Using Private Nuisance to Control Industrial Pollution: A Comparative Study of English and Malaysian Law

“The textbook tell us that private nuisance is an environmental tort ..... there
is nothing better in common law for getting sewage out of rivers, reducing
unwanted noise and cleansing the atmosphere of acid smuts, smoke and
other pollutant.”
ConorGearty, The Place of Private
Nuisance in Modern Law of Torts -
Cambridge Law Journal , 48(2) July 1989,
214,213
Discuss the above statement in the context of both English and Malaysian
Law.
Introduction
The law of nuisance under tort is built to protect right of individuals to
peacefully enjoy usage of their land without outside disruption. There are
three categories under law of nuisance; private, public, and statutory. Public
nuisance is more likely to be claimed under criminal law,industrial and other
types of environmental torts are more commonly brought under private and
statutory nuisance.1 This paper puts focuses on private nuisance, specifically
on environmental torts;how effective are such actions practically; and
whether law of private nuisance effectively control industrial pollution of the
environment?
1 David Hodas, ‘Private actions for public nuisance: Common law citizen suits for relief from
environmental harm’ [1989] 16(3) ELQ 875.
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Discussion
Only private citizens and organizations can bring actions under tort of private
nuisance.2Prima facia, this regulation may seem to be a great challenge
towards realizing control of industrial waste through nuisance. However,
research suggests that private nuisance can be used to control industrial
pollution effectively and practically. Normally courts conduct a test of
balance, determining whether a particular tort comes under public or private
nuisance. Especially in claims for pollution, the courts check who amongst
the parties arrived in the community first, this sometimes allows the polluter
an escape route if they can prove that the claimant moved to the premises
with the knowledge of the danger.
Who can sue/be sued?
Usually, not everyonecan sue or be sued under torts.3 The claimant must sue
the right party to get the necessary relief. In Private nuisance however, there
is a variety of parties that can be litigated against.
The first is the creator of the nuisance, this may not necessarily have to be
the occupier/owner of the land. Furthermore, the source of the nuisance
need not necessarily be private, as held in
Thomas v National Union of
Mineworkers (South Wales Area)4, meaning that where a person other
than the occupier produces any form of pollution, then an action can be
brought under private nuisance. This may include the occupier himself or
2 John Murphy, T
he Law of Nuisance (Oxford University Press 2010) 5
3 Mark Wilde, ‘Locus Standi in Environmental Torts and the Potential Influence of Human
Rights Jurisprudence’ [2003] 12 RECIEL 284.
4
Thomas v National Union of Mineworkers [1986] Ch 20.
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their employees – under vicarious liability.5 If a form of pollution is caused by
acts of an independent contractor, the occupier can still be sued if the
activity in question involves any action that can be classified as a ‘special
danger of nuisance.6As can be seen in
Mataniav National Provincial
Bank7 where the acts of an independent contractor caused noise pollution
were held by the court to be inevitable, hence the occupier was held liable.
Elements of Private Nuisance as a Tort
A claim in private nuisance needs to satisfy three elements; firstly,
interference with claimant’s peaceful use of land, usually indirect
interference;secondly, the interference must be unreasonable; andlastly, the
claimant must prove, like in all other torts, that he incurred some damage as
a result of the nuisance.8
It is usually pertinent if the defendant’s action causing nuisance was
recurring rather than a one-off incident, as envisaged in
IJM Corporation
Bhd v Harta Kumpulan Sdn Bhd.9 Malaysian law further stipulates that
the interference itself must be substantial as seen in
Goh Chat Ngee & 3
Ors v Taoh Yan & Anor.10Sometimes there may be physical interference
with the claimant’s land, for example, the sewage water flooding into the
5 Rizal Razman, ‘Sustainable Development in Malaysia: Focusing on Environmental
Management through Legal Approaches towards the Private Nuisance’ [2007]
2(3) TSS 370.
6VictorSchwartz and Phil Goldberg, ‘The Law of Public Nuisance: Maintaining Rational
Boundaries on a Rational Tort’ [2005] 45 WLJ 541.
7
Matania v National Provincial Bank [1936] 2 All ER 633.
8 Eric Freyfogle,
The land we share: private property and the common good (Island Press
2003)3
9 [2007] 8 CLJ 291.
10
Goh Chat Ngee & 3 Ors v Taoh Yan & Anor [1991] 2 CLJ 1163.
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claimant’s land, or even into the defendant’s own land. However, the
interference may be something completely intangible such as the resulting
smell of the sewage water.11
Unreasonableness is an element that revolves upon the boundaries of a
community’s acceptable behavior, a principal demonstrated in
Southwark
London Borough Council v Mills12.In this case, the claimant’s claimed
there wasn’t proper soundproofing, hencecausing nuisance. The court
rejected the claimant’s claim based on the ground that a reasonable sound
cannot amount to private nuisance. However, many other aspectsare usually
factored in when it comes to determining what is reasonableness and what is
not. As has been set out in the case of Hirose Electrical v Peak
Ingredients13 the locality where the claim is arising from is given high
regard as well; a claim of nuisance arising from a residential area will usually
be handled differently from one coming out of an industrial one, the latter
requiring a higher degree of nuisance as was also noted by Thesiger LJ14 in
Sturges v Bridgman15. Similarly, when it can be shown that the Defendant
is acting out of pure malice the claim is more likely to succeedas in the case
of
Christie v Davey.16
11 Mohd Bakri Ishak and Mohd Armi Abu Samah, ‘Strict liability versus policy and regulation
for environmental protection and agricultural waste management in Malaysia’ [2010] 3 EA
11.
12
Southwark London Borough Council v Mills [1999] 2 W.L.R. 409.
13
Hirose Electrical v Peak Ingredients [2011] EWCA Civ 987 Court of Appeal
14"What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey"
– Thesiger LJ
15
Sturges v Bridgman [1879] 11 Ch D 852 Court of Appeal
16
Christie v Davey [1893] 1 Ch 316.
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