TAYLORS

UNIVERSITY

LAW OF TORT
(LAW61204)

PRIVATE NUISANCE 1
 Objectives
 To understand the relevant principles of law governing
the tort of nuisance in the United Kingdom and Malaysia.
 To appreciate the law of private nuisance.
 To understand the various factors taken into account when
assessing the unreasonableness of the interference that
amounts to a nuisance action.
 To be able to describe and apply the defences in a
nuisance action
 To appreciate the Malaysian laws and decided cases under
the law of private nuisance.
2
 Lecture Outline
What is Nuisance ?
Introduction to the Law of Private Nuisance.
Elements of the tort of private nuisance
Distinction between Private , Public , and Statutory
Nuisance
Distinction between Private Nuisance and other Torts:
Trespass to Land, Rylands v Fletcher & Negligence.
Malaysian Law on Private Nuisance.
3
 INTRODUCTION

What is Nuisance?

4
 Scenario A:
Your neighbor has a birthday party to celebrate Scenario B:
his daughter’s 21st birthday. There was loud B your neighbor has music practice with a
music from 6pm-2am. Guest talking loudly way group of friends of 8-10 persons every
past midnight. Smell of barbequed meat weekend. There’s loud noise from the 5
lingering in the air and the smell engulfing your music sessions, guest talking loudly. You
house. You have a very important presentation are unable to relax and enjoy your
the next day and find it difficult to sleep. weekend with your family
 Nuisance - Defined

General dictionary meaning:

a person or thing that causes annoyance or bother

6
Nuisance as
a Tort
An interference with legal
rights causing
inconvenience, annoyance
and damage.

7
 Private Nuisance –
Defined

An unlawful interference with another’s use of,

enjoyment of, or right over or in relation to land,
or damage resulting from such interference:
Read v Lyons & Co Ltd [1945] KB 216.

8
 WHAT RIGHTS/INTEREST DOES THE TORT
PROTECT?
The tort of nuisance protects a person from the 3
types of rights/interest:
Interference with the use of land;
Interference with the comfort or enjoyment
of land; and
Interference with rights over land
NOTE: PRIVATE NUISANCE IS A LAND BASED TORT

9
 Private
Nuisance
D commits a Private Nuisance in one of two ways:
ways
indirect and continuous interference with the use or enjoyment of land; OR
Interference with rights over land

NOTE:
NOT EVERY INTERFERENCE WILL AMOUNT TO PRIVATE NUISANCE - WHY?

10
BALANCING In Sedleigh-Denfield v O’Callaghan
[1940]AC880
ACT- ROLE
 “A balance has to be maintained
OF THE between the right of the occupier
COURTS to do what he likes with his own,
and the right of his neighbour
not to be interfered with”
per Lord Wright

11
THINK?

WHAT SORT OF INTERFERENCE WOULD

AMOUNT TO PRIVATE NUISANCE?

12
 Examples of INTERFERENCE
AMOUNTING TO NUISANCE
Noise - loud music/vibration

Pollution – emitting dust, chemicals, gases

Foul smells

13
 Private Nuisance
Elements of the tort
Indirect and continuous interference
with use or enjoyment of the land
(noise, dust, smell etc)
 Example: A bonfire in your neighbors'
garden. The bonfire itself is not a
nuisance but the smoke arising from it
means that the neighbor must take in
their washing, failing which the clothes
will be covered in dust, shut their
windows. The activity is lighting the
bonfire, the indirect consequence of that
activity is the smoke which causes 14
continuous interference with the use and
enjoyment of the land.
 Decided
cases
 Interference with use, comfort or enjoyment of land;
– De Keyser's Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257. Noisy
pile driving at night during temporary building works was held to be a
private nuisance.
• Andrea v Selfridge [1937] 3 All ER 255 CA
Excessive noise due to demolition works was considered a nuisance.
• Thompson –Schwab v Costake [1956] 1 All ER 652
Using adjoining premises for prostitution

NOTE: CAN A ONE-OFF ACT CONSTITUTE A PRIVATE NUISANCE?

