Tutorial 1

1. What is the distinction between public and private nuisance?

Discuss the elements that need to be established based on decided cases.

Nuisance occurs when a person’s use or enjoyment of their land or interest over his land per se
is unlawfully interfered with another person on their land and this act occurs continuously. An
unlawful act is defined as an unreasonable act which is indirect. Nuisance can be divided into
two categories which are private and public nuisance.

Private nuisance
In regards to private nuisance, that occurs when a person's use or enjoyment of their land or
interest over his land per se is unlawfully interfered with by activities carried on by another
person on their land. The activities complained of must generally be continuous and affects only
individuals or determinate body thereof. The criteria to consider when establishing nuisance
would be the unlawful (unreasonable use of land), which is the cause of an indirect interference
with another's land. The case that illustrates the definition mentioned above would be that of
St. Helen's Smelting Co v Tipping. In the case of Hunter v Canary Wharf, it has established three
types of private nuisance as follows. The enroachment on a neighbours land, nuisance by direct
physical injury to a neighbours land or by interference with a neighbours quiet enjoyment of his
land. The case of Mfalone v Laskey illustrates that only a person with proprietary or possessory
interest may sue, not a licensee. There are several individuals that can be sued for nuisance;
occupier, individual contractors, trespasser, an act of nature and landlords. In order for an
occupier to be liable, he must know of the state of affairs on his premises and is liable for the
vicarious liability done by others. For example, in Spicer v Smee, the defendant was liable for the
accident that occured in his property. In regards to an Independent Contractor, the owner or
employer will be held liable even if the nuisance was caused by the said independent contractor.
An example would be the case of Bower v Peate.

Public Nuisance
There is a distinction to be drawn between public and private nuisance. It would be that public
nuisance does not have to involve interference with the enjoyment of private land. In the case
of AG of Ontario v Orange, public nuisance is defined as a widespread nuisance that is
unreasonable for a person to take full responsibility for the damage caused. It is simply an
unlawful act or omission which endangered the life, safety, health or property or comfort of the
public. The examples would be as follows. The digging of a trench which obstructs public, the
construction of structure on public way, the obstruction of air, light and view. Through the case
of Attorney General v PYA Quarries Ltd it has been stated that any nuisance is to be considered
public if it were to materially affect the reasonable comfort of life of a class of her majesty's
subject. But there are exceptions to this as not every class of people can sue. It must affect a
wide range of people and this can be seen in the case of R V Madden [1975] 3 AER 155 whereby
the claim for nuisance was irrecoverable as it only affected three employees and not a wide
range of persons.

2. Sleepytown Local Council decided to build a new leisure centre on an area of waste
ground which it owns. The Council engaged Big Constructors Ltd as the main
contractors and they started construction work a few months ago; this has caused a
number of problems for local residents.

Margaret is a music teacher and works from her home situated adjacent to the building site.
Dust and noise from the building site have affected her classes and she has lost business as a
result. Margaret’s lodger, Sam, believes that the dust has adversely affected his asthma and,
although it is mid-summer, he now has to keep all the windows in the house closed.

One night a vandal broke into the cab of a mechanical excavator, parked on the site, and ran
amok with the machine. He damaged a newly installed water main causing flood damage to
a neighbouring house owned by Valerie.

Most recently, while digging some foundations, Big Constructors unearthed a cache of toxic
chemicals which had been illegally buried on the site many years ago. Foul smelling fumes
were released which caused discomfort and irritation to many local residents.

Advise the local residents as to their respective rights under nuisance.

Sleepytown v Margaret
The case of Read v Lyons &Co Ltd [1945] KB 216 establishes that private nuisance occurs where
a person’s use or enjoyment of their land or interest over his land per se is unlawfully interfered
with by activities carried on by another person on their land. To sue in an action in private
nuisance, the person must have a proprietary or possessory interest in the land. Margaret has a
proprietary interest in the land, as she is the owner of her house. Furthermore, the need for
proprietary or possessory interest in the land to be questioned is affirmed in the case of Hunter
v London Docklands Development Corporation. Nuisance can also be caused by an independent
contractor, and the employer may be liable for their actions through vicarious liability if the work
being carried out is considered a non-delegable duty as demonstrated in Spicer v Smee. Non-
delegable duties are considered to be dangerous, and construction work can be considered as
dangerous. An activity constitutes a nuisance when three elements exist: unlawful in the sense
of reasonable use of land Which cause indirect interference With another land Halsey v Esso
Petroleum - Interest in land, pollution physically and noise. For example, in the case of Halsey v
Esso Petroluem [1961] 1 WLR 683, the defendants operated an oil-distributing depot near to the
Plaintiff’s house in a partly residential area in Fulham. The depot operated a day and night and
the Plaintiff complained of acid smuts from a boiler in the depot which damaged the plaintiff’s
washing and noise from lorries in the depot have been successfully claimed. Public Benefit may
be a possible defence raised by the local council. - leisure center - ordinary use of the land (the
nuisance itself)? Shelfer guidelines

Sleepytown v Sam

Lodger has no proprietary or prosessory interest of the house. Sleepytown v Valerie Valerie has
proprietory interest on the land and hence she can sue. Nuisance caused by a trespasser.
Occupier will be liable for nuisance created by a trespasser if the ‘nuisance’ is adopted by using
the state of affairs for the occupier’s own purpose or where the nuisance is ‘continued’(i.e. fails
to take reasonable steps to stop it.) Nuisance here is material or physical damage to land or
property. An occupier who knows or is deemed to know, that the potential for the creation of
nuisance exists, will be held liable even though the original act which created the nuisance was
not the present occupier’s act. The fact that a mechanical excavator was parked on the
constructing site created the potential of nuisance. Sedleigh- Denfield v O’ Callagan - The local
council placed a grate in the wrong place on the claimant’s land resulting blockages. This was
known to the defendants, over three years, the defendant cleaned out the ditch twice a year.
After a heavy storm, the culver became blocked and the claimant’s land was flooded. The
defendant was found liable for nuisance for the damages caused.

