P need not prove special or particular damage.

Elements required to be established:

1.              Substantial interference

    1. Interference with the use, comfort or enjoyment of land
    2. Material or physical damage to land or property

2.              Unreasonableness

    1. Damage and location of P’s and D’s premises
    2. Public benefit of D’s activities
    3. Extraordinary sensitivity on P
    4. Interference must be continuous
    5. Temporary interference and isolated incident
    6. Malice

 

Hiap Lee Brickmakers Ltd v Weng Lok Mining Co Ltd [1974] 2 MLJ 1 PC

 

 

1. Substantial interference

 

not actionable per se. Does not require P to prove special or particular damage, the P must prove that he has suffered damage in order to succeed.

– protects a person from 2 types of damage/interference:

  • interference with use, comfort or enjoyment of his land
  • physical damage to the land

substantial interference differs according to types of damage

 

(a) Interference with the use, comfort or enjoyment of land

-Collectively known as amenity nuisance.

-Result in Feeling of discomfort –unable to live peacefully

-what constitutes substantial interference Depends on facts and circumstances of each case.

-Examples of substantial interference: (case-by-case basis based on surrounding circumstances)

– Loss of one night’s sleep due to excessive noise – Andrea v Selfridge & Co Ltd [1937] 3 All ER 255 CA

-Using adjoining premises for prostitution (Thompson-Schwab v Costaki [1956] 1 All ER 652) or as a sex shop (Laws v Florinplace Ltd [1981] 1 All ER 659)

-Persistent telephone calls – Khorasandjian v Bush [1933] QB 727

 

Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2299 HC;

–        p sued the d for an injunction to restrain the defendant company from operating and continuing to operate his factory.

–  the operating a factory produced dangerous radioactive gases

– nuisance established – the situation shall be something over and above the normal inconvenience
– annoyance and discomfort must be established, but injury to health does not.

 

Dato’ Dr Harnam Singh v Renal Link (KL) Sdn Bhd [1996] 1 AMR 1157 HC; [1997] 3 AMR 2430 CA

–        the P had for 18 years operated a clinic and hospital for the treatment of ENT. The defendant operated a renal clinic and which patients receive haemodialysis on the floor above the P’s clinic. The D was found liable for emitting from their clinic obnoxious fumes which escaped downwards into P’s clinic.  P’s staff and patients were tfound to have suffered substantial damage ranging from skin disease etc.

 

Brindlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436

–         where the interefence affects the P’s leisure or a purely recreational facility, the courts are generally mmore reluctant to pronounce the d’s activity as an actionable nuisance, if the d’s activity brings benefit to the public

 

Hunter v Canary Wharf Ltd [1997] AC 655

Question of policy to be considered.

Balance of P’s right to be involved in recreational activities on his own land and

D’s equal right to build on his land, particularly if his activity is deemed to be of greater significance to the government and society generally.

 

 

(b) Material or physical damage to land or property

General rule: actual physical damage to land occurs = substantial interference and is therefore recoverable.

 

It must be established that the Physical damage is substantial in nature.

 

Amenity nuisance – what amounts to substantial interference is a question of fact and determinable on a case by case basis.

 

Darley Main Colliery Co v Mitchell [1886] 11 App Cas 127

–        Minor subsidence on the plaintiff’s land was not actionable.

 

Goh Chat Ngee & 3 Ors v Toh Yan & Anor [1991] 2 CLJ 1163

D carried out mining work on his land – adjacent to P’s land.

-P claim that Mining constituted unnatural use of land – P’s land flooded by water escaped form D’s land

-As a result, caused erosion to P’s land

H- liable in nuisance for unreasonable, unlawful & substantial interference

 

Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd [2002] 3 AMR 3405 CA

–        A owned a hotel which were building 20 floors extension. The R owned the adjacent land claimed that the piing works of the A caused severe cracsk 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. The court held that once the D’s activity constitstute an actionable nuisance in law, it is no defence that the D has taken all reasonable precaution to prevent it. In this case, though the piling works were temporary, it did not exclude the respondet’s right to an unjunction as the physical damage to their property constituted an interefeerence which was actionable

 

Rapier v London Tramways Co [1893] 2 Ch 588

-although D has taken necessary precautions and piling works were temporary – nuisance as physical damage constitutes substantial interference

 

2. Unreasonableness

 

2 points to be borne in mind:

– none of the factors are conclusive of whether the interference is unreasonable or otherwise. They are merely relevant considerations to be taken into account

– Substantial interference may amount to unreasonable interference and vice versa., quite often the courts have held D’s activities as being actionable nuisances on the basis that they constituted both substantial and unreasonable interferences.

