NUISANCE

DEFINITION : a) Nuisance may be PRIVATE (affecting a particular individual or property) and

can be PUBLIC which (impacting the group of people)
b) The goal of private and public nuisance is for:
- Raise the issue of environmental protection such as noise and
pollution.
- Protect the individual.
c) Secure the existence of peaceful from external interference, interference
comes from the various forms including noise, smell, sight, vibration,
fumes, smoke, dust, debris or obstruction, offensive smells from premises
used for keeping animal or noise from industrial installation.
d) Aim for the nuisance law:
- Provide comfort to people who have an interest in a land and
to member of society generally by control the environmental
condition.
- Balancing of competing interest. (a party that have multiple
interest that potentially conflict with the other parties
(competitor parties)
TYPE OF : a) Damages to property - Physical damage to land or building
DAMAGES  It is identifiable and self-explanatory
 Involving encroachment of the neighbour land
b) Damages to people comfort – Interference to people comfort/ ability to
enjoy their land.
 Damages need to be proven, IF NOT, the action is FAILED.
 Measure the damage by Cost of Reinstatement but NOT
necessary.
p/s: Cost of Reinstatement is an expenses to restore the
damages.
c) The court will consider whether the damage is foreseeable and reasonable
due to the defendant’s wrongful conduct.
d) Some specific damages such as smell, noise NO NEED DIRECT PROOF of
LOSS but can compensated UNLESS they disrupt in DAILY life.

REASONABLENESS
DEFINITION : a) Interference = unreasonable before it can be considered as unlawful.
b) Reasonableness ini measured (diukur) dengan balancing the right and
interest of the BOTH parties to determine the fairness.
c) Focus about:
 Defendant’s right to use and enjoyment of the land
 Plaintiffs suffer the damage due to the defendant activities
 Entitled to be compensated as he also got the
enjoyment to his land.
(P/S: The damage that suffered by plaintiff ini menjadi factor relevant dalam
menentukan reasonableness of interference.
 If the interference is SERIOUS disrupt the plaintiff daily life –
UNREASONABLENESS
 If the interference is TEMPORARY & MINOR – it is
REASONABLENESS
TEST : The central issue that needs to be TEST adalah:
 The defendant’s CONDUCT/ACTION are REASONABLE/not.
 Whether the reasonable person would do the same if they’re in the
same position.
 The give and take principle which is everyone has the same right but
those right must be exercisable in a way that consider others.
CASE : Syarikat Perniaagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Anors (high up
volume)
Fact Definition:
- FJ stated in this case that almost everyone of us can tolerate with
certain AMOUNT OF INTERFERENCE from our neighbours and we
also have a right to make a certain amount of interference in the
midst of our enjoyment towards our land.
- A person may use their property in a reasonable way BUT no one
has a right to create intense noise as NO ONE should asked you
to HIGH UP THE VOLUME which shows that the reasonable
standard (ie: having and enjoying the property, put some volume)
become nuisance.
- In other words, owning land doesn’t mean that person has
unlimited right towards the land – can do whatever they want.
- A person must not use their land in a way to create nuisance/
interference to others.
- Even in normal use of the land can become unreasonable if
significantly disrupt others – make them hard to enjoy their own
property.
Wah Shin Development Sdn Bhd v Success Profile Sdn Bhd (pig farm & sales)
Fact:
- Plaintiff (Property Developer) sued Defendant (Pig Farm) under
private nuisance, claiming that the smell of the farm gives
negatively impacted to the sale of plaintiff property.
- So the plaintiff apply for injunction to stop the defendant
activities.
- But, the defendant defend by saying that the smell it just a
reasonable/ normal because they applied the government license
and they operate first before plaintiff.
- The HC dismissed the plaintiff cases in the ground of they applied
for government license and operate first than plaintiff.
Held:
- So, COA reversed with the main reason:
 Clear that pig farm caused a nuisance – HCJ visited the
farm and confirmed the smell.
 The defendant agreed that plaintiff was not that too
sensitive to the smell from pig farm however, it
become unreasonable when it is disrupting plaintiff
daily life.
 HCJ put rely on the license to operate the farm and the
pig farm was there first.
PRIVATE NUISANCE
DEFINITION : a) Defined as “unlawful interference” with “people enjoyment of the
land or right over the land” or “connection with it”
- Read v Lyon and Co. Ltd
b) Private nuisance OCCURS when there is a DISPUTE between BOTH
parties where there is has been UNLAWFUL, SUBSTANTIAL,
UNREASONABLE INTERFERENCE with a person’s use, enjoyment of
the land or right over the land or comfort
c) A person who suffered from interference with the enjoyment of the
land/ property due to another person action/activities can sue the
wrongdoer to stop the interference (injunction) and can claim for
damages.
d) The interference such as noise, smell, and etc can affect the ability to
enjoy the comfort as like a home where you have a right to
complaint.
e) To win in private nuisance case, the plaintiff must prove 3 things;
- Inteference with their property - def action towards plaintiff use,
enjoyment, and comfort of the land
- Interference must be on-going/ continuous = nuisance
- Court will consider factors to consider as nuisance:
 When it happens  Where it happens
 How it happens  The effect of interference
 (Reasonable way/ (continuous/ permanent)
careless)
- Plaintiff must show the harm/ damages caused from
interference.
INTEREST OVER : a) Plaintiff must prove the intereference with the enjoyment of the
THE LAND land.
b) To sue under PriN, plaintiff must have an interest towards the land or
legal right over the land (possessory interest: tenant, exclusive
possession) (propertory interest: owner)

