Tutorial 1 Question 1 LAW 498 Week 3 (Nuisance) PDF

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TUTORIAL 1 LAW 498- WEEK 4TOPIC 1: NUISANCEQUESTION 1Nik started operation a saw mill in a small village, Kampung Cindai. He has leased the premises for aten-year period from Babu who had told him to be careful about the noise and dust. To complete alarge order, he has to work late at night for the ...

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TUTORIAL 1 LAW 498- WEEK 4 TOPIC 1: NUISANCE QUESTION 1 Nik started operation a saw mill in a small village, Kampung Cindai. He has leased the premises for a ten-year period from Babu who had told him to be careful about the noise and dust. To complete a large order, he has to work late at night for the last month.(continuos interference) The noise prevented Sani and his wife, Sonia who own the market garden next to the mill, from getting to sleep at night. Nik has installed the best wood dust extraction equipment available, but last week the equipment malfunctioned and blew dust all over the village. Much of the dust settled on Sani’s garden and ruined a large number of flowers and vegetables which he was about to send to the local market. One night there was a thunder storm and lightning set fire to wood stored in the mill yard. Nik had not had time to purchase any fire fighting equipment and, because of the way he had stored the wood, the fire quickly got out of control. It spread to Sani’s property where it destroyed two tool sheds before the fire brigade brought it under control. Advise the parties on their rights and liabilities, if any. Issue: Whether Sani and his wife has the rights to take an action against under private nuisance and whether Nik is liable for his action under public nuisance and private nuisance? Law: Public nuisance is an act or omission which causes damage, injury or inconvenience on subjects of the State or on members of class who come within the sphere or neighbourhood of its operation and it might affect some members to a greater extent than others. Referring to case of Attorney-General v PYQ Quaries Ltd [1957] 2 QB 169 at 184 per Romer LJ, public nuisance arises when an act materially affects the reasonable comfort and convenience of life of a class of the society. According to Local Government Act 1976, Act 171, s67(1)(c), public nuisance occurs when there is an intervention with public rights such as the obstruction on highway. There a

QUESTION 2 Ana, Joyce, Sara and Dora occupied adjoining houses in a residential area. Sara had a temporary posting overseas for two years starting in October 2002. She let her house for two years to Jo, whose hobby is carpentry. Jo has spent a great deal oftime building furniture and other large wooden objects in the garden at the back of the house. This has annoyed Dora, a nurse, who is frequently on duty at nights and is unable to sleep during the day when Jo is working. Jo has refuse to desist from noisy work when Dora is trying to sleep. Sawdust has blown over the fence into Joyce’s garden. Some of this was eaten by a dog belonging to Joyce’s sister. Emily who came to stay permanently with Joyce in January. The dog was severely ill as a result and eventually died. The sawdust was extremely difficult to pick up and after a heavy rainstorm the sawdust was carried in the drain in Joyce’s garden. The drain was blocked and, in the ensuing flood, water flowed into Joyce’s and Ana’s houses. They all suffered damages in this incident. Advise the parties as to their legal rights. Issue Whether the noise that occurred due to furniture construction, the sawdust produced from the construction and the blocked drain amount to nuisance and thus, whether Ana, Joyce, and Dora can bring an action under private nuisance? Whether Emily can bring a suit against Jo under public nuisance due to the death of her dog which construed to damages that she suffered resulted from Jo’s action? 1. Whether Dora can bring an action to Jo Jo and Sara due to the noise under private nuisance? 2. Whether the flood amounted to nuisance so Ana and Joyce can sue under private nuisance? 3. Whether Lawintro definitionNuisance is defined as harm or annoyance where a branch of law of tort closely concerned with protection of the environment. There are two categories of nuisance which are private nuisance and public nuisance. type of nuisance Public nuisance according to Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 arises when an act materially affects the reasonable comfort and convenience of life of a class of the society. In order for the plaintiff who wishes to sue for public nuisance, he is not required to have an interest in land in order to be entitled to claim. However, he must have suffered special damage which the existence of damage is determined by the type or extent of damage and the damage must be direct consequence. By applying to the current situation, Emily suffered damage considering she lost her dog caused by the remnants of sawdust on the property produced by Jo Jo. Thus, by virtue of the Attorney-General v PYA Quarries Ltd, the sawdust came from the conduct by Jo Jo that caused damage to Emily due to the lost of her dog. Private nuisance is concerned with protecting the rights of an occupier in respect of unreasonable interference with the enjoyment or use of his land. There are two elements that needs to be fulfilled in order for plaintiff to sue under private nuisance which are the substantial interference and unreasonableness. Referring to Read v Lyons & Co Ltd [1945] KB 216 at 236, private nuisance is an unlawful interference with a person’s use, comfort, enjoyment and any interest that a person may have