15
 A one of act
constituted a
nuisance

Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyd's Rep

533.
It was held that a firework display constituted a nuisance when it was
inevitable that for 15-20 minutes debris of a flammable nature would fall
upon nearby property, thereby damaging the property in the ensuing 16
fire.
 Elements required to establish Private
Nuisance by claimant

That the interference was unreasonable and

substantial
Note: What amounts to substantial interference
is a question of fact and determined on a case by
case basis based on certain determining factors
(will be considered later in the lecture)

17
 Unreasonable and Substantial
TEST- “Reasonable user”
• The courts approach is result- based:
 Is the result of the defs conduct such that it is likely to
cause unreasonable interference with the claimant’s use
and enjoyment of the land?
 It is not a question of blaming the defendant, but of
protecting the claimant’s interest.
 The more substantial the damage the more unreasonable
the use of the land.
 NOTE: This element would be considered in greater details
later in the topic. 18
That damage has been suffered
 Nuisance is not actionable per se.
 P need to prove that he has suffered some form of damage
to succeed.
 General rule:
Actual physical damage to land or property =substantial
interference, therefore recoverable.

• Indirect physical damage to the property : see St Helen’s

Smelting Co v Tipping (1865) II ER 1483, where C’s crops and
trees were damaged by the acid rain from D’s smelting
works; or
• By causing personal discomfort (loss of amenity) in the
claimant’s use of the premises
19
 ELEMENTS IN PRIVATE NUISANCE

Indirect And Continuous Interference Affecting The

Use, Enjoyment And Rights Over Land
Interference Must Be Unreasonable And Substantial –
(Case By Case Basis)
Plaintiff Must Have Suffered Damage
 NOTE: It is a LAND based tort.

20
 Nuisance as
a Tort
Types of Nuisance

Private Nuisance – individual vs individual

Note: Rule in Rylands v Fletcher, now considered a species of Private
Nuisance

Public Nuisance – affecting a class of persons

Statutory Nuisance – provided under statutes 21

 Public
Nuisance
An unlawful act or omission which materially affects the
comfort and convenience of a class of persons.
persons
AG v PYA Quarries [1957] 2 QB 169
The defendants used a system of blasting that created dust, noise and
vibrations and also caused stones and splinters to project from their
quarry into the neighbourhood. This affected about 30 houses close
to the quarry.
Romer LJ: “ a public nuisance is an act or omission : …….which materially
affects the reasonable comfort and convenience of life of a class of Her
Majesty’s subjects”. 22
 Laws v Florinplace (1981) 1 All ER 659
– The defendants purchased a shop in a
residential area and used it as a sex
shop. Residents claimed in nuisance,
and sought an injunction.
– Held: The claim raised an arguable
cause of action, and the balance of
convenience lay in favour of the
neighbours. Residents were granted an
injunction restraining the operation of
a ‘sex shop’ in their street

See also:
Wandsworth London Borough Council V
Railtrack Plc [2001] EWCA Civ 1236
23
 Wandsworth London Borough Council V
Railtrack Plc [2001] EWCA Civ 1236
Brief facts:
The defendant owned a bridge which attracted large
numbers of feral pigeons. Although the owner was
not at fault, they were held liable to contribute to the
local authority’s costs of steps taken, by surfacing the
bridge to deal with the nuisance ie droppings from
pigeons roosting under a railway bridge creating a
hazard over a footpath used by pedestrians and
therefore constituted public nuisance.
Held: Where the defendant land-owner was aware
of a nuisance on his land, and had both the
reasonable opportunity, and the means to abate it,
he had a duty to abate the nuisance. 
Note: The no of persons sufficient to constitute a
class is a question of fact in each case.
24
 Distinction between Private & Public Nuisance

PUBLIC NUISANCE PRIVATE NUISANCE

It’s a crime as well as a tort Only a tort

Need not have an interest in land Need interest in land to sue

to sue
Damages for personal injury Damages for personal injury not
recoverable recoverable
Claimant must belong to a class of Action brought by individual
persons who have suffered
damage 25

An isolated incident may give rise Must be a continuous or on-going

to a claim state of affairs.
 Statutory
Nuisance
Nuisances which are most damaging to the environment :
– Control of Pollution Act, 1974;
– Environmental Protection Act, 1990 etc
– Local Government Act 1972 ( M’sia)
Note: The action will be brought by the relevant
statutory body. An individual should complain to
the particular body.
26
RELATIONSH
IP BETWEEN
PRIVATE
NUISANCE • TRESPASS TO LAND
AND OTHER • NEGLIGENCE
TORTS
• RYLANDS V
FLETCHER

27
Nuisance and
Trespass to
Land
– Nuisance involves indirect entry to one’s land (i.e
interference with use of one’s land)

– Trespass to Land involves direct entry onto one’s land (i.e

interference with possession of land)

– Note: Interference in Trespass include : coming on the land,

remaining on the land, projecting something on the land.
28
Nuisance and Trespass to Land cont……

• Trespass is actionable per se without proof of any damage;

• Nuisance is indirect interference to the plaintiff’s interest over his

property, and does not necessarily require entry by the
defendant. However, need to prove that he has suffered
damage.

