INTRODUCTION
(1) Private Nuisance (Pr. N) is an unlawful interference with:
(i) a person's use or enjoyment of property
(ii) or some right over or in connection with it
(iii) state of affairs must be connection or recurrent
(2) Every slight annoyance is not actionable unless. However it depends on variety of consideration:
(i) character of defendant's conduct
(ii) balancing of conflicting interest
TYPES OF PRIVATE NUISANCE
(1) NUISANCE TO SERVITUDE AND RIPARIAN RIGHTS
This includes until Obstruction of right of ways. Once P has suffered a substantial degree of interference is enough. D cannot say that his activity benefits the community or he has taken care to avoid damage to P. His conduct is irrelevant.
Hiap Lee (Cheonq Leonq & Sons) Brickmakers v Weng Lok Mining
R built reservoir on their land and the water had escaped and caused damage to P's land. Held R is liable in negligence and nuisance but FC held no liability at all and confirmed by Privy Council.
Khan Mohamed v Katz Brothers
(Act of driving piles in river boundary to prevent erosion but which obstruct use of water held nuisance but P can claim damage)
Tovo Textiles Ind. v Lian Foong Housing Dev.
(P filed their land with soil higher than P's land at the common boundary causing natural blockage of a natural stream and cause large pool in P's land. Held D acted unreasonably and liable).
Interference with drainage system and cause flood on neighboring land may also be Private Nuisance.
No Cheng Kee & ors v Loh Penq Konaf
P constructed a new drainage on his land and cause water flooded P's paddy field. Held liable because causing substantial injury to P's captivation of paddy)
2) INDISCRIMINATE EXCAVATION
Wisma Punca Emas Sdn. Bhd v Dr Donal RO'Holohan
P and D were registered adjoining land in Seremban. As a result of developing works carried out by D caused the land sink. P sought injunction. Held the indiscriminate excavation and removal of earth stone and clay from D's land w/out taking sufficient precaution caused the sinking and D is liable for actionable nuisance.
(3) VIBRATION
Damage caused to neighboring building by vibration from piling works is actionable.
Asia Insurance Co, Ltd v Chan Wing & Sons Realty.
(D who caused structural damage to adjacement property were held liable to the owners of such property for nuisance.)
(4) RADIATION
Woon Tan Kan & ors v Asian Rare Earth Bhd.
(P seek injunction to stop ARE from collecting & storing radioactive substance which effect the health of the neighboring residents. Held:
(1) such radioactive substance is highly dangerous to human DMA cell
(2) ARE constituted substantial interference and discomfort of enjoyment of land to P and so caused annoyance, therefore injunction granted. But Supreme Court allow the appeal but ARE was closed by themselves)
(5) FALLEN TREE ON HIGHWAY
An estate owner growing rubber trees ad his land adjoining with highway is expected as a reasonable man to inspect the trees from time to time so that If trees fall on highway and caused danger to road user.
Len Omnibus Co. v North South Transport Sdn Bhd.
CONCEPT OF REASONABLENESS
Reasonableness is the central issue in case of NUISANCE. Whether the D conduct is according to the ordinary usages of mankind living in a particular society. Here the factors considered is the balancing between interest of D and the competing rights of neighbor , a process of compromise and rule of give and take.
Svarikat Perniagaan Selanqor Sdn Bhd. V Fahro Rozi Mohd
(Court will take into account all circumstances of particular case to determine whether or not defendants act is unreasonable to constitute nuisance.)
EXTENT OF THE HARM & NATURE OF THE LOCALITY
St. Helen's Smelthing Co. v Tipping (Leading case)
P owned a rubber estate which was situated in an industrial area. The smoke from the factory caused considerable damage to P's trees. Lord Westbury distinguishes the following:
(i) Sensible injury to the value of the property or material injury (Physical injury) Here the locality surrounding circumstance is irrelevant. No matter where the P is. he must be protected from physical damage,
(ii) injury in term of personal discomfort (non physical damage )Here the level of interference must be balanced with the surrounding circumstance and the locality must be taken into consideration. Court allows the claim.
Pacific Engineering Ltd. V Hi. Ahmad Rice Mill Ltd.
(HC: the P had produced sufficient evidence to show injury to property and Interference with personal comfort caused by smoke, husk, dust and ashes and It constituted Nuisance)
THE UTILITY OF THE DEFENDANT'S CONDUCT
Ct will look into the utility or the general benefit to the community arising from the defendant's conduct. Public is required to accept this. But if serious damage is caused than the issue of tolerance must be give way.