Case: Malone v Laskey (container fall on wife’s leaseholder)

Fact - Due to the vibration from neighbour property, the container has
been fallen on wife’s leaseholder.
Held - Her claimed failed because she is lack of interest of the land as
she is not propertory interest towards the land. The person who can
sue under PriN must be Propertory or Possession interest of the land.

As can been in the case of Hunter v Canary Wharf, stated that only those
who has interest to the land can sue. It refers to the someone exclusive
possesion of the land - mere license has no right to sue.

ELEMENT OF PRIVATE NUISANCE

INTRO Burden of proof - a person who are seriously affected with the
substantial interference due to other party action.
- Interference must be result of a continuous state.
- Interference - unreasonable (goes beyond the normal standard)
pattern/ behaviour.

3 elements of private nuisance:

 Substantial Interference (Interference with enjoyment of the
land)
 Reasonableness (Unreasonable)
 Caused him damage
FIRST ELEMET: 1. INTERFERENCE WITH ENJOYMENT OF THE LAND (CHARACTER OF
THE LAND)
Substantial
a) Someone suffered harm/ interference due to another person
Interference
action.
- Interference with b) To win in PriN, the claimant/ plaintiff must show that they are
enjoyment of the suffered from the interference.
land c) Known as amenity nuisance. - result from the feeling of
discomfort where one party unable to live peacefully/ comfort
- Physical damage due to defendant’s conduct/ action.
d) Court will decide if the interference is SERIOUS enough -
NUISANCE - continuous behaviour of interference - affect daily
life comfort = substantial.
Case: Dato. Dr. Harnam Singh v Renal Link (KL) Sdn Bhd (Klinik dan
Dialysis Centre)
Fact - Plaintiff (DHS) got a ENT clinic, Defendant (RL) got
dialysis centre above ENT clinic. Problem when running the
dialysis centre, RL release harmful gases which leaked down to
the ENT clinic.
As result, DHS and staff suffered health issue which it is
substantial damage that make the defendant liable.

Case: Woon Tan Kan & 7 Ors v Asian Rare Earth Sdn Bhd (Resident
Bukit Merah)
Fact - Plaintiff (WTK7) sued Defendant (ARE) for injunction to
stop operating. WTK7 alleged ARE produced the dangerous
radioactive gases harmful to residents of Bukit Merah.
Held - Court granted for injunction because the private
nuisance established where the plaintiff health affected
harmful - to substantial degree.