Sleepytown v Local Residents

The definition for public nuisance is ‘Any nuisance which materially affects the reasonable
comfort and convenience of life of a class of Her Majesty’s subject’. The Court of Appeal in Corby
Group Litigation v Corby Borough Council held that a public nuisance did not have to involve
interference with the enjoyment of land and this is different with private nuisance. Public
nuisance was simply an unlawful act or omission which endangered the life, safety, health,
property or comfort of the public.Foul smelling fumes were released which caused discomfort
and irritation to many local residents. There is an element which constitute a public nuisance
which is foreseeability. Defendant must have known or ought to have own that the
inconvenience would be a result of what he had done in order to be held liable for public
nuisance. For example in the case of R v Shorrock [1994], here the defendant used his land for
an unauthorized ‘acid party’ which caused substantial inconvenience and disruption to
neighbors. In this case, the Big Constructors should have known that it will cause foul smelling
fumes to release and cause discomfort and irritation to the local residents if they unearthed a
cache of toxic chemicals which had been illegally buried on the site many years ago. Another
relevant case is the case of Anthony and others v The Coal Authority. The case involves a change
of owners in a land used for waste dumping. The land caught on fire due to the coal in the land,
and it was held that the defendants were liable as the principle in Sedleigh-Denfield v O’Callagan
applied. The principle is that when the defendant becomes aware of the problem, the
responsibility will fall into their hands. Any interference which materially affects a class of Her
Majesty’s subject can amount to a public nuisance but the question of whether the number of
persons is sufficient to constitute a ‘class’ is a question of fact in each case. In this case, the
number has reached which can constitute a public nuisance. For example, in the case of A.G. v
P.Y.A Quarries [1957] 2 QB 169,here an injunction was sought to prevent quarrying activities
which showered the neighbourhood with stones and splinters and caused dust and vibrations.
The court had to decide what were the constituents of the offence of a public nuisance and how
this different from a private nuisance. Here the nuisance only affect some of the residents but
was not a public nuisance affecting all residents living in the area.

3. ‘ where planning consent is given for a development or change of use, the question of
nuisance will ….. fall to be decided by reference to a neighbourhood with that
development or use and not as it was previously ….’
per Mr. Justice Buckley in
Gillingham Borough Council v
Medway (Chatham) Dock Co
Ltd [1993] QB 343
To what extent is the above factor relevant in deciding whether a nuisance has been
committed ?

Private nuisance occurs where a person’s use or enjoyment of their land or interest over his
land per se is unlawfully interfered with by activities carried on by another person on their
land. Three elements must exist to constitute a nuisance including an unlawful use of land,
causes indirect interference,and with another’s land.

A person with a proprietary or possessory interest in the land (freeholder/ a tenant in

possession) can sue and recover if nuisance occurs before defendant acquire the interest or
are aware of the nuisance.Hunter v Canary Wharf Ltd- A mere licensee has no right to sue. In
private nuisance, occupiers (independent contractors, trespasser, an act of nature) and
landlords can be sued Hunter v Canary Wharf-private nuisance are of three kinds. They are
firstly,nuisance by encroachment on a neighbour’s land ; secondly,nuisance by direct physical
injury to a neighbour’s land ; and thirdly, nuisance by interference with a neighbour’s quiet
enjoyment of his land The activity complained of must result in interference which is more
than the inevitable result of ordinary life.Whether it is reasonable or not , courts will have to
consider the following: Locality, Malice, Duration and Sensitivity of the claimant here the
nuisance is taking place is really important to whether or not the courts will deem the
interference as a private nuisance. The courts will use the area of the nuisance with regard to
the nature of the locality in deciding whether there exists an actionable nuisance. Locality
does not apply where the interference causes physical damage to the property. In the case of
St Helen’s Smelting Co v Tipping which the interference had caused physical damage to the
property, plaintiff owned a rubber estate which was situated in an industrial area. The smoke
from the defendant’s copper-smelting factory had caused considerable damage to the
plaintiff’s trees. defendant contended that the whole neighborhood was devoted to similar
manufacturing purposes and that the smelting should be allowed to carry on with impunity.
However, the defendants were held liable and the court made a difference between nuisance
causing property damage and those causing personal discomfort. The locality rule applies only
to cases of personal discomfort and does not apply where there is physical damage to
plaintiff’s property. Property damage must not be inflicted whenever the defendant is carrying
on the activity. Locality is irrelevant if there is physical damage, but only relevant if the
nuisance is in the form of discomfort.
Then, in the case of Sturges v Bridgman [1879], The defendant ran a confectionary shop which
operated a noisy pestle and mortar. It had done so for over 20 years but had no neighbouring
property so there were no complaints as to its use.The claimant then built a consulting room
for his practice as a physician adjacent to the defendant’s noisy shop.The claimant brought an
action in nuisance to obtain an injunction to prevent the continuance of the noise.The
defendant, relying on the Prescription Act, argued that he had obtained the right to be noisy
by operating the noisy pestle for over twenty years and no one had complained about
this.However, the Court of Appeal held that defendant had not acquired a right by prescription
over this period as the noise had not been a nuisance until plaintiff built his consulting room
in 1873. The court held that the use of land prior to the construction of the consulting room
was not preventable or actionable and therefore it was not capable of founding a prescription
right. The defence failed because time ran from when the new building was erected and the
nuisance had only commenced from that date. Sturges v Bridgman is often cited as authority
for the proposition that it is no defence to say that the claimant came to the nuisance.
However, the recent Supreme Court judgment in Coventry v Lawrence casts doubt on whether
this was ever good law. .

Coventry v Lawrence [2014](planning permission), Nuisance action against the defendant in

respect of noise generated by motor sports speedway racing, stock car racing banger racing
and motorcross. Planning permission granted in 1975. Motorcross stadium built in
1992.Claimant purchased a house 800meters from the track in 2006.A defendant who faces
an accusation that his or her activities constitute a nuisance can rely on those activities as
constituting part of the character of the locality, but only to the extent that those activities do
not constitute a nuisance. If the activities cannot be carried out without creating a nuisance,
such activities will have to be entirely discounted when assessing the character of the locality.
Where planning permission has granted does not mean that the relevant nuisance was lawful.
The issue of common law nuisance is reserved to the court rather than the planning
authority.the planning permission is considered only to the extent to the stipulation in the
planning permission which could be used to assist the claimant’s action. Here the Supreme
Court held that, provided a claimant in nuisance uses his or her property for essentially the
same purpose as his predecessors before the nuisance started, the defendant cannot rely on
the defence that the claimant ‘came to the nuisance’. However, where a claimant builds on his
or her property or changes the use of the property after the defendant had initially
commenced the activity then the claimant’s claim for nuisance could fail.

Case: Halsey v Esso Petroleum [1961] The defendants operated an oil-distributing depot near
to the Plaintiff’s house in a partly residential area in Fulham. The depot operated a day and
night and the Plaintiff complained of the following : Acid smuts from a boiler in the depot
which damaged the plaintiff’s washing. The same smuts which caused damage to his car
standing on the road outside; A smell escaping from the depot which was nauseating but
caused no damage to health; noise from lorries in the depot ; and noise from tankers on the
road outside leaving and arriving throughout the day and night The court held that there was
private nuisance under I and 4 .There was private nuisance based on the defendant’s use of
the highway. The character of the neighbourhood was also relevant to the question of
nuisance by smell and by noise. This case provides a useful illustration of the application of
public and private nuisance and the rule in Rylands v Fletcher.