 

No clear-cut definition as to what constitutes unreasonable interference:
|

Hunter v Canary Wharf Ltd (HL)

F:The P claimed damage in respect of intereference with their tv reception, for a period of 2 years, caused by the D’s nearby building which was 250 metre high. The court held that in the absence of an easement, the mere presence of a neighbouring building did not give rise to an actionable nuisance. The court acknowledge that interference with tv reception may amount to an amenity nuisance in appropriate circumstances.

H;Generally, for an action in private nuisance to lie in respect of intereference  with the P’s enjoyment of his land, it has to arise from something emanating from the D’s land, such as noisem dirt, fumes, smell, vibrations and suchlike.

 

 

(a) Damage and location of the plaintiff’s and defendant’s premises

 

The location of the P and D’s premises are relevant considerations in assessing whether the def’s acitivity is unreasonable and amounts to substantial.

St Helen’s Smelting v Tipping [1865] 11 HL Cas 642

F:The  P owned a rubber estate which was situatied in an industrial area. The Smoke from the d’s copper-smelting factory had caused considerable damage to the P’s trees.

H:Distinguished between “sensible injury to the value of the property” or “material injury” (physical damage), and injury in terms of personal discomfort (non-physical damage). For the latter type of damage , his lordship stated that the level of interference must be balanced with surrounding circumstances, and the nature of the locality must be taken into account..

 

Chan Jet Chiat v Allied Granite Marble Industries [1994] 3 MLJ 495

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:

 

Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903; [19 40] 3 All ER 349

For non-physical damage – test of liability as being what is reasonable in accordance with common and usual needs of mankind in a society, or in a particular area.
“ a balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbor not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living a particular society.

 

“Balancing exercise” in cases of non-physical damage (or amenity nuisance) was in P’s favour in the following cases: Bliss v Hall [1838] 4 Bing NC 183 (smoke, smell); Sturges v Bridgman [1879] 11 Ch D 852 (noise)

 

Bliss v Hall

The D managed a factory for 3 years and during this time smoke, smell and other remittances came from the factory. The P moved into a house near the factory. In an action against the D, the latter raised the defence that it had been going on before an action is brought to halt the activity is inapplicable as the P had his rights .

 

Sturges v Bridgman,

The P 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 P’s claim was allowed.

 

In amenity nuisance case, the location of the premises (particularly of P’s) would give an indication whether the D’s activity actually constitute an unreasonable and substantial interference to P.

 

What is regarded as excessive within that locality would generally be actionable.

Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi, Mohdi & Ors [1981] 2 MLJ 16 FC

There was a lease of land – use for skating, cinema and restaurant. But D built an open stage and staged some shows and opened discotheque.

H- Living in urban area must accept a lot of noise but no one has the right to create excessive noise.

 

 

 

 

Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923 (commercial port)

Time may be a relevant factor. Same activity may give rise to an actionable nuisance at one time but not at a later time. Here planning permission had been granted to the D to build a commercial port and the reason behind this was so that it would be of beneit in terms of creating employment for the community in that area. It was agred that the D would have unrestricted access to that area for construction purposes. Construction was done 24 hours a day and the heavy vehicles had to pass through a residential area to get to the site. In 1988,five years after the planning permission was granted to the D, the P alleged that the D was interfering with the comfort of the residents in that area and was therefore committing public nuisance. The court held that whenever planning permission is granted, it is for the purposes of either renewing or changing the use of the area, and whether an act gives rise to a public nuisance or nto must be measured with the circumstances in that area in line with the renewal or changed use of that area, at that time and not the time before it. Therefore, since in 1983 permission was granted for the purpose of converting the place into a commercial area, which included the agreement hat construction would be carried out for 24 hours per day. , the P’s claim

