Nuisance

Definition:
The law of nuisance is one branch of law which purpose is to provide comfort to
persons who have proprietary interest in land and to members of society
generally through environmental conditions. The law of nuisance is concerned
with the balancing of competing interests.
-

Damage

1. Must be proved to succeed in nuisance- not actionable per se

2. Must be reasonably foreseeable.
3. Actual damage need not be established for nuisance caused by
smell.

The harm or damage usually occurs in nuisance cases are of 2 types:

1) and
2) interference to personal comfort which is specific to the tort of nuisance .
The rule in Rylands v Fletcher
The Defendants themselves were not negligent and neither were they
vicariously liable for the negligence of their independent contractors, but the
HOL held them liable to the P

Elements
Damage2 types:

Principle
1. Damage to
property( easily
indentifiable)
It also includes nuisance by
encroachment on a
neighbours land

Case
Wong Lee Kui v
Hong Tin Mining

Held
Damage must be
proven in
nuisance,
otherwise action
will fail.

2. Interference to
personal comfort

Dato Dr Harnam
Singh v Renal
Link

which is specific to the

tort of nuisance .

Remedy
1. An injunction which
function is to prevent
nuisance from

Actual damage
need not be
proven if
nuisance is
caused by smell.
Injury to health is
not a request to
proven nuisance
by way of smell

Woon Tan Kan

(Deceased) & 7
Ors v Asian Rare
Earth Sdn Bhd

continuing
2.

Monetary
compensation which is
usually granted for
damage to property.

3. Report to relevant
authority- Local Govt
Act 1976

The

The reasonableness or

Syarikat

concept

otherwise of the Ds activity

Perniagaan

of

or act is central in nuisance

Selangor Sdn Bhd

reasonab

cases because only when

v Fahro Rozi

le

the interference is deemed

Mohdi & Ors

unreasonable will nuisance

ness in

be established.

nuisance

Reasonableness in nuisance
does not mean whether D
has taken adequate
precautions to avoid the risk
of accident. In tort of
nuisance, reasonableness is
measured by balancing the
rights and interests of both
parties which is a process of

Almost everyone
of us has to
tolerate a certain
amount of
interference from
our neighbours
and we in turn
have right to
make a certain
amount of noise
in the
employment of
our property. So
the ordinary use
of a residential
property is not
capable of
amounting to
nuisance

compromise.
MBf Property
Services Sdn Bhd
v Madihill
Development
Sdn Bhd

There is no
universal or
precise formula
available, 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.

Whether an activity amounts

Southwark

on other factors such as the

London BC v Mills

purpose of the defendants

& Ors, Baxter v

conduct, location, time,

Camden London

P affected by
noise made by
other tenants,
not due to their
unreasonable
behavior D not
liable due to
poor
soundproofing.
Not liable for
nuisance

extent of damage, the way

in which the interference
occurs, motive and malice,
the effect of the
interference and whether it

Vs

is continuous or in stages or
intermittent.
Sampson v
Ordinary use of a residential

Hodson-

property is not capable of

Pressinger [198

amounting to nuisance.

1] 3 All ER 710

Due to flawed

CA

construction of
roof terrace, its
ordinary use

Other factors

caused excessive

(reasonableness):

noise and was an

actionable

1. Defendants conduct
2. Location

nuisance.
In determining
the existence of

3. Time

nuisance requires
the striking of

4. Extent of damage

balance between
on the one hand,

5. The way in which

interference occur

the right of one

part to use his
property for his

6.

Motive

own lawful use of

enjoyment and

7.

Malice

on the other, and

the right of other

8. Effect of interference-

party to the

whether it is

undisturbed

continuous or

enjoyment of his

intermittent.

property.

Public Nuisance
Def: A crime but become actionable in tort law if P suffers particular damage
over and above the damage suffered by public generally. Must prove special
damage.
Arises when there is an interference with public rights such as the obstruction of
public highways or the selling of contaminated food.

Principle

Case

Held

The mere fact that an

Attorney- General v PYA

H: public nuisance arises

obstruction has

Quarries Ltd

when an act materially

occurred or that there

affects the reasonable

is an inconvenience

comfort and convenience

does not of itself turn

of life of a class of the

into a nuisance.

society.

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.

