TORTS RELATING TO CONSTRUCTION INDUSTRY: NUISANCE

The plaintiff must prove that he has suffered damage in order to succeed in his claim. The tort protects a person from two types of damage or interference which are:

a. Interference with the use, comfort, or enjoyment of land

It is known as amenity nuisance as they result in the feeling of discomfort whereby one is unable to live peacefully and comfortably on one’s own land arising from the defendant’s activity. What constitutes substantial interference depends on the facts and circumstances of the case. A trivial interference does not give rise to nuisance. The complaint made by the plaintiff must be reasonably justified in the context of the surrounding circumstances.

In the case Woon Tan Kan (Deceased) & 7 Ors v. Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2299, the plaintiffs are residents of Bukit Merah Village sued the defendants, principally for an injunction to restrain defendant’s company from operating and continuing to operate its factory. The plaintiff alleged that the activities produces dangerous radioactive gases and harmful to the residents. Therefore, the High Court granted a quia timet injunction and held that the tort of private nuisance was established.

b. Material or physical damage to land or property

Where actual damage to land occurs, the general principle is that it amounts to substantial interference. However, it is not automatic that actual physical damage is substantial. It must be established that the physical damage is substantial in nature. For example, in the case Goh Chat Ngee & 3 Ors v. Toh Yan & Anor [1991] CLJ 1163, the defendant who held a mining license on mining works on his land. Plaintiff whose land adjacent to the defendant’s land alleged that through their mining activities, the defendant committed negligence and nuisance. The mining activities constituted an unnatural use of land as water escaped and flooded plaintiff’s land causing it collapsed and sink, subsequently causing flooding, erosion, and settlement. The Court held that the defendant was liable in nuisance for unreasonableness, unlawful, and substantial interference with the use and enjoyment of his neighbour’s land.

The above article is part of a paper, Abdul Aziz Hussin, Abdel Wahab O. Gebril & Abdelnaser Omran, TORTS RELATING TO CONSTRUCTION INDUSTRY: NUISANCE, Proceedings of THE INTERNATIONAL CONFERENCE IN ECONOMICS AND ADMINISTRATION,  ICEA–FAA 2012, June 8-9th, 2012. The Faculty of Business and Administration, University of Bucharest

, Romania, pp. 256-264.