 

The principle arising from this case ought nto be taken literally, that planning permission will automaticall change the characteristics of a neighbourhood. Indeed the suggestion of the COA in Wheeler v JJ Sanders should be taken into account – that in deciding whether planning permission has changed the character of a particular neighbourhood, the answer should be in the affirmative if and only if , the planning permission has been granted. Before it grant, the court should not consider its application as automatically being in favour of defendant, as this could lead to a premature and unfair extinction of the P’s right to use, comfort and enjoyment of his land.

The general principle remainds that what is regarded as excessive in a particular locality would generally be accepted as unreasonable and amounts to a substantial interference. However, the balancing of conflicting interests can sometimes give rise to unpredictable and unexpected outcome.

 

(b) Public benefit of the defendant’s activities

If the object of D’s conduct benefits the society generally, it is more likely that the conduct will not be deemed unreasonable. But D’s activity which benefits the public will still constitute actionable nuisance if the activity causes damage to property or substantial interference to P’s enjoyment of his land.

 

Examples: building schools, factories, government hospitals and power stations, although giving rise to interference in the form of noise and dust to nearby residents, would probably be denied on the basis of the utility derived from the construction of the facilities.

 

Perbadanan Pengurusan Taman Bukit Jambul v Kerajaan Malaysia [2000] 1 AMR 228 (building government clinic)

The D renovated some units in a flat managed by the P in order to set up a government clinic. The P argued that the renovation was not only conducted without their approval, but that it caused pipe and drain blockages. Further, the renovated units intruded into the common five-foot pathway, thereby causing nuisance.

H: The court denied the P’s caim.Whether something amounted to nuisance or not must be considered with reference to local circumstances and surroundings. An inconvenience does not necessarily give rise to an actionable nuisance. The purpose  of the renovation provided substantial public benefit. On the facst the D had provide a new 5-foot way and so no nuisance was created in this aspect. On the issue of predecessor and on the principle of equitable estoppels the P was stopped from going back on the consent given by their predecessor.

 

Even if D’s activity gives rise to public benefit, this does not automatically mean that his activity is not actionable.

 

Adams v Ursell [1913] 1 Ch 269 (trade of selling fried fish – smell)

–        The D was in the trade of selling fried fish. The shop was located in the residential part of a 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 P’s comfort and convenience also had to be considered.

Kennaway v Thompson [1981] QB 88

Even if D’s activity gives benefit to the society generally, it does not justify substantial interference to P. If P suffers any physical damage, then P’s rights to comfort and enjoyment overrides any public benefit that may be derived from that activity.

 

 

(c) Extraordinary sensitivity on the part of the plaintiff

The law of nuisance is not sympathetic to a P who is extra sensitive, whether the sensitivity is related to P himself or to his property.

 

Sensitivity cannot be used as a basis for claiming that D’s conduct constitutes an unreasonable and substantial interference, but once unreasonable and substantial interference is established, sensitivity will not deprive P from obtaining a remedy.

 

McKinnon Industries Ltd v Walker [1951] 3 DLR 577 PC

F:D’s factory emitted noxious fumes which damaged P’s commercially grown and delicate orchids (flowers of ordinary sensitivity).

H: liable as the fumes would have damaged flowers of ordinary sensitivity.

 

Robinson v Kilvert [1889] 41 Ch D 88

F:D – business of making paper boxes; and P lived in the floor above the same premises was in the business of selling special paper which was sold according to weight. The hot air from the D’s place caused the moisture in the P’s paper to dry up. The raise in temperature in P’s premises did not cause inconvenience to P’s workers and it would not have affected normal paper.

H: not liable as that ordinary paper would not have been affected by hot air and therefore the P’s property was extra sensitive.