Majlis Perbandaran Pulau

H: it is clear that a public

Pinang v Boey Siew Than &

nuisance, if, within its

Ors (give definition for both

sphere, which is the

public and private nuisance)

neighbourhood, it
materially affects the
reasonable comfort and
convenience of a class of
the subjects of the state.

Requirement:
Interference with

Gillingham Borough Council

v Medway (Chatham) Dock

The Ds conduct need not

be independently

public rights. Only

unlawful, but it is the

created if knowing or

effect of his conduct on

having the means of

the P that is considered.

knowing of its
existence, a person
allows it to continue
for an unreasonable
time or in
unreasonable

circumstances.

Person who may

claim
a) Criminal
proceeding
If it is a criminal
proceeding,
prosecution lies at
the instance of the
public prosecutor on
behalf of the
government.

b) Civil proceedingperson who suffers

special or
particular damage
. A person who has
suffered special
damage can claim
for damages for
public nuisance
therefore P need to
prove that he has
suffered damage

Pacific Engineering v Haji

Ahmad Rice Mill

H: In an injunction

F: P was in the business of

that there was no law in

selling heavy earth

equipment and construction
equipment, namely heavy
factors and industrial forklift
trucks. Padi husk from the
Ds factory fly over the Ps
premises and Ps workers
had to cover their mouths
and noses to prevent

and injury.

themselves from inhaling the

Following factors may

also became dirty due to the

be used as guidance

dust. The Ps lubricant oil

dust from the padi husk.

against the D, court held

this country as in
England, whereby a
proceeding may only be
instituted upon the
consent of the AttorneyGeneral for public
nuisance cases. The
court further held that
in an action for public
nuisance, a P may
institute proceedings
without obtaining
prior consent from the

to determine the

Attorney- General if he

existence of special

has suffered special

or particular damage:

damage. In this case the

P had proved that they

1)

The type of

suffered personal

extent of damage is

discomfort therefore an

more serious. In

injunction preventing the

essence the P must

D from burning the rice

suffer more than

husks in the compound of

what is suffered by

their premises was

other persons

granted.

2)

The damage

must be a direct
consequence and is
substantial. An
example of direct
damage is when a P
suffers breathing
problems due to the
defendants smoke
pollution.

c) Civil proceeding-

Koperasi Pasaraya Malaysia

H: in a relator action for

no special damage

Bhd v Uda Holdings Sdn Bhd

public nuisance, consent

suffered by any

& 41 Ors:

must first be obtained

particular

from the Attorney-

individual

General. In this case the

Section 8 (1) of the

action failed as the P did

Government

not obtain such consent.

Proceedings Act 1956

Court additionally held

(GPA) provides that

that in a relator action

the Attorney-

brought under s.8(1) of

General, or two or

the GPA, the P must

more persons who

prove special damage

have obtained written

arising from public

permission from the

nuisance.

Attorney-General
(relator action), may
institute a suit in
public nuisance for a
declaration and
injunction or for such
other relief as may be
appropriate to the
circumstances of the

case.

The requirement of

MPPP v Boey Siew Than:

High court held that the P

the Attorney-

could not sue the D

Generals consent as

without the written

laid down in s.8(1) of

consent of the Attorney-

the GPA need not

General. On appeal from

however, be met if

the Ps, the federal court

the claim is brought

held that since the P had

by a local authority in

commenced its action

the public interest.

based on S.80 of the

Local Government Act
1976 which allowed a
local authority to take
action in its own name
and it therefore released
the local authority from
the obligation stipulated
under s.8(1) of the GPA.
This release was said to
be in the interests of
justice and of the proper
functioning of the P as a
local authority.

Private nuisance
Definition:
Read v Lyons & Co Ltd
- an unlawful interference with a persons use comfort enjoyment and any
interest that a person may have over his land.
-

Accepted by Hiap Lee Brickmakers Ltd v Weng Lok Mining

An interference becomes unlawful and constitutes a nuisance when it

unreasonably interferes with the Ps enjoyment of his land.
For neighbours, it is a balancing exercise between competing rights of land
owner to use his land as he chooses and right of neighbour not to have his use or
enjoyment of land interfered with.