29
 Nuisance and
Negligence

• Some overlap between nuisance and negligence as a negligent

act may also give rise to nuisance .
• negligence is not a requirement in nuisance action; thus Pl
need not prove negligence in a nuisance action
• Note: Although negligence is not an essential element in
determining liability for nuisance, fault of some kind is required.
• Fault involves foreseeability on the part of the occupier of land
that there is activity on his land which might cause damage to
another person’s property 30
 Nuisance and
Rylands v
Fletcher

• Rule in Rylands v Fletcher imposes liability when

something that is likely to cause mischief escapes from the
defendant’s land onto the Pl’s land, causing damage to the
Pl’s land
• Nuisance – interference must be something continuous
• Rylands – one single act of interference is sufficient.
31
 MALAYSIAN LAW
ON PRIVATE NUISANCE

32
 MALAYSIAN LAW: Private Nuisance -
Defined
• Malaysian Ct in : Hiap Lee Brickmakers Ltd v Weng Lok
Mining [1974] 2 MLJ 1, PC
applied and accepted the definition of Private Nuisance as
defined in Read v Lyons & Co Ltd [1945] KB 216.
“An unlawful interference with another’s use of,
enjoyment of, or right over or in relation to land, or
damage resulting from such interference”
33
 Hiap Lee Brickmakers Ltd v Weng Lok
Mining [1974] 2 MLJ 1, PC
Brief facts:
Resp had built a reservoir on their land and water had
escaped and caused damage to the appellant’s land.
Appellant brought a claim in nuisance, negligence and
under the rule of Rylands v Fletcher
Trial Judge: Resp liable in negligence, under the
Rylands v Fletcher rule
Federal Court: reversed the decision, appellant failed to
establish any of the liabilities raised against the Resp.
PC: Allowed the appellants claim in nuisance and ruled
that an unlawful interference with the use and
enjoyment of appellants land had been committed by
the resp.
Note: negligence and rule in Rylands not made out as
appellant failed to prove that there was non-natural 34

use of the land which was a tin mine.

The tort of Interference with the use of
private the land;
nuisance Interference with the
protects comfort and enjoyment of
the land; and
Interference with the rights
of the land.

35
 What Indirect and continuous
amounts to interference with the use
private and enjoyment of land or
nuisance: rights of the land;
Elements The interference was
unreasonable and
substantial
Damage suffered by
claimant.

36
 Malaysian Cases ON PRIVATE NUISANCE
Dato’Dr Harnam Singh v Renal Link (KL) Sdn Bhd
[1997] 3 AMR 2430 CA
 Brief facts:
The plaintiffs had for eighteen years operated a clinic and
hospital for the treatment of ear, nose and throat ailments.
The defendant operated a renal clinic at which patients
receive haemodialysis on the floor above the plaintiff's
clinic. The defendant was found liable for emitting from
their clinic obnoxious fumes which escapes downwards
into the plaintiff's 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.
Court held that the obnoxious fumes to the Pl’s clinic was 37

an actionable nuisance.
 MALAYSIAN CASES
Lew Cher Phow @ Lew Cha Paw & 11 Ors V Pua
Yong Yong Pua Keng Siang (2007)
Defendants installed a number of CCTV around his house
and one camera which overlooked the Pl house. Pl
complained that it infringed their privacy and enjoyment
of their property and claimed in Private Nuisance.
In holding the balance between privacy and safety, the
Court must strike in favour of privacy in the particular
circumstances of this case. Subjecting the plaintiffs to
continuous overt surveillance is demeaning to the
plaintiffs.
Court gives judgment for the plaintiff as follows:
•(a) an order directing the defendants to forthwith
dismantle and remove camera no. 3; and
•(b) an injunction to restrain the defendants from
installing any CCTV camera which points into or which is
directed at the plaintiff’s house. 38