 

Bridlington Relay v Yorkshire Electricity Board [1965] 1 All ER 264

F:P is the owner of television and radio station. D were the Board responsible for the supply of electricity in the area, erected an electrical powerhouse in the same area. P applied for injunction , believe that the power line would cause reception interference on the television and would damage their business.

H: use of P’s aerial for this particular kind of business was use of a special kind. The television viewing is recreational and there was no substantial interference.

 

Q: can this case still stand today?

Bridlingtion’s decision would not stand today  since the tv viewing is much more common nowadays.

Canada case:

Nor-Video Services Ltd v Ontario Hydro [1978] 84 DLR (3d) 221.

 

(d) Interference must be continuous

Continuous or occurs very often as generally a continuous activity will constitute substantial interference. It is not conclusive requirement but it is certainly a factor in deciding whether the interference is substantial or otherwise.

 

Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 HL

H:Roots of a tree belonging to D had spread to the neighbouring property and caused structural cracking to that property amounted to continuing nuisance until the completion of remedial works.

 

Matania v National Provincial Bank Ltd and Elevenist Syndicate Ltd [1936] 2 All ER 633

H: Yet a temporary noise and dust held to constitute a nuisance.

 

Spicer v Smee [1946] 1 All ER 489 and

SCM (UK) Ltd v W.J. Whitall & Son Ltd [1970] 3 All ER 245; [1971] 1 QB 337

H:An isolate incident constitutes a nuisance, if the incident is due to a dangerous state of affairs on D’s premises.

 

 

(e) Temporary interference and isolated incident

General principle: the more serious the interference, the more likely the court will regard it as unreasonable.

 

MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No2 ) [1998] 4 CLJ 136

F:The construction of a road over D’s land for the purposes of connecting 2 pieces of P’s lands was an actionable nuisance as the road was tarred, pre-mixed and thus permanent in nature.

H:A mandatory injunction was accordingly granted to D.

 

In cases of temporary interference, courts are likely to be reluctant to grant an injunction except in extreme cases, (eg. damages will not be an adequate remedy).

Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd [2002] 3 AMR 3405 CA.

 

If P is claiming for damages as opposed to injunction, the nature of injury suffered by him will be a relevant factor to determine whether the temporary interference is an actionable nuisance. If his injury is temporary interference, the court may hold that the interference is too trivial to be considered as a nuisance. [eg. renovation of house]

 

Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349.

H: It is a nuisance as a result of allowing a culvert on their land to remain blocked, P’s adjoining property was flooded.

 

Spicer v Smee [1946] 1 All ER 489

F:P’s house was burnt down due to a defective wiring system in D’s adjoining house.

H: D is liable as there was a dangerous state of affairs on his premises. The court held that private nuisance arises out of a state of things on one man’s property whereby his neighbor’s property is exposed to danger.

 

British Celanese Ltd v AH Hunt (Capacitors) Ltd

F: D, a manufacturer of electrical components kept strips of metal foil in his factory. There strips of metal foil were blown away by the wind to an electrical powerhouse and caused a disruption to the electrical supply in the area, which consequently damaged the P’s machines and materials resulting in the loss of production.

H:one incident may gv rise to a nuisance and the D was found liable as the damage was not too remote.

 

SCM (UK) Ltd v WJ Whittall & Son Ltd

H: a single escape may gv rise to a nuisance, but it must be proved that the nuisance is as a result of a dangerous state of affairs on the D’s premises or land or arising from the activities carried out on the land. The gravity of the harm and the frequency of the escape are factors taken into account in determining whether a dangerous state of affairs existed on the D’s land. It appears that there must be foreseeability of damage to the P arising out of the condition on the D’s land, premises or property before D will be found liable.

 

Thean Chew v The Seaport (Selangor) Rubber Estate Ltd

F: P’s husband suffered injuries from which he later died when a diseased rubber tree belonging to the D fell onto highway, and onto the lorry in which the deceased was travelling.

H: D liable in nuisance as he had failed to remedy the dangerous state f his property within a reasonable time after he did or ought to have become aware of it.

