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Nuisance Table 1
Nuisance Table 1
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
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
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
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
Perniagaan
of
reasonab
v Fahro Rozi
le
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.
Southwark
London BC v Mills
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
Vs
is continuous or in stages or
intermittent.
Sampson v
Ordinary use of a residential
Hodson-
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):
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,
6.
Motive
7.
Malice
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
obstruction has
Quarries Ltd
is an inconvenience
into a nuisance.
society.
neighbourhood, it
materially affects the
reasonable comfort and
convenience of a class of
the subjects of the state.
Requirement:
Interference with
created if knowing or
knowing of its
existence, a person
allows it to continue
for an unreasonable
time or in
unreasonable
circumstances.
H: In an injunction
and injury.
be used as guidance
to determine the
Attorney- General if he
existence of special
or particular damage:
1)
The type of
suffered personal
extent of damage is
discomfort therefore an
more serious. In
what is suffered by
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-
no special damage
suffered by any
& 41 Ors:
particular
individual
Government
the Attorney-
General, or two or
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
the Attorney-
Generals consent as
however, be met if
by a local authority in
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.
-
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.
ii.
physical damage to
the land
- substantial interference
differs according to types of
damage
(a) Interference
-Collectively known
as amenity nuisance.
comfort or
-Result in Feeling of
noise Andrea v
enjoyment of land
from Ds activity.
for prostitution
(Thompson-Schwab v
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
nuisance was
established.
insidiously, significant
produced dangerous
radioactive gases
and constituted
substantial interference.
Bhd [1996]
F: -
which escaped
downwards into Ps
patients receive
physical damage to
land or property
is therefore recoverable.
However, there is no
automatic recovery of
adjacent to Ps land.
damage. It must be
damage is substantial in
nature.
Ds land
amounts to substantial
interference is a question of
erosion to Ps land
Unreasonableness
Hunter v Canary
Wharf Ltd (HL)
in respect of interference
interference is unreasonable
merely relevant
considerations to be taken
into account
- Substantial interference
absence of an
presence of a
neighbouring building
actionable nuisance.
The court
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.
St Helens Smelting v
Tipping [1865] 11 HL
defendants premises
Cas 642
considerations in assessing
situatied in an industrial
the ds copper-smelting
to substantial.
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.
Perbadanan
defendants activities
Pengurusan Taman
Bukit Jambul v
Kerajaan
228 (building
government clinic)
up a government clinic.
property or substantial
interference to Ps enjoyment
of his land.
(c) Extraordinary
Robinson v
Kilvert [1889] 41 Ch D
the plaintiff
88
sensitivity is related to P
Ds conduct constitutes an
interference is established,
temperature in Ps
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.
Delaware Mansions
continuous
often as generally a
737 HL
H:Roots of a tree
constitute substantial
belonging to D had
interference. It is not
spread to the
neighbouring property
is certainly a factor in
interference is substantial or
amounted to continuing
otherwise.
(e) Temporary
incident
F:The construction of a
purposes of connecting 2
regard it as unreasonable.
(f) Malice
The existence of malice may
Christie v
Davey [1893]
cause Ds act to be
unreasonable.
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