SUB TOPIC: NUISANCE

1. Introduction

The law of nuisance is one branch of the law of tort which propose is to provide comfort
to persons who have propriety interests in land and to members of society generally,
through control of environmental conditions.

Although a person who has an interest over a the land is able to do anything he wishes on
his land, his activities however, must not cause inconvenience or damage to another
person who similarly has an interest over the land.

2. Two forms of nuisance:

 Private Nuisance
 Public Nuisance

PRIVATE NUISANCE

Private Nuisance developed from the common law actions of trespass and case.

It may arise where the defendant interferes with the plaintiff’s land, so the plaintiff’s use or
enjoyment of that land in impaired.

e.g. interfere with plaintiff’s use: adjoining owner’s water tank overflows into the plaintiff’s
premises, impairing the plaintiff’s use of his property.

Interferes with the enjoyment of that land: defendant interferes with the plaintiff’s access
to premises.

Unlike public nuisance, private nuisance is an act which is not a crime and, therefore,
gives rise only to actions in tort.

1. The Interference must be INDIRECT

Examples of indirect interference include allowing any of the following to intrude into
the claimant’s land:

 Noise
 Smells
 Roots of trees
 Branches of trees
 Vibrations
 Fumes
  Gas
 Heat
 Disease
 Pollution

2. Damage must be caused

a) The damage may consist of actual damage/harm to the claimant’s property or land.
See St Helens Co. v Tipping (1865).
b) The damage may consist of interference with the claimant’s use or enjoyment of his
land. See Bliss v Hall (1838).

Personal injury claims must be based on an action in negligence.

3. The Defendant’s activity must be UNREASONABLE

The following factors may be taken into account:

a) Duration
Whereas in public nuisance one event might be sufficient, in private nuisance, there
will be a greater chance of success if there are a series of events or a continuing event.
See Crown River Cruises v Kimbolton Fireworks (1996) for an exception.

b) Locality
The same activity might be a nuisance in one geographical area, but not in another.
One 19th century judge said: ‘What might be a nuisance in Belgrave Square would not
necessarily be so in Bermondsey’.
 Sturges v Bridgman (1879)

c) Sensitivity
If the defendant can prove that his activity would not have affected a person or
property of normal sensitivity, then he will not be liable. I.e. if the claimant is
unusually sensitive, his action will fail. (This is not necessarily true in other torts).
 Robinson v Kilvert (1889).

d) Malice
Although motive is not a necessary ingredient of nuisance, it can be relevant.
 Christie v Davey (1983)
 Hollywood Silver Fox Farm v Emmett (1936)
Who may (can use in private nuisance)?

 Only a person who has some proprietary or other interest in land can maintain an action;
includes a landowner, an occupier, whether as a tenant, lessee or a person who is actual
possession.

(only the person(s) in legal possession of the land interfered with could bring an action)

 Licensee is unable to sue since he has no recognized legal interest in land; merely a
contractual right to occupy land or premises for a specific purposes.

e.g. a guest in a hotel has no action in nuisance for unreasonable noise caused by a
neighboring occupier.

o Malone v Laskey (1907)

But this rule has since been questioned.

o Khorasandjian v Bush (1993)

o Hunter v Canary Wharf (1997)

Who can be sued in private nuisance?

1. The source or creator of the nuisance whether or not he occupies the land from which the
interference emanates.

2. Occupier: The person in possession of the land/premises from which the nuisance
emanates. Liable for the act of the third parties:

i. Servant or employee subject to his control based on the principles of vicarious

liability
ii. Independent contractor where the duty is ‘non-delegable’
iii. Trespasser
Sedleigh-Denfield v O’Callaghan (1940)
iv. Licensees
v. Natural causes
vi. Conduct of previous occupier

3. The landlord or landowner in possession of the land/premises.

i. If he has authorized the nuisance

 ii. If he knew or ought to have known of nuisance before the tenancy became
effective
iii. If he has covenanted to repair or right to enter the premises to conduct repair
works

DEFENCES

1. Volenti Non Fit Injuria (Consent)

2. Statutory Authority

Some activities which would otherwise amount to a nuisance, may be authorized by an

Act of parliament, e.g. Civil Aviation Act 1949, which allows aircraft to commit trespass
and nuisance. However the ECHR recently upheld a complaint by people living near
Heathrow, who brought an action under the Human Rights Act.

3. Act of a Stranger

The defendant may be able to show that the act was caused by someone or something of
whose existence he was unaware and could not be expected to know of.

4. Unexpected proves of nature

Eg. Subsidence. But if the defendant has some knowledge of the proves, the defence will
fail.

 Leakey v National Trust (1980)

5. The prescription Act 1832

This statue provides that if the nuisance has been in continuous existence for 21 years or
more, there can be no liability.

**It is no defense to say that the claimant ‘came to the nuisance’.

 Sturges v Bridgman (1879)

REMEDIES IN PRIVATE NUISANCE

1. Damages

The claimant can sue for damages but these will be awarded only in respect of damage to
property. Personal injury claims arising from interference with land will usually have to
be based on can action in negligence, or under the Protection from Harassment Act.
2. Abatement (sometimes known as self-help)

The injured party can, in some circumstances, take steps to remove the cause of the
nuisance, e.g. by cutting the roots or branches the roots or branches of trees, by removing
an obstruction to a right of way, by extinguishing a bonfire.