 

Leong Bee & Co v Ling Nam Rubber Works

F: a fire broke out in the early hours of one morning in a factory building occupied by Ds. The fire spread to the building next doow which was owned and occupied by the Ps, destroying the latter building.

H: dismiss the appeal and held that since there was no dangerous state of affairs on the D’s premises, the only duty that the Ds owed to the Ps in respect of a fire not caused by any act or omission of theirs or of any servant or agent of theirs was a duty based upon knowledge of a fire, ability to foresee the consequences to the Ps of not checking their premises and the ability to abate it. There is no evidence of any failure of such duty on the part of the Ds and thus no liability in nuisance was established.

 

(f) Malice

The existence of malice may cause D’s act to be unreasonable.

 

Christie v Davey [1893] 1 Ch 316

F: P was a music teacher who conducted music classes at her house. Her neighbor, D, did not like the sounds from the musical instruments and in turn shouted, banged at the adjoining walls, and clashed pots and pans whilst P was conducting her classes.

H: D was malicious in his actions and an injunction was granted to P.

 

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468; [1936] 1 All ER 825

F:P bred special foxes which were extremely sensitive during their breeding season. D intentionally let out a few gunshots near the cages with the aim of causing damage.

H: Liable even though P here used his premises for a particular purpose which was extraordinarily sensitive, nevertheless the D’s act was unnecessary and malicious, rendering it unreasonable; thus the fact that the P’s property was ‘sensitive’ was irrelevant.

 

Distinguished case:

Bradford Corporation v Pickles [1895] AC 587 HL

F:D deliberately prevented the flow of water on his land so that P’s land received less water.

H:not liable coz P has no right to unlimited water supply. D’s act was in fact lawful and his bad motive was irrelevant.

 

F. Who can sue

 

  1. person who has some proprietary or other interest in land
  2. landowner
  3. occupier (whether tenant, lessee or person who is in actual possession)

Foster v Warblington UDC [1906] 1 KB 648 CA

  1. reversioner (a landowner who is not in occupation at the time the interference takes place but who is expected to resume occupation at a future date)

 

  1. Proprietary or possessory interest in land

Malone v Laskey [1907] 2 KB 141 CA

F: wife of an occupier suffered personal injuries caused by a bracket falling off the wall onto her head. The mishap was due to vibrations coming from the D’s adjoining premises.

H: denied her remedy as she did not have any interest in the land.

 

Khorasandjian v Bush [1993] 3 All ER 669; [1993] QB 727 CA

F:D could not accept the P’s rejection of his advances towards her and began to harass her. He pestered her with telephone calls.

 

Janvier v Sweeney

F: P suffers illness through the cumulative effect of continued and unrestrained further harassment.

H: telephone harassment is an actionable interference with her ordinary and reasonable use and enjoyment of property where she is lawfully present, and the harassment may be restrained quia timet and without further proof of damage.

 

Hunter v Canary Whart Ltd

H: someone who has the right to exclusive possession of the land, such as a freeholder or a tenant possession, or a licensee with exclusive possession. A reversioner may sue in respect of a nuisance of a sufficiently permanent character which may damage his reversion. The action is usually brought by a person in actual possession, although he cannot prove title to the land. A mere licensee has no right to sue. So members of the occupier’s family be it spouse, children and parents or guests, lodgers or even workers, would not be entitled to sue. Held that, personal injuries per se are not recoverable in an action for private nuisance.

 

F. Who can be sued

 

3 categories: creators, occupiers and landlords.

 

1. Creator

The source or creator of the interference, whether or not he occupies the land from which the interference emanates, will be liable for the nuisance.

 

Southport Corporation v Esso Petroleum Ltd [1953] 2 All ER 1204

F: employee rears animals for his employer-licensee, and latter does not ensure that the waste of the animals are properly channeled out of that land,  he will be liable because the licensee will be deemed to have been invested with the management and control of the premises.

 

Test: who authorized the activity and whether interference is foreseeable from that activity: Telley v Chitty [1986] 1 All ER 663

 

No requirement: D creator must have an interest over the land or that the land belongs to him.