Case: Health v Mayor of Brighton The plaintiffs were trustees of a church. The defendant built
an electricity sub station next door. The plaintiffs sought an injunction, saying that the
humming sound emitted could be heard in the church. Held: The special requirements for
quiet required in a church did not impose any higher standard from neighbours as regards the
special use made of land. The plaintiffs had not established that the noise was a sufficient
interference to support an injunction.

In the case of Gillingham Borough Council v Medways Docks, The defendant had obtained
planning permission to turn a disused dockyard into a commercial port operating 24 hours a
day. The council was aware that doing so would influence the local surroundings and affect
the area’s residents; however the economic value the redevelopment would bring played a
significant role in granting the permission. Local residents brought an action in public nuisance
in relation to the noise created throughout the night. They were seeking an injunction to
restrain the activities during the night. The court held that the fact that planning permission
had been granted for a particular activity did not mean that the activity could not give rise to
liability in nuisance; however the existence of planning permission could mean that the
character of the neighbourhood had changed, which could mean that what might have
amounted to a nuisance before the change could now be considered reasonable. Therefore,
the dock authority was held not liable and redeveloping the dockyard had significantly changed
the area and therefore the traffic and noise pollution were now parts of it and therefore it was
not a public nuisance. Wheeler v JJ Sanders The claimant, Dr Wheeler, owned a farm which
had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday
cottages. He leased the farm to the defendant, JJ Saunders ltd. JJ Saunders obtained planning
permission to build a Trowbridge house on the farm for the purpose of keeping pigs for
breeding. Two years later he obtained permission to build another Trowbridge house. The
second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler
brought an action in nuisance in relation to the noise and smells emanating from the pig
houses. The granting of planning permission differs from statutory authority and confers no
immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway
Dock merely states that the granting of planning permission may change the neighbourhood
which may make it more difficult to establish a nuisance. It does not authorise a nuisance. The
principle arising from Gillingham Borough Council v Medway Docks should be taken literally,
that planning permission will automatically change the characteristics of a neighbourhood. The
suggestion of the court of appeal in Wheeler v JJ Sanders should be taken into account, that
court can only make decision, whether planning permission has changed the character of a
particular neighbourhood if the planning permission has been granted. The court should not
consider its application as automatically being in favour of defendant before the planning
permission has been granted as this would lead to an unfair extinction of the P’s right to use,
comfort and enjoyment of his land. The general principle remains 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 might have
unpredictable and unexpected outcome.

4. Aman and his family run a small fish farm in Janda Baik, Pahang. The fish farm was first
set up by Aman’s grandfather in the early 1990s. Over the years, his family has expanded
the farm to also include a small llama farm as well. Jamal bought a piece of land next to
Aman’s land with the intention of setting up a glamping resort. There was a river that the
flowed through the land with natural pool. Jamal built 10 glamping tents on the land.
Since the resort was open 2 years ago, Jamal has received numerous complaints from his
guest of the smell of sewage emitting from the natural pool and the cries of the llamas
at night. On investigation, Jamal found that Aman was throwing fish waste into the river.
 Further, one night, during a heavy downpour, mud overflowed from the Aman’s farm
onto Jamal’s resort, damaging much of the resort
Advise Jamal of his claim against Aman. Advise in based on Malaysian law.

- First and foremost, the issue that has to be determined is whether Jamal is eligible to sue.
In general rule, In order to sue for private nuisance, claimant must have a legal interest
in a land for example a person with a proprietary or possessory interest where in Hiap
Lee Brickmaker v Weng Lok Mining it says that private nuisance occurs when a person’s
use or enjoyment of their land or interest over his land is unlawfully interfered with by
activities carried in by another person on their land . Pursuant to Section 3 of the Civil
Act 1957, English Law applies. As seen in the case of Malone v Laskey, the claimant who
occupied the house as a licensee was injured due to the vibrations from the use of an
engine on the defendant’s adjoining land. This case has established that a licensee
cannot sue due to the missing of interest in land. There is a contrary decision as laid down
in Khorasaandijan v Bush where the daughter who lived with the parents get harassment
calls everyday and the court has allowed the daughter to sue without proprietary interest.
However, HOL reversed the decision of Khorasaandijan v Bush and upheld the decision
of Malone v Laskey, when deciding Hunter v Canary Wharf which concern the
interference with television inception, stating that proprietary interest is needed. As
seen above, since Jamal has proprietary interest here as he bought the land, he is eligible
to raise a claim. Go straight to the point, no need to give distinction

- The second issue that has to be determined is whether Jamal can raise a claim against
Aman. In general rule, the occupier of the premises from which the nuisance emanates
will be liable for nuisance. In order to be liable, the occupier must know of the state of
affairs on his premises that could give rise to an inference. However, nuisance can also
be caused by independent contractors, trespassers and an act of nature. The general rule
of who can be sued is either occupier and landlord. In this case, Aman is the occupier of
the fish farm. Under the common law, the act of nature lies under the exception of the
occupier. If the occupier have knowledge of the act of nature then he will be liable to
nuisance. However, under Malaysian Law, the act of nature does not applied in Malaysia.
Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd [2008] 2 MLJ 69 CA Here
the HC refused the application of Leakey by virtue of s3 Civil Law Act 1956 as the common
law position existed before 1st April 1956. As result the Plaintiff had to prove that the
damage to his property is as a result of the defendant’s activity and not due to the latent
defect of the limestone hill. Court of Appeal dismissed the appeal from the High Court.

- The second issue that has to be determined is whether Jamal can raise a claim against
Aman. In general rule, in order to sue here are 3 criteria’s for nuisance. Firstly, there
must be unlawful use of land, in the sense of unreasonable use of the land, . The first
element that can be identified is locality. The location of the plaintiff’s and defendant’s
 premises are important factors when the interference is merely to use, comfort and
enjoyment of land as opposed to physical damage to property. Locality is only relevant
when there is discomfort and annoyance. In this case, Jamal has received numerous
complaints from his guest in relation to of the smell of sewage emitting from the natural
pool and the cris of the llamas at night. In the case of Dato Manokaran Veraya v
Perbandaran Pengurusan Apartment Kayangan & Anor Appeal (2018), the court of
appeal held that a certain amount of noise is acceptable in an urban, modern society and
an injunction was only justified when the irritating noise causes inconvenience beyond
what other occuppiers in the neighbourhood can be expected to bear. The second
element that can be identified is the duration. Continuous activity will constitute
substantial interference. In this case, it is considered as a continuous activity as
numerous complaints were received since 2 years ago.Jamal has received numerous
complaints from his guest of the smell of sewage emitting from the natural pool and the
cries of the llamas at night.

