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Topic 1 Nuisance - Lecture notes 1

Law of Torts II (Multimedia University)

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Nuisance

A. Introduction
1. Nuisance distinguished
2. Damage/remedies
3. The concept of reasonableness
B. Categories of nuisance
C. Public nuisance
1. Definition
2. Public nuisance is also a crime
3. Person who may claim
D. Private nuisance
1. Definition
2. Establishing private nuisance
Substantial interference
Unreasonableness
E. Who can sue
F. Who can be sued
1. Creator
2. Occupier
3. Landowner/landlord
G. Defences
1. Prescription
2. Statutory body
3. Other defences

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Chapter 1 Nuisance

A. Introduction

Purpose: To provide comfort to persons who have proprietary interests in land and to
members of society generally, through control of environmental conditions.
Law of nuisance – balancing of competing interest.

1. Nuisance distinguished

a. Nuisance v. trespass to land

N is of bigger class than T. The test – whether direct physical interference
N – interference to P’s interest over his prop and not require D’s entry but should prove
special damage.
T- direct entry onto P’s land and no need to prove damage.

b. Nuisance v. negligence
Overlap between both.
Seong Fatt Sawmills Sdn Bhd v Dunlop Malaysia Industries Sdn Bhd [1984] 1 MLJ 286 FC
Wong See Lee & Ors v Ting Siik Lay [1997] 2 CLJ 205 FC

Negligence is not a prerequisite in an action for nuisance.

See: Wisma Punca Emas Sdn Bhd v Dr Donal [1987] 1 MLJ 393 SC – loss of natural right of
support.

c. Nuisance and the rule in Ryland 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 in itself may give rise to an action for nuisance but not necessarily so.

N – continuous interference
Action under rule in Rylands v Fletcher – one single act of interference is sufficient.

2. Damage and remedies

Harm / damage:
i. damage to property (easily identifiable)
includes nuisance by encroachment on a neighbour’s land
ii. interference with personal comfort
- Damage must be proved.
- Damage must be a kind that is reasonably foreseeable to arise from D’s wrongful conduct.
Remedies:
1. injunction (suitable for continuing nuisance)
Pacific Engineering Ltd v Haji Ahamd Rice Mill Ltd [1996] 2 MLJ 142 at 146.
Renal Link v Dr Harnam Singh [1997] 3 CLJ 225
2. damages (easy for physical damage)
3. report to the relevant authorities

3. The concept of reasonableness

Only when the interference is deemed unreasonable will nuisance be established

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Reasonableness does not mean whether D has taken adequate precautions to avoid the risk of
accident (negligence).
Measured by balancing of rights and interests of both parties – compromise.
Damage suffered by P – important to determine the reasonableness of interference

Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors [1981] 2 MLJ 16
-everyone should tolerate interference from neighbour
-everyone has the right to make certain amount of noise in enjoyment of our property as long
as it is reasonable

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

To determine nuisance – to strike balance bw 2 parties (usage v undisturbed enjoyment of

prop)
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.

B. Categories of nuisance

2 categories:
- public nuisance (crime & tort)
- private nuisance (tort only)

Same conduct may amount to both public and private nuisance.

C. Public nuisance

-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.
-Unreasonable and dangerous to leave long steel pipes with sharp edges by the side of a
highway for one or two years, as this would create a danger to users of the highway (Lim Kar
Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109).

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D’s conduct need not be independently unlawful, but it is the effect of his conduct on the P
that is considered (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.

1. Definition
Attorney-General v PYA Quarries Ltd [1957] 2 QB 169, at 184 per Romer LJ

Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors [1978] 2 MLJ 156 at 158 per
Gunn Chit Tuan J:
… 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.
“class of the subject of the State” is a question of fact in each case.