Marcic v Thames Water Utilities Ltd [2002] 2 All ER 55 CA

F: D company was a statutory sewerage undertaker. It was responsible for the removal of sewage in the area where the claimant lived. The sewers became inadequate for removing surface and foul water which had on occasion been discharged into the laimant’s front and back garden. His house was also damaged.

H: as owners and those in control of the sewers, the D company had a duty to do whatever was reasonable in the circumstances to prevent such hazards from damaging property belonging to others. The company had or should have had knowledge of the hazard and it was within their capabilities to abate the nuisance.

 

Through a positive action.

Steven Phoa v Highland Properties [2000] 3 AMR 3567

 

Liable although he is not the occupier/landlord

Thompson v Gibson (1841) M & W 456

 

2. Occupier

Occupier will be liable:

  1. 1.     McGowan & Anor v Wong Shee Fun & Anor [1966] 1 MLJ 1

-All positive acts of interference, including omissions which give rise to a nuisance

 

  1. Also be liable for the acts and omissions of third parties in the following situations: servant or employee; independent contractor; trespasser; licensees; natural causes; conduct of previous occupier

 

(a) Servant or employee

Persons who are subject to the occupier control: vicarious liability – Spicer v Smee [1946] 1 All ER 489

 

(b) Independent contractor

independent contractor where his duty is “non-delegable”.

Bower v Peate [1876] 1 QBD 321

F: D’s independent contractor undermined the support for P’s adjoining house.

H:The principle that arose from this case is: if the nature of work that a man employs another to do is expected to gv rise to injurious consequences to his neighbor, he must do all that is necessary to prevent the injury from materializing and he cannot pass over this burden to the independent contractor. The duty of care on his part is ‘non-delegable’, D is liable.

 

 Matania v National Provincial Bank [1936] 2 All ER 633

F: Ps who lived on higher floors of the same building when his independent contractors produced a lot of dust and noise in the performance of their job.

H: there was a special danger of nuisance arising from the work and the occupier was therefore liable for the failure of his independent contractors to take precautions. D is liable.

 

Salsbury v Woodland [1970] 1 QB 324

H: if  the source of the danger is not on the highway but is on the occupier’s land which is adjacent to the highway, and the independent contractor is employed to do work on the occupier’s land but creates interference on the highway, liability of the occupier for his independent contractor’s interference on the highway depends upon whether the work involves any special risk to users of the highway, for if no such risk is foreseeable the occupier will not be liable for the contractor’s lack of care.

 

Holliday v National Telephone Co [1899] 2 QB 392

H: a D who has statutory authority to interfere or conduct work on the highway owes a duty to the general public to exercise his statutory authority carefully, and this duty cannot be delegated to an independent contractor. So if his contractor causes interference or aerates danger, or is negligent with the result that someone suffers special damage, the D will be held liable.

 

(c) Trespasser

Sedleigh Denfield v O’Callaghan [1940] 3 All ER 349 HL

F: D owned a piece of land on which there was a big ditch. A trespasser subsequently placed a pipe in the ditch without the knowledge of the D, but the person who was responsible for cleaning the ditch knew about the piping. No proper precautions were taken. During an extraordinarily heavy rainfall the pipe was clogged and P’s land was flooded.

H: D liable as his employee, who cleaned the ditch should have known that the condition of the pipes gave rise to a risk of flooding and this knowledge was imputed on the Ds. It was stated that when a nuisance has been created by the at of a trespasser or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, when occupier has knowledge, he suffers it to continue without taking reasonably prompt and efficient means for it s abatement.

 

(d) Licensees

Q: Whether an occupier, a highway authority, may be liable for interference committed by a third party on the highway

Parimala a/l Muthusamy & Ors v Projek Lebuhraya Utara Selatan [1997] 4 AMR 3274

F:D was the highway authority responsible for the construction, maintenance, management and safety of the North-South highway. Ps were travelling in car and hit a stray cow which had found its way onto the highway through a breach in the fencing system.

H: it could not be ascertained that the D knew or could be said to presume to know that at the relevant time a breach of the fence had occurred, or that a cow was strolling on the highway. Consequently, D could not be said to continue the nuisance since its foreknowledge was not conclusive.

