NUISANCE

The Law of Nuisance

One branch of the law of tort the purpose of which to
provide comfort to :
- persons who have proprietary interests in land
- members of society generally
by controlling environmental conditions
Though persons having interest in land can do whatever
they wish on their land their activities must not cause
inconvenience or damage to others who similarly have
interests over their land
Concerned with the balancing of competing interests
Differences between nuisance and
trespass to land
Nuisance
1. means an interference to the
plaintiffs interest over his
property, does not necessarily
require entry by the defendant
2. plaintiff is generally required to
prove special damage
3. cause of action in nuisance may
be maintained in cases of
consequential harm
4. is interference with the use of
land
Trespass to land
1. means a direct entry onto the
land belonging to another
2. Actionable per se without any
proof of special damage
3. only a direct act may give rise
to an action for trespass to land
4. is interference with the
possession of land
Note : Damage = interference
with a legally recognised interest
Damages = the sum awarded for
violation of such an interest

Differences between nuisance and
the rule in Rylands v Fletcher
Nuisance
1. the interference must be
something that is continuous
The rule in Rylands v
Fletcher
1. one single act of
interference is sufficient
2. applies only to cases
where there has been some
special use of land which
increased danger to others
3. not applicable to damage
caused to adjoining owners
as a result of an ordinary use
of land
Damage and remedies
2 types of harm/damage in nuisance :-
1. damage to property
2. interference to personal comfort
Remedies usually sought :
1. injunction to prevent nuisance from continuing
2. damages (monetary compensation) usually granted for
damage to property
3. lodging report to particular authorities eg Health Officer
of local authority
Damage must be proved in an action for nuisance or else
the action will fail
Damage must be of a kind that is reasonably foreseeable to
arise from the defendants wrongful conduct
But actual damage need not be established if the nuisance
is caused by smell injury to health is not a necessary
ingredient in the cause of action for nuisance by smell as
the interference here is something that substantially affects
the senses or the nerves
The concept of reasonableness
Only when the interference is deemed unreasonable will
nuisance be established
In the tort of nuisance reasonableness is measured by
balancing the rights and interests of both parties ie a
process of compromise
The court takes into account that in the first place the
defendant has a right to the use and enjoyment of his land
but a plaintiff who suffers damage as a result of the
defendants activity needs to be compensated as the
plaintiff too is entitled to the safe use and enjoyment of his
land
In Syarikat Perniagaan Selangor SB v Fahro Rozi
Mohdi & Ors (1981) the court stated that almost every
one of us has to tolerate a 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 a nuisance. So the
ordinary use of a residential property is not capable of
amounting to nuisance
Determining the existence of nuisance requires the striking
of balance between the right of one party to lawfully use
and enjoy his property and the right of the other party to
the undisturbed enjoyment of his property
There is no universal or precise formula to determine the
existence of nuisance but a useful test for measuring the
reasonableness of the defendants activity is what is
accepted as reasonable according to the ordinary usage of
land of others living in that particular society
Reasonableness cannot be determined with accuracy
Whether an activity amounts to actionable nuisance or not depends on
factors like :
The purpose of the defendants conduct
Location
Time
Extent of damage
The way in which the interference occurs
Motive
Malice
The effect of interference
Whether it is continuous, in stages or intermittent

Categories of nuisance
Nuisance can be divided into 2 main categories
1. Public nuisance (is a crime as well as a tort) eg the
pollution of streams with any filth and trade refuse within a
local authority area constitutes a nuisance and a crime and
the person guilty of public nuisance may be subject to
punishment
2. Private nuisance (only a tort)
Possible for the same conduct to amount to both public and
private nuisance if the plaintiff can establish the necessary
elements


