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Published: Fri, 02 Feb 2018
What Is Nuisance?
According to the oxford dictionary, it means a person or thing that is causing inconvenience or annoyance. From the perspective of law, nuisance is an act which is harmful or offensive to the public or a member of it and for which there is a legal remedy. The purpose of the law of nuisance is to provide comfort to persons who have proprietary interests in land to members of society generally through the control of environmental conditions.
Nuisance Distinguished Between Nuisance And Trespass To Land
These two cause of action that is nuisance and trespass to land does not overlap and can be differentiated. Firstly, the differences between these two is that only a direct act may give a rise to an action for trespass to land but in nuisance a cause of action may be maintained in cases of consequential harm. This can be illustrated in the case of Goverment of Malaysia & Anor v Akasah b Ahad. The plaintiff operated a petrol station and the defendant then built a federal highway which was on higher ground that the petrol station and the road to the station had to be closed. The defendant offered the plaintiff to build a road to the petrol station through the use of another route but the plaintiff refused the offer. In an action for nuisance against the defendant, the Supreme Court held that the Plaintiff failed to prove nuisance. The Court further stated that the differences between nuisances are of a bigger class that trespass to land.
Another difference is that trespass is an interference with possession of land but in nuisance, it is an interference with the use of land.
Nuisance And Negligence
Negligent act may also give rise to nuisance. For example, landowners owe their neighbours a duty not to disturb or withdraw natural right to support a breach of which give rise to a cause of action in negligence and or nuisance. But it does not mean that negligence is precondition in an action for nuisance. This can be highlighted in the case of Wisma Punca Emas Sdn BHD V Dr Donal, where the plaintiff was doing some construction job beside the plaintiff’s clinic. The job included piling and excavation works. As a result of the activist done by the defendant, the plaintiff’s clinic wall cracked and tilted. The defendant argued that he had taken all reasonable precaution and measurement. The court allows the plaintiff claim for damages. The defendant appealed that the main issue was negligence and since nuisance was not specifically pleaded, the appeal should be allowed. The court held that the plaintiff need not to prove any negligence in a nuisance case and it is enough just to prove there was damage to his property due to the activities done by the defendant. The appeal was dismissed.
Nuisance And The Rule In Rylands V Fletcher
The rule in Rylands v Fletcher imposes liability when something that is likely to cause mischief escapes from the defendant’s land onto the plaintiff’s land, causing damage to the plaintiff. This itself may give rise to an action for nuisance but not essentially so. In an action for nuisance, commonly the interference must be something that is constant but in the rule of Rylands v Fletcher, one single act of interference is adequate.
Damage And Remedies
There are normally two types of damages that is damage to property which is simply identifiable or interference to personal comfort which is mainly on tort of nuisance. Damage to property is self explanatory.
Remedy for nuisance is commonly monetary damages. An injunction or abatement may also be proper under certain circumstances. An injunction orders a defendant to stop, remove, restrain, or restrict a nuisance or abandon plans for a threatened nuisance. In public nuisance cases, a fine or sentence may be imposed, in addition to abatement or injunctive relief.
Injunction is a drastic remedy, used only when damage or the threat of damage is permanent and not satisfactorily compensable only by monetary damages. The court examines the economic hardships to the parties and the interest of the public in allowing the continuation of the enterprise. This function of remedies is to prevent nuisance from continuing. In the case of Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd, that a person injured by a nuisance may bring an action and claim damages against the defendant for the injury alone or together with the claim of an injunction.
A self-help remedy, abatement by the plaintiff, is available under limited circumstances. This privilege must be exercised within a reasonable time after learning of the nuisance and usually requires notice to the defendant and the defendant’s failure to act. Reasonable force may be used to employ the abatement, and a plaintiff may be liable for unreasonable or unnecessary damages. For example, dead tree limbs extending dangerously over a neighbours’ house may be removed by the neighbour in danger, after notifying the offending landowner of the nuisance. In cases where an immediate danger to health, property, or life exists, no notification is necessary to be given to the defendant regarding the nuisance.
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