conduct the said repairs.
If the agreement is that the tenant or lessee should conduct repair works, liability depends on the following two factors;
If the landlord knows of any existing defect or possibility of nuisance at the time the tenancy commences, he will still held liable.
If the nuisance occurs after the tenancy has commenced, the issues revolves around the degree of control that the defendant as landlord retains. If he does not have the right to enter the rented premises to conduct any examination as to the state of the premises, then he will not be held liable. If the landlord reserves his right to enter the premises for repair purposes, this is considered as sufficient control to make him liable even though he is not aware of the damage or nuisance that has arisen. Even if the landlord has undertaken to repair or has the right to enter the premises to conduct repair, the tenant can also be liable as the occupier.
The defence is applicable to the private nuisance and a continuous private nuisance for the period of twenty years is the good defence. The defendant has to prove that the interference is an actionable nuisance for the whole period of the twenty years and defendant also have to prove that the interference is something that done as part of his right on the plaintiff ‘s premises which usually easement..
In the case of Sturges V Bridgman, the defendant is the biscuit manufacture and his had produce a lot of noise and cause vibration on plaintiff premises, it had occurs twenty years. The plaintiff claimed for nuisance due to the noise and vibration which interfered with the treatment of his patients. The court held that the defence of prescription was inapplicable as before the action was taken the interference did not constitute a nuisance as it did not affect the enjoyment the plaintiff had over his property an injuction was accordingly issued against the defendant.
Easement define in National Land code under s.282 as any right granted by proprietor to another for beneficial enjoyment of his land but the right not include the right to take anything from servant land or any right to the exclusive possession of any part of the land but not prevent the right to place or maintain in the upon the servant land, any installation or other work.
The grant of an easement is a formal process in Malaysia and easement of say, a particular installation which belongs to the defendant on the plaintiff land will stipulate the length of time the easement is granted for. Plaintiff may only release the easement with the consent of defendant and cancellation of the easement is subject to the easement impending the reasonable use of the plaintiff land. Within this limited right of the plaintiff in releasing and cancelling a validity created easement, it is submitted that an easement, but not prescription, generally provide a good defence in Malaysia. A prescription not related to an easement might still be a good defence. The defence to continued with the activity for the long period.
If there are confer power to the defendant to conduct in such manner, the defendant will escape from any liability notwithstanding that the activity gives raise interference. The defendant, however have to prove to the court that interference that occurs can't be avoided even reasonable precautionary measure had been taken. Statutory authority is generally not a good defence if the work cause substantial damage to the neighboring property. The defence ironically stand if the interference is an inevitable consequence of the defendant's operating or having to all reasonable precaution that have been taken by defendant. Plaintiff without readdress due to overriding public interest. Usually practice the government may provide compensation for the relevant statutes. Damages causes to a plaintiff property arising from nuisance created by a local authority in pursuance of it statutory duty will be compensated from any damages. An injunction will presumably not be granted against local authority for the exercise power under statute.
Under statutory duty carry out his operations in a specified place, provide the reasonable care for been taken, for he not been liable. If the particular statute confers discretion to the undertaker in selecting the site of the operation, liability may arise if he carries out the work in place where nuisance is cause and he could have carried out the work just as effectively elsewhere without creating any nuisance.
Consent or defence of property might be valid for defence. In the nuisance based on negligent conduct, contributory negligent also can use as the good defence. A plea made by defendant that plaintiff came to the nuisance, in that the defendant operation has been carried out before the plaintiff moved into vicinity is a not a good defence.
This topic regarding private nuisance law is to protect the interest of the people as the tort of trespass protects a person against direct invasion. The law of torts which deals with dispute between adjacent landowners is private nuisance. It involves drawing a balance between the right of one person to use their land in whatever way they wish and the right of their neighbor not to be interfered with. It is an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. These laws of torts are to provide damages and remedies for those people who had suffered damages from nuisance. When doing this topic, we could conclude that the law of private nuisance has their own element which if it is proven, then the people who suffered damages may sue the parties who had interfere with their enjoyment of their land or who had made nuisance.
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