2. Public nuisance is also a crime

s 268 Penal Code. (see also ss 268 – 294 Penal Code and ss 89, 96, 97, 98)

3. Persons who may claim

a. Criminal proceedings
Public Prosecutor on behalf of government

b. Civil proceeding – person who suffers special or particular damage

P need not have an interest in land.
P suffered special damage
Guidance to determine the existence of special or particular damage:
4. Type or extent of damage is more serious (personal injury or damage to property)
5. Damage must be a direct consequence and is substantial.
Pacific Engineering v Haji Ahmad Rice Mill [1966] 2 MLJ 142

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

s 8(1) Government Proceedings Act 1956
Relator action
See: Koperasi Pasaraya Malaysia Bhd v Uda Holdings Sdn Bhd & 41 Ors [2002] 4 AMR
4701

D. Private nuisance

1. Definition

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

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

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

MPPP v Boey Siew Than - laid down the difference between public and private nuisance:

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P must prove interference with the enjoyment of his land.

P must have an interest in land to be able to sue in private nuisance.
Persons having interest over land: landowner, tenant, licensee etc.

2. Establishing private nuisance

P need not prove special or particular damage.

Elements required to be established:

1. Substantial interference
a. Interference with the use, comfort or enjoyment of land
b. Material or physical damage to land or property

2. Unreasonableness
a. Damage and location of P’s and D’s premises
b. Public benefit of D’s activities
c. Extraordinary sensitivity on P
d. Interference must be continuous
e. Temporary interference and isolated incident
f. Malice

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

2.1. Substantial interference

- not actionable per se.

- protects a person from 2 types of damage/interference:
o interference with use, comfort or enjoyment of his land
o physical damage to the land
- substantial interference differs according to types of damage

(a) Interference with the use, comfort or enjoyment of land

-Collectively known as amenity nuisance.
-Feeling of discomfort –unable to live peacefully
-Depends on facts and circumstances of each case.
-Examples of substantial interference: (case-by-case basis based on surrounding
circumstances)
- Loss of one night’s sleep due to excessive noise – Andrea v Selfridge & Co Ltd
[1937] 3 All ER 255 CA
-Using adjoining premises for prostitution (Thompson-Schwab v Costaki [1956] 1 All
ER 652) or as a sex shop (Laws v Florinplace Ltd [1981] 1 All ER 659)
-Persistent telephone calls – Khorasandjian v Bush [1933] QB 727

Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2299 HC;
-operating a factory produced dangerous radioactive gases
- nuisance established – the situation shall be something over and above the normal
inconvenience- annoyance and discomfort

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

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Brindlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436

Hunter v Canary Wharf Ltd [1997] AC 655

Question of policy to be considered.
Balance of P’s right to be involved in recreational activities on his own land and
D’s equal right to build on his land, particularly if his activity is deemed to be of greater
significance to the government and society generally.

(b) Material or physical damage to land or property

General rule: actual physical damage to land occurs = substantial interference and is therefore
recoverable.

Physical damage is substantial in nature.

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

Goh Chat Ngee & 3 Ors v Toh Yan & Anor [1991] 2 CLJ 1163
-D carried out mining work on his land – adjacent to P’s land.
-Mining constituted unnatural use of land – P’s land flooded by water escaped form D’s land
-As a result, caused erosion to P’s land
H- unreasonable, unlawful & substantial interference
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 Unreasonableness

2 points to be borne in mind:

- Relevant but not conclusive factors of whether the interference is unreasonable or
otherwise.
- Substantial interference may amount to unreasonable interference and vice versa.

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

Wharf Ltd (HL)

(a) Damage and location of the plaintiff’s and defendant’s premises

St Helen’s Smelting v Tipping [1865] 11 HL Cas 642
-smoke from D’s land caused damage to P’s trees
“Sensible injury to the value of the property” or “material injury” (physical damage), and
injury in terms of personal discomfort (non-physical damage).

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

Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903; [1940] 3 All ER 349

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.

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“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 (smoke, smell); Sturges v
Bridgman [1879] 11 Ch D 852 (noise)

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.

