PRIVATE NUISANCE

Nuisance vs. Negligence

- Nuisance (just like negligence) actionability depends on proof of actual damage
- Damages claimable in nuisance are not restricted to physical damage; can include
amenity damage resulting from interferences such as noise, smell, smoke,
vibrations and the like
- Nuisance protects interests in LAND only  protects enjoyment of land from
substantial and unreasonable interference
- Nuisance does not require proof of negligence  but requires proof that the
interference was unreasonable
[Unreasonable care is not required; unreasonable interference required]

D who can prove he has taken reasonable care may nonetheless be liable in nuisance
(Lau Chun Wing v Incorporated Owners of Po On Building)
- Assumed to be private nuisance in tort actions
(Public nuisance is a criminal action)
 Designed as an action between neighboring landowners to protect a person’s interest
in land from being adversely affected by his neighbor’s activities (e.g. free from physical
harm)
 Protects one’s right to one’s land/property
Trespass to land vs. Nuisance
- Direct vs. Indirect interference
 Direct – trespass – e.g. when A causes an object to go onto B’s land (e.g. hitting of a
tennis ball that caused the interference) – A has control over the object
 Indirect – nuisance – e.g. when A’s trees roots enter B’s land – A has no control over
how the roots grow

- Trespass to land covers cases only when there is person/physical object crosses the
boundary onto B’s land

BASIS FOR LIABILITY – What constitutes a nuisance?

- Balancing interests of competing land users
 To be actionable, the interference must be substantial and unreasonable, tested
according to essentially objective criteria
o Substantial  imports the requirement that the interference be more than de
minimis  sufficiently significant to warrant law intervention

 “Unreasonable”  focuses on the outcome, not on D’s conduct

 Nuisance: “An inconvenience materially interfering with the ordinary comfort of
human existence according to plain and sober and simple notions”

[1 – Physical Damage] (Tangible interference)

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Physical damage to property
 implies “substantial & unreasonable” requirement satisfied
ACL Electronics v Bulmer; St Helen’s Smelting Co v Tipping
 Applies to water leakage cases (Lau Chun Wing v Incorporated Owners of Po On
Building)

Rule in St Helen should also apply where the damage suffered is personal injury
 PI damages not recoverable in nuisance action
 But are relevant in determining amenity damages
 Interference causing actual personal injury constitutes substantial and unreasonable
interference

[2 – Intangible interference]
Where interference is intangible, P must prove that there was a substantial and
unreasonable interference
 No need to prove activity producing the interference is unreasonable, only that its effect
is unreasonable (So Kwok Yan Bernard v Lau Wing Chung)

 Balancing exercise – depends on nature, extent, time and duration of interference, any
peculiarity/sensitivity of plaintiff, nature of locality, purpose of defendant’s activity and
social utility

Capital Prosperous Ltd v Sheen Cho Kwong

Facts – D installed water pump to ensure adequate pressure in shower.
P complained of excessive noise of water pump.
P brought action against D in nuisance, seeking injunction to stop use of shower after
11pm
Held – Action dismissed
 Test – whether reasonable to run pump-assisted shower, at a floor-level where pump
assistance is needed, for two periods of a few minutes, after 11pm
 Annoyance complained of does not amount to nuisance
Critique –
If the shower triggers a noisy, vibrating pump, is it still reasonable to take a shower at
midnight? Is it not reasonable to expect that some people might be sleeping at that time?

Hu Wei Hsin v Ma Hung Wing

Facts – smoke and smells caused by incense burning
Held – for plaintiff; but no blanket ban only conditions imposed
The law requires the court to apply the standard of an average person – P was too sensitive
in banning all kinds of incense – respect culture and only ban if causes nuisance

2.1 Nature of the interference

If consists of dust or smoke, more likely to be taken seriously by the court and treated as
substantial and unreasonable interference.