over his land. Applying to this case, Ana, Joyce and Dora are in actual possession of their houses. Thus, they have the propriety interest as adjoining occupier of the house to bring a suit under private nuisance against Jo. In terms of whom can be sued, the creator will be liable whether or not he occupies the land from which the interference emanates. There is no requirement for the defendant creator to have an interest over the land or that the land belongs to him. As illustrated in Telley v Chitty [1986] 1 All ER 663, where there is no requirement that D creator must have an interest over the land or that the land belongs to him. Southport Corporation v Esso Petroleum Ltd [1953] 2 All ER 1204, laid out the principle that the one who authorized the nuisance would be liable for the conduct. However, landowner would be liable under 3 exceptions even if they have surrendered the possession which are if he has authorized the nuisance, if he knew the nuisance before the tenancy became effective and if he has covenanted to repair. Applying to this case, Jo Jo is the creator as the interference of causing the flood by the release of sawdust was emanated from him. Based on Telley’s case, he would still be liable for nuisance although he does not have interest over the land. While for Sara, as the landowner, she was liable as according to Southport’s case, she did authorize the conduct of Jo Jo considering she let Jo Jo to stay at her house. The fact that she let Jo Jo stayed in her house signifies the proximity between them to which construed that Sara definitely know Jo Jo’s hobby of carpentry. Thus, this shows that Sara definitely authorise Jo Jo’s conduct Eventually, it is foreseeable for Sara to predict that such nuisance would occur from Jo Jo’s conduct. Sara cannot be sued, cause she went to oversea n she didn’t authorise LAW There are two elements of nuisance. Firstly, interference where there must be some kind of interference. Nuisance is not actionable per se. A plaintiff is required to prove that he has suffered some form of damage from the interference in order to succeed in his claim. There are three types of interference which are the encroachment on the plaintiff’s land, physical damage or injury to plaintiff’s land or property and the interference with the use, comfort or enjoyment of land. The type of interference that is involved in this case is the physical damage or injury to plaintiffs’ lands. Actual physical damage is a substantial interference which is recoverable. This is illustrated in Goh Chat Ngee & 3 Ors v Toh Yan & Anor [1991] 2 CLJ 1163, where the defendant held a mining license and carries on mining work on his land. Plaintiff who owned adjacent land claimed that the defendant through their mining activities committed negligence and nuisance. Mining activities constitute unnatural use of land as water has escaped and flooded plaintiff’s land causing it to collapse and sink, subsequently causing flooding erosion and settlement. The court held that the defendant had breached statutory duty and liable for nuisance for unreasonable, unlawful and substantial interference with the use and enjoyment of plaintiff’s land. Next, is the interference with the use, comfort or enjoyment of land. It is collectively known as amenity nuisance which results in the feeling of discomfort whereby one is unable to live peacefully and comfortably on one’s own land arising from defendant’s activity. This is best explained in the Tetley v Chitty 1986 1 All ER 663, where a council allowed a go-kart club to use their land for a race track. Nearby residents brought an action in nuisance. the council were held liable for authorizing the activities of the go-kart club. The noise was an ordinary and necessary incident to go-kart racing which was the purpose for which the permission to use the land was granted. Second element of nuisance is the unreasonable interference where an interference must be unreasonable before it can be considered unlawful. Thus, there is a test to determine the