• 
 Malaysian cases
Goh Chat Ngee & 3 Ors v Toh Yan & Anor [1991]
2 CLJ 1163
Brief facts: The plaintiff whose land was adjacent to the
defendant's land alleged that through mining activities the
defendants had committed negligence and nuisance. The
mining activities constitute unnatural use of land as water had
escaped and flooded the plaintiff's land causing to collapse and
sink, subsequently causing flooding , erosion and settlement.
The court found that a landowner had a common law
obligation not to interfere with the support structure of his
neighbour's land, which is provided under s44(1)(b) of the
National Land Code 1965. The defendant had breached this
statutory duty was also liable in nuisance for the
unreasonable, unlawful and substantial interference with the
use and enjoyment of his neighbour's land.
39
Hotel Continental Sdn Bhd v Cheong
Fatt Tze Mansion Sdn Bhd [2002] 3
AMR 3405 CA:
– In this case the appellant who owned the hotel were
building a 20-storey extension to their hotel. The
respondent 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 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. 
“….once the def’s activity constitutes an actionable
nuisance in law, it is no defence that the def has taken
40
all reasonable precautions to prevent it”
 Nuisance and Negligence OVERLAP
• Also: Wisma Punca Emas Sdn Bhd v Dr Donal
[1987] 1 MLJ 393 SC
• Pl’s wall cracked and tilted due to D’s
construction works which included piling and
excavation works.
• Pls claim was allowed and damages granted.
• D appealed and contended that the main issue
was negligence and since nuisance was not
specifically pleaded, the appeal should be
allowed.
• SC held: negligence is not a requirement in
nuisance actions, thus Pl need not prove
negligence in a nuisance action
41
• Some overlap between nuisance and negligence
as a negligent act may also give rise to nuisance .
 Public v Private Nuisance
The distinction was laid down in Majlis Perbandaran Pulau Pinang
(MPPP) v Boey Siew Than
[1979] 2 MLJ 127, FC Gunn Chit Tuan J ( at pg 158)
….a nuisance is a public nuisance, if, within its sphere, which is the
neighborhood, it materially affects the reasonable comfort and
convenience of a class of the subjects of the State.
…A private nuisance, however , is one which disturbs the interest of some
private individual in the use and enjoyment of his property by
interference with the usual enjoyment of property by causing or
permitting the escape of deleterious substances or things such as
smoke, odours or noise.
The difference between a public and a private nuisance is that, in regard to
the former, rights which are common to all subjects are infringed. Such
rights are unconnected with the possession of or title to immovable
property. 42
 Woon Tan Kan (Deceased ) & 7 Ors V
Asian Rare Earth Sdn Bhd [1992] 4 CLJ
Brief facts: 229 HC
The plaintiff residents of Bukit Merah village
sued the defendants, principally for an
injunction to restrain the company (ARE)
from operating. The plaintiffs alleged that
the activities from the factory produced
dangerous radioactive gases harmful to the
residents of Bukit Merah.
The court granted an injunction and held that
private nuisance was established. It was also
43
held that the plaintiff's health was being
affected harmfully, to a substantial degree.
Some recent reported cases on Private
Nuisance

44
 See also the following cases
• Au Kean Hoe V Persatuan Penduduk D’villa
Equestrian [2015] 4 MLJ 204 FC
The appellant stopped paying the service and maintenance 45
charges and when they had to open the 2 boom gates
themselves, they were quite unhappy about it and sued the
respondent for, amongst others, nuisance in creating an
obstruction on the road in question and sought reliefs in the
form of an injunction and an order to demolish the boom
gates and the accompanying guard house.

See the following cases :

On the law of private nuisance, particularly pertaining to
the threshold of what amounts to unreasonable interference
and cases decided after Au Kean Hoe.
Ranjan Paramalingam dan satu lagi v Persatuan Penduduk Taman
Bangsar Kuala Lumpur [2017] MLJU 1347

Lai Kong Loke & Anor v Ting See Leng [2017] 7 MLJ 548
WHO CAN BE SUED PRIVATE
NUISANCE?

46
 ________________________________________________________________________________________
NUISANCE – PRELIMINARY CONSIDERATIONS
- Who Can be Liable in Nuisance ?

