NUISANCE

Nuisance

Statutory nuisance

Public nuisance

Private nuisance

Types of nuisance

This category of nuisance is specially created by statute to protect the public at large – e.g.to protect environmental.

E.g. of statute – Local Government Act 1976, Environmental Quality Act 1974 (to control pollution)

This statutory offences are enforced by public bodies. There is no civil liability for infringement of the Act.

Statutory nuisance

Public nuisance is an act or omission which causes a class of his majesty’s subject to suffer unreasonable discomfort or inconvenient or interference with their right.

Public nuisance is an interference with rights of the public at large.

E.g. obstruction of public highway, selling impure goods, carrying on an offensive trade.

It is primarily a crime punishable by the Penal Code (Chapter 14).

The action can only be brought by the AG (s.8(1) of the Government Proceeding Act 1956.

Public nuisance

A nuisance will not be public unless the number of persons affected is sufficiently large to constitute a ‘class’. This is a question of fact.

AG v PYA Quarries (1957) – Dust and vibrations caused by the operation of a quarry amounted to a public nuisance although the D tried to argue that too few people were affected by their act.

Cont…

The court of Appeal in this case did not define how many people constitute a ‘class’.

But Lord Denning indicated that there would be an action for P.N if the disturbance was so widespread that it would be unreasonable to expect only one individual to try to prevent it.

In other words the question is more one of the effect upon the community that one of the numbers involved.

Decision

Public nuisance is sometimes actionable as a tort.

An individual can take a civil action for public nuisance when he suffers special damage greater than that suffered by the public.

He must prove that he suffered damage which is different from the damage caused to the rest of the public.

It is over and above that suffered by the public at large.

Actionable public nuisance

Campbell v Paddington Corp (1911) – the defendant was held liable in nuisance for erecting a grandstand which caused obstruction to the public highway. The nuisance also had prevented the P from letting her windows to view a procession.

Cases

The P were in the business of selling heavy earth-moving and construction equipments such as heavy tractors, forklift trucks etc.

Padi rusk form the def’s factory would fly over to the P’s premises when the D burned the padi rusk. The P’s workers had to cover their mouths and noses to prevent themselves from inhaling the dusk. They had to shut the door when the wind blew in their direction and the machines which were displayed became dusty very quickly.

Held: In a public nuisance, someone may institute proceeding without prior consent from the AG if he suffered special damage. Injunction was granted.

Pacific Engineering v Hj.Ahmad Rice Mill (1966)

Public Nuisance Private Nuisance

Is a crime as well as a tort Only a tort

The claimant does not need an interest in land to sue

Only those with an interest in land can sue

An isolated incident may give rise to a claim

Isolated incident – no actionThere must be an ongoing state of affairs

The claimant must be one of a class of His Majesty’s subjects who suffered damage over and above the rest of the class affected

An individual may sue, not as part of class

Distinctions between public nuisance and private nuisance

Winfield defines a private nuisance as ‘unlawful interference with a person’s use and enjoyment of land, or some right over or in connection with it’.

In Bamford v Turnley (1862), a private nuisance was defined as “…any continuous activity or state of affairs causing a substantial and unreasonable interference with a P’s land or his use or enjoyment of that land.”

Private nuisance seeks to strike a balance between the rights of occupiers to use their property as they like and the rights of their neighbours not to have their use of land interfered with.

Private nuisance

Private nuisance

Indirect interferenc

e

Continuous Unreasonable Proof of

damage

Basic elements

Private nuisance may be committed in various ways –

(a) Emanation – smoke, smell, fumes(b) Encroachment – root of the trees(c) Obstruction – e.g highway(d) Interference with TV/radio/internet

reception(e) Interference with servitudes –e.g right of

way, right of support, right to light etc.

Indirect interference

Actions for private nuisance arise when there has been continuous interference over a period of time with the P’s use and enjoyment of land.

There must be a ‘state of affair’. Therefore temporary interferences do not

usually amount to actionable nuisance. Similarly a single act giving rise to a

complaint will not normally constitute private nuisance.

Continuous interference

Stone v Bolton – A cricket ball struck from the defendant cricket ground and injured the P who was standing on the ground. Evidence shown that the ball were hit from the ground six times in 20 years.

Held: Action in nuisance failed because in nuisance there must be a state of affairs – not mere an isolated happening.

Cases

However a temporary but very substantial state of affairs may amount to a nuisance.

De Keyser’s Royal Hotel v Spicer Bros Ltd – in this case noisy pile driving at night during temporary building works was held to be a private nuisance.

Contrast…

Nuisance is a law of ‘give and take’. Thus reasonableness is the central theme in

nuisance. It signifies what is legally right between the

parties taking into account of all the circumstances of the case.

The law of nuisance has to balance two conflicting interests – i.e. the right of occupier to do what he likes with his own land and the right of his neighbour not to be interfered with.

Unreasonable interference

Lord Wright in Sedleight-Denfield v O’Callagham observed:

“ It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society”

What is reasonableness?

There are many factors which the court takes into account in assessing the reasonableness or otherwise of the D’s use of land:

(a) The extent of the harm(b) Nature of locality(c) Utility of the D’s conduct(d) Abnormal sensitivity(e) Practicality of prevention(f) Malice

Factors

Types of harm

Physical injury to land

Interference with personal

enjoyment

The extent of the harm

In St.Helen’s Smelting Co v Tipping the court discussed a legal distinction between these two types of harm.