MPPP v Boey Siew Than laid down the difference between public and
private nuisance:
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 is one which disturbs the interest of some private individual
in the use and enjoyment of property by causing or permitting the escape of
deleterious substances or things such as smoke, odours or noise.
The diff between a public and 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.
In an action for private nuisance :
1. P must prove interference with the enjoyment of his land.
2. P must have an interest in land to be able to sue in private nuisance.
( public nuisance does not require P to have any interest over land)
3. Persons having interest over land: landowner, tenant, licensee etc.
P need not prove special or particular damage.
Element
Substantial
interference

Principle
- not actionable per se. Does
not require P to prove special
or particular damage, the P
must prove that he has
suffered damage in order to

Case

succeed.

- protects a person from 2

types of
damage/interference:
i.

interference with use,

comfort or enjoyment
of his land

ii.

physical damage to
the land

- substantial interference
differs according to types of
damage
(a) Interference

-Collectively known

- Loss of one nights

with the use,

as amenity nuisance.

sleep due to excessive

comfort or

-Result in Feeling of

noise Andrea v

enjoyment of land

discomfort unable to live

Selfridge & Co Ltd

peacefully and comfortably

on ones own land arising

-Using adjoining premises

from Ds activity.

for prostitution
(Thompson-Schwab v

-what constitutes substantial

Costaki

interference depends on
facts and circumstances of
each case.

-Persistent telephone
calls Khorasandjian v

-Examples of substantial

Bush

interference: (case-by-case
basis based on surrounding
circumstances)
Woon Tan Kan (Deceased)
& 7 Ors v Asian Rare

HC: granted an

Earth Sdn Bhd

injunction, holding that

the tort of private

P sued the D for an

injunction to restrain the

nuisance was

defendant company from

established.

operating and continuing to

operate his factory.

SC: Ps health was being

affected harmfully and

- the operating a factory

insidiously, significant

produced dangerous

and to substantial degree

radioactive gases

and constituted
substantial interference.

- nuisance established the

situation shall be something
over and above the normal
inconvenience
- annoyance and discomfort
must be established, but
injury to health does not.

Dato Dr Harnam Singh v

The D was found liable

Renal Link (KL) Sdn

for emitting from their

Bhd [1996]

clinic obnoxious fumes

F: -

which escaped

the P had for 18

years operated a clinic and

downwards into Ps

hospital for the treatment of

clinic. Ps staff and

ENT. The defendant operated

patients were found to

a renal clinic and which

have suffered substantial

patients receive

damage ranging from

haemodialysis on the floor

skin disease etc.

above the Ps clinic.

(b) Material or

General rule: actual physical

Goh Chat Ngee & 3

physical damage to

damage to land occurs =

Ors v Toh Yan &

land or property

substantial interference and

Anor [1991] 2 CLJ 1163

is therefore recoverable.

-D carried out mining

However, there is no

work on his land

automatic recovery of

adjacent to Ps land.

damage. It must be

-P claim that Mining

established that the Physical

constituted unnatural use

damage is substantial in

of land Ps land flooded

nature.

by water escaped form

Amenity nuisance what

Ds land

amounts to substantial
interference is a question of

-As a result, caused

fact and determinable on a

erosion to Ps land

case by case basis.

H- liable in nuisance for
unreasonable, unlawful &
substantial interference
Hotel Continental Sdn
Bhd v Cheong Fatt Tze
Mansion Sdn
A owned a hotel which
were building 20 floors
extension. The R owned
the adjacent land
claimed that the piling
works of the A caused
severe crack to appear in
their heritage building.
Their application for an
injunction was allowed as
it was found that unless
an alternative system of
piling was adopted, the
safety and structural
stability of their building
would be endangered.
The court held that once
the Ds activity constitute
an actionable nuisance in
law, it is no defence that
the D has taken all
reasonable precaution to
prevent it. In this case,
though the piling works
were temporary, it did
not exclude the
respondents right to an

injunction as the physical

damage to their property
constituted an
interference which was
actionable
Rapier v London
Tramways Co [1893] 2
Ch 588
although D has taken
necessary precautions
and piling works were
temporary nuisance as
physical damage
constitutes substantial
interference
2.