- Aman may used prescription as a defence. However, Aman cannot rely on the defence
of prescription since the defence can only be used after 20 years since the nuisance has
started. Although, the fish farm and the llama farm was opened up by Aman’s
grandfather in the 1990s, the nuisance only started after a neigbouring resort was
opened by Jamal’s resort 2 years back. There is no excuse for Aman to say that the
neigbour who is Jamal came to the nuisance and that it was not a nuisance before Jamal
became a neighbour of his land.

- The second criteria, if the unlawful use must cause indirect interference of the
enjoyment of land. However, court judge it based on the context of the surrounding
circumstances. Interference also have to be substantial where it can be seen in the case
of Woon tan kan v Asian Rare Earth, defendant is held liable as collecting and storing
radioactive substance had substantially damaged plantiff’s health. Jamal can claim for
damages and sought injunction to stop Aman from further throwing fish waste into the
river where in the case of Pacific Engineering v Haji Ahmad Rice Mill the court held that
person injured by nuisance can claim damages for injury alone or together with a claim
for an injunction.

Tutorial 2
1. a. Two years ago, a local waste company bought a large piece of land next to the
historical English village of , Pretty Rose. Over the two years, a large pile of waste was
dumped on the land. The villages have since had to deal with the stench , the regular
sounds of garbage trucks driving through their village to the waste land. Further, the
villages now have to deal with rodents.

Advise the villagers of Pretty Rose of their potential claim.

 b. Mark was recently charged with public nuisance for making hundreds of obscene
video calls to over 20 women.

Advise Mark of his potential liability.

The nuisance created by the local waste company is a public nuisance towards the villagers of
the Pretty Rose. The definition of public nuisance is that its a type of nuisance that materially
affects the reasonable comfort and convenience of life of Her Majesty’s subjects. The Attorney
General can sue on behalf of the villagers. According to the case of Corby Group Litigation v
Corby Borough Council , the interference of the enjoyment of land is not a necessary ingredient
for public nuisance but simply an unlawful act or omission which endangers the life, safety,
health, property or comfort of the public.

To sue under Public nuisance, there must be considerable number of people or class affected
and it must be an indiscriminate in its effect where taking action becomes the responsibility of
the community at large. In case of Tate & Lyle Food v GLC where claimant had to spent money
on the river bed as ferry terminals caused excessive silting and caused inconvenience to public
at large. It was held that defendant is liable as it affected large number of people. In case of AG
v PYA Quarries, where injunction had been sought to prevent quarrying activities as it caused
dust to neighbourhood, but defendant is held not liable as it only affects some residents.
Therefore, the numbero of class of persons is a question of fact. In this case, local waste
company will be held liable under public nuisance as it affected the villagers at large and it’s
unreasonable to expect one person to take an action. One of the possible remedy for the
villagers of Pretty Rose is injunction to stop them from throwing the waste.

B. Public nuisance affects the reasonable comfort and convenience of life of a class of Her
Majesty’s subject which is stated in the case of Glamorgan v PYA Quames. Private citizen can
sue over damage sustained In case of R v Madden, defendant hoax telephone calls with
presence of explosives and caused business to be disrupted, it was held that D is not liable as
there is insufficient class of public. However, iIn the case of R v Johnson, D made numbers of
harassment calls to at least 30 women where it’s an isolated act to an individual. CA held that it
amounts to nuisance as it’s the responsible on community at large and is unreasonable to
expect 1 person to take the proceedings. .Also in case of (crown) R v Goldstein & Remmington,
where defendant is liable for sending out a lot abusive letters to various recipients and enough
to prove there is a class of people where many public nuisance offences is now protected by
statutory provisions. There are considerable no of persons affected by Mark and it’s an
indiscriminate effects of the nuisance, Therefore, Mark is liable. The possible remedy is
injunction to cease the nuisance which is making obscene video calls to women.

2. What does the case of Cambridge Water v Eastern Counties Leather lay down? What has been
the impact the decision? .

The rule for Ryland v Fletchers is a form of strict liability – imposing liability without proof of
negligence. There are four elements for Ryland v Fletcher. Firstly, it is for own purposes, brought
onto the land and kept there. Secondly, it will cause mischief if escape. Thirdly, it must escape
and the last is it is a non-natural use of land. This question focuses on the second requirement of
the foreseeability element of R v F. The case of Cambridge Water v Eastern Counties Leather is a
case which laid down the requirement of an element of foreseeability in the cases which are sued
under the principle of R v F.
 The case was about a leather tanning business leaking its chemicals into the water supply used
by the claimant. The chemical contamination was acceptable and lawful at first, but a later
change in law made it illegal. The defendant was not liable, as he could not foresee the change
in law. In this case, there is some conflict as to whether foreseeability is a requirement. However
the favoured view , is that what needs to be foreseen is the harm in suit but not the escape itself.
The court held that at least foreseeability of the risk, is a prerequisite of the recovery of damages
under the principle of Rylands v Fletcher but that the principle is one of strict liability in the sense
that the defendant may be held liable notwithstanding that he has exercised all due care to
prevent the escape from occurring. Lord Goff believed that the origins of the rule of R v F is an
extension of nuisance. Foreseeability of damage is essential in nuisance and likewise should be a
requirement in R v F cases. It must be able to prove that it is foreseeable to cause mischief or
damage if the thing escape in order to take action under the rule of Rylands v Fletcher In the later
case of Transco plc v Stockport Metropolitan Council, the courts added to the rule of
foreseeability, and held that the standard of foreseeability is that of an “exceptionally high risk of
danger or mischief”. The case was about a water pipe leak which caused the collapse of the
claimant’s embankment. The defendant was not liable, as the courts ruled that the damage was
not that of “exceptionally high risk”. Here Lord Bingham commented that the rule was being
imposed liability in the absence of negligence for an isolated occurrence, the mischief should not
be at all easily satisfied. It had to be shown that the Defendant had done something, by standards
appropriate at the relevant place and time as giving rise to an exceptionally high risk of danger,
which limits the use of Rule of R v F.

3. The rule of Rylands v Fletcher was adopted in Malaysia through the case of Hoon Wee Thim
v Pacific Tin Consolidated Corporation [1966] 2 MLJ 240. However, since the adoption, the
Malaysian courts have differed in its approach in applying the rule of Rylands v Fletcher..
Discuss.

