NUISANCE

The Law of NuisanceOne branch of the law of tort the purpose of which to provide comfort to :- persons who have proprietary interests in land- members of society generallyby controlling environmental conditionsThough persons having interest in land can do whatever they wish on their land their activities must not cause inconvenience or damage to others who similarly have interests over their landConcerned with the balancing of competing interests

Differences between nuisance and trespass to landNuisance1. means an interference to the plaintiffs interest over his property, does not necessarily require entry by the defendant2. plaintiff is generally required to prove special damage3. cause of action in nuisance may be maintained in cases of consequential harm4. is interference with the use of landTrespass to land1. means a direct entry onto the land belonging to another2. Actionable per se without any proof of special damage3. only a direct act may give rise to an action for trespass to land4. is interference with the possession of landNote : Damage = interference with a legally recognised interestDamages = the sum awarded for violation of such an interest

Differences between nuisance and the rule in Rylands v FletcherNuisance1. the interference must be something that is continuousThe rule in Rylands v Fletcher1. one single act of interference is sufficient2. applies only to cases where there has been some special use of land which increased danger to others3. not applicable to damage caused to adjoining owners as a result of an ordinary use of land

Damage and remedies2 types of harm/damage in nuisance :-1. damage to property2. interference to personal comfortRemedies usually sought :1. injunction to prevent nuisance from continuing2. damages (monetary compensation) usually granted for damage to property3. lodging report to particular authorities eg Health Officer of local authority

Damage must be proved in an action for nuisance or else the action will failDamage must be of a kind that is reasonably foreseeable to arise from the defendants wrongful conductBut actual damage need not be established if the nuisance is caused by smell injury to health is not a necessary ingredient in the cause of action for nuisance by smell as the interference here is something that substantially affects the senses or the nerves

The concept of reasonablenessOnly when the interference is deemed unreasonable will nuisance be establishedIn the tort of nuisance reasonableness is measured by balancing the rights and interests of both parties ie a process of compromiseThe court takes into account that in the first place the defendant has a right to the use and enjoyment of his land but a plaintiff who suffers damage as a result of the defendants activity needs to be compensated as the plaintiff too is entitled to the safe use and enjoyment of his land

In Syarikat Perniagaan Selangor SB v Fahro Rozi Mohdi & Ors (1981) the court stated that almost every one of us has to tolerate a certain amount of interference from our neighbours and we in turn have a right to make a certain amount of noise in the enjoyment of our property. A person may use his property in a reasonable way but no one has the right to create intense noise just as no one should be asked to put up with such a volume which by any reasonable standard becomes a nuisance. So the ordinary use of a residential property is not capable of amounting to nuisance

Determining the existence of nuisance requires the striking of balance between the right of one party to lawfully use and enjoy his property and the right of the other party to the undisturbed enjoyment of his propertyThere is no universal or precise formula to determine the existence of nuisance but a useful test for measuring the reasonableness of the defendants activity is what is accepted as reasonable according to the ordinary usage of land of others living in that particular societyReasonableness cannot be determined with accuracy

Whether an activity amounts to actionable nuisance or not depends on factors like :The purpose of the defendants conductLocationTimeExtent of damageThe way in which the interference occursMotiveMaliceThe effect of interferenceWhether it is continuous, in stages or intermittent

Categories of nuisanceNuisance can be divided into 2 main categories1. Public nuisance (is a crime as well as a tort) eg the pollution of streams with any filth and trade refuse within a local authority area constitutes a nuisance and a crime and the person guilty of public nuisance may be subject to punishment2. Private nuisance (only a tort)Possible for the same conduct to amount to both public and private nuisance if the plaintiff can establish the necessary elements

1. Public NuisanceArises when there is an interference with public rights such as obstructing the public highways or interference with public comfort, safety and health like selling contaminated foodFacts giving rise to claim in public nuisance may also give rise to an action for negligence and defendant may be sued for both torts in the alternativeNuisance will only be created if knowing or having means of knowing of its existence a person allows it to continue for an unreasonable time or in unreasonable circumstancesEg leaving long steel pipes with sharp edges by the side of the highway for 1 or 2 years

Definition of Public NuisanceIn Attorney General v PYA Quarries Ltd (1957) it was stated that public nuisance arises when an act materially affects the reasonable comfort and convenience of life of a class of the societyThe number of persons required to constitute a class of the subjects of the state is a question of fact in each caseNot necessary that every single member of the society is affected

2. Private NuisanceDefinition : Unlawful interference with a persons use, comfort, enjoyment and any interest that a person may have over his landUnlawful interference does not mean that activity of defendant is inherently unlawful but the activity interferes unreasonably with plaintiffs enjoyment of his land

Differences between public nuisance and private nuisancePrivate Nuisance1. one which disturbs the interest of some private individual in the usual use and enjoyment of his property by causing or permitting the escape of deletrious substances or things such as smoke, odours or noise2. plaintiff must prove interference with the enjoyment of his land, thus plaintiff must have an interest in land as landowner, tenant or licenceePublic Nuisance1. it materially affects the reasonable comfort and convenience of a class of the subjects of the state2. right which are common to all subjects are infringed, such rights are not connected with the possession of or title to immovable property