It is easier to establish a nuisance causing physical injury compared to nuisance causing personal discomfort since physical injury is tangible and easy to be observed and measured.

In the case of non-tangible injuries, there must be something over and above the everyday inconveniences in that particular locality.

Cont…

Syarikat Perniagaan S’gor Sdn Bhd v Fahro Rozi Mohdi & Ors - The Federal Court held that the noise from music bands and disco was excessive and intolerable and was therefore an actionable nuisance.

Cont…

Thinking point?

Can personal injury be claimed in an action for nuisance?

In a case of nuisance causing personal discomfort, it is necessary to take into account the nature of the locality.

Thus if a person chooses to live next door to a large industrial estate or a busy motorway, he cannot expect the comfort and conveniences as he might get in a country village.

However if the interference is sufficiently great, an act may be nuisance regardless of locality.

The nature of the locality

The D had an oil distributing deport which was near a residential area in which the P lived. The P sued the D for nuisance on the following complaints:

(a) The form of acid smuts from D’s chimney damaged P’s clothes hang in the garden

(b) Noises from boilers on D’s premises(c) Noises from lorries which came and left the

deport all through the night(d) Smell from the deportHeld: The D liable for nuisance.

Halsey v Esso Petroleum Co

Locality is not a factor when the nuisance is one which causes physical damage to the P’s land.

St.Helen’s Smelting Co v Tipping – the P bought an estate in a manufacturing area. The D operated a copper smelting works one and half miles from P’s estate. Vapours from this works proved injurious to trees on P’s land.

Held: The P succeeded in his action regardless the locality he chooses to live.

Cont…

Since nuisance is the law of give and take, the court sometimes take into consideration the utility or general benefit to the community of the D’s activity.

Perbadanan Pengurusan Taman Bukit Jambol v Kerajaan Malaysia (2000) – the D renovated some units in a flat managed by the P in order to set up a government clinic. The P alleged that the renovated units intruded into the common five-foot pathway, thereby causing nuisance.

The action failed. The court held that the purpose of the renovation provided substantial public benefit.

Utility of D’s conduct

Adams v Ursell – a fish and chip shop was held to be a nuisance in the residential part of a street where it was carried on.

The D argued that an injunction would cause great hardship to the D and to the poor people who were his customers.

The argument was rejected by the court – its benefit to local poor inhabitants could not justify its presence in a fashionable street.

Compare

In considering what is reasonable the law does not take into account of abnormal sensitivity either in person or property.

Robinson v Kilvert – the D was in the business of making boxes. The process involved using hot air. The P who lived in the floor above the same premises was in the business of selling special delicate brown paper. The hot air in the D’s premises caused damage to this sensitive paper.

Held: No nuisance – ordinary paper would not have been affected by hot air. The P’s property was extra sensitive.

Abnormal sensitivity

The court will consider whether the D has taken certain step to minimize or to prevent the interference.

For e.g. in cases of air pollution – whether the D has installed equipment to minimise the pollution.

If the interference is so substantial, no preventive measure can be taken, the D has to stop the activity.

Practicality of prevention

Moy v Stoop – the court held that action in nuisance failed against a householder whose children were often crying.

But the court indicated that the decision might have been different had the children been crying because they were neglected.

Case

In deciding what constitute a nuisance, the court takes into consideration the main object of the D’s activity.

If the D deliberately sets out to create an annoyance, he may be held liable in nuisance.

The existence of malice may cause the D’s act to be unreasonable.

Malice

The P was a music teacher who conducted music classes at her house. The D did not like the sounds from the musical instruments.

Every time the P conducting his class, the D started shouting, banging the wall, beating on trays etc.

Held: the noises in D’s house were of malicious nature. Therefore an injunction was granted against the defendant.

Christie v Davey

The D was liable in nuisance when he deliberately fired gun close to the boundary with his neighbour’s land where silver foxes were kept, so interfering with their breeding habits, as they are nervous animals and likely to eat their young if frightened.

The court was prepared to accept that what might otherwise have been lawful act on the D’s own land had become a nuisance because of the malice involved.

Hollywood Silver Fox Farm v Emmett

Public nuisance – the state (AG), public bodies and individuals who has suffered ‘special damage’.

Private nuisance – persons who has proprietary or possessory interest in land.

This includes a landowner, an occupier(e.g. tenant, lessee or a person who in in actual possession.)

Who can sue in nuisance?

Defendants

Creator of nuisance occupier Landlord

Who can be sued?

Defences

Prescription Statutory authority

NecessityAct of God

Act of third party

Defences

A continuous private nuisance for the period of twenty years is good defence.

The D has to prove that the P has tolerated the interference for the past 20 years.

Sturges v Bridgman – the D’s factory produced a lot of noise and caused vibrations on the P’s premises for the past 20 years. The P, who was a doctor then built a treatment room at the back of his house. He sued for nuisance for the interference caused the treatment of his patients.

Held: the defence of prescription was inapplicable. Injunction granted.

Prescription

If the D is authorised by a statute to conduct a particular activity, he may escape liability even though the activity gives rise to an interference.

However the D must prove that the interference was unavoidable after taking reasonable precautionary measures.

Woon Tan Kan v Asian Rare Earth Sdn Bhd – the D’s company has a licence and authorised by statute to deal with radioactive substances. No liability for nusiance.

Statutory authority