Nuisance - Sample answer PDF

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PART B (QUESTION 1)There are three issues that can be found in this question. Firstly is whether Pak Mamat and Mak Minah can initiate a legal action under private nuisance against Dunno for the lack of sleep suffered by them. Secondly is whether Pak Mamat and Roy can sue Dunno under private nuisance...

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PART B (QUESTION 1) There are three issues that can be found in this question. Firstly is whether Pak Mamat and Mak Minah can initiate a legal action under private nuisance against Dunno for the lack of sleep suffered by them. Secondly is whether Pak Mamat and Roy can sue Dunno under private nuisance for the damages to their properties which are Pak Mamat’s collections of orchids and the crack on Roy’s house wall. The third issue is whether Adam can sue Dunno under public nuisance for the injuries suffered by him. In general, nuisance can be defined as an annoyance, disturbance or interference. The law of nuisance is concerned with the protection of environment and to provide comfort to persons who have proprietary interest in the land and to members of society generally, through control of environmental conditions. Even though a person who has interest in land is able to do whatever he wishes on his land, his activities however, must not cause inconvenience or damage to another person who similarly has an interest over his land. Nuisance can be categorized into three which are private, public and statutory nuisance. Private nuisance was defined in the case of Read v Lyons & Co Ltd (1945) KB 216 at 236 as an unlawful, substantial and unreasonable interference with a person’s use, comfort, enjoyment and any interest that a person may have over his land. In order to initiate a claim under private nuisance, a claimant must have an interest in the land in which he asserts his enjoyment or use has been unreasonably interfered with. In Malone v Laskey [1907] 2 KB 141, the claimant was injured when vibrations from an engine on an adjoining property caused a bracket to come loose and the cistern to fall on her in the lavatory. She was unsuccessful in her claim as she did not have any proprietary interest in the house considering the fact that her husband was a mere licensee through his employment as a manager. In the present situation, for Pak Mamat, Mak Minah and Roy, all of these parties own an interest in the land as they own a house in that particular neighbourhood where the nuisance arise. Thus, they are entitled to claim under private nuisance for damages suffered by them. On the other hand, public nuisance as defined by Romer LJ in Attorney General v PYA Quarries Ltd (1957) 2 QB 169 at 158, arise when an act materially affects the reasonable comfort and convenience of life of a class of the society. Public nuisance is not necessarily an interference with the plaintiff’s use and enjoyment of his land. As such, the plaintiff who wishes to sue for public nuisance need not have an interest in land in order to be entitled to claim. However, only a person

who has suffered special damage can claim for damages for public nuisance. Special damage is a type of damage that is more serious where the plaintiff suffered more than what is suffered by other persons who are exposed to the same interference. Personal injury or damage to property would fall under ‘special or particular damage’. As stated in the question, Adam, Roy’s nephew, suffered a physical injury after some loose tiles on the roof fall on him due to the vibration from the construction site. Although both Adam and Roy are being exposed to the same type of interference which are the strong vibration, but Adam’s injury is more serious compared to the damage suffered by Roy. This concluded that Adam who has no interest in land is eligible to claim under public nuisance against Dunno because he has suffered special damage. There are a few requirements that need to be fulfilled in establishing nuisance. The first requirement is to prove that there is a substantial interference. Nuisance is not actionable per se. A plaintiff needs not prove a special or particular damage but needs to prove that he has suffered some form of damage from the interference in order to succeed in his claim. Whichever type of damage has occurred, the plaintiff must prove that there has been substantial interference. Interference with the use, comfort or enjoyment of land are collectively known as amenity nuisance. They result in the feeling of discomfort whereby one is unable to live peacefully and comfortably on one’s own land arising from the defendant’s activity. What constitutes substantial interference in this depends on facts and circumstances of each case. Decisions have to be made on a case-by-case basis, and the courts must take into account whether the plaintiff’s complaint is reasonably justified in the context of the surrounding circumstances. In Andrea v Selfridge & Co Ltd (1937) 3 All ER 255, the plaintiff occupied land from which she operated a hotel. The defendant owned the surrounding land and carried out extensive demolition work on this land for rebuilding purposes. The plaintiff sued the defendant for nuisance arising out of the dust and noise and claimed that she had lost significant custom as a result. The Court of Appeal considered that, since building operations cannot be carried out without a certain amount of noise and dust, neighbours have to put up with a certain amount of discomfort. Additionally, reasonable skill and care has to be taken to ensure that no undue inconvenience was caused to neighbours. But, the defendant in this case had caused noise at unreasonable hours and the quantity of dust and grit was described by the court as insufferable. The plaintiff succeeds in her claims. Applying the case of Andrea v Selfridge & Co Ltd (1937) 3 All ER 255 in Pak Mamat and Mak Minah’s situation, the noise that came from the construction site has interfered with their comfort