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- As opposed to noise/odors, in which case greater tolerance may be expected

2.2 Timing and duration

- Persons in urban community expected to be tolerant of noises of the city and of neighbors
during normal waking hours (Capital Prosperous Ltd v Sheen Cho Kwong)

- Operation of drills and saws to effect flat renovations acceptable during the day (NOT at
night); have to be tolerated for weeks at a time as home renovation is an accepted part of
modern life if carried out at reasonable times (Andreae v Selfridge)

- So Kwok Yan Bernard v Lau Wing Chung

 nuisance was found where noise from flat above was “unexplained frequent impacts of
hard objects onto the floor, occurring in late hours of the night or early morning”

- Ng Yuen Han v Lam Fei Fui

 P complained of poor sound insulation from flat above caused by ineffective
soundproofing floor files
 CA considered that “persistent sound level reaching 60-80 decibels for five years was
sufficient to constitute a nuisance”

2.3 Hypersensitivity
Standard for intangible interference is objective;
 An interference that would affect an ordinary user of property
 P’s sensitivity to noise or smell will not assist in proving nuisance
(Capital Prosperous Ltd v Sheen Cho Kwong – early sleeping hours)

- Remoteness of damage
- Abnormal sensitivity principle

2.4 Anti-social activity

Interference is deliberate and plainly unreasonable as lacking an social value
 likely to constitute nuisance

Christie v Davey (1893)

 D deliberately manufactured loud crashing noises at night in retaliation against beighbor

Chan Kwok On Peter v Thomas (1984)

 D inserted grill in drainage channel, which served his purpose in minimizing the flow of
rubbish in the channel, but in the event blocked with rubbish and flooded P’s premises
 Nuisance
 plain consequence of the manoeuvre was to move the risk of flooding onto P’s property
and was “impossible to justify on the basis that it was not an unreasonable act”

2.5 Locale

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“Locality principle” – Sturges v Bridgman (1879)
 Whether anything is a nuisance or not is a question to be determined, not merely by an
abstract consideration of the thing itself, but in reference to its circumstances; what would
be a nuisance in the Belgrave Square would not necessarily be so in Bermondsey”

Realty Harvest v Gold Margin Development

Noise and vibration from weaving machine in industrial building in industrial area
Held – the fact that the locality was noisy does not mea that the interference was
reasonable
Test – whether the noise and vibration amount to a material interference with ordinary
comfort

Application of locality principle does not mean that the courts will automatically sanction an
interference in Area A merely because it is typical in Area B

Murdoch v Glacier Metal Co – operation of factory not nuisance despite exceeding WHO
standard; character of neighborhood  industrial area  should be taken account

2.6 Structures
- Does it matter whether the nuisance relates to a static condition of the land, or must it arise
from an activity on or an emanation from the land?

Hunter v Canary Wharf Ltd

D’s construction of the tall tower interfered with P’s ability of watching TV as the tower
blocked TV signals
Held – Lord Goff
 Generally – everyone has a right to use and build on his land
 Interference must be something emanating from D’s land (e.g. noise, dirt, fumes,
noxious smell, vibrations and suchlike)
 Not a mere blockage
 Block of flow of air and light is not nuisance
“No action lay in private nuisance for interference with TV caused by the mere presence of
a building”

WHO CAN SUE?

 Person with a legal interest in the land interfered with (Malone v Laskey 1907)
o Khorasandjian v Bush (1993) – was there a legal basis for court to make an
injunction order in relation to telephone calls made to P at her parents’ home?
 Held for P – D’s conduct constituted nuisance; P as an occupant in
her parents’ home had sufficient standing to sue in nuisance

 Normally a right of exclusive possession (Hunter; Artco;)

 Includes owners, occupiers, tenants in possession

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  Hunter v Canary Wharf – narrow down the pool of possible plaintiffs
o excludes mere occupants and family members

 Artco Properties Ltd v Yau Chun Wing (Applying Hunter)

o Property development company sue buyers who complained and protested at
their exhibition about failure to complete project
o Held – failure to establish right to sue as license needs exclusive possession

 Khorasandjian v Bush (1993) – exception

o Occupant had sufficient standing to sue in nuisance

WHO CAN BE HELD LIABLE?

