Sunday, March 8, 2009

Nuisance

Introduction

Nuisance under law of tort is to provide comfort to persons who have proprietary interests in land and to members of society generally, through control of environmental conditions.

The law of nuisance is concerned with the balancing of competing interest



Nuisance distinguished

a) Nuisance and trespass to land

In an action for trespass to land there must be a direct act of crossing over into another’s property. However, an action nuisance may be maintained in cases of consequential harm.

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

P operated a petrol station. D built a federal highway which was on higher ground than the petrol station causing the road to the petrol station to be closed. D offered to build a new road to the petrol station but P refused.

Held: P had failed to prove nuisance. With regards to the difference between nuisance and trespass to land, nuisance is of a bigger class than trespass. Whether as act is nuisance or trespass depends on whether there is a direct physical interference. Trespass means direct entry onto one’s land and is actionable per se without proof of special damage, whereas nuisance is interference to P’s interest over his property, and does not necessarily require entry by D and P needs to prove special damage.

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

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



b) Nuisance and negligence

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

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

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


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

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

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

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

Hiap Lee Brickmakers Ltd v Weng Lok Mining Co Ltd [1974] 2 MLJ 1 PC.



c) Nuisance and the rule in Rylands v Fletcher

Rule in Rylands v Fletcher imposes liability when something that is likely to cause mischief escapes from D’s land onto P’s land, causing damage to P. This may give rise to an action for nuisance but not necessarily so.

In nuisance, there is generally a continuous interference while in the rule of Rylands v Fletcher, one single act of interference is sufficient.

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




Damage and remedies


Generally there are 2 types of damages:

i) Damage to property

- Easily identifiable and self-explanatory

- Includes nuisance by encroachment on a neighbour’s land


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

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



Remedies:

i) Injunction

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

ii) Monetary compensation

Easy for physical damage to property

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

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

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

iii) Report to the relevant authorities

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

iv) Self-help: abatement




The concept of reasonableness

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


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


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

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



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

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

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

cf.

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

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


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

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

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



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



Generally there are 2 types of nuisance: public nuisance (crime & tort) or private nuisance. Some conduct may amount to both public and private nuisance.




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 – see 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.



Public nuisance is also a crime

Public nuisance is a crime as well as a tort. Person found guilty to public nuisance may be subjected to criminal sanction. Exp: s268 – 294 Penal Code and s89, s96, s97, s98



Persons who may claim

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


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

- P need not have an interest in land.

- P must have suffered special damage

Guidance to determine the existence of special or particular damage:

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

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

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

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

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



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

s8(1) Government Proceedings Act 1956 (Revised 1988), Act 359 à 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. Relator 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 relator action if the claim is brought by a local authority in the public interest.




Private nuisance

Definition:

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

…an unlawful interference with a person’s use, comfort, enjoyment and any interest that a person may have over his land.

Accepted by Hiap Lee Brickmakers Ltd v Weng Lok Mining [1974] 2 MLJ 1 PC.




Public v Private nuisance

The difference between public and private nuisance was laid down in

MPPP v Boey Siew Than [1979] 2 MLJ 127, FC

Gunn Chit Tuan J (at p 158):

…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, however, 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. The difference between a public and a private nuisance is that, in regard to the former, rights which are common to all subjects are infringed. Such rights are unconnected with the possession of or title to immovable property


Thus, P must prove interference with the enjoyment of his land. P must also have an interest in land to be able to sue in private nuisance, unlike in public nuisance, whereby P is not required to have interest over land. Persons having interest over land includes landowner, tenant, licensee etc.



Establishing Private Nuisance

Elements required to established private nuisance:

a) Substantial Interference

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 a person from

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

ii. physical damage to land or property

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


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

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

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

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

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

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

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

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

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

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

[1992] 4 CLJ 2207 SC; [1992] 1 CLJ (Rep) 8, SC

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


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

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

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

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

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

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



ii) Material or physical damage to land or property

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

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

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

Held: Minor subsidence on Ps land not actionable.

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

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

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

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

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

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

Rapier v London Tramways Co [1893] 2 Ch 588

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

Hiap Lee Brickmakers Ltd v Weng Lok Mining Co Ltd [1974] 2 MLJ 1 PC



b) Unreasonableness

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

No clear-cut definition as to what constitutes unreasonable interference

Hunter v Canary Wharf Ltd (HL)

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

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


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



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

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

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

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



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

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

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

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

Lord Wright (at 903):

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

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

Bliss v Hall [1838] 4 Bing NC 183

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

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

Sturges v Bridgman [1879] 11 Ch D 852

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



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

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

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

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

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

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

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



ii) Public benefit of the defendant’s activities

If the object of D’s conduct benefits the society generally, it is more likely that the conduct will not be deemed unreasonable. But D’s activity which benefits the public will still constitute actionable nuisance if the activity causes damage to property or substantial interference to P’s enjoyment of his land.

Perbadanan Pengurusan Taman Bukit Jambul v Kerajaan Malaysia [2000] 1 AMR 228

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

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

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

Adams v Ursell [1913] 1 Ch 269

D was in the trade of selling fried fish. The shop was located in the residential part of a street. Faced with a claim for an injunction, he argued that his business benefited the public, especially the poor and therefore the smell produced by his trade was justified.

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

Kennaway v Thompson [1981] QB 88

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



iii) Extraordinary sensitivity on the part of the plaintiff

The law of nuisance is not sympathetic to a P who is extra sensitive, whether the sensitivity is related to P himself or to his property.

Sensitivity cannot be used as a basis for claiming that D’s conduct constitutes an unreasonable and substantial interference, but once unreasonable and substantial interference is established, sensitivity will not deprive P from obtaining a remedy.

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

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

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

cf.

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

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

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

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

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

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

cf. with recent Canadian case

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.

cf

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

Held: Temporary noise and dust was nuisance.

Spicer v Smee [1946] 1 All ER 489

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



v) Temporary interference and isolated incident

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

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

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

Spicer v Smee [1946] 1 All ER 489

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

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

Atkinson J (at 493):

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


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

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

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


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

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

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

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


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

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

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




vi) Malice

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

Christie v Davey [1893] 1 Ch 316

P was a music teacher who conducted music classes at her house. D (neighbour) did not like the sounds from the musical instruments and in turn shouted, banged at the adjoining walls, and clashed pots and pans whilst P was conducting classes.

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



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

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

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

cf

Bradford Corporation v Pickles [1895] AC 587 HL

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

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





Who can sue

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

i. Landowner

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

Foster v Warblington UDC [1906] 1 KB 648 CA


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


Malone v Laskey [1907] 2 KB 141 CA

occupier’s family member (challenged by subsequent case)


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

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

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






Who can be sued

3 categories:

a) Creator

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

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

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

Telley v Chitty [1986] 1 All ER 663

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

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

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

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

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




b) Occupier

Occupier will be liable for

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


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


i) Servant or employee

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

Spicer v Smee [1946] 1 All ER 489

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

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



ii) Independent contractor

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

Bower v Peate [1876] 1 QBD 321;

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

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

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

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

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



iii) Trespasser

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

D owned a piece of land on which there was a big ditch. A trespasser subsequently placed a pipe in the ditch without the knowledge of D, but the person who was responsible for cleaning the ditch knew about the piping of the ditch, but no proper precautions were taken to ensure that the pipe would be not be clogged up with leaves. During one extraordinarily heavy rainfall the pipe was clogged and P’s land, which was adjacent to D’s land, was flooded.

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




iv) Licensees

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

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

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



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



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

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

Held: The court found the travellers to be licensees, which meant that D council was the legal occupier of the land. Thus it may be said that it has created the nuisance by allowing the licensees to occupy his land and use it as a base for causing unlawful disturbance to his neighbours. It did not matter that the activities took place on P’s land.



v) Natural causes

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

Goldman v Hargrave [1967] 1 AC 645 PC

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

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



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

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

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


Held: Court upheld the earlier decision in favour of P and stated that a general duty is imposed on occupiers in relation to hazards occurring on their land, whether the hazards were man-made or natural. If an occupier knows that there is a natural hazard on his land, whether it is in the form of something growing on the land, the soil itself or something on the land and this hazard encroaches or threatens to encroach onto another’s land so that the other person might suffer damage, the occupier is under a duty to prevent or minimize the risk of damage from materializing. P must prove that the occupier knows or ought to know of the risk of encroachment.


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

Rowlatt J (at 338/287):

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

Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 All ER 705 CA à applied Leaky.

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

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

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



Liability will be established

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

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

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



vi) Conduct of previous occupier

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

St Anne’s Well Brewery Co v Roberto [1928] 140 LT 1

Followed in

Wilkins v Leighton [1932] 2 Ch 106




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.

cf

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

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

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



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

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

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

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

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

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

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

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

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

Payne v Rogers [1794] 2 H B1 350.

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


Defences

1. Prescription

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

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

2. Statutory authority

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

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

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

3. Other defences

- necessity

- consent

- defence of property

- contributory negligence

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

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

c) Landowner or landlord

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

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

i) If he has authorised the nuisance

Authorisation can be express or implied authorization:

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

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.

cf

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

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

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

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



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

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

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

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

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



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

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

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

Payne v Rogers [1794] 2 H B1 350.

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



Defences


1. Prescription

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

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


2. Statutory authority

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

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

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


3. Other defences

- necessity

- consent

- defence of property

- contributory negligence

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

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


2 comments:

  1. what happens if the nuisance starts, then a Plaintiff starts a lawsuit, but way before the court hearing the nuisance stops?

    is it still possible to obtain court orders?

    ReplyDelete
  2. Thank you for sharing the information. I would like to tell that I too have recently dealt with a law firm called Penaos who is providing the service of nuisance law which was a great experience with them.
    penaos.com

    ReplyDelete