4. Surjit runs a business that makes components for the IT industry. It is located on the outskirts
of a small town near Manchester. The manufacturing process involves the use of toxic
chemicals to clean the components before they are sent to customers. Surjit built a mud wall
all long his property. The chemicals are kept in a wooden shed on the edge of Surjit’s
premises, where his land joins the farm owned by Pritam. Pritam alleges that chemicals from
Surjit’s shed have leaked out and contaminated his farmland and that he is unable to grow
crops there anymore. Surjit claims that the leak has been caused by the actions of thieves
who broke into the shed and knocked over some cans of chemicals. Two days ago, there was
a massive fire on Surjit’s premise caused by the leak. The fire spread onto his neighbour’s
Alex’s property, completely damaging his barn. Subsequently, massive rain falls resulted in
the mud wall collapsing onto Alex’s property destroying his home.

a. Consider the potential liability in tort under English Law.

b. Consider the potential liability in tort under Malaysian Law.

Definition of Rylands v fletcher – a person who, for his own purposes, brings onto land and keeps
there anything likely to do mischief if it escapes, must do so at his peril and if he does not do so,
he is prima facie answerable for all damage which is in the natural consequences of its escape.

To sue under the rylands v fletcher, there are 4 elements that need to be proved by the claimant.
The first element is that the claimant must show the defendant brought something onto his land.
According to the case of Giles v Walker 1890, naturally occurring things do not amount to
accumulation. On the facts of the case, toxic chemicals kept by Surjit is not a naturally occurring
thing and therefore claimant has fulfilled the first element in bringing the case under rylands v
fletcher.

Second element is non- natural use of land.in the case of Read v lyons, the non-natural use of
land differ from different circumstances. The mud wall that was built by surjit was a non- natural
use of land.

third element to prove by the claimant is that the thing accumulated is likely to cause mischief
upon if it escapes.. According to the case of Cambridge water Co (1994), the damage incurred
must be foreseeable. Surjit could have foreseen that if the chemicals leak out it will cause
damage to the land of his neighbour and it does not matter how the chemicals leak out but how
serious the damage will cause to his neighbour’s land.

The last element to prove is that the thing that has been accumulated by defendant escapes and
has caused damage. In the case of Transco (2003), the court recognised that the risk has to be
exceptionally high. According to the facts of this case, the use of toxic chemicals is of a higher
risk because if it escapes it will cause a massive danger to the land of others. The toxic chemical
kept by Surjit has escaped to Pritam’s land and contaminated his land. However, there is one
possible defences that could be raised by Surjit which is an act of stranger. In general rule, if the
escape was caused by an act of a stranger which the defendant had not control, the defendant
will not be liable. As seen in Rickards v Lothian, third party turned on all the taps and caused a
flood in defendants building which was partly leased out to the claimant. Here the defendant
was not liable as the act was unforeseeable and was an act of a third party. Based on the case
above, Surjit could raise the defence under an act of stranger as the leak was caused by the
thieves, which is hardly foreseeable. The act of the stranger is not within the control of Surjit,
therefore the defence could be raised by Surjit.

To conclude, as all the elements are present, Surjit may be held liable to P for the material
damages to his land. As all the elements are proven, it’ll be a strict liability case. As for damages,
under R v F, it permits land owning claimants to sue in respect to property damage (damage to
land)

Surjit to Alex (Talk about the mudwall and fire)

To succeed under R v F, elements that must be proven are; accumulation, mischief which results
in escape and ultimately, damages.

Accumulation entails the gathering of certain materials within the land that wasn’t naturally
occurring. It is important to note that the defendant made a “non-natural use” of his land. The
essence of the rule is that the defendant must have used his land for an unusual purpose which
subject his neighbors to certain risks. In this case, Surjit’s accumulation of the toxic chemicals
falls within the scope of accumulation. The following element is the existence of mischief; the
substance that is accumulated on the D’s property likely to cause mischief if it escapes into the
claimant’s land. In this case, it is the toxic chemicals. Albeit argued by the D that the chemicals
only spilled due to thieves breaking in, the fire that started within his land spilled over into Alex’s
property. Lastly, with regards to damages, due to the fire, Alex’s property (his barn) was
completely damaged. Unlike in the case of Cambridge Water v Eastern Counties Leather –
Surjit’s spillage wasn’t remote and didn’t take a long period of time to produce damages to the
neighbor’s land. It was forsceable for toxic chemicals kept merely within cans in a wooden shed
to spill and somehow escape. It is also within the case of Cambridge did Lord Goff stated that
“the storage of substantial quantities of chemicals on industrial premises should be regarded as
an almost classic case of non-natural use”. As for the fire, the case of Midwood & co, defendant
held liable when an explosion on their property caused inflammable gas to escape into others
house and consequently set fire to the plaintiff’s property. The defence that could be raised by
Surjit against Alex is an act of god. The case of Transcao v Stockport and Lord Hoffman explains
that an act of god involves no human agency, which is not realistically possible to guard against,
due directly and exclusively to natural causes, and could not be prevented by any amount of
foresight, pains and care. In Carstairs v Taylor, the claimant stored rice in the ground floor The
claimant stored rice in the ground floor of a warehouse which he leased from the defendant.
The defendant used the upper floor for storage of cotton. A rat gnawed through a gutter box
draining water from the roof of the warehouse. Following this, a heavy rainfall caused the roof
to leak and damaged the claimant’s rice. Based on the rule of Rylands v Fletcher, the claimant
was not found liable as they heavy rain and actions of the rat were classed as an act of God. As
seen in the case above, Surjit is mostly not liable as it the massive rain which falls resulted in the
mud wall destroying Alex’s property was due to an act of God.

To conclude, as all the elements are present, Surjit may be held liable to Alex for the material
damages to his land. As all the elements are proven, it’ll be a strict liability case. As for damages,
under R v F, it permits land owning claimants to sue in respect to property damage (damage to
land)

Q4B By virtue of Section 3(1) Civil Law Act 1956, English laws are applicable in Malaysian cases.
Based on the principles of Rylands v Fletcher, Surjit did; for his own purpose bring toxic chemicals
onto his land and it is reasonable to foresee that if the toxic chemicals were to escape, it would
cause harm and it eventually did escape Surjit’s land onto a farm owned by Pritam which did
caused Pritam’s farmland to be contaminated. Through this it can be said that the land is in fact
used for non-natural purposes, as having put chemicals into a wooden shed located next to a
farmland may not have been considered as natural.

Though Surjit might be liable under the case of Dato Dr Harnam Singh v Renal Link (KL) Sdn Bhd
(It is known that the chemical stored will cause mischief if escape and it is the non-natural use of
land), a defence that can be raised would be the act of a stranger. Surjit, with reference to the
case of Perry v Kendricks transport ltd, would not be held liable for a fire that was not of his
cause but by that of thieves who have broken into the shed and knocked over the chemicals that
in turn causeds the fire. Furthermore, Surjit would not have been able to reasonably foresee the
events mentioned. As can be seen in the case of By virtue of Section 3(1) Civil Law Act 1956,
English laws are applicable in Malaysian cases. Based on the principles of Rylands v Fletcher,
Surjit did; for his own purpose bring toxic chemicals onto his land and it is reasonable to foresee
that if the toxic chemicals were to escape, it would cause harm and it eventually did escape
Surjit’s land onto a farm owned by Pritam which did caused Pritam’s farmland to be
contaminated. Through this it can be said that the land is in fact used for non-natural purposes,
as having put chemicals into a wooden shed located next to a farmland may not have been
considered as natural.