Bellew v Cement Co.
(Ireland's only cement factory which produced cement during war was ordered to be shut down because it causes serious harm to public.)
Miller v Jackson
(Ct held the social utility of the club in promoting games of cricket outweighed the P's interest.)
ABNORMAL SENSIVITY
Law does not take into account the abnormal sensitivity of person or property.
Heath v Major of Brighton
(P trustees of a church, sought an injunction to restrain noise from D's electrical power station Held: Refused to grant an injection because there was no proof that Pie noise affected the congregation except the incumbent he was not prevented for preaching or conducting his service).
Robinson v Kilvert
(D began manufacture paper boxes in the cellar of a house. His business required hot air and dry air and he heated the cellar accordingly occupied the premises above and stored brown paper there. The heat from cellar dried and diminished the value of brown paper. D is not liable.’ a man who carries on unexceptionally delicate trade cannot complain because it is Injured by his neighbor doing something lawful on his property, if it is something which would not injure anything but exceptionally delicate trade.)
TEMPORARY INJURY
If nuisance is temporary and occasional ct will not Grant injunction except in extreme cases. lt is because damages is enough in such cases.
Stone v Bolton
(1) Private Nuisance (Pr. N) is an unlawful interference with:
(i) a person's use or enjoyment of property
(ii) or some right over or in connection with it
(iii) state of affairs must be connection or recurrent
(2) Every slight annoyance is not actionable unless. However it depends on variety of consideration:
(i) character of defendant's conduct
(ii) balancing of conflicting interest
TYPES OF PRIVATE NUISANCE
(1) NUISANCE TO SERVITUDE AND RIPARIAN RIGHTS
This includes until Obstruction of right of ways. Once P has suffered a substantial degree of interference is enough. D cannot say that his activity benefits the community or he has taken care to avoid damage to P. His conduct is irrelevant.
Hiap Lee (Cheonq Leonq & Sons) Brickmakers v Weng Lok Mining
R built reservoir on their land and the water had escaped and caused damage to P's land. Held R is liable in negligence and nuisance but FC held no liability at all and confirmed by Privy Council.
Khan Mohamed v Katz Brothers
(Act of driving piles in river boundary to prevent erosion but which obstruct use of water held nuisance but P can claim damage)
Tovo Textiles Ind. v Lian Foong Housing Dev.
(P filed their land with soil higher than P's land at the common boundary causing natural blockage of a natural stream and cause large pool in P's land. Held D acted unreasonably and liable).
Interference with drainage system and cause flood on neighboring land may also be Private Nuisance.
No Cheng Kee & ors v Loh Penq Konaf
P constructed a new drainage on his land and cause water flooded P's paddy field. Held liable because causing substantial injury to P's captivation of paddy)
2) INDISCRIMINATE EXCAVATION
Wisma Punca Emas Sdn. Bhd v Dr Donal RO'Holohan
P and D were registered adjoining land in Seremban. As a result of developing works carried out by D caused the land sink. P sought injunction. Held the indiscriminate excavation and removal of earth stone and clay from D's land w/out taking sufficient precaution caused the sinking and D is liable for actionable nuisance.
(3) VIBRATION
Damage caused to neighboring building by vibration from piling works is actionable.
Asia Insurance Co, Ltd v Chan Wing & Sons Realty.
(D who caused structural damage to adjacement property were held liable to the owners of such property for nuisance.)
(4) RADIATION
Woon Tan Kan & ors v Asian Rare Earth Bhd.
(P seek injunction to stop ARE from collecting & storing radioactive substance which effect the health of the neighboring residents. Held:
(1) such radioactive substance is highly dangerous to human DMA cell
(2) ARE constituted substantial interference and discomfort of enjoyment of land to P and so caused annoyance, therefore injunction granted. But Supreme Court allow the appeal but ARE was closed by themselves)
(5) FALLEN TREE ON HIGHWAY
An estate owner growing rubber trees ad his land adjoining with highway is expected as a reasonable man to inspect the trees from time to time so that If trees fall on highway and caused danger to road user.
Len Omnibus Co. v North South Transport Sdn Bhd.
CONCEPT OF REASONABLENESS
Reasonableness is the central issue in case of NUISANCE. Whether the D conduct is according to the ordinary usages of mankind living in a particular society. Here the factors considered is the balancing between interest of D and the competing rights of neighbor , a process of compromise and rule of give and take.