2. PHYSICAL DAMAGE TO LAND OR PROPERTY (DAMAGE? =

 NUISANCE)
a) When actual physical interference to land occurred, it amounts
to substantial interference & it is recoverable.
b) Physical damage can be recoverable - which suffered party has a
right claim for the compensation but must prove the damage to
be serious.
c) It is an identifiable and self-explanatory (i.e. involving
encroachment of neighbour building/ land)

Case: Hotel Continental v Cheong Fatt Tze Mansion (Extension 20

storey)
Fact - HC do the extension of 20 storey next building Tze Mansion. HC
do the piling works that result of building cracking. Plaintiff
apply for injunction to stop the activities.

Held - COA agreed for the injunction order because:

The court granted the respondent an injunction, which means
the hotel owner was ordered to stop the work unless they
used a different method of piling that wouldn’t harm the
heritage building. The court ruled that even though the piling
work was temporary, it was still causing significant damage to
the respondent’s property, and that was enough to justify the
injunction.

Case: Goh Chatt Ngee & Ors v Toh Yan Hor & Anor. (mining activities)
Fact: Defendant do the mining activities on their land. Plaintiff alleged
defendant mining activities cause for the flooding and erosion
of the land. Plaintiff argued that the defendant activities very
harmful and cause damage.

Held: Court agreed with plaintiff that landowner must not do things
that harmful their neighbour land. The defendant mining
consider un natural use of the land can cause significant
damage. Court also stated that defendant broke law that
protect neighbour land from interference. Court held that
defendant was responsible for damage and liable for nuisance.
SECOND ELEMENT : Intro:
a) Unreasonableness? When the interference is SERIOUS which
affect the plaintiff’s daily life comfort.
UNREASONABLENES b) Interference itu adalah unreasonable when it is beyond from the
S normal person standard.
- Whether the reasonable person would do the same if
they in that same position.
c) Court will decide the interference by different factor – not single
factor – to guide- not for action.
- Interference can be both, i) substantial, ii)
unreasonable.
 Case: Hunter v Canary Wharf Ltd. (Tall building – TV Signal)
Fact: The plaintiff complaint about 250-meter-high building near their
home block TV signal reception for 2 years.
They want to claim for compensation for interference.

Held: Court decided that having tall building nearby doesn’t

automatically can be as nuisance UNLESS got legal right for
interruption TV signal.

p/s: Locality factor that make it become nuisance when “immediate

locality” of plaintiff land (not entire town)

5 FACTORS OF UNREASONABLENESS
To claim nuisance – the problem must come from the defendant’s land and affect the
use or enjoyment of the plaintiff’s land
LOCALITY : a) Whether the interference with the amenity of the plaintiff’s
land amount to nuisance depends on the nature of the
locality/ area in which interference occurs.
b) Definition of locality are focus for:

i. Immediate locality (area) of plaintiff’s land

- Court will look at the specific area around the
claimant’s property (not entire town)
- What is normal for that particular area
ii. Locality are differentiated following the establish pattern of
the land use (dominant, recognized way - land is use) (long-
term function)
- Locality is not about location only but how the land is
use
- Ex: Residential area – normally nya ada rumah ada
sekolah – quite and peaceful. (reasonable and not
nuisance)
- Night Club – loud music – disrupt residential area
(nuisance)
iii. Locality focus to the particular used of the land in that area
- A specific, long establishment activities in land use
that can influence the normal standard in that area
(reasonable)
- Ex: Stadium di kawasan residential area. Game? - Fans.
Fans do the illegal parking which block the resident
driveways. So, it is distruptive to the comfort of
plaintiff’s daily life.
iv. Locality beyond the existing of land use (activities conducted
on the land or land is being used).
- Locality character (typical use of land in particular
location) not determined by what activities/ business
are currently happening but unlawful and long
 established activity.
- Ex: Factory Baru throw all the toxic substance to the
that river (public area) = nuisance

Case: St Helen Smelting Co vs Tipping (damage to the tree)

Fact: The plaintiff owned a rubber estate in industial area. The
defendant got copper business which give damage to plaintiff tree
estate. Lord Westbury explained 2 type of damages:
 Physical damage to the land (The interference give the damage to
the property.
- In this matter, location no longer important - physical damage
is unacceptable. (tree is damage)
 Intereference of personal comfort
- Interference affect the personal comfort to enjoyment of the
land.
- Character of locatlity is important (typical use of the land,
environment and expectation)
Held: Plaintiff should expect that the smoke in that area. Court ruling,
Physical damage occurred and the location is irrelevant(reasonable ata
unreasonable) - def was liable.