 Typically, occupier of the land from which the nuisance emanates
 The one responsible for wrongdoing even if he was not an occupier, but was vested with
management and control of the premises at the time (Hall v Beckhenham Corp)
 One who creates the nuisance (Hussain; Artco) – even not an occupier
 One who is in control of the one who creates nuisance (Capital Prosperous)
 Independent contractor (Hui Yuen Fong)

 Creator can be liable even where the nuisance did not originate on creator’s land (Halsey v
Esso Petroleum Co)

 Adopts the nuisance (fails to take reasonable steps to bring it to an end or makes use
of it)
- Sedleigh-Denfield v O’Callaghan
- Goldman – lightning caused fire on D’s tree and failed to extinguish completely and
spread to P’s land
- Leakey – soil erosion to P’s land
o Held – even the cause of nuisance was a natural one; D has an obligation to do
what was reasonable preventive steps

 Landlord who authorizes the nuisance (Harris v James)

- Inevitable result of letting? (Sampson v Hodson-Pressinger; Tetley v Chitty)
- Even landlord neither knew nor ought to have known the disrepair of the premises,
landlord nevertheless be liable for such conditions arising during tenancy if
retained control (Wong Heun Min v Wong Kong Chong)
- Incorporated owners of building liable for nuisance arising from common parts
(s.18 Buildings Ordinance)

CAUSATION & REMOTENESS

- Causation applies the same way in tort of negligence
- Remoteness  Applies The Wagon Mound (No.2) principles
Cambridge Water Co v Eastern Counties Leather Plc

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 - Water source contaminated by D’s chemicals (soaked into ground causing
contamination to water) used in factories 1.3 miles away
 Held – must prove foreseeability – type of harm ensured by D not a reasonable one
 The fact that D took all reasonable care will not exonerate him from liability
 Foreseeability of harm as prerequisite of recover of damages in private nuisance

Power Color Scanning & Lithographics v Kam Kwong Food Factory

- Expensive color printer damaged by water leakage
 Held – remoteness of damage not concerned with extent but type of damage
(Applying The Wagon Mound No.2)

DEFENCES
[1 – Statutory Authority]
Where a particular activity is authorized by ordinance (expressly or impliedly)

BUT – D cannot rely on the ordinance as defence if it is shown that the damage could have
been avoided by exercise of reasonable care
 Whether the interference was the inevitable result of statutory authorization
 Burden on D to show that nuisance was impossible to avoid through reasonable care

Lam Yuk Fong

Urban Council placed Refuse Collection Point adjacent to P’s commercial premises
P claimed that such arrangement was a nuisance that adversely affected their use of their
premises and that they had suffered loss and damage
D pleaded that they were exercising statutory powers and that they were not responsible for
illegal dumping by strangers
Held – For P!
 D could have implemented measures much earlier

Marcic v Thames Water Utilities

Flooding because system cannot cope with increased use caused by recent housing
developments (physical damage involved)
Held –
Cannot compare with ordinary landowners  NO right to sue

[2 – Planning permission]
Balances considerations or public interest with the inevitable right to change the character of
neighborhood

Gillingham
Plaintiff council granted planning permission to D to develop land for the purposes of a
port
Upon completion the community was disturbed by 24-hour traffic caused by lorries
travelling to and from the port

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 P sought an injunction, alleging public nuisance
Held – application for injunction DENIED
 planning permission granted to that commercial port

Wheeler
Residential area next to pig farm  still residential
“Planning decisions may authorize some nuisance, but only where it was a strategic
planning decision affected by considerations of public interest”

Hunter v Canary Wharf

If the character of the neighborhood has changed, what is actionable as nuisance should be
measured in the context of the new character of the neighborhood

Coventry v Lawrence
Racing track existing since 1990s;
P moved near the racing tracks and think its nuisance; D had planning permission
Held – “A planning authority by grant of planning permission cannot authorize the
commission of a nuisance”

“If the character of a locality is changed as a consequence of planning permission

granted; the question whether particular activities in that locality constitute a nuisance
must be decided against the background of its changed character”

[3 – Act of stranger // Act of God; not under D’s control]

- Act of stranger
Show that interference was caused by trespasser not under control of the occupier,
assuming that the nuisance was not ‘adopted’ or ‘continued’ by the occupier (Sedleigh-
Denfield)