2 points to be borne in mind:

Unreasonableness

Hunter v Canary
Wharf Ltd (HL)

- none of the factors are

F: The P claimed damage

conclusive of whether the

in respect of interference

interference is unreasonable

with their tv reception,

or otherwise. They are

for a period of 2 years,

merely relevant

caused by the Ds nearby

considerations to be taken

building which was 250

into account

metre high. The court

held that in the

- Substantial interference

absence of an

may amount to unreasonable

easement, the mere

interference and vice versa.,

presence of a

quite often the courts have

neighbouring building

held Ds activities as being

did not give rise to an

actionable nuisances on the

actionable nuisance.

basis that they constituted

The court

both substantial and

acknowledge that

unreasonable interferences.

interference with TV
reception may amount
to an amenity

No clear-cut definition as to
what constitutes
unreasonable interference:

nuisance in
appropriate
circumstances.

Held;Generally, for an
action in private nuisance
to lie in respect of
interference with the Ps
enjoyment of his land, it
has to arise from
something emanating
from the Ds land, such
as noise, dirt, fumes,
smell, vibrations and
suchlike.

(a) Damage and location

St Helens Smelting v

of the plaintiffs and

Tipping [1865] 11 HL

defendants premises

Cas 642

The location of the P and Ds

F:The P owned a rubber

premises are relevant

estate which was

considerations in assessing

situatied in an industrial

whether the defs acitivity is

area. The Smoke from

unreasonable and amounts

the ds copper-smelting

to substantial.

factory had caused

considerable damage to
the Ps trees.
Held:Distinguished
between sensible injury
to the value of the
property or material
injury (physical
damage), and injury in
terms of personal
discomfort (non-physical
damage). For the latter
type of damage , his
lordship stated that the
level of interference must
be balanced with

surrounding
circumstances, and the
nature of the locality
must be taken into
account.
Syarikat Perniagaan
Selangor Sdn Bhd v
Fahro Rozi, Mohdi &
Ors [1981] 2 MLJ 16 FC
There was a lease of land
use for skating, cinema
and restaurant. But D
built an open stage and
staged some shows and
opened discotheque.
H- Living in urban area
must accept a lot of noise
but no one has the right
to create excessive noise.

(b) Public benefit of the

Perbadanan

defendants activities

Pengurusan Taman

If the object of Ds conduct

Bukit Jambul v

benefits the society

Kerajaan

generally, it is more likely

Malaysia [2000] 1 AMR

that the conduct will not be

228 (building

deemed unreasonable. But

government clinic)

Ds activity which benefits

The D renovated some

the public will still constitute

units in a flat managed

actionable nuisance if the

by the P in order to set

activity causes damage to

up a government clinic.

property or substantial

The P argued that the

interference to Ps enjoyment

renovation was not only

of his land.

conducted without their

approval, but that it

caused pipe and drain
blockages. Further, the
renovated units intruded
into the common fivefoot pathway, thereby
causing nuisance.
H: The court denied the
Ps caim.Whether
something amounted to
nuisance or not must be
considered with
reference to local
circumstances and
surroundings. An
inconvenience does not
necessarily give rise to
an actionable nuisance.
The purpose of the
renovation provided
substantial public benefit.
On the facst the D had
provide a new 5-foot way
and so no nuisance was
created in this aspect. On
the issue of predecessor
and on the principle of
equitable estoppels the P
was stopped from going
back on the consent
given by their
predecessor.
Even if Ds activity gives
rise to public benefit, this
does not automatically
mean that his activity is
not actionable.

Adams v Ursell [1913]

1 Ch 269 (trade of
selling fried fish
smell)
-

The 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. The court
rejected the defence as
Ps comfort and
convenience also had to
be considered.

(c) Extraordinary

Robinson v

sensitivity on the part of

Kilvert [1889] 41 Ch D

the plaintiff

88

The law of nuisance is not

sympathetic to a P who is

F:D business of making

extra sensitive, whether the

paper boxes; and P lived

sensitivity is related to P

in the floor above the

himself or to his property.

same premises was in

the business of selling

Sensitivity cannot be used

special paper which was

as a basis for claiming that

sold according to weight.

Ds conduct constitutes an

The hot air from the Ds

unreasonable and substantial

place caused the

interference, but once

moisture in the Ps paper

unreasonable and substantial

to dry up. The raise in

interference is established,

temperature in Ps

sensitivity will not deprive P

premises did not cause

from obtaining a remedy.

inconvenience to Ps
workers and it would not
have affected normal
paper.
H: not liable as that
ordinary paper would not
have been affected by
hot air and therefore the
Ps property was extra
sensitive.