MALICE : Intenton of the defendant

a) Malice-a person who has a bad intention/ motives
b) The law NOT PROTECT a person who has being malicious and
person who commit the act of that behaviour (malicious) - intent
may be liable.
c) Malicious is one of factor for the court to (determine) the
(reasonableness of the interference) under (private nuisance).

Case: Christie v Davey (guru musik @ home)

Fact: Claimant is a home school music teacher. The lesson at home and
produce a loud music. Defendant is a neighbour to claimant. She feel
disturbed by the noise asked the claiment to reduce the volume,
however claimant didn’t stop the music.
In response, defendant starting to making noise by banging the door,
shouting and blowing whistles and etc. The claimant complaint.

Issue: Whether the neighbour action create a nuisance and whether

the neighbour act malicious?

Court ruled: Neighbour was responsible for the nuisance because he

acted malicious. The neighbour action were deliberate and
unreasonable, done intention to disturb claimant.
- Neighbour motive matter when to determine the nuisance because
he acted with bad intention, to stop the nuisance by injunction.
Case: Facts of the case:
 The defendant ran a business that manufactured boxes, which
required keeping the basement of their property warm and dry.
The defendant rented the room above the basement to the claimant,
who was a paper merchant and stored his paper stock in the room.
The heat from the basement caused damage to the claimant’s paper
stock, which was sensitive to heat.
Court decision:

The court ruled that there was no nuisance.

The reason was that the nuisance (the heat) only affected the
claimant’s specific business, which was sensitive to heat. It wouldn't
have been a problem for a regular person.
If the heat had made the room uncomfortable for any normal person
to be in, the claim might have succeeded, as it would have been a
nuisance affecting the average person.

DURATION : a) Nuisance can be legal issue when the interference happens

regularly, constantly and repeatedly.
b) Must prove that the interference is not temporary basis.
c) Ex: The load truck passed by five days a week. 2 days is a quiet day
- nuisance still continual because it is happen continuously.
d) The temporary interference and isolated interference can be
constitute a nuisance.

Case: Spicer v Smee (one time act can create on-going nuisance)
Fact:
HOW TO ANSWER QUESTION

PUBLIC NUISANCE

1. Definition of public nuisance

2. Interest over land + case

3. Special Damages – 2 guidelines in determining the existence of special

damages

HOW TO ANSWER ANY QUESTION RELATED TO NUISANCE

1. Definition of nuisance

2. Interest over land – Malone v Laskey/ Hunter v Canary Wharf

3. Private Nuisance – Elements

Element 1 – Substantial interference

A – Interference to enjoyment, comfort over the land

B – property damage

Element 2 – Unreasonableness – 5 Factors

A – Location & damage

B – Sensitivity of the PF

C – Utility / Public Benefit

D – Duration – Temporary / Permanent / Isolated

E – Intention / Malice
STRICT LIABILITY –

1. Definition of strict liability –Ryland

2. Element 1 = Accumulation / bring something onto his land
3. Element 2 = Dangerous Thing
4. Element 3 = Non Natural use of Land
5. Element 4 = Escape
6. Element 5 = foreseeability of damages

PUBLIC NUISANCE

1. Definition of public nuisance

2. Interest over land + case
3. Special Damages – 2 guidelines in determining the existence of special
damages
4. Case – Pacific Engineering

OCCUPIER'S LIABILITY

1. Definition of OL
2. Definition of ocuupier + case
3. Definition of premises + case
4. Types of entrant + case
5. Contractual entrant – who fall under the category and the duty of care – to
take all reasonable measures + cases
6. Invitee – who fall under the category and the duty of care – to prevent from
unsual danger, knowledge + cases
7. Licensee – who fall under the category and the duty of care – to give warning
from concealed danger + cases
8. Trespasser – who fall under the category and the duty of care – duty of
common humanity + 3 requirements + cases