Who can be Sued?

1. The Creator 3. Landlords

of the Nuisance

2. The Occupier 47
 Who Can be Sued ?
1. The Creator of the Nuisance

Person who creates nuisance by some positive act may

be sued whether or not he occupies the land from
which the interference emanates.

Test:

Who authorised the activity and whether interference is

forseeable from that activity.

Note: No requirement that the D must have interest over

the land or that the land belongs to him.

48
 Tetley v Chitty [1986]
1 All ER 663
The local authority granted planning permission
to run a go-kart track which residents complaint of
noise which could be heard in their houses.
Local authority had leased it to a go cart club
and argued that having leased the land they
were no longer in occupation.
Ct held that local authority liable as the
excessive noise was a predictable consequence
for which the land is let.
Test to be applied: Who authorized the activity
and whether the interference is foreseeable
from the activity.
49
 • D company was a statutory
sewerage undertaker responsible
Marcic for removal of sewage in the area
v Thames Water where the C lived. Over time sewers
Utilities Ltd became inadequate for removing
[2002] 2 All ER 55, CA surface and foul water which
occasionally discharged into C’s
front and back garden. C’s house
also damaged.
• Held:
As owners and those in control of
the sewers, D Company owe a duty
to prevent such hazards from
damaging property belonging to
others. The company had
knowledge of the hazard and was
within their capabilities to abate the
Nuisance.
50
See also:
 Southport Corporation v Esso
Petroleum Ltd[1953] 2 All ER 1204
Def oil tanker ran aground and there was a
danger that she might break up with the
probable loss of the ship and the loss of the lives
of her crew. The master, decided to lighten the
ship and 400 tons of oil were discharged into the
sea and the river estuary was polluted.
The plaintiff corporation sued the def and
alleged that the deposit of oil on the foreshore
gave rise to 3 causes of action: trespass,
nuisance and negligence.
HOL : held that a nuisance, which need not
emanate from private land, had been committed
but in this case the defence of necessity
51
succeeded.
 Malaysian Case
 Steven Phao v Highland Properties
[2000] 3 AMR 3567
Highland Towers, as is collectively known, consist of three
blocks 12 storey high apartments constructed sometime
between 1975 and 1978 and the residents who dwelled
therein were middle income earners. Directly behind the
three blocks was a rather steep hill with a stream flowing
west, if it was allowed to follow its natural course. The
attraction of this place was the natural surroundings with
an extensive view of the city of Kuala Lumpur.
On Saturday, 11 December 1993, at about 1.30pm, after ten
days of continuous rainfall, block 1 collapsed. When
rescue operation was called off after days of searching,
48 people were recorded dead. The nation declared this
incident as a - national tragedy.
Some three years after the Highland Towers tragedy the
purchasers/owners of Block 2 & 3 issued a writ against ten 52
defendants. This is the case against them.
 Steven Phao v Highland Properties
cont……….
Cause of action: Negligence, Nuisance and Ryland
v Fletcher.

Held: Defs were held liable for the nuisance

( amongst others)
Please read the case for a detailed understanding
of the judgment
53
2.The Occupier
–An occupier must have some knowledge of the state
of affairs on his premises and that it could give rise to
an interference to be liable in nuisance
(issue of foreseeability)
–An occupier will be liable for all positive acts of
interference, including omissions which give rise to a
nuisance caused by themselves or employees etc.
( principle of vicarious liability )
Note: In private nuisance suits, it is usually the Defendant the
occupier of land from which the nuisance emanates that is
sued.
54
Who Can be Sued ?

2. The Occupier

Qn : What if the nuisance is created by others that

come onto the occupier’s property ?