Though Surjit might be liable under the case of Dato Dr Harnam Singh v Renal Link (KL) Sdn Bhd
(It is known that the chemical stored will cause mischief if escape and it is the non-natural use of
land), a defence that can be raised would be the act of a stranger. Surjit, with reference to the
case of Perry v Kendricks transport ltd, would not be held liable for a fire that was not of his
cause but by that of thieves who have broken into the shed and knocked over the chemicals that
in turn causes the fire. Furthermore, Surjit would not have been able to reasonably foresee the
events mentioned. However, if Surjit were to raise the defence of an Act of God in regards to the
mud wall (that destroyed Alex’s home), that might fail. That’s because it could be reasonably
foreseeable that a mud wall would collapse under heavy rain as the wall was made from mud.
Heavy rain in Malaysia can also be considered to be something that is common, so to raise that
as a defense it may not succeed, as well. Under Malaysian law, there is no presumption that a
person is held responsible

For cases where fire is involved, there are three criteria that must be proven for a defendant to
be held liable. The first criteria is that the defendant must show that chemicals are brought onto
the land which started the fire. Besides that, the condition where the chemicals are kept must
be considered to be highly flammable. Once that is proven, then there would be a high possibility
of there being a risk of the fire spreading to the neighbouring land. An example of a case is Ang
Hock Tai v Tan Sum Lee whereby the defendant is found liable for causing the fire in a shophouse.
Relating to Surjit’s case, he can be found liable as he brought the chemicals to the land and kept
it in a wooden shed which can be easily ignited and would likely spread to the neighbour’s farm.
However, if Surjit were to raise the defence of an Act of God in regards to the mud wall (that
destroyed Alex’s home), that might fail. Thisat’s because it could be reasonably foreseeable that
a mud wall would collapse under heavy rain as the wall was made from mud. Heavy rain in
Malaysia can also be considered to be something that is common, so to raise that as a defense
may not succeed, as well. Under Malaysian law, there is no presumption that a person is held
responsible answerable for the damage that results from a fire which began on his property,
particularly if it can be proven that the fire was started intentionally or negligently even if it was
for a valid initial purpose. i.e. the Plaintiff has proved that the defendant had been negligent
answerable for the damage that results from a fire which began on his property, particularly if it
can be proven that the fire was started intentionally or negligently even if it was for a valid initial
purpose. i.e. the Plaintiff has proved that the defendant had been negligent. For cases where fire
is involved, there are three criteria that must be proven for a defendant to be held liable. The
first criteria is that the defendant must show that chemicals are brought onto the land which
started the fire. Besides that, the condition where the chemicals are kept must be considered to
be highly flammable. Once that is proven, then there would be a high possibility of there being
a risk of the fire spreading to the neighbouring land. An example of a case is Ang Hock Tai v Tan
Sum Lee whereby the defendant is found liable for causing the fire in a shophouse. Relating to
Surjit’s case, he can be found liable as he brought the chemicals to the land and kept it in a
wooden shed which can be easily ignited and would likely spread to the neighbour’s farm.

In conclusion, in terms of spillage of chemicals, Surjit can be found not liable because of the
defence of the act of a stranger. However, Surjit may be found liable for the collapsed mudwall
as it is reasonably foreseeable that it would collapse despite the intensity of the rain.

Tutorial 3
1. Article 13(1) of the Federal Constitution provides that a person may not be deprived of
his right of his property except as provided under the law. Discuss whether in Malaysia
these rights are adequately protected.

In the case of Tan Wee Choon v Ong Peck Seng 1986, Wan Yahya J defined that Trespass
to Land refers to every unlawful entry by one person on land in the possession of another
is a trespass which an action lies, although no actual damage is done. The doctrine of
trespass to land is actionable per se, no damage need to be shown.

The right of a person’s land is protected under the Federal Constitution where in Article
13(1) – A person may not be deprived of his right over his property except as provided
under the law and also under s44(1) a NLC, a registered proprietor is fully protected. This
statute has been applied in the case of Haji Jaafar b Haji Rahman v Rohani bte Ab Latip
[1996] 4 MLJ 277 where the local Kampung Development and Security Committee and
the State Assemblyman based on the permission of one of the occupants of the
Plaintiff’s home, had demolished the Plaintiff’s old house to replace it with another
house under the Poor Citizens Housing Project. Here the High Court on appeal by
applying the Article 13(1) held that the consent of the owner is indispensable as the
Plaintiff should not be deprived of her property save in accordance with the law. There
is a trespass to land.

There are two elements to be fulfilled in order to bring the case under the doctrine of
trespass to land. The two elements are the mental state of the Defendant and the
interference.
The first elements refers to the mental state of the defendant which is also his/her
intention in this sense. The intention may be intention to trespass, or although no
intention trespass, there must be a voluntary act of entering land that is in the possession
of another. The burden is on the claimant to prove. In MBf Property Services Sdn Bhd v
Madihill Development Sdn Bhd, the plaintiff sought to remove a mandatory injunction
against the Defendant and restrain the Defendant from obstructing the Plaintiff from
having free access through the access road built by the Plaintiff . Plaintiff claimed that he
did not know he had no right in law to be on that piece of land. Court rejected the
argument and held that using another’s land to access a road to your own land
constitutes trespass and continuing trespass.

There are 3 forms of interference, which the first one is in the form of entering land or
part of it. One case that can illustrate this principle is the case of Kerajaan Negeri Selangor
v Sagong bin Tasi where the act of construction company together with the Malaysian
Highway Authority in forcibly demolishing the plaintiff’s possessor houses and public
building was held to be actionable trespass. Another case which is Government of
Malaysia & another v Kong Ee Kim where the Plaintiff depastured her chicken on a public
highway and it was held that a member of the public has a right of passage along the
highway for the purpose of getting from one place to another. However, it constituted
trespass because the Plaintiff was using the highway to depasture her chickens which
was not a reasonable use of the highways.