unreasonableness of an interference. The concept of test of reasonableness is best explained in Saunders-Clark v Grosve nor Mansions [1990] 2 Ch 373, where the court must consider the reasonableness of the land’s usage by the defendant. It will not construe to a nuisance if the defendant is using his property reasonablybut otherwise, he will be entitled to a relief. Reasonableness is measured by balancing the rights and interests of either parties. The reasonableness test is further explained in St Helen’s Smelting Co v Tipping [1965] 11 HL Cas 642, where the claimant was the owner of a large country house with over a thousand acres of land. This land was near to a copper smelting factory which had long been in operation. The smelting factory released noxious gases resulted from its operation, which were a normal process of the smelting operation. Consequently, trees on the claimant’s land were damaged by the fumes and noxious gases. The claimant sued in nuisance. The claim was allowed. It was no defence to say that the claimant ‘came to the nuisance’ and the defendant could not be said to have acquired a right through prescription to continue to discharge noxious fumes. Whilst smelting and the discharge of these fumes was not in itself unlawful, and in a locality in which this was to be expected there could be no nuisance. However, in nuisance cases like this, it is necessary to distinguish between nuisance alleged to have caused loss of amenities and comfort, and nuisance which is said to have caused physical damage to property. Where there had been physical damage to the claimant’s property as had occurred in this case the question of the character of the locality itself was irrelevant, where it may have been relevant if the alleged nuisance was only in the form of discomfort. Thus, there are 4 factors of to assess the reasonableness of an interference. First factor is locality. The reasonableness of the use of land will be assessed with regard to the nature of the locality in determining the existence of actionable nuisance. The location of plaintiff and defendant are relevant consideration to assess the reasonableness of the defendant’s activity and whether it amounts to substantial interference. Locality is irrelevant where interference causes physical damage to property. The land’s occupier must be protected from physical damage. A case to highlight this factor is St Helen’s Smelting Co v Tipping [1865] 11 HL Cas 642, the claimant was the owner of a large country house of land which was near to a copper smelting factory which had long been in operation. The smelting factory released noxious which is produced by its operation and it considered to be a normal process of the smelting operation. Consequently, trees on the claimant’s land were damaged by the fumes and noxious gases. The claimant sued in nuisance. The claim was allowed. It was no defence to say that the claimant ‘came to the nuisance’ and the defendant could not be said to have the right through prescription to continue to discharge noxious fumes. Thus, smelting and discharging the fumes was not in itself unlawful. In terms of locality this was to be expected there could be no nuisance. However, in nuisance cases like this, it is essential to differentiate between nuisance alleged to have caused loss of amenities and comfort, and nuisance which is said to have caused physical damage to property. Where there had been physical damage to the claimant’s property as had occurred in this case the question of the character of the locality itself was irrelevant, where it may have been relevant if the alleged nuisance was only in the form of discomfort. Second factor is the duration. The time and duration are also essential in determining the unreasonableness of interference. Activities may be reasonable at one time but not at another as stated in Halsey v Esso Petroleum [1961] 2 All ER 145, where filling oil tankers at 10 am is reasonable but the same activity conducted at 10 pm is unreasonable. The duration of the activity is divided into three which are the continuous interference, temporary interference and isolated incident. Continuous interference constitutes substantial interference. The longer the nuisance lasts, the greater the interference the greater probability to be construed as unlawful interference. This is not conclusive