Natural Occurences
Hollbreck Hall Hotel
Guests of Occupier
v Scarborough BC
Att-Gen v Stone
(2000)
(1895)

Employee’s / 3rd Party on

Contractor’s of Occupier’s Property
Occupier - Sedleigh-Denfield v
- Bower v Peate (1876) O’Callaghan (1940)
- Matania v Nat Prov - Goldman v Hargrave 55
Bank (1936) (1967)
- Spicer v Smee (1946) - Leakey v Nat Trust
(1980)
 Re- Cap
Vicarious liability
• Employee/Independent Contractors

56
 Employees/Contractors
Occupier will deemed to be liable on the basis of
vicarious liability and non-delegable duties:
Bower v Peate [1876] 1 QBD 321
D occupier was held liable when an independent contractor
undermined the support for the plaintiffs adjoining house.
The principle that arose – if the nature of the work that a man
employs another to do is expected to give rise to injurious
consequences to his neighbor, he must do all that is necessary
to prevent that injury and cannot pass over this burden to I/D.
DOC on his part in non-delegable. 57
 Matania v An occupier was held liable to the
National Pls who lived on higher floors of
Provincial Bank the same building when I/D
produced a lot of noise and dust
in performance of job.
[1936] 2 All ER
Held: there was special danger of
633 nuisance arising from the work
and the occupier was therefore
liable for the failure of his I/D to
take precautions. D held liable.

58
• WHAT ABOUT 3RD
PARTIES
CREATING
NUISANCE?

59
3rd Party on Occupier’s
Property
Sedleigh – Denfield v O’ Callaghan (1940)
 Def owned a piece of land on which there was a
big ditch. A 3rd party subsequently placed a pipe
in the ditch without the knowledge of the def, but
the person who was responsible for cleaning the
ditch , def’s employee knew about the piping of
the ditch as they were responsible for clearing the
ditch. During one extraordinary rainfall the ditch
became clogged with leaves. As a result, water
overflowed on the plaintiff’s land.
 Held: Ct found the def liable as his employee
who cleaned the ditch should have known the risk
of flooding and therefore def was vicariously
liable in nuisance. 60
 Sedleigh – Denfield v O’ Callaghan
cont…….
HOL:
“ An occupier is not prima facie responsible for a
nuisance created without his knowledge and consent if
he is to be liable a further condition is necessary
namely, that he had knowledge/means or knowledge,
that he knew or should have known of the nuisance in
time to correct it”.
61
 The Occupier- Malaysian Cases
Parimala a/l Muthusamy & Ors v
Projek Lebuhraya Utara Selatan
[1997] 4 AMR 3274
Facts: Def was the highway authority
responsible for the construction,
maintenance, management and safety of
the North-South highway. The Pls were
travelling in a car driven by the deceased
when it hit a stray cow which had found
its way through a breach in the fencing
system.
Issue:
Whether an occupier – a highway
authority, may be liable for interference
committed by a third party on the 62

highway.
 Parimala a/l Muthusamy & Ors v Projek Lebuhraya
Utara Selatan-
The Principles
a person can claim in nuisance if his right of free passage or
some rights connected to it have been interfered with.
an occupier of land upon which a nuisance has been created
by another person is only liable if he continues the
nuisance.
The occupier is deemed to continue a nuisance if with
knowledge or presumed knowledge of its existence, he fails
to take any reasonable means to bring it to an end though
63
with ample time to do so.
 Parimala a/l Held:
Muthusamy & Ors
v Projek The def highway authority
Lebuhraya Utara was found not liable in
Selatan- nuisance as the def could
Decision not be said to have known or
be presumed to know that at
the relevant time there was
a breach of the fence or a
cow was strolling on the
highway.
64
 Natural
Occurences
If a dangerous state of affairs arises on
the defs land due to an act of nature of
which the occupier knows or ought to
know, he is liable in nuisance if damage
occurs to neighboring landowner.

65
 Australian Case
Goldman v Hargrave[1967]1 AC
645
A red gum tree growing on D’s land
caught fire when it was struck by
lightning. D took measures to fell the
tree but due to change in weather ,
strengthening of wind the embers
which was not completely
extinguished, the fire spread to the
claimant’s land and caused damage.
66
Goldman v Ct held the def liable as there
Hargrave was proof that damage was
cont…… foreseeable as a result of
the defs inaction.
Thus an occupier must take
reasonable steps to remedy a
potential hazardous state of
affairs, including those that
arise naturally.

