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Recommendations to Reform

Recommendations to Reform

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Published by Ng Yih Miin

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Published by: Ng Yih Miin on Mar 27, 2012
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03/27/2012

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Recommendations to Reform: Save from Current Detrimental LawFrom the first glance of the question of the
assignment, the questions, “W
hat are the defects?,What are the reforms to the curre
nt law?” will definitely cloud the mind of all fellow
students.However, before the paper finally steps into the suggestions of reform, it is absolutely essential totake an insight of the problems that came before these suggestions.Firstly, the current law allows anyone with propriety interest to sue but not anyone who stayed atthe place whom was too affected by the nuisance. Private nuisance is only protecting the rights overthe land or property as found in
Malone v Laskey 
.
i
The very initial case that brought the light into thevery issue is in the case of 
Khorasandijan v Bush
,
1
where the Court of Appeal came to an astoundingdecision that anyone who is the occupier of a home has the stand to sue for nuisance of that home.It is worth to note the obiter dicta by Dillon L.J which states that:
“……….
ridiculous if in this presentage the law is that the making of deliberately harassing and pestering telephone calls to a person isonly actionable in the civil courts if the recipient of the calls happens to have the freehold orleasehold propriety interest in
the premises in which he or she has received the calls.”
2
 The author would fully agree with the above statement by Dillon L.J. It is important to consider thatany family member who is also the occupant and who is also the person enjoying the use of the landshall have the stand to sue in private nuisance. Here are some other reasons behind therecommendations of reforms. There is contention that one could sue under negligence for the aboveissues but negligence is not the appropriate subject if the issue will only cause sufferings purely tothe enjoyment of the home such as foul smell.
ii
As for the claim under intentional tort such atrespass, there will be a pre-requisite of direct interference.Hence, the law should provide a remedy of private nuisance, for instance, to the wife or the son tosue. It would definitely impose many hardships and unfairness if the current law to sue exempts thisclass of people. One of the scenario is when the husband(with propriety interest ) is away for 3months for a business trip and continuance of noise and dust from the newly built confectionaryoperating till 11pm , caused the family of sleepless nights and allergic reactions. Can the wife sue?Can the son sue if the wife to the owner is deceased? If not, the family members have to continue inliving uncomfortably till the owner is back after 3 months? That would for sure be unfair anddetrimental to the family members who are the occupiers of the land. It is really important to notethat, the above scenario has been a common situation in this globalisation world, where peoplewould have to travel abroad to work. Hence, the parliament should consider the currentcircumstances to reform the current outdated law conforming to the current world scenarios.The next important issue to note is that in the
European Court of Human Rights
, there is a provisionunder Article 8 which provides an avenue to citizens of the European countries to sue for privatenuisance in the European Court. Article 8 gives rights to private life and the remedy will be underArticle 13. However, in the context of Malaysia, there is no such law protecting the people. Thus, it isimportant for the reform to provide the rights to sue for anyone who is considered as the occupierof the home.
1
[1949] 65 LQR 480
2
Ibid, at 734

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