Interference also takes place in the form of remaining on the plaintiff’s land after
permission has been withdrawn. The case of Cheah Kim Tong v Taro Kaur involved the
defendant’s house encroaching into the plaintiff’s land, although relying on estoppel &
consent on the grounds that the previous owner before the plaintiff never complained,
the courts held that this case involved continuing trespass and therefore a new cause of
action arose each day; the damage need not be proven as the cause of action was
actionable per se. Furthermore, it is considered continuing trespass if a defendant uses
a plaintiff’s land as a means of access of an accretion land without the consent of the
plaintiff, as seen in the case of Ooi York Choo v Lim Song Foundry which involves the
plaintiff owing a piece of land adjacent to the sea; between the plaintiff’s land and the
sea, a strip of accretion land approximately 100 ft belongs to the state, the defendants
were licensees and one of the condition of the license stated that licensees should seek
permission for access to this land, to which the defendants did not in a result of trespass
to land. . The last form of interference is placing an object on plaintiff’s land. The case
of Terra Damansara v Nandex Development shows that defendant inserted ground
anchor into plaintiff’s land without permission and it was held that defendant is liable
and constitute to trespass.
 Also, In case of mahunaran v Osmand Chiang Biong Kuan ,plaintiff is very unhappy that
defendant built the wall and partition between the theirs houses that went up to his
ceiling without permission. It was held that defendant is liable and consent must be
obtained even though local authority had approved such act. interference to airspace
also can be actionable under trespass, FC held that when the window is built, it is
considered trespass to airspace pacse sce in the case of Karuppan Chellapan and
Balakrishmen Subban where the previous owner built a protrusion and intruded into
plaintiff’s airspace. There is also interference to subsoil in case of Chin Lih Lih v Sunrise
Alliance, where soil nail is built on slope to reinforce it and it was held that defendant is
not liable as the nails is only driven into for 3-12m which is not considered as trespass.
Therefore, In msia context, minor infringement doesnt constitute to trespass, law only
recognise if the trespass to certain depth. Therefore, interference to subsoil isnt very
much protected.

Section 44(1)(a) NLC dictates that: a person has the right to the exclusive use and
enjoyment of so much of the column of airspace above the surface of the land and so
much of the land below that surface as is reasonably necessary to the lawful use and
enjoyment of the said land. With that in mind, this opens any and all trespassers that
comes onto a person’s land (note the definition of “land” under S.5 National Land Code)
that satisfies the requirement of trespassing, to liabilities. Trespass to land deals with
the unjustified interference with land which is in the immediate and exclusive possession
of another. The slightest entry can constitute trespass and this includes (i) directly
entering upon the claimant’s land (ii) remaining upon the claimant’s land (iii) placing or
projecting any object upon the claimant’s land. Actionable per se’ — proof of damage
not required. The tort may be committed only against a person who has possession of
the land on which the acts complained of are committed To conclude, with regards to
the various statutes set forth within Malaysia, the interest that a person has over his land
is safeguarded and protected by the fact that any adverse possession against him does
not operate to extinguish his interest should he one day decide to recover the land. The
interest of the State over state-owned land is also protected.

2. A, who is the leader of an Animal Rights group, suspects B, a farmer, of exporting live
calves and hires a balloon in which he flies low over B’s farm in order to find evidence in
support of his suspicions. Subsequently he leads a group of protestors who, dressed as
ramblers, walk down to a track on the farm over which there is a right of way. They
walked slowly in front of B’s lorry which, in consequence, arrives too late at the docks to
load the calves on the ferry. Returning with his calves, B is so angry that he stops the lorry
near to A’s house and releases the calves, which trample over A’s flowerbeds.

Advise A and B as to their rights and liabilities, if any.

 A can be said to have intention to enter B’s land voluntarily because he wanted to find
evidence to support his suspicions that B was in fact exporting live calves. With reference
to Conway v George Wimpey Co, A can be said to have trespassed because he
deliberately entered B’s land with the mental intention to do so. A also had interference
as he entered B’s land in terms of his airspace since he was flying the balloon at a low
altitude. However, with that being said, A might have a defence by virtue of the Bernstein
of Leigh v Skyviews and General Ltd case because he could have been flying the balloon
at a reasonable height deemed by the Civil Aviation Act 1982. According to the Section
76(1) of the Act, aircraft that fly at a reasonable height in regards to wind, weather, and
all the circumstances does not constitute a trespass. Although A had a right of way to
lead a protest down the track on the farm, A in this scenario was using the land for a non
natural purpose by holding a protest and obstructing the lorry which consequently
resulted in the lorry arriving too late to arrive to the docks, this is in reference to the case
of DPP V Jones [1999] 2 AER 257 In terms of B, when he released his cows onto A’s land
he was doing it out of ill will and spite which in turn shows B’s intention therefore leading
the cows actions to amount as trespass, this here therefore illustrates the mental
intention of B, as per interference, B did interfere with A’s land as he had released the
cows onto said land without A’s permission and A can therefore by virtue of the Animals
Act 1971, whereby the claimant can claim for damages by keeping and selling off the
animals in this case would be the cows. Therefore,B doesn't have any defences, but A
can claim damages in the form of compensation for the injury done to his land.

3. Is the interference with the possession of land justified? Discuss in terms of the law of
England and Wales.

Definition
“A direct and ‘unjustified interference with the possession of land...whether or not the
entrant knows that he is trespassing’ (Rogers, W.V.H. (2002) Winfield and Jolowicz on
Tort, 16th edn, London: Sweet & Maxwell The tort may be committed only against a
person who has possession of the land on which the acts complained of are committed.
Takes place in the form of: Entering land or part of it; or Of remaining there after the
withdrawal of permission or of dispossession the occupant; or Placing or projected any
object on that land.

The fundamentals of nuisance consists of two types. The first would be the mental state
of the defendant. Here, the defendant’s intention is not to trespass but the intention to
enter the land. The defendant’s entry to another’s land should be voluntary. The case of
Conway v George Wimpey & Co. Ltd held that it was irrelevant that a trespasser knew
that he mounted the lorry or not and deliberate entry is substantial to constitute a
trespass to land. On the contrary, intention will not be fulfilled if the entry on the
Plaintiff’s land is without consent or involuntary. An example of a case would be Smith v
Stone, where a man is deposited on another’s land by a gang of men. The defendant was
held to not be liable for trespass since he his entry to the land was not voluntary.
Intention can also be established if it can be foreseen that there will be trespass to land.
The case of League Against Cruel Sports Ltd v Scott illustrates this well when the
defendant’s hounds trespassed the Plaintiff’s deer sanctuaries. The second fundamental
element would be interference. The interference must be direct and immediate. It can
take place in the form of three parts mainly, entering land or part of it, withdrawal of
permission or of dispossession of the occupant and thirdly placing or projecting any
object on that land. A case that illustrates entry of land or part of it is the case of Hickman
v Maisley. The defendant who is a racing tout used the road in order to spy on the
Plaintiff’s horses. Courts held that he was committing trespass to land as he was not using
the road for its purposes which was to cross over to the other side of the land. Illustrating
the second point of withdrawal of permission and such is the case of Holme v Wilson.