Establishing Private NuisanceElements of private nuisance are :Substantial interferenceUnreasonableness

1. SUBSTANTIAL INTERFERENCENuisance is not actionable per seThough plaintiff need not prove special/particular damage plaintiff must prove he has suffered damage/interference to succeed in his claimPrivate nuisance protects a person from 2 types of damage/interference ie :1. interference with the use, comfort or enjoyment of his land2. physical damage to the landNo matter which type of damage it is the plaintiff must prove substantial interference

What constitutes substantial interference differs according to the type of damage/interference mentioned beforehand

a. Interference with the use, comfort or enjoyment of landKnown as amenity nuisanceResult in the feeling of discomfort whereby plaintiff is unable to live peacefully and comfortably on his own land due to defendants activityWhat constitutes substantial interference depends on the facts and circumstances of each caseNo formula upon which a situation may conclusively be said to amount to substantial interferenceDecisions were made on case to case basisCourts took into account whether plaintiffs complaint is reasonably justified in the context of surrounding circumstances

The following activities have been held to constitute substantial interference :Loss of one nights sleep due to excessive noiseUsing adjoining premises for prostitution/sex shopPersistent telephone calls

Dato Dr Harnam Singh v Renal Link (KL) SB (1996) the plaintiff had for 18 years operated a clinic and hospital for the treatment of ear, nose and throat ailments. The defendant operated a renal clinic at which patients underwent haemodialysis on the floor above the plaintiffs clinic. The defendant was found liable for private nuisance for emitting from their clinic noxious fumes which escaped downwards into the plaintiffs clinic. The plaintiff, his staff and patients were found to have suffered substantial damage ranging from skin diseases, red and swollen eyes, headaches, lethargy and breathing difficulties

Where interference affects plaintiffs leisure or purely recreational facility the courts are more reluctant to pronounce defendants activity as actionable nuisance especially if defendants activity brings benefit to the publicPolicy consideration undoubtedly affects the determination of reasonableness as courts need to balance between plaintiffs right to be involved in recreational activities on his own land and defendants equal right to build on his land particularly if the defendants activity is significant to the government and the public

b. Material or physical damage to land or propertyWhere actual physical damage to land occurs the general principle is that it amounts to substantial interferenceBut actual physical damage is not automatically recoverable as it must be established that it amounts to substantial interferenceWhat amounts to substantial interference is a question of fact and determinable on a case to case basisHotel Continental SB v Cheong Fatt Tze Mansion SB (2002) the appellant owned a hotel and was building a 20-storey extension to the hotel. The respondent owned the adjacent land and claimed that the appellants piling work caused severe cracks to appear on their heritage building. The respondents claim for an injunction was allowed by the court as the piling work was endangering the the structural stability of the plaintiffs building and constituted substantial interference

2. UNREASONABLENESSThe first requirement to establish private nuisance is substantial interferenceTo determine what constitute substantial interference plaintiff must further proof the interference to be unreasonableImportant ! : Because substantial interference may amount to unreasonable interference vice versa courts have held defendants activities as being actionable nuisances on the basis that they constituted both substantial and unreasonable interferencesThe 2 elements of nuisance are interconnected and interdependentThere is no clear cut definition as to what constitutes unreasonable interference

The following factors have been used as guidelines by courts to determine whether an interference is unreasonable (and therefore substantial) and actionable :A. damage and location of the plaintiffs and defendants premisesB. public benefit of the defendants activitiesC. extraordinary sensitivity on the part of the plaintiffD. interference must be continuousE. temporary interference and isolated incidentF. malice

A. Damage and location of the plaintiffs and defendants premises

The general principle is that what is regarded as excessive in a particular locality would generally be accepted as unreasonable and amounts to a substantial interference

St Helens Smelting Co. v Tipping (1865) the plaintiff owned a rubber estate which was situated in an industrial area. The smoke from the defendants copper-smelting factory had caused considerable damage to the plaintiffs trees. The court distinguished between physical damage (material injury) and non physical damage (personal discomfort). For personal discomfort the level of interference must be balanced with surrounding circumstances and the nature of the locality must be taken into account. Eg a person cannot expect the air in an industrial area to be as fresh and clean as the air in the mountains

But if the interference causes physical damage to property then the locality/surrounding circumstances is irrelevant. An occupier of land must be protected from physical damage no matter where he is. Location is an important factor when the interference is merely to the use, comfort and enjoyment of land as opposed to physical damage to property

For non physical damage the test of liability is what is reasonable in accordance with common and usual needs of mankind in a society or particular areaA balance has to be maintained between the right of the occupier to do what he likes with his own land and the right of his neighbour not to be interfered withNo precise or universal formula