What is regarded as excessive within that locality would generally be actionable.

Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi, Mohdi & Ors [1981] 2 MLJ 16 FC
(lease of land – use for skating, cinema and restaurant. But D built an open stage and staged
some shows and opened discotheque)

Time may be a relevant factor. Same activity may give rise to an actionable nuisance at one
time but not at a later time: Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All
ER 923 (commercial port)

(b) 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.
Examples: building schools, factories, government hospitals and power stations, although
giving rise to interference in the form of noise and dust to nearby residents, would probably
be denied on the basis of the utility derived from the construction of the facilities.
Perbadanan Pengurusan Taman Bukit Jambul v Kerajaan Malaysia [2000] 1 AMR 228
(building government clinic)

Even if D’s 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)

Kennaway v Thompson [1981] QB 88

Even if 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 rights to comfort and enjoyment
overrides any public benefit that may be derived from that activity.

(c) 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.

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

D - business of making paper boxes; and P lived in the floor above the same premises was in
the business of selling special paper which was sold according to weight. The hot air from the
D’s place caused the moisture in the P’s paper to dry up. The raise in temperature in P’s
premises did not cause inconvenience to P’s workers and it would not have affected normal
paper.

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

P – owner of television and radio station. D – Board responsible for the supply of electricity
in the area, erected an electrical powerhouse in the same area.

Q: can this case still stand today?

See Canada case in Nor-Video Services Ltd v Ontario Hydro [1978] 84 DLR (3d) 221.

(d) Interference must be continuous

Continuous or occurs very often.

Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 HL

Roots of a tree belonging to D had spread to the neighbouring property and caused structural
cracking to that property - continuing nuisance until the completion of remedial works.

Matania v National Provincial Bank Ltd and Elevenist Syndicate Ltd [1936] 2 All ER 633
Temporary noise and dust.
An isolate incident constitutes a nuisance, if the incident is due to a dangerous state of affairs
on D’s premises.
Spicer v Smee [1946] 1 All ER 489

(e) Temporary interference and isolated incident

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

MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No2 ) [1998] 4 CLJ 136
The construction of a road over D’s land for the purposes of connecting 2 pieces of P’s lands
was an actionable nuisance as the road was tarred, pre-mixed and thus permanent in nature. 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] 3 AMR 3405 CA.

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 O’Callaghan [1940] 3 All ER 349.

Nuisance – as a result of allowing a culvert on their land to remain blocked, P’s adjoining
property was flooded.

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Spicer v Smee [1946] 1 All ER 489

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

(f) Malice
The existence of malice may cause D’s act to be unreasonable.

Cases:
Christie v Davey [1893] 1 Ch 316 (music classes at home)
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468; [1936] 1 All ER 825 (foxes
breeding)

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.

E. Who can sue

-person who has some proprietary or other interest in land

-landowner
-occupier (whether tenant, lessee or person who is in actual possession) – Foster v
Warblington UDC [1906] 1 KB 648 CA
-reversioner (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)

-Proprietary or possessory interest in land

-Malone v Laskey [1907] 2 KB 141 CA – occupier’s wife has no right (but challenged by
subsequent case)
-Khorasandjian v Bush [1993] 3 All ER 669 - extended the category of person entitled to sue

F. Who can be sued

3 categories: creators, occupiers and landlords.

1. 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 – employee rears
animals, employer-licensee liable – deemed to have been invested with the management and
control of the premises.