DEFENCES
There are a number of legal justifications to trespass including license, statutory
authority and necessity

Consent permission / license

This is the most common defense to trespass to land . A person who enters land with the
consent of the person in possession is not liable for trespass – ‘leave and licence’ .
However if the terms of the licence has been exceeded than it becomes trespass.
Consent can be express or implied. Express consent may be formally granted by the
creation of a legal agreement granting a licence - Concert ticket . Implied Consent Eg,
Entering a shopping center, mail man delivering post.

STATUTORY AUTHORITIES
Statute may authorise or impose a duty upon a local authority to carry out works that
strictly speaking give rise to liability in trespass to land of another. Defendant can escape
liability on grounds of carrying out that function allowing the Escape of liability on the
grounds of carrying out function. For example, Criminal Evidence Act 1984 for the police
and Children Act 1989 for social services.

DPP V Jones [1999] The defendant and a number of people were gathered on the
roadside, grass verge adjacent to the perimeter fence of the Stonehenge and were part
of a peaceful and non obstructive assembly. Earlier the Salisbury District Council made
an order of all trespassory assemblies, which were prohibited for 4 days and covering an
area of 4 miles radius from roads leading to Stonehenge. By this order, police officers
had the power to remove and prevent any sort of trespassory. Some left although the
appellants did not leave. Thus they were arrested. It was held that their appeal was
allowed and a peaceful assembly on the highway did not unreasonably interfere with or
 obstruct it. Judge Maclaren provided the appellants’ activities were reasonable and did
not involve the commission of public or private nuisance and did not amount to an
obstruction of the highway, infringing the public’s right to pass and repass.

Necessity
necessity is justified when it comes to possession of land, if action is taken in an
emergency to deal with genuinely perceived danger. It does not matter if the threat is
real provided that the defendant believes that it is real. Lord Goff in Re F identified three
situations in which the defence may apply: Public necessity such as the destruction of
property to prevent the spread of fire. Private necessity where the defendant went on
to the Plaintiff’s land to prevent a fire spreading to neighbouring land over which his
employer had shooting rights. Action is taken as a matter of necessity to come to the aid
of another whose person or property is in imminent danger, which is Usually restricted
by the courts. London Borough of Southwalk v Williams The homeless squatters
unlawfully possessed the empty property belonging to the claimant. The defendants
used necessity as a defence but failed. Necessity can only be granted as a defence in an
immediate or emergent threat.

4. Highway concessionaires, Jalan- Jalan Sdn Bhd built a highway between the town of Betul
and Salah. The highway ran through rubber plantations, forest reserves, small villages,
industrial estates and farmland. The highway was a popular route to cut between the
West and East of Peninsular Malaysia. As the highway was a popular route, billboard
company, Kglitter Sdn Bhd built two huge digital billboards along the highway. While the
base of the billboard was on private land, the billboard jutted out 8-feet onto the
highway. A local villager who lived along the highway Madam Tan, was poultry farmer.
Every morning, she released her geese from the pent and they would waddle onto the
highway. A new apartment complex was being built on hill by Velvet Sdn Bhd next to the
highway. Soil nails were inserted into the subsoil to stabilize the excavation works.
Further, Velvet Sdn Bhd had built a wall around the apartment complex , part of which
was on highway. Advise Jalan-Jalan Sdn Bhd of their legal rights against Kglitter Sdn Bhd,
Madam Tan and Velvet Sdn Bhd.

Under Article 13(1) of the Federal Constitution,a person may not be deprived of his right
over his property except as provided under the law. A registered proprietor is fully
protected under s44 (1) a NLC. This was affirmed in Haji Jaafar b Haji Rahman v Rohani
bte Ab Latip. The local Kampung Development and Security Committee and the State
Assemblyman based on the permission of one of the occupants of the Plaintiff’s home,
had demolished the Plaintiff’s old house to replace it with another house under the Poor
Citizens Housing Project. Issue of trespass was raised in this case. The High Court on
appeal held that the consent of the owner is indispensable as the Plaintiff should not be
deprived of her property save in accordance with the law – Article 13 of the Federal
 Constitution. The defendant’s demolition exercise without the Plaintiff’s consent
constitutes trespass to land. Under Article 13(1) of the Federal Constitution,a person may
not be deprived of his right over his property except as provided under the law. A
registered proprietor is fully protected under s44 (1) a NLC. The two statutes were
reaffirmed inHaji Jaafar b Haji Rahman v Rohani bte Ab Latip. The local Kampung
Development and Security Committee and the State Assemblyman based on the
permission of one of the occupants of the Plaintiff’s home, had demolished the Plaintiff’s
old house to replace it with another house under the Poor Citizens Housing Project. Issue
of trespass was raised in this case. The High Court on appeal held that the consent of the
owner is indispensable as the Plaintiff should not be deprived of her property save in
accordance with the law – Article 13 of the Federal Constitution. The defendant’s
demolition exercise without the Plaintiff’s consent constitutes trespass to land.

WHO CAN SUE

In Yip Shou Shan v Sin Heap Lee-Marubeni Sdn Bhd, the Court held that by virtue of the
Doctrine of relation back, the Plaintiff was entitled to maintain his action even though he
was not in physical possession at the time of the first incident. Further the court held that
trespass was essentially an interference with the possessory rights and not ownership,
since registered ownership does not usually connote legal possession. Back to the fact,
Jalan Jalan Sdn Bhd who is a Highway concessionaires had a proprietary interest over the
highway and they are likely able to bring an action against the parties.

Elements which constitute trespass

The mental state of the Defendant Requirements:
a. There has to be “intention” the enter the Plaintiff’s land.
b. Also established when the defendant ought to have foreseen the trespass.
c. Defendant’s entry into Plaintiff’s land must be voluntary

In MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd: Plaintiff claimed for
the right to build access road based on permission of local authorities on defendant’s
land, claiming that he did not know he had no right in law. Intention is established in this
case, as knowledge as trespasser does not change the status of the trespasser.
Defendant’s entry is still voluntary. K-Glitter, Mdm Tan, Velvet all established to have
intention.

Interference -

- The tort may be committed only against a person who has possession of the land on
which the acts complained of are committed.
- Takes place in the form of;
- a. Entering land or part of it
- b. Of remaining there after the withdrawal of permission or of dispossession the
occupant
- c. Placing or projected any object on that land

Jalan- Jalan Sdn Bhd v Kglitter Sdn Bhd.This is a case regarding the interference with
airspace, here the huge digital Billboards jutting out 8 feet onto the highway. In
Malaysian Case Karuppan s/o Chellapan v Balakrishnen s/o Subban ( Chong Lee Chin &
Ords ,Third Parties), a case regarding the airspace due to window protrusions.Defendant
was held liable for tresspass to land. ddigