Tort (2012): Q3

Nuisance
Definition
- nuisance is interference with the use and enjoyment of land
- law of nuisance provides comfort to persons who have proprietary interests in land and
society
- a person has every right to enjoy his land
- as long as it does not cause inconvenience to other ppls use and enjoyment of land
- about balancing of competing interest
- created when the person knows the existence of nuisance but allows it to continue for an
unreasonable time or in unreasonable circumstances
- x a tort that is actionable per se
- have to prove Pf suffers some form of damage
Damage
- 2 types of damage: damage to property and interference to personal comfort
- pure economic loss in the fall of the value of the land is recoverable (Arab- Malaysian
Finance Bhd v Steven Phoa
- damage must be proven in an action for nuisance to succeed in nuisance claim (Wong
See Kui v Hong Tin Mining)
- damage must be a reasonably foreseeable one (Leong Bee & Co v Ling Nam Rubber
Works)
- actual damage need not be established for nuisance caused by smell as smell affects the
senses or nerves (Dr Harman Singh v Renal Link)
Remedies
1. Injunction- prevent nuisance from continuing
2. Monetary compensation- granted when there is damage to property
3. Report to relevant authority- Local Government Act
Reasonableness
- x the same as the reasonableness (reasonable man test) in the tort of negligence
- scope of unreasonableness in nuisance is much wider than in negligence
- not only limited to the conduct but also cover the effects and consequences of the Dfs

action
- x universal formula
- according to the ordinary usage of land by the ppl living in that particular society
- reasonableness is measured by balancing the rights and interests of parties
- a compromise process
- Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi
- the court held that every one has a right to make certain amount of noise and has to
tolerate a certain amount of interference from the neighbors to enjoy the property but no
one has the right to create intense noise or tolerate the intense noise that is beyond the
reasonable standard and becomes a nuisance. The ordinary use of the residential property
is not nuisance.
- interference, act, activity that is unreasonable = nuisance established
- Baxter v Camden London BC
- the court held that Df x liable in nuisance because Pf affected by the noise from other
tenants due to the poor soundproofing
- Sampson v Hodson- Pressinger
- Df liable in nuisance because the Pf affected by the noise fr Df due to flawed
construction of roof terrace- ordinary use caused excessive noise
Types of Nuisance
1. Public
2. Private
Public Nuisance
Definition:- public nuisance arises when an act materially affects the reasonable comfort and
convenience of a class of the sbjects of the State (MPPP v Boey Siew Than)
- public nuisance arises when there is an interference with public rights
- R v Johnson
- the Df was liable in nuisance by making hundreds of obscene phone calls to 13 women
over 5 yrs

Persons Who May Claim- 3 categories

1. Criminal proceedings- PP on behalf of the Govt

2. Civil Proceeding- a particular person who suffers special damage
- x interest in land
- must suffer special damage
How special:1. Extent of damage more serious, like personal injury and damage to property (Pacific
Engineering v Haji Ahmad Rice Mill)
2. Damage must be direct consequence and substantial
3. Civil proceeding-2 or more ppl, x special damge, then a relator action is available in
which a written consent fr AG is required (Koperasi Pasaraya Malaysia v Uda Holdings)
- local authority x need consent fr AG in a relator action
Private Nuisance
Definition:- Read v Lyons (accepted by Hiap Lee Brickmakers v Weng Lok Mining)
- an unlawful interference with a persons use, comfort, enjoyment and interest that a
person may have over his land
- balancing the competing rights and interests of the owner and the neighbour
Difference between Public Nuisance and Private Nuisance
- MPPP v Boey Siew Than
- public nuisance- an act materially affects the reasonable comfort and convenience of a
class of the sbjects of the State
- public nuisance- Pf x need to hv interest in land to sue
- private nuisance- interfere with the private individuals enjoyment of land
- private nuisance- Pf must have an interest in land to sue
- land owner, tenant, licensee
2 Elements to establish private nuisance
1. Substantial interference
Tort of nuisance protects a person from:A) interference with the use, comfort and enjoyment of land
B) Physical damage to land/ property
- Pf need only proves either one category

A) interference with the use, comfort and enjoyment of land

- amenity nuisance
- results in feeling of discomfort, unable to live peacefully and comfortably on his land
- depends on facts and circumstances of each case
- loss of a nights sleep due to excessive noise (Andrea V Selfridge)
- using adjoining premises for prostitution (Thompson- Schwab v Costaki)
- persistent phone calls (Khorasandjian v Bush)
- Msian case- Woon Tan Kan v Asian Rare Earth- the release of radioactive and harmful
gases detrimental to health
B) physical damage to land/ property
- general rule- actual physical damage to land is recoverable
- x automatic recovery of damages
- must prove damage is substantial in nature
- Darley Main Colliery v Mitchell
- minor subsidence on Pfs land x actionable
- Goh Chat Ngee v Toh Yan
- Df breached the statutory duty under S 44(1)(b) NLC and liable in nuisance for
unreasonable, unlawful and substantial interference with the use and enjoyment of Pfs
land
- Rapier v London Tramways
- once the activity constitutes an actionable nuisance in law, it is no defence that Df has
taken all reasonable precaution to prevent it
2. Unreasonableness
- substantial interference and unreasonableness are interconnected and interdependent
- x clear-cut definition for unreasonable interference (Hunter v Canary Wharf)
6 factors:
A) damage and location of the Pfs and Dfs premises
B) Public benefit of the Dfs activity