Bliss v Hall (1838) the defendant managed a factory for 3 years and during this time smoke, smell and other remittances came from the factory. The plaintiff moved into a house near the factory. In an action against the defendant, the defendant raised the defence that the factory had been there before the plaintiff. The court held that a defence that an activity has been going on before an action is brought to halt the activity is inapplicable as the plaintiff too had his rights ie to clean air

Sturges v Bridgman (1879) the plaintiff physician claimed against his neighbour over the noise arising from the neighbours confectionary business. The court took into consideration the fact that the area consisted of many medical specialists consulting rooms and the plaintiffs claim was allowed

b. Public benefit of the defendants activitiesAn inconvenience does not necessarily give rise to actionable nuisanceIf the object of the defendants activity benefits the society generally it is more likely that the activity will not be deemed unreasonable, eg :Building of schools, factories, government hospitals, power stations though gives rise to interference (noise and dust to nearby residents)Claim would probably be denied on the basis of the utility derived from the construction of the facilities

But even if defendants activity gives rise to public benefit it does not automatically mean that his activity is not actionableAdams v Ursell (1913) the defendant was in the trade of selling dried fish. His shop was located in the residential part of the street. Faced with a claim for an injunction he argued that his business benefited the public especially the poor and therefore the smell produced by his trade was justified. The court rejected the defence as the plaintiffs comfort and convenience also had to be considered

c. Extraordinary sensitivity on the part of the plaintiffThe law of nuisance is not sympathetic to a plaintiff who is extra sensitive eg if the only reason why the plaintiff complains of dust is because he has an unusually sensitive skin his claim will probably failBut once unreasonable and substantial interference is established sensitivity will not deprive plaintiff from obtaining a remedyMcKinnon Industries Ltd v Walker (1951) the defendants factory emitted noxious fumes which damaged the plaintiffs commercially grown and delicate orchids. The court found the defendant liable as the fumes would have damaged flowers of ordinary sensitivity

Contrast with Robinson v Kilvert (1889) the defendant was in the business of making paper boxes. The process involved using hot air. The plaintiff lived above the defendant and in the business of selling special paper which was sold according to weight. The hot air from the defendants premises did not inconvenient the plaintiffs workers and would not have affected normal paper but caused the moisture in the plaintiffs paper to dry up. The court denied the plaintiffs claim for compensation on the ground that ordinary paper would not have been affected by hot air and the plaintiffs paper was extra sensitive

d. Interference must be continuousInterference must be continuous or occurs often as generally continuous activity will constitute substantial interferenceBut this requirement is not conclusive and only a factor in deciding whether the interference is substantial or otherwiseDelaware Mansions Ltd v Westminster City Council (2001) where the roots of a tree belonging to the defendant had spread to the neighbouring property and caused structural cracking to that property, such interference amounted to continuing nuisance until the completion of remedial workThe recurrence of the interference is also a relevant consideration

e. Temporary interference and isolated incidentThe circumstances in which a temporary or isolated interference may constitute an actionable nuisance :1. the general principle is that the length of time and persistence of interference must be considered to establish nuisance. If the interference is continuous it is likely to constitute unreasonable and substantial interference except if the plaintiff is extra sensitive. If the interference is temporary/occasional the general rule is that the defendant will not be liable as the plaintiff is expected to put up with certain amount of interference from his neighbour eg when the neighbour is renovating his house for 2 weeks provided he has taken all reasonable precautions to avoid inconveniencing his neighbour

2. temporary interference may give rise to actionable nuisance if the interference causes physical damage thereby making the interference substantial3. if interference occurs only once thereby making it isolated interference the principle is that the defendant will only be liable of and only if there is a pre existing dangerous state of affairs on his premises for which damage to the property of the plaintiff is reasonably foreseeable

f. MaliceChristie v Davey (1893) the plaintiff was a music teacher who conducted music classes at her house. Her neighbour, the defendant, did not like the sounds from the musical instruments and in turn shouted, banged at the adjoining walls and clashed pots and pans whilst the plaintiff was conducting her classes. The court found the defendant was malicious in his action and an injunction was granted to the plaintiff

Hollywood Silver Fox Farm v Emmett (1936) the plaintiff bred special foxes which were extremely sensitive during their breeding season. The defendant intentionally let out a few gunshots near the foxes cages with the aim of causing damage. The court found the defendant liable. Eventhough the plaintiff used his premises for a particular purpose which was extraordinarily sensitive, the defendants act was unnecessary and malicious rendering it unreasonable. Thus the extra sensitivity of the plaintiff was irrelevant

DefencesAmong the defences available to the defendant are1. Necessity2. Consent3. Contributory negligence4. Act of stranger5. Inevitable accident6. Statutory authority

Statutory authorityAllen v Gulf Oil Refining (1981)The defence of statutory authority was allowed despite the oil refinery causing great inconvenience and annoyance to local residents who complained of unpleasant odours, noxious fumes, vibrations, heavy traffic and loud noise in their previously quiet rural setting. The court held that once Parliament had authorized certain thing to be done in a certain place, there can be no action for nuisance caused by the making or doing of the thing if nuisance is the inevitable result.

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