1. Public Nuisance
Arises when there is an interference with public rights such as
obstructing the public highways or interference with public comfort,
safety and health like selling contaminated food
Facts giving rise to claim in public nuisance may also give rise to an
action for negligence and defendant may be sued for both torts in the
alternative
Nuisance will only be created if knowing or having means of knowing
of its existence a person allows it to continue for an unreasonable time
or in unreasonable circumstances
Eg leaving long steel pipes with sharp edges by the side of the
highway for 1 or 2 years
Definition of Public Nuisance
In Attorney General v PYA Quarries Ltd (1957) it was
stated that public nuisance arises when an act materially
affects the reasonable comfort and convenience of life of a
class of the society
The number of persons required to constitute a class of the
subjects of the state is a question of fact in each case
Not necessary that every single member of the society is
affected
2. Private Nuisance
Definition : Unlawful interference with a persons
use, comfort, enjoyment and any interest that a
person may have over his land
Unlawful interference does not mean that activity
of defendant is inherently unlawful but the activity
interferes unreasonably with plaintiffs enjoyment
of his land
Differences between public
nuisance and private nuisance
Private Nuisance
1. one which disturbs the interest
of some private individual in the
usual use and enjoyment of his
property by causing or permitting
the escape of deletrious
substances or things such as
smoke, odours or noise
2. plaintiff must prove
interference with the enjoyment of
his land, thus plaintiff must have
an interest in land as landowner,
tenant or licencee
Public Nuisance
1. it materially affects the
reasonable comfort and
convenience of a class of the
subjects of the state
2. right which are common
to all subjects are infringed,
such rights are not
connected with the
possession of or title to
immovable property
Establishing Private Nuisance
Elements of private nuisance are :
1. Substantial interference
2. Unreasonableness
1. SUBSTANTIAL
INTERFERENCE
Nuisance is not actionable per se
Though plaintiff need not prove special/particular damage plaintiff
must prove he has suffered damage/interference to succeed in his claim
Private nuisance protects a person from 2 types of damage/interference
ie :
1. interference with the use, comfort or enjoyment of his land
2. physical damage to the land
No matter which type of damage it is the plaintiff must prove
substantial interference
What constitutes substantial interference
differs according to the type of
damage/interference mentioned beforehand
a. Interference with the use,
comfort or enjoyment of land
Known as amenity nuisance
Result in the feeling of discomfort whereby plaintiff is unable to live
peacefully and comfortably on his own land due to defendants activity
What constitutes substantial interference depends on the facts and
circumstances of each case
No formula upon which a situation may conclusively be said to
amount to substantial interference
Decisions were made on case to case basis
Courts took into account whether plaintiffs complaint is reasonably
justified in the context of surrounding circumstances
The following activities have been held to
constitute substantial interference :
Loss of one nights sleep due to excessive
noise
Using adjoining premises for
prostitution/sex shop
Persistent telephone calls
Dato Dr Harnam Singh v Renal Link (KL) SB (1996)
the plaintiff had for 18 years operated a clinic and hospital
for the treatment of ear, nose and throat ailments. The
defendant operated a renal clinic at which patients
underwent haemodialysis on the floor above the plaintiffs
clinic. The defendant was found liable for private nuisance
for emitting from their clinic noxious fumes which escaped
downwards into the plaintiffs 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
Where interference affects plaintiffs leisure or purely
recreational facility the courts are more reluctant to
pronounce defendants activity as actionable nuisance
especially if defendants activity brings benefit to the
public
Policy consideration undoubtedly affects the determination
of reasonableness as courts need to balance between
plaintiffs right to be involved in recreational activities on
his own land and defendants equal right to build on his
land particularly if the defendants activity is significant to
the government and the public
b. 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
But actual physical damage is not automatically recoverable as it must
be established that it amounts to substantial interference
What amounts to substantial interference is a question of fact and
determinable on a case to case basis
Hotel Continental SB v Cheong Fatt Tze Mansion SB (2002) the
appellant owned a hotel and was building a 20-storey extension to the
hotel. The respondent owned the adjacent land and claimed that the
appellants piling work caused severe cracks to appear on their
heritage building. The respondents claim for an injunction was
allowed by the court as the piling work was endangering the the
structural stability of the plaintiffs building and constituted substantial
interference
2. UNREASONABLENESS
The first requirement to establish private nuisance is substantial
interference
To determine what constitute substantial interference plaintiff must
further proof the interference to be unreasonable
Important ! : Because substantial interference may amount to
unreasonable interference vice versa courts have held defendants
activities as being actionable nuisances on the basis that they
constituted both substantial and unreasonable interferences
The 2 elements of nuisance are interconnected and interdependent
There is no clear cut definition as to what constitutes unreasonable
interference


The following factors have been used as guidelines by
courts to determine whether an interference is
unreasonable (and therefore substantial) and actionable :
A. damage and location of the plaintiffs and defendants
premises
B. public benefit of the defendants activities
C. extraordinary sensitivity on the part of the plaintiff
D. interference must be continuous
E. temporary interference and isolated incident
F. malice

A. Damage and location of the plaintiffs
and defendants premises

The general principle is that what
is regarded as excessive in a
particular locality would generally
be accepted as unreasonable and
amounts to a substantial
interference
St Helens Smelting Co. v Tipping (1865) the plaintiff
owned a rubber estate which was situated in an industrial
area. The smoke from the defendants copper-smelting
factory had caused considerable damage to the plaintiffs
trees. The court distinguished between physical damage
(material injury) and non physical damage (personal
discomfort). For personal discomfort the level of
interference must be balanced with surrounding
circumstances and the nature of the locality must be taken
into account. Eg a person cannot expect the air in an
industrial area to be as fresh and clean as the air in the
mountains
But if the interference causes physical damage to
property then the locality/surrounding
circumstances is irrelevant. An 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