3. Injunctions

These are the most common remedy in nuisance whereby the claimant asks the court to
grant an order restraining the defendant from committing the nuisance. Injunctions are
equitable remedies and therefore discretionary, i.e. even though the claimant can prove all
the elements of the tort, he will not automatically be granted his remedy. The court will
often try to balance the interest of the parties involved in the disputes.

 Miller v Jackson (1977)

 Kennaway v Thompson (1980)

4. Complaints to Local Authorities

Local Councils have a wide range of responsibilities and powers with regard to nuisance
in their areas. Many have Environmental & Health Officers who will be prepared to act
upon complaints received.

5. Anti Social Behavior Orders

A new remedy was introduced by the Crime & Disorder Act 1998 which provides that an
Anti Social Behavior Order can be issued by a Magistrates Court. Applications for such
orders may be made by the police or by a local council and can take many forms
including imposing a curfew, forbidding contract with named individuals and noise
abatement. Anti social behavior is not defined in the Act, but a government white paper
of 1995 which led to the Act gives examples:

‘This can include vandalism, noise, verbal and physical abuse, threats of violence, recial
harassment, damage to property, trespass, nuisance from dogs, car repairs on the street,
joy riding, domestic violence…’

6. Tort of Harassment

The Protection from Harassment Act 1997 creates what amounts to a new statutory tort of
harassment in that section 3 gives the victim a right to apply to a civil court for damages
and/or an injunction.
PUBLIC NUISANCE

Public Nuisance had its origins in the criminal law. A public nuisance is a crime as well as a
tort. The remedy for a public nuisance is a prosecution or related action by the Attorney
General on behalf of the public. A plaintiff who suffers particular damage, over and above the
damage suffered by the rest of the public may maintain an action in public nuisance.

Definition:

1. Romer LJ. In AG v PYA Quarries Ltd (1975): “as an act or omission which materially
affects the reasonable comfort of a class of Her Majesty’s subjects”.

2. ‘An unlawful act or omission which interferes with the health, comfort, convenience or
property of the public’.

Examples:

 Obstructing the highway

 Keeping a brother
 Selling impure food*
 Causing excessive noise*
 Polluting the air*

** Many public nuisance are now prohibited by Acts of parliament (including those
marked* above); such situations are known as statutory nuisance e.g. Public Health Act
1936, Clean Air Act1956, Environmental protection Act 1990.

Public nuisance is most important in relation to highways

1. Crime & Tort

The situation which gives rise to a public nuisance is a crime for which the creator of the
nuisance can be prosecuted, as well as being sued in tort.

2. The number of people affected

In order for a public nuisance to exist, a number of people (sometimes referred to as a

‘class of people’) must be affected.

 Attorney General v P.Y.A. Quarries (1957)

NB. The AG (a member of the government) will sometimes bring proceeding in public
nuisance on behalf of a number of people who have been affected.
 3. Knowledge of the nuisance

The defendant cannot escape liability by claiming that he did not know of the existence
of the nuisance if he should have known or had means of knowledge available to him.

 R v Shorrock (1993)

But if the defendant genuinely had no means of knowing of the existence of the nuisance
then he will not be liable.

4. Individual actions in public nuisance

If an individual whishes to bring an action in public nuisance, he must show that he was
suffered some special damage over and above the general harm caused to the public. This
can occur in three ways:

a) Personal Injury, e.g. Tarry v Ashton (1876)

b) Economic Loss, e.g. Lyons v Gulliver (1914)
Campbell v Paddington Corporation (1911)
c) Damage to goods/ property, e.g. Halsey v Esso Petroleum Co. (1961)

5. Duration of the nuisance

In most circumstances the act which causes the nuisance must last for some length of
time.

 Castle v Augustine Links (1922)

But, a public nuisance can in rare circumstances be caused by a single act.

 Midwood v Mayor of Manchester (1905)

Defense

1. Consent of plaintiff
2. Common benefit
3. Act of a stranger
4. Act of God
5. Statutory authority
6. Default of the plaintiff
The COMPARISON between:

1. Public nuisance:

Public nuisance origins in the criminal law

 Protects land and other interests

 Primarily a crime
 Plaintiff must prove special damage over and above the rest of the public
 Single act can be enough
 No defense of prescription
 Exemplary damages are not available
 Strict liability for some forms of highway damage

2. Private Nuisance

Private nuisance developed from the common law actions of trespass and case.

 Essentially protects land

 Only a tort
 Plaintiff must prove damage
 For a single act it is necessary to show it arose from state of affairs
 Prescription is a defense
 Exemplary damage may be available
 Fault must be proved subject to exceptions

3. Nuisance vs. Trespass

Nuisance may arise as a result of an indirect interference with land, while trespass
arises from a direct interference.

4. Nuisance vs. Negligence

 Nuisance applies a containing interference whereas negligence may be isolated.

 In negligence, defendant is under the duty of care not to injure the plaintiff’s
interest; while in nuisance there need be no such duty to establish liability.

References:
1. Law of torts in Malaysia; Norchaya Talib
2. General Principles of Malaysian Law; Lee Mei Pheng
3. Basic Law Q& A; Sarabdeen Jawahitha & others
4. An Introduction to the law of law of Contract and Tort; Gerald F Bowden 7 Alan S
Morris