(d) Interference must be

Delaware Mansions

continuous

Ltd v Westminster City

Continuous or occurs very

Council [2001] 4 All ER

often as generally a

737 HL

continuous activity will

H:Roots of a tree

constitute substantial

belonging to D had

interference. It is not

spread to the

conclusive requirement but it

neighbouring property

is certainly a factor in

and caused structural

deciding whether the

cracking to that property

interference is substantial or

amounted to continuing

otherwise.

nuisance until the

completion of remedial
works.
Matania v National
Provincial Bank Ltd
and Elevenist
Syndicate Ltd [1936] 2
All ER 633
H: Yet a temporary noise
and dust held to
constitute a nuisance.

(e) Temporary

MBf Property Services

interference and isolated

Sdn Bhd v Madihill

incident

Development Sdn Bhd

(No2 )[1998] 4 CLJ 136

General principle: the more

F:The construction of a

serious the interference, the

road over Ds land for the

more likely the court will

purposes of connecting 2

regard it as unreasonable.

pieces of Ps lands was

an actionable nuisance
as the road was tarred,
pre-mixed and thus
permanent in nature.

H:A mandatory injunction

was accordingly granted
to D.
In cases of temporary
interference, courts are
likely to be reluctant to
grant an injunction
except in extreme cases,
(eg. damages will not be
an adequate remedy).
Hotel Continental Sdn
Bhd v Cheong Fatt Tze
Mansion Sdn
Bhd [2002]
If P is claiming for
damages as opposed to
injunction, the nature of
injury suffered by him will
be a relevant factor to
determine whether the
temporary interference is
an actionable nuisance. If
his injury is temporary
interference, the court

may hold that the

interference is too trivial
to be considered as a
nuisance. [eg. renovation
of house]
Sedleigh-Denfield v
OCallaghan [1940
H: It is a nuisance as a
result of allowing a
culvert on their land to
remain blocked, Ps
adjoining property was
flooded.

Spicer v Smee [1946]

F:Ps house was burnt
down due to a defective
wiring system in Ds
adjoining house.
H: D is liable as there was
a dangerous state of
affairs on his premises.
The court held that
private nuisance arises
out of a state of things on
one mans property
whereby his neighbors
property is exposed to
danger.
Thean Chew v The
Seaport (Selangor)
Rubber Estate Ltd
F: Ps husband suffered

injuries from which he

later died when a
diseased rubber tree
belonging to the D fell
onto highway, and onto
the lorry in which the
deceased was travelling.
H: D liable in nuisance as
he had failed to remedy
the dangerous state f his
property within a
reasonable time after he
did or ought to have
become aware of it.

(f) Malice
The existence of malice may

Christie v
Davey [1893]

cause Ds act to be
unreasonable.

F: P was a music teacher

who conducted music
classes at her house. Her
neighbor, D, 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 her classes.
H: D was malicious in his
actions and an injunction
was granted to P.

Hollywood Silver Fox

Farm v Emmett [1936]

F:P bred special foxes

which were extremely
sensitive during their
breeding season. D
intentionally let out a few
gunshots near the cages
with the aim of causing
damage.
H: Liable even though P
here used his premises
for a particular purpose
which was extraordinarily
sensitive, nevertheless
the Ds act was
unnecessary and
malicious, rendering it
unreasonable; thus the
fact that the Ps property
was sensitive was
irrelevant.
Distinguished case:
Bradford Corporation v
Pickles
F:D deliberately
prevented the flow of
water on his land so that
Ps land received less
water.
H:not liable coz P has no
right to unlimited water
supply. Ds act was in fact
lawful and his bad motive
was irrelevant.

Defences:

1. prescription. Eng: 20

yrs, Malaysia:
easement, not
prescription is a good
defence S282(1), (2),
(3) and 284 NLC
2. statutory powers.
Local authority need
to prove interference
cannot be avoided
even though
reasonable
precautionary
measures has been
taken.
Goh Chat Ngee v Toh
Yan

Other defences

1. Necessity
2. Consent
3. Defence of property
4. Contributory
negligence S12 (1)
CLA
5. A plea that P came to
a nuisance, in that Ds
operation has been
carried out before P
moved into a varsity is
not a good defence.
Bliss V Hall, Miller v
Jackson