and enjoyment of the land where they could not sleep whenever the operation continued until late at night. The noise is the direct result that arise from Dunno’s activity at the construction site. Besides, an interference that cause a material or physical damage to the plaintiff’s land or property can also constitutes a substantial interference. Where actual physical damage to land occurs, the general principle is that it amounts to substantial interference and therefore is recoverable. However, it is not automatic that actual physical damage is recoverable. It must nonetheless be established that the physical damage is substantial in nature. In Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd (2002) 3 AMR 3405, the appellants who owned a hotel were building a 20-storey extension to their hotel. The respondents who owned the adjacent land claimed that the piling works of the appellants caused severe cracks to appear in their heritage building. Their application for an injunction was allowed as it was found that unless an alternative system of piling was adopted, the safety and structural stability of their building would be endangered. Although the piling works were temporary, it did not exclude the respondents’ right to an injunction as the physical damage to their property constituted a substantial interference which was actionable. In Roy’s situation, there is a physical damage to his property when the strong vibration from the construction site has caused a crack on his house wall. Besides, there is also a loose of some of the tiles on the roof. These show that there is an actual physical damage suffered by him that amounts to substantial interference. For Pak Mamat, he suffered a material damage to his property when his valuable collection of orchids was damaged by the dust which settled on the leaves and blooms. A material damage can also amount to substantial interference. Next, after succeeding in proving that the interference is substantial in nature, the claimants must further prove that the interference caused by the defendant’s activity is unreasonable. An interference must be unreasonable before it can be considered unlawful. Private nuisance requires an unreasonable use of land by the defendant which leads to unreasonable interference with the claimant's use or enjoyment of their own land. In Saunders-Clark v Grosvenor Mansions [1900] 2 Ch 373, Buckley J provides that ‘… the court must consider whether the defendant is using his property reasonably or not. If he is using it reasonably, there is nothing which at law can be considered a nuisance; but if he is not using it reasonably... then the plaintiff, is entitled to relief.’ Reasonableness under nuisance is measured by balancing the rights and interests of either parties or better known as a compromise process where the occupier have the right to do what he likes without interfering with his neighbour’s right to the full enjoyment on his land.

There are a few factors that was used as guidelines by the courts in order to determine whether an interference is unreasonable, namely locality, duration, hypersensitivity and malice. For a non-physical damages or amenity nuisances, the location of the plaintiff’s and the defendant’s premises is a relevant factor to be considered in assessing whether the defendants’ activity is unreasonable and amounts to substantial interference. The reasonableness of the use of land will be assessed with regard to the nature of the locality in deciding whether there exists an actionable nuisance. In Sturges v Bridgman (1879) 11 Ch D 852, the plaintiff, a physician claimed against his neighbor over the noise arising from the neighbour’s confectionery business. The court took into consideration the fact that the area consisted of many medical specialists’ consulting rooms and the plaintiff’s claim was allowed. In the present situation, the premise where Dunno is doing a construction work is in a neighbourhood area which were reside by many people. Dunno also does not take any reasonable care or skill to muffle the noise from interfering with the people’s comfort. Thus, his activity can be considered as unreasonable. Next, the time and duration of the activity is also taken into account when determining the unreasonableness of the defendant’s activities. Some activities may be reasonable at one time but not at another time. In Halsey v Esso petroleum [1961] 2 All ER 145, the act of filling oil tankers at 10am was held to be reasonable. But, if it was undertaken at 10 p.m., it will be unreasonable. For an interference to be substantial, it must be continuous. In general, the longer the nuisance lasts the greater the interference and the greater the likelihood of it being held to be an unlawful interference. The noise that arise from Dunno activities can be considered as unreasonable interference as it has been continuously occur. On top of that, when Dunno continue his work at a late nighttime, that can also amount to an unreasonable interference which affecting the comfort of Pak Mamat and Mak Minah. Besides, the continuous vibration from the construction site has also affect Roy because it has left a crack on his house wall and also caused the tiles on the roof to loosen which also affect Adam, as he suffered from injuries after the roof fell on him. Another factors that can be considered in assessing the reasonableness of the defendant’s activity is hypersensitivity on the part of the plaintiff. Sensitivity cannot be used as a basis for claiming that defendant’s conduct constitutes an unreasonable and substantial interference, but once unreasonable and substantial interference is established, sensitivity will not deprive plaintiff from obtaining a remedy. In McKinnon Industries Ltd v Walker (1951) 3 DLR 577, the defendant’s factory emitted

noxious fumes which damaged the plaintiff’s commercially grown and delicate orchids. The court found the defendant liable as the fumes would have damaged flowers of ordinary sensitivity. The hypersensitivity factors can be used to ascertain the unreasonableness of Dunno’s activity by looking at the damages that was done on Pak Mamat’s collections of orchids. It is ordinary in nature that plants tend to be sensitive towards any dust as it may interfere with the its bio-chemical process. The dust that arise from Dunno’s activity at the construction site has settled on the orchids and damaging it. Although the damage is unreasonably expected, but it has been proved that Dunno’s act is a substantial and unreasonable interference, Pak Ahmad then entitled to recover for a remedy. If the claimants are able to fulfil all the requirements to prove a nuisance, they may be entitled to certain remedies or relief. One may apply for an injunction to prevent the nuisance from continuously interfering with their comfort. This type of remedy is applicable for Pak Mamat and Mak Minah where their sleep was continuously being affected by the noise form the construction site. Oher than that, one may also apply for monetary compensation for the damages on his property. In Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd [1996] 2 MLJ 142 at 146, it was stated that a person injured by a nuisance may bring an action and claim damages for the injury alone or together with a claim for an injunction. This option can be apply by Pak Mamat and Roy as both of them suffered a damage to their properties. To conclude, Pak Ahmad, Mak Minah and Roy have the right to claim under private nuisance against Dunno as these parties own an interest on the land. Besides, they also able to fulfil all the elements of nuisance. It can be inferred that Dunno can be held liable under torts of nuisance to the aforementioned parties. For Adam, as he is a mere licensee, he does not have any interest on the land. But due to the fact that he suffered special damage, he can initiate a legal action under public nuisance against Dunno where the latter can also be made liable....