C) Extraordinary sensitivity of the Pf

D) Interference must be continuous
E) Temporary interference and isolated incident
F) Malice
A) damage and location of the Pfs and Dfs premises
- St Helens Smelting v Tipping
- non- physical damage- level of interference must be balanced with surrounding
circumstances and the nature of locality
- physical damage to property- surrounding circumstances is irrelevant
- occupier must be protected fr physical damage no matter
where he is
- Syarikat Perniagaan Selangor v Fahro Rozi, Mohdi
- in the urban area, ppl must be prepared to accept and make noise but cannot make
excessive noise.
B) Public benefit of the Dfs activity
- benefit the society generally will not be deemed unreasonable
- but if the activity causes damage to property or substantial interference to Pf s
enjoyment of land, then it constitutes actionable nuisance ( Adams v Ursell)
C) Extraordinary sensitivity of the Pf
- law of nuisance x sympathetic to xtra sensitive Pf (Robinson v Kilvert)
- but once unreasonable and substantial interference is established
- sensitivity will x deprive Pf from obtaining a remedy
- McKinnon Industries v Walker
- Df was liable as the fumes would have damaged the flowers of normal sensitivity
D) Interference must be continuous
- Delaware Mansions v Westminster City Council (tree roots caused structural damage to
neighboring property)
- Matania v National Provincial Bank (temporary excessive noise and dust)

- Spicer v Smee (dangerous state of affairs on Dfs premises)

E) Temporary interference and isolated incident
- the more serious the interference, the more likely the court will regard it as
unreasonable
- Sedleigh- Denfield v O Callaghan (flooding on Pfs land due to the blocked culvert on
the Dfs land was reasonably foreseeable, also a result of the state of affairs on Dfs land)
- Theam Chew v The Seaport Rubber Estate (Dfs diseased rubber tree fell onto highway
causing a fatal accident to the Pfs husband)
F) Malice
- cause Dfs act to be unreasonable
- Christie v Davey (Df made noise when Pf was conducting music classes)
- Hollywood Silver Fox Farm v Emmett (Df let out a few gunshots maliciously to
frighten the xtra sensitive foxes)
Defences
1. Easement- S 282 and 284 NLC
2. Statuory powers- local authority
- statute confers power to Df
- Df has to prove the interference x be avoided even though reasonable precautions have
been taken
Persons who may claim- 3 categories
1. Criminal proceeding- Public Prosecutor
2. Civil proceeding- no special damage, need relator action- permission from AG
3. Civil proceeding- special damage- must prove- a) type of damage, b) damage is
substantial and direct consequences from Dfs action- Pf suffers breathing problems due
to Dfs activity smoke pollution
- Pacific Engineering v Hj Ahamd Rice Mill
- Pf may sue without having AGs permission if he suffers special damage- personal
discomfort and damage to property
Strict liability
Definition

- refers to liability imposed on the Df without any proof of fault on him

- even though Df have taken all the reasonable precautions to avoid risk, he is still liable.
- mental state x important
- can arise in a cause of action for breach of statutory duty
- but the strictness of liability depend very much on the wording of the statutory provision
Rule in Rylands v Fletcher: 4 elements: Dangerous things, intentional accumulation,
escape, non- natural use of land
1. Dangerous things
- need x be dangerous per se
- gas, noxious fumes, explosives, fire, electricity, water, sewage
- dangerous or not determined thru ordinary experience of mankind and a question of fact
- cause damage if it escapes
- Hale v Jennings Bros ( Df was liable for the personal injury sustained by the Pf hit by
the chair broke loose from the chair-o-plane roundabout)
- Shiffman v The Grand Priory of St John (flag pole fell and hit the Pf)
- Ang Hock Tai v Tan Sum Lee (Df was liable because the petrol was a dangerous object)
2. Intentional Accumulation
- Df keeps the hazardous material on his land
- if the thing occurs naturally on the land, no liability under Rylands v Fletcher
- Giles v Walker (seeds from thistles damaged Pfs crops- naturally accumulated on land)
- Ellison v Ministry of Defense ( rain water accumulated naturally, x artificially kept)
- the thing must be accumulated for the Dfs own purpose
- Dunne v North West Gas Board ( Gas Board had not accumulated gases for their own
purpose)
3. Escape
- the object escaped from the Dfs land
- Ponting v Noakes ( the horse died after reaching over the fence to eat the leaves from a
yew tree- no escape- because the Yew tree was in the confinement of the Dfs land)
- Read v Lyons (no escape of dangerous things, x cause of action)
- Midwood v Mayor, Alderman and Citizens of Manchester ( the meaning of escape has
been extended to include a situation where the use of dangerous objects causes an event

from which damage is sustained)

4. Non-natural use of the land
- natural use of land- erecting a house, installing water, electric wiring, gas pipes,
constructing a fish pond
- Crowhurst v Amersham Burial Board ( Df planted a poisonous tree)
Foresee-ability of Damage
- for liability to arise under the rule in Rylands V Fletcher
- damage must be foreseeable
- Cambridge Water v Eastern Countries Leather ( x liable as the damage was too remote)
Pure Economic Loss
- Weller v Foot and Mouth Disease Research Institute (pure economic loss x recoverable
under Rylands v Fletcher)
Defences
1. Consent
- Pf expressly or impliedly consent to the existence of the dangerous thing
2. Common benefit
- exist for common benefit for both Pf and Df
3. Act of 3rd Party
- tresspasser- 3rd party
- workers, employees, independent contractor- x 3rd party
4. Act of God
- due to natural forces
- beyond human foresight
5. Pfs Default
- Pf caused the damage
6. Statutory authority
- statute imposes a duty on the Df to do- x liable
- statute give power of discretion to Df- can be liable
Conclusion:
Nuisance- interference must be continuous
Pure economic loss in the form of the fall in the value of the land is recoverable

(pg 329)- Arab- Malaysian Finance v Steven Phua

Strict liability- one single action of interference is sufficient
Pure economic loss x recoverable
Both have to foresee the damages.
Negligence - also foreseeability