67
 Principle of Goldman was adopted in
Leakey v National Trust [1980]1 AllER 17,CA Leakey
 C owed house next to a large conical shaped hill
composed of soil owned by the Def which made it
peculiarly liable to cracking and slipping as a result of
weathering in Somerset. For many years Pl had to put
up with slides of soil, rock, tree-roots and other debris
on their land from the hill. There was danger of collapse
of the land and the Pl complained but no action taken
by the def. Part of mound subsided and encroached
onto C’s hse.
 Defs refused to clear the fallen earth and debris, and
claimed that they were not responsible for what had
happened. The Pl spent money to clear the debris and
conduct protective works and prayed for an injunction
68
requiring the def to remove some debris and to prevent
future falls of earth, soil, tree-stumps and damages for
nuisance.
 Leakey v National Trust cont….
Ct of Appeal upheld the earlier decision in favour of the Pl
stating:
A general duty is imposed on occupiers in relation to hazards occurring
on their land, whether the hazards were man-made or natural. If the
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 his 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 minimise the risk
of damage from materialising.
69
 Distinguish
 See also: Holbeck Hall Hotel v Scarborough BC [2000] 2 All ER 705
( where the principles of Goldman and Leakey was applied)
• C owned a hotel which stood on a cliff which was owned and occupied by the
defendant local authority. The cliff was unstable due to erosion, and eventually
a massive land slip occurred and the hotel collapsed into the sea.
• C brought a claim against the Def, alleging that it was in breach of the duty of
care imposed on landowners under principles of Goldman and Leakey.
• CA held: The same principles apply to natural nuisances caused by erosion of
support as to any other naturally occurring nuisance, so that the applicable
principle was whether the def had adopted or continued the nuisance. In all
such circumstances, liability was based on the modified negligence standard.
However, on the facts the authority was not liable. The defect was not obvious
and the risk of a massive land slip had not been foreseeable. The Caparo’s
“fair, just and reasonable” limitation on liability was applied. 70
 Holbeck Hall Hotel v Scarborough BC
• Stuart Smith LJ held (at [2000] 2 All ER 705 at 724):
• “I do not think it is just and reasonable in a case like the present to
impose liability for damage which is greater in extent than
anything that was foreseen or foreseeable (without further
geological investigation), especially where the defect and danger
existed as much on the claimants’ land as the defendants’.

• See also: Rees v Skerrett [2001] 1 WLR 1541 –where Leakey was also
relied upon.
• Delaware Mansions Ltd And Flecksum Limited v Westminister City
Council [2001] 4 All ER 737 71
Malaysian Case: Departure from
Leakey
Wu Siew Ying v Gunung Tunggal Quarry
& Construction Sdn Bhd [1999] 4 CLJ
339
 Pls plant nursery destroyed when a natural
limestone hill collapsed and fell onto it.
Landslide occurred after a heavy rainfall and
severe thunderstorm.
 Pl sued 3 defs: the operator of the quarry on
the limestone hill adjacent to Pls land,
registered owner of the land who leased to the
quarry to operate and the person who issued 72

the permit to both the other defs

 Wu Siew Ying v Pls case relied on Leakey:
Gunung – that a person in
Tunggal Quarry control of land which has a
& Construction natural hazard which
Sdn Bhd encroached into the land
of another and caused
damage, is liable in the
absence of reasonable
measures to prevent or
minimise a known or
foreseeable damage.

73
 Wu Siew Ying v Gunung Tunggal Quarry &
Construction Sdn Bhd
• Ct held that the principles of Leakey is not applicable by virtue of s
3 Civil Law Act 1956 and common law principles as existed before
April 7, 1956 was applicable
• that the Pl must prove that the damage to his property is as a
result of the defs activity and not due to the latent defect of
the limestone hill.
• Following this pre-Leakey principle, the Pls claim could not
succeed as he could not prove decisively that the collapse of
the hill was caused by the quarry operation.
• Further, even if Leakey is applicable, the Pl would not have been
able to prove that the 1st def knew or ought to have know that 74
the hill would collapse.
NOTE:
 Where the Defendant, and
occupier of land, is aware of the
existence of a “natural” nuisance
and fails to take reasonable steps
to abate it, s/he may be liable.
This form of nuisance is therefore
dependent upon proof of lack of
reasonable care (negligence).

75
 SUMMARY 76

1.WHAT IS THE TORT OF NUISANCE?

2. TYPES OF NUISANCE ACTION

3.ELEMENTS TO PROVE A CLAIM IN PRIVATE NUISANCE.

4. DISTINCTION BETWEEN NUISANCE AND OTHER TORTS

5. DECIDED UK AND MALAYSIAN CASES

6. WHO CAN BE SUED IN PRIVATE NUISANCE CLAIM