Svarikat Perniagaan Selanqor Sdn Bhd. V Fahro Rozi Mohd
(Court will take into account all circumstances of particular case to determine whether or not defendants act is unreasonable to constitute nuisance.)
EXTENT OF THE HARM & NATURE OF THE LOCALITY
St. Helen's Smelthing Co. v Tipping (Leading case)
P owned a rubber estate which was situated in an industrial area. The smoke from the factory caused considerable damage to P's trees. Lord Westbury distinguishes the following:
(i) Sensible injury to the value of the property or material injury (Physical injury) Here the locality surrounding circumstance is irrelevant. No matter where the P is. he must be protected from physical damage,
(ii) injury in term of personal discomfort (non physical damage )Here the level of interference must be balanced with the surrounding circumstance and the locality must be taken into consideration. Court allows the claim.
Pacific Engineering Ltd. V Hi. Ahmad Rice Mill Ltd.
(HC: the P had produced sufficient evidence to show injury to property and Interference with personal comfort caused by smoke, husk, dust and ashes and It constituted Nuisance)
THE UTILITY OF THE DEFENDANT'S CONDUCT
Ct will look into the utility or the general benefit to the community arising from the defendant's conduct. Public is required to accept this. But if serious damage is caused than the issue of tolerance must be give way.
Bellew v Cement Co.
(Ireland's only cement factory which produced cement during war was ordered to be shut down because it causes serious harm to public.)
Miller v Jackson
(Ct held the social utility of the club in promoting games of cricket outweighed the P's interest.)
ABNORMAL SENSIVITY
Law does not take into account the abnormal sensitivity of person or property.
Heath v Major of Brighton
(P trustees of a church, sought an injunction to restrain noise from D's electrical power station Held: Refused to grant an injection because there was no proof that Pie noise affected the congregation except the incumbent he was not prevented for preaching or conducting his service).
Robinson v Kilvert
(D began manufacture paper boxes in the cellar of a house. His business required hot air and dry air and he heated the cellar accordingly occupied the premises above and stored brown paper there. The heat from cellar dried and diminished the value of brown paper. D is not liable.’ a man who carries on unexceptionally delicate trade cannot complain because it is Injured by his neighbor doing something lawful on his property, if it is something which would not injure anything but exceptionally delicate trade.)
TEMPORARY INJURY
If nuisance is temporary and occasional ct will not Grant injunction except in extreme cases. lt is because damages is enough in such cases.
Stone v Bolton
P while stand near highway cricket ball hit him from the adjacement cricket ground. Held that an isolated act of hitting a cricket ball into the road cannot amount to nuisance.
Leona Bee & Co. v Lina
Nam Rubber - fire broke out at early morning from D's building and burned down P's building. Federal Court dismiss the claim for nuisance or negligence. PC held no proof that D brought fire to his land.)
MALICE OR THE PURPOSE OF D's CONDUCT
Generally malice is not relevant factor in torts. H/ever in nuisance the ct take into account the main object of defendant's activities. lf main object is to injure his neighbor then his intention is highly relevant.
Christie v Dave
(P's frequent music lessons annoyed D and D deliberately retaliated by knocking the wall separating the premises. Ct granted injunction and held D's conduct maliciously to annoy P)
Hollywood Silver Farm v Emmett
D deliberately fired his gun during P breeding his silver fox at neighboring land. This is sensitive to the fox. Held intention of D is relevant and held liable).
See also textbooks.
Leona Bee & Co. v Lina
Nam Rubber - fire broke out at early morning from D's building and burned down P's building. Federal Court dismiss the claim for nuisance or negligence. PC held no proof that D brought fire to his land.)
MALICE OR THE PURPOSE OF D's CONDUCT
Generally malice is not relevant factor in torts. H/ever in nuisance the ct take into account the main object of defendant's activities. lf main object is to injure his neighbor then his intention is highly relevant.
Christie v Dave
(P's frequent music lessons annoyed D and D deliberately retaliated by knocking the wall separating the premises. Ct granted injunction and held D's conduct maliciously to annoy P)
Hollywood Silver Farm v Emmett
D deliberately fired his gun during P breeding his silver fox at neighboring land. This is sensitive to the fox. Held intention of D is relevant and held liable).
See also textbooks.