- Act of God
(1) Event is exceptional and unexpected
(2) X Persisting heavy rain X – if reasonably expected – Born Chief
(3) X Land shift X – if D had foreknowledge of the danger – Goldman v Hargrave
(4) Typhoon blowing a ship off its anchors causing collision – Vessel Argonant
o “could not be foreseen”; “if foreseen, could not by exercise of all
reasonable skill and care have been avoided”

[4 – Contributory negligence]
Can LARCO s.21 apply to nuisance action?  LIMITED application

 If D’s conduct was found to be plainly unreasonable, P should not be faulted for
failing to take steps to mitigate the effects of the interference

REMEDIES

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[1 – Damages]
(1) Consequential damage (Hunter v Canary Wharf)
Compensation for physical damage to property and economic loss consequence upon the
interference

(2) Loss of amenity

(3) Damages for reasonable costs incurred by P to abate nuisance (Dalaware Mansions)
(4) Pure economic loss (Wong Shiu Hung)
(5) Exemplary / Punitive damages
(6) Damages in relation to chattels (Halsey v Esso Petroleum)

 Personal injury NOT recoverable under private nuisance (but recoverable in

public nuisance) (Hunter v Canary Wharf)
o P who suffered PI must sue in negligence
o A nuisance action may still be justified, but the injuries are relevant only as a
means to show how the amenity value of the land has been diminished

[2 – Injunction]
Injunction  court order requiring D to cease interference

- Interim OR Permanent basis

Realty Harvest v Gold Margin Development
Injunction to stop use of D’s noisy weaving machines
 No evidence to support that D would encounter hardship if injunction granted; D can
operate its business without producing excessive noise and vibration

- Discretionary remedy (derived from equity)

- Must appear that damages would not afford an adequate remedy

 easily proved where the interference is expected to continue

- Injunction granted as a matter of course where the interference is substantial and

continuing

- Damages in lieu of injunction should only be awarded under ‘very exceptional

circumstances’ (Shelfer)
o Refuse an injunction if injury to P’s legal right is
 (1) small,
 (2) capable of being estimated in money,
 (3) can be adequately compensated by a small money payment,
 (4) where it would be oppressive to D to grant an injunction

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DEEDS OF MUTAUL COVENANT
- unique in Hong Kong

In addition to nuisance, the registered owner of a flat may have a contractual right of
action to abate a nuisance by another flat owner in the building, under the deed of mutual
covenant (DMC) applicable to most multi-storey buildings in Hong Kong

 Typical provision in a DMC prevents use of building for illegal purposes, forbids
nuisances or the placing of obstructions in passages, prohibits building of structures without
permission

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 PUBLIC NUISANCE
Concerned with conduct that interferes with the enjoyment of a right common to ALL
members of the community
- e.g. right to clean air, right to unobstructed use of highway and pedestrian
thoroughfares, right to be free from infectious disease

Attorney-General v PYA Quarries

 “Materially affects the reasonable comfort and convenience of life of a class of Her
Majesty’s subjects”

 “So wide spread in its range or so indiscriminate in its effect that it would not be
reasonable to expect one person to take proceedings on his own responsibility to put a
stop to it”

Archbold’s definition (approved by House of Lords in R v Rimmington, R v Goldstein)

- An act not warranted by law, or omits to discharge a legal duty, where the effect of
the act / omission is to endanger the life, health, property or comfort of the public or
to obstruct the public in the exercise of rights common to all Her Majesty’s subjects

- Public nuisance – a crime, not a tort; Duty owed to public at large

Southport Corp v Esso Petrolem

 More favorable for a person injured as a result of obstruction to sue in public
nuisance (instead of negligence)
o In public nuisance, once the nuisance is proved and D is shown to have caused
it, the legal burden is shifted onto D to justify or excuse himself
o In negligence, the legal burden remains on P

One commits a public nuisance when she breaches one of both of the following two
overlapping duties:
(1) A duty not to create, authorize, adopt or continue a state of affairs which interferes
unreasonably with a public right; and
(2) A duty not to create, authorize, adopt or continue a state of affairs which interferes
unreasonably with the comfort, convenience or safety of the public

Knowledge is required
- R v Goldstein
o D enclosed small amount of salt in the letter; salt leaked in the post office and
was thought to be explosives and shut down the building
o D was NOT guilty;
o He knew or ought to have known

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