Test: who authorised the activity and whether interference is foreseeable from that activity:
Telley v Chitty [1986] 1 All ER 663

No requirement: 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

Through a positive action - Steven Phoa v Highland Properties [2000] 3 AMR 3567

Liable although he is not the occupier/landlord

Thompson v Gibson (1841) M & W 456

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2. Occupier
Occupier will be liable:
- All positive acts of interference, including omissions which give rise to a nuisance -
McGowan & Anor v Wong Shee Fun & Anor [1966] 1 MLJ 1
- the acts and omissions of third parties in the following situations: servant or
employee; independent contractor; trespasser; licensees; natural causes; conduct of
previous occupier

(a) Servant or employee

Persons who are subject to the occupier control: vicarious liability – Spicer v Smee [1946] 1
All ER 489

(b) Independent contractor

independent contractor where his duty is “non-delegable”.
Bower v Peate [1876] 1 QBD 321; Matania v National Provincial Bank [1936] 2 All ER 633;
Salsbury v Woodland [1970] 1 QB 324; Holliday v National Telephone Co [1899] 2 QB 392

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

(d) Licensees
Lippiatt v South Gloucestershire Council [1999] 4 All ER 149 CA
-nuisance by allowing the travelers (licensees) to occupy the land – caused unlawful
disturbance to neighbours

(e) 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
Leakey v National Trust [1980] 1 All ER 17 CA
Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd & Ors [1999] 4 CLJ 339

Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 All ER 705 CA
D owed a duty to take reasonable steps to reduce any threat to the claimants’ property caused
by the potential failure of the support provided by their own land.

An occupier could be liable for damage to neighbouring property which is caused by a state
of affairs arising naturally on his own property.

Liability – subject to these factors:

-Where the type and the extent of the harm is foreseeable.
-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.
-Patent and obvious, and not latent danger.

(f) 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.

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3. Landowner or landlord

General rule: A landowner who has surrendered possession and control of certain premises –
not liable
Exceptions:
- authorised the nuisance
- knew or ought to have known of the nuisance before the tenancy became effective
- covenanted to repair or has a right to enter the premises to conduct repair works

a. If he has authorised the nuisance

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
Not liable for the collapse of a limestone hill on the basis that he did not create the state of
affairs and was not the occupier of the and at the time.

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.

If the landowner has an agreement with the tenant or lessee, and the tenant or lessee creates a
nuisance in breach of the agreement, the landowner will be excluded from liability.
Smith v Scott [1973] Ch 314 (criticized by Merritt [1973] JPL 154)
cf Page Motors Ltd v Epsom & Ewell Borough Council [1982] 80 LGR 337

b. If he knew or ought to have known of the nuisance before the tenancy became
effective
The tenant may be liable for ‘accepting’ or ‘continuing’ the nuisance and on the basis of his
occupation.

Even if the tenant has agreed to improve the conditions on the premises, the landlord will
nevertheless be liable if the nuisance is not abated, as it is his responsibility and not the
tenant’s to remedy the nuisance before it causes injury to another.
Brew Brothers Ltd v Snax (Ross) Ltd [1970] 1 QB 612

Landowner not liable if it is not reasonable for him to have known of the situation giving rise
to an actionable nuisance: Brew Brothers Ltd v Snax (Ross) Ltd [1970] 1 QB 612

c. 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: landlord is 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)
A developer of condominiums may be liable in nuisance to resident-owners of apartments if
he has covenanted to repair any defect on the premises and has reserved the right to enter the
premises to conduct the said repairs.

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If the agreement is that the tenant or lessee should conduct repair works, liability depends on
the following 2 factors:
1. if the landlord knows of any existing defect or possibility of nuisance at the time the
tenancy commences, he will still be liable.
2. If the nuisance occurs after the tenancy has commenced, the issue revolves around the
degree of control that D as landlord, retains.

G. Defences

1. Prescription
England:
1. applicable to private nuisance.
2. continuous private nuisance for 20 years is a good defence.

Malaysia:
1. Easement, and not a prescription, is a good defence
2. s 282(1)(2)(3) & s 284 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 an 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

If the undertaker is under a statutory duty to carry out his operations in a specified place and
he has taken all reasonable care, will not be liable.

3. Other defences
1. necessity
2. consent
3. defence of property
4. contributory negligence

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