 

Lippiatt v South Gloucestershire Council [1999] 4 All ER 149 CA

F: travellers (licensees) of D’s land caused unlawful disturbance to the neighbours including dumping rubbish which ultimately interfered with the P’s use and enjoyment of their farmland.

H: D liable as the travelers are licensees which the D council was the legal occupier of the land. It has created the nuisance by allowing the licensees to occupy his land and use it as a base for causing unlawful disturbance to his neighbours. It did not matter that the activities took place on the P’s land.

 

(e) Natural causes

– it shares the same principle as that for interference caused by trespassers or 3rd parties, in that the occupier will be liable if the occupier knows or ought to know of the interference.

 

Goldman v Hargrave

Facts: a 100 feet high tree, on the D’s land was struck by lightning and started to burn. The D requested a 3rd party to fell the burning tree and to saw it into sections, but he did not take any reasonable steps to douse the burning tree after it was felled and sawn it into sections. Due to strong wind and rise in temperature, the fire spread to the P’s property, causing damage.

Held: D liable as there was proof that the damage was foreseeable as a result of the D’s inaction. An occupier must take reasonable steps to remedy a potentially hazardous state of affairs, including those that arise naturally.

 

Leakey v National Trust (adopted principle in Goldman)

Facts: D owned a piece of land consisting of a conical shaped hill composed of soil which made it peculiarly liable to cracking and slipping as a result of weathering. The Ps were house owners who lived at the base of the hill. For many years the Ps had to put up with slides of soil, rocks, tree-roots and other debris on their land from the hill. The weathering process finally caused a large crack on the bank from which the hill rose and there was a danger of collapse of that part of the Ds’ land onto one of the P’s houses. The P complained but no action was taken. Several weeks later the bank fell near the P’s house and in fact further falls would have put the house at risk. The Ds refused to clear the fallen earth and debris, and claimed that they were not responsible for that had happened. The Ps then spent money to clear the material and to conduct some protective works and prayed for an injunction requiring the Ds to remove some debris and to prevent future falls of earth, soil and tree-stumps, and damages for nuisance.

Held: COA stated that a general duty is imposed on occupier in relation to hazards occurring on their land, whether the hazards were man-made or natural. If an occupier knows that there is a natural hazard on his land, whether it is in the form of something growing on the land, the soil itself or something on the land and this hazard encroaches or threatens to encroach onto another’s land so that the other person might suffer damage, the occupier is under a duty to prevent or minimize the risk of damage from materializing. The P must prove that the occupier knows or ought to know of the risk of encroachment.

 

– In cases where the dangerous state of affairs exist naturally, the D’s financial and other resources are taken into account. If the expenditure required to discharge the duty to avoid or minimize the interference is substantial, then arguably if the occupier does not take action, he cannot be blamed for not averting the risk.

 

Rowlatt J in Noble v Harrison stated: a person is liable for a nuisance constituted by the state of his property:

1) If he causes it

2) If by the neglect of some duty he allowed it to arise

3) If, when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did or ought to have become aware of it.

Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd & Ors

Facts: P’s plant nursery was destroyed when a natural limestone hill collapsed and fell onto it. The landslide occurred after a heavy rainfall and severe thunderstorm. The P sued, amongst others, the 1st D, the operator of a quarry on the limestone hill on a plot adjacent to the P’s land. The P applied the case of Leakey and argued that a person in control of land which has a natural hazard which encroached into the land of another and caused damage is liable in the absence of reasonable measures to prevent or minimize a known or foreseeable damage.

Held: Leakey is inapplicable in Malaysia by virtue of s3 of CLA 1956 and the common law position as it existed b4 April 7, 1956 was applicable. The P must prove that the damage to his property is as a result of the D’s activity and not due to the latent defect of the limestone hill. The P’s claim could not succeed as he could not prove decisively that the collapse of the hill was caused by the quarrying operation. The court held that even if Leakey was applicable, the P would not have been able to prove that the 1st D knew or ought to have known that the hill would collapse.