For non physical damage the test of liability is
what is reasonable in accordance with common
and usual needs of mankind in a society or
particular area
A balance has to be maintained between the right
of the occupier to do what he likes with his own
land and the right of his neighbour not to be
interfered with
No precise or universal formula
Bliss v Hall (1838) the defendant managed a factory for
3 years and during this time smoke, smell and other
remittances came from the factory. The plaintiff moved
into a house near the factory. In an action against the
defendant, the defendant raised the defence that 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 rights ie to clean air
Sturges v Bridgman (1879) the plaintiff
physician claimed against his neighbour
over the noise arising from the neighbours
confectionary business. The court took into
consideration the fact that the area consisted
of many medical specialists consulting
rooms and the plaintiffs claim was allowed
b. Public benefit of the
defendants activities
An inconvenience does not necessarily give rise to
actionable nuisance
If the object of the defendants activity benefits the society
generally it is more likely that the activity will not be
deemed unreasonable, eg :
Building of schools, factories, government hospitals,
power stations though gives rise to interference (noise and
dust to nearby residents)
Claim would probably be denied on the basis of the utility
derived from the construction of the facilities


But even if defendants activity gives rise to public benefit
it does not automatically mean that his activity is not
actionable
Adams v Ursell (1913) the defendant was in the trade of
selling dried fish. His shop was located in the residential
part of the 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 plaintiffs
comfort and convenience also had to be considered
c. Extraordinary sensitivity on the
part of the plaintiff
The law of nuisance is not sympathetic to a plaintiff who is
extra sensitive eg if the only reason why the plaintiff
complains of dust is because he has an unusually sensitive
skin his claim will probably fail
But once unreasonable and substantial interference is
established sensitivity will not deprive plaintiff from
obtaining a remedy
McKinnon Industries Ltd v Walker (1951) the
defendants factory emitted noxious fumes which damaged
the plaintiffs commercially grown and delicate orchids.
The court found the defendant liable as the fumes would
have damaged flowers of ordinary sensitivity
Contrast with
Robinson v Kilvert (1889) the defendant was in the
business of making paper boxes. The process involved
using hot air. The plaintiff lived above the defendant and in
the business of selling special paper which was sold
according to weight. The hot air from the defendants
premises did not inconvenient the plaintiffs workers and
would not have affected normal paper but caused the
moisture in the plaintiffs paper to dry up. The court denied
the plaintiffs claim for compensation on the ground that
ordinary paper would not have been affected by hot air and
the plaintiffs paper was extra sensitive
d. Interference must be
continuous
Interference must be continuous or occurs often as generally
continuous activity will constitute substantial interference
But this requirement is not conclusive and only a factor in deciding
whether the interference is substantial or otherwise
Delaware Mansions Ltd v Westminster City Council (2001)
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 work
The recurrence of the interference is also a relevant consideration
e. Temporary interference and
isolated incident
The circumstances in which a temporary or isolated
interference may constitute an actionable nuisance :
1. the general principle is that the length of time and
persistence of interference must be considered to establish
nuisance. If the interference is continuous it is likely to
constitute unreasonable and substantial interference except
if the plaintiff is extra sensitive. If the interference is
temporary/occasional the general rule is that the defendant
will not be liable as the plaintiff is expected to put up with
certain amount of interference from his neighbour eg when
the neighbour is renovating his house for 2 weeks provided
he has taken all reasonable precautions to avoid
inconveniencing his neighbour
2. temporary interference may give rise to actionable
nuisance if the interference causes physical damage
thereby making the interference substantial
3. if interference occurs only once thereby making it
isolated interference the principle is that the defendant will
only be liable of 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
f. Malice
Christie v Davey (1893) 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 instruments and in
turn shouted, banged at the adjoining walls and
clashed pots and pans whilst the plaintiff was
conducting her classes. The court found the
defendant was malicious in his action and an
injunction was granted to the plaintiff
Hollywood Silver Fox Farm v Emmett (1936) the
plaintiff bred special foxes which were extremely sensitive
during their breeding season. The defendant intentionally
let out a few gunshots near the foxes cages with the aim of
causing damage. The court found the defendant liable.
Eventhough the plaintiff used his premises for a particular
purpose which was extraordinarily sensitive, the
defendants act was unnecessary and malicious rendering it
unreasonable. Thus the extra sensitivity of the plaintiff was
irrelevant
Defences
Among the defences available to the defendant are
1. Necessity
2. Consent
3. Contributory negligence
4. Act of stranger
5. Inevitable accident
6. Statutory authority

Statutory authority
Allen v Gulf Oil Refining (1981)
The defence of statutory authority was allowed
despite the oil refinery causing great
inconvenience and annoyance to local residents
who complained of unpleasant odours, noxious
fumes, vibrations, heavy traffic and loud noise in
their previously quiet rural setting. The court held
that once Parliament had authorized certain thing
to be done in a certain place, there can be no
action for nuisance caused by the making or doing
of the thing if nuisance is the inevitable result.