but acts an essential factor to determine the unreasonableness of the defendant’s action. This is illustrated in IJM Corporation Bhd v Harta Kumpulan Sdn Bhd [2007] 8 CLJ 291 , the plaintiff and the defendant entered into an agreement whereby they would jointly develop land into condominium buildings. The plaintiff would build the condominium while the defendant provided the lands. They agreed to the specified numbers of units allocated to them. However, the defendant refused to transfer the specified number of units to the plaintiff. Later the transfer was made but the defendant demanded for a payment from the plaintiff. The defendant consistently sent a letter of threat to plaintiff during the intensive period. The court held that the defendant’s action amounted to an interference with the plaintiff’s enjoyment of the land. Temporary interference where it may constitute a nuisance on one side but otherwise it is considered lawful. The principle of the case of Harrison v Southwark & Vauxhall Water Company [1981] 2 Ch 409 is a person who constructed a house that would take several months must uses all reasonable skill and care to avoid annoyance to make his action to not be a nuisance and unreasonable. In this case, a claim was made for damages for nuisance from construction works. The court held that the obligations of the defendant regarding the sinking shaft were neither greater nor less than those of a private person and that private person would not in similar circumstance, be held to have created a legal nuisance by reason of the annoyance caused to his neighbors in the thumping for the purpose of sinking the shaft, unless it could be shown that he had neglected to take all reasonable precautions for mitigating the annoyance to his neighbors. Isolated incident, where the general principle is the more severe the interference, the more likely the court will regard it as unreasonable. Isolated incident has also been held to constitute a nuisance if the incident is due to a dangerous state of affairs of the defendant’s premise. According to Sedleigh-Denfield v O’ Callaghan [1940] 3 All, where the defendant had allowed culvert on their land to remain blocked, causing plaintiff’s adjoining property to flood. The court held that the defendant is liable in nuisance as a result of authorizing a culvert on their land to remain blocked and the plaintiff adjoining property was flooded. Flooding on the plaintiff’s land was foreseeable as a result of the state of affairs on the defendant’s land. Third factor is seriousness. However, the gravity of the harm should not be gauged on a purely objective basis. It is always vital to show, despite however harmful an interference is, what impact it had on the claimant. Talking about character of the harm, it is inherent that physical damage is seen to be more serious than amenity nuisance. Plus, it is easier to prove and quantify in terms of damages. Finally, it is more likely that the interference complained of is taken seriously if it affects the claimant’s land which he/she has put to some social use . This is illustrated in Walfer v Selfe (1851), the burning of bricks on the defendant’s land was a nuisance to the plaintiff’s neighboring house. An injunction was granted. The court held that interference on another's land must be "more than fanciful, more than mere delicacy or fastidiousness" and it must be "an inconvenience materially interfering with the ordinary comfort of human existence. Fourth factor is hypersensitivity. The law of nuisance is not sympathetic to a plaintiff who extraordinarily sensitive whether the sensitivity is related to plaintiff himself or to his property. Based on McKinnon Industries Ltd v Walker [1951] 3 DLR 577, the defendant manufactured steel and iron products 600 feet from the claimant’s property. The claimant had a dwelling house and also a commercial florists and nursery. The claimant grew orchids which is hypersensitive. The claimant brought an action in relation to noxious fumes and smuts which has deposited over his shrubs, trees, hedges and flowers causing them to die. The court held that the defendant’s action is unlawful despite the hypersensitivity nature of the flowers. In Robinson v Kilvert (1989) 41 Ch D 88 Court of Appeal, the defendant carried on a business of

making paper boxes. This required a warm dry atmosphere. The defendant operated from the basement of their premises and let out the ground floor to the claimant. The claimant used the premised for storage of brown paper. The heat generated from the defendant’s operations damaged the brown paper belonging to the claimant. It was held that the defendant was not liable. The damage was due to the special sensitivity of the paper. Fifth factor is malice. The existence of malice may cause the defendant’s act to be unreasonable. This is further explained in Christie v Davey 1 Ch 316 , where the plaintiff was a music teacher who conducted music classes at her house. The defendant(neighbor) 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 classes. The court held that the defendant was malicious in his actions and an injunction was granted to the plaintiff. The remedy usually sought in a claim for nuisance is an injunction, which function is to prevent the nuisance from continuing or monetary compensation, which is usually granted for damage to property. The harm or damage that usually occurs in nuisance cases are two types which are the damage to property and interference with personal comfort. There are 3 remedies that are usually being claim under private nuisance. First is injunction, monetary compensation and report to the relevant authority. First is injunction. It is an order by the court which has the effect of either prohibiting the defendant from repeating or continuing his act, or it may be an order requesting the defendant to do something positive. The function is to prevent the nuisance from continuing and is suitable for continuing nuisance. In the case of Pacific Engineering v Haji Ahmad Rice Mill, the court granted injunction to prevent the activity of burning husks as it causes damage to plaintiff. Next is monetary compensation. It is easy for physical damage to property. As in the case of Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd, it was held that a person injured by nuisance may bring an action and claim for damages for the injury alone or together with a claim for injunction Application Relating to the current case, there was an encroachment on the property owned by Ana, Joyce, Emily and Dora by Jo Jo. According to Dav...