 

Holbeck Hall Hotel Ltd v Scarborough Borough Council

Facts: The claimants owned a seaside hotel which stood on a cliff overlooking the sea. The hotel collapsed when parts of the cliff on which it rested slipped into the sea.

H:In an action for damages against the Ds, who owned and occupied the cliff area, the COA affirmed the lower court’s finding that the Ds were or should have been aware of the danger, that they owed a duty to take reasonable steps to reduce any threat to the claimants’ property caused by the potential failure of the support provided by their own land. The court applied Leakey – that an occupier could be liable for damage to neighboring property which is caused by a state of affairs arising naturally on his own property. However, liability will only be established subject to these factors: where the type and the extent of the harm are foreseeable. 2ndly, the occupier is said to adopt or continue the nuisance only after he is aware or should be aware of the danger such state of affairs is posing to neighboring property, and he omitted to take reasonable steps to remove or reduce the threat. As the danger of the fatal slip in this case could not have been discovered without further geological investigation, it followed that the magnitude of the damage was unforeseeable and thus outside the scope of the duty owed.

 

 

 

(f) Conduct of previous occupier

v if the interference had existed b4 the D occupier acquired the property, he will be liable if the P can  prove that he knows or ought to know of its existence; but not otherwise. So if an occupier has not created the interference and does not know about it he will not be held liable. If he has created it, he will be liable even after he has left the premises.

v general principle is that an occupier is not liable for the act of, or condition created by a trespasser, or due to natural causes. He will be liable if he accepts the situation for his own purpose, or if he continues the interference.

v objective test: would a reasonable man be aware that interference may result from the prevalent circumstances?

v subjective test: whether he has discharged his responsibility in combating or lessening the interference.

 

3. Landowner or landlord

v as a general principle, a landowner or landlord who has surrendered possession and control of a certain premises will not be liable for any nuisance that occurs on those premises, except 3 situations:

 

v a) if he has authorized the nuisance

 

Tetley v Chitty

H:a local authority was held liable when nuisance arose from go-karting activities on land which was let by it. The tenant was liable in this case. if the landowner has an agreement with the tenant or lessee, and the tenant or lessee creates a nuisance in breach of the agreement, the landowner will be excluded from liability.

 

Smith v Scott

F: the D rented out a house to a family who had some domestic problems. This family caused a lot of nuisance to the Ps who eventually had to move out from their house.

H:The court found the D not liable for although they were aware of the activities of the tenants, the tenancy agreement stipulated that tenants could not cause any nuisance to other people. Furthermore, the nuisance was not as a result of the tenancy, but due solely to the acts of the tenants themselves.

However,

Page Motors Ltd v Epsom & Ewell Borough Council

H:it was held that a subjective test ought to be applied to an occupier for the acts of third parties who were not under his control in that if the occupier knows that a 3rd party is causing nuisance to others, he must take reasonable steps to stop the nuisance.

 

v b) if he knew or ought to have known of the nuisance b4 the tenancy became effective

 

Brew Brothers Ltd v Snax (Ross) Ltd

H: it was held that even if the tenant has agreed to improve the conditions on the premises, the landlord will nevertheless be liable if the nuisance is not abated, as it is his responsibility and not the tenant’s to remedy the nuisance b4 it causes injury to another.

 

v c) if he has covenanted to repair or has a right to enter the premises to conduct repair works

 

– generally, if the nuisance occurs after the tenant has occupied the premises, liability of the landlord depends on the degree of control that he has over the premises.

Payne v Rogers

H: if there is an agreement that the landlord will conduct repair works, then he will be liable for any interference that arises as a result of any disrepair.

– if the agreement is that the tenant or lessee should conduct repair works, liability depends on the following 2 factors: 1st, if the landlord knows of any existing defect or possibility of nuisance at the time the tenancy commences, he will still be held liable. 2nd, if the nuisance occurs after the tenancy has commenced, the issue revolves around the degree of control that the D as landlord, retains.

– Brew’s case, if the landlord doesn’t have the right to enter the rented premises, then he is not liable.

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