A.

Understanding Nuisance
B. Damage and Remedies
C. The Concept of Reasonableness
D. Public Nuisance
E. Private Nuisance
F. Who can sue / be sued?
G. Remedies
H. Defences
• It is a branch of the law of tort
• Purpose: To provide comfort to persons who
have proprietary interests in land as well as to
members of society, through control of
environmental conditions
• It is an interference to the plaintiff’s interest on
the use (or enjoyment but not possession!) of
his land, by the defendant, without entry.
Nuisance is distinguished from trespass:

 Trespass is a direct entry onto plaintiff’s land

whereas nuisance is interference to the plaintiff’s
interest over his property

 Trespass is actionable per se whereas nuisance

must prove special damage (unless nuisance is caused by smell!)

Renal Link (KL) Sdn Bhd v Dato Dr Harnam Singh [1997]

 Negligence is not a prerequisite in an action
of nuisance
Wisma Punca Emas Sdn Bhd v Dr Donal [1987]

1. Negligence is not a requirement

2. However, fault is required (defendant should
foresee that the activity on his land might cause
damage to plaintiff’s enjoyment of his land)
3. A proof of special damage would be adequate
• 2 types of damage (or/and):
① Damage to property
② Interference to personal comfort

• 2 type of remedies (or/and):

① Injunction
② Monetary compensation
Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd [1966]
• However, in England:
• Legal action under nuisance is no longer
available for personal injury per se, as it will be
more appropriate under the law of
negligence.

Landmark case: Hunter v Canary Wharf Ltd [1997]

(Do read this case!)
 Nuisance is established when the
interference is unreasonableness
 Measured by balancing the rights and
interests of both parties = compromise
① D has the right to use & enjoyment of his
land
② P has the right to the undisturbed
enjoyment of his property
③ Hence, P to be compensated for damage
suffered
 Test: What is accepted as reasonable
according to the ordinary use of the land of
others living in that particular society
 Sykt Perniagaan Selangor v Fahro Rozi Mohdi [1981]
 Baxter v Camden London BC[1999]

 Factors determining reasonableness:

 purpose of D’s conduct, location, time, extent of
damage, the way in which the interference occurs,
motive & malice, effect of the interference,
interference is continuous/in stages/intermitten
 2 types of nuisance:
① Public nuisance – a crime & a tort
② Private nuisance – a tort only
Public Nuisance
 Def: It arises when an act materially affects
the reasonable comfort & convenience of life
of a class of the society -- Attorney-General v
PYA Quarries Ltd [1957]
e.g. water supply become contaminated

 The right that is protected under public nuisance is

that the right of each member of the society is not
to be adversely affected
Public nuisance can be claimed under:
① Criminal proceeding
② Civil proceeding without special damage
③ Civil proceeding with special damage

 Criminal proceeding
 Claim is brought by PP on behalf of the Govt
 Civil proceeding (without special damage)
 S.8(1) Govt Proceedings Act 1956
 Exception if claim made by a local authority
 MPPP v Boey Siew Than [1979]

 Civil proceeding (with special damage)

 P can sue under public nuisance, even though
he has no interest in land but he must prove
that he has suffered damage & injury over
and above the ordinary inconvenience by
other members of the public
 2 factors determining the existence of special
damage:
 The damage is more SERIOUS!
 The damage is a direct consequence & is
substantial
 Pacific Engineering v Haji Ahmad Rice Mill [1966]
 Uda Holdings Bhd v Koperasi Pasaraya Malaysia Bhd
[2007]
 Register of the Corby Group v Corby BC [2008]
Private Nuisance
 Def: An unlawful, substantial and
unreasonable interference with a person’s
use, comfort, enjoyment and any interest
that a person may have over his land
Hiap Lee Brickmakers Ltd v W L Mining [1974]
 The right that is protected under private
nuisance is that the right to enjoy one’s
property
P must prove he has suffered damage, i.e.
substantial interference

3 types of damage:
1. Interference with the use of land
2. Interference with the comfort or enjoyment
of land
3. Physical damage
 Interference with the use of land
 Known as amenity nuisance
 Feeling discomfort
 No formula
 Case-by-case basis
WoonTan Kan & Ors v Asian Rare Earth Sdn Bhd
Dato’ Dr Harnam Singh v Renal Link (KL) Sdn Bhd
ATERIAL / PHYSICAL DAMAGE
 Recoverable only if it’s amounts to
substantial damage
 Substantial interference is also a question of
fact
 Minor substantial is not actionable
Goh Chat Ngee & 3 ors v TohYan & Anor
Hotel Continental Sdn Bhd v Cheong FattTze Mansion Sdn Bhd
P must also prove the interference is unreasonable
6 factors determining unreasonableness:

1. Damage and location of the premise

St Helen’s Smelting Co v Tipping
Sedleigh-Denfield v O’Callaghan
Bliss v Hall
Batang kali estates Sdn Bhd v Romani Abdul Aziz
Sturges v Bridgeman
Sykt Perniagaan Selangor Sdn Bhd v Fahro Rozi
Gillingham BC v Medway (Chatham) Dock Co Ltd
Murdoch v Glacier Metal Co Ltd
2. Public benefit of D’s activities

Perbadanan Pengurusan Taman Bukit Jambul v

Kerajaan Malaysia
Adams v Ursell
Kennaway v Thompson
3. Extraordinary Sensitivity (P)

McKinnon Industries Ltd v Walker

Robinson v Kilvert
Bridlington Relay v Yorkshire Electricity Board
4. Interference must be continuous
 Although not conclusive but it is a factor in
deciding substantiality of the interference

IJM Corporation Bhd v Harta Kumpulan Sdn Bhd

Motherwell v Motherwell
5. Temporary interference & isolated incident
a. Must take all reasonable precautions
b. It causes physical damage
c. There is pre-existing dangers, foreseeable

MBf Property Services v Madihill Development

Sedleigh-denfield v O’Callaghan
Spicer v Smee
British Celanese Ltd v AH Hunt (Capacitors) Ltd
SCM (UK) Ltd v WJ Whittall & Son Ltd
Thean Chew v The Seaport (Selangor) Rubber Estate
Leong Bee & Co v Ling Nam Rubber Works
6. Malice

Christie v Davey
Hollywood Silver Fox Farm Ltd v Emmett
Bradford Corporation v Pickles
Only the person who has a proprietory or
possessory interest in the land can sue:
 Landowner
 Occupier – tenant, licensee (in possession)
 Reversioner
 Spouse or children of the occupier, guests,
lodgers or workers have no entitlement to
sue.
Malone v Laskey
Hunter v Canary wharf Ltd
1. Creator
2. Occupier
3. Landowner / landlord
4. Local authority / Government
1. Damages
P can recover for physical loss, depreciation in
value and business loss.

2. Injunction
In order to prevent the nuisance from
continuing.
1. Prescription
Sturges v Bridgman [1879]

2. Statutory authority
Manchester Corporation v Farnworth [1930]
Allen v Gulf Oil Refining Ltd [1981]

3. Other defences:
Necessity, consent, defence of property and
contributory negligence
The lecturer can be contacted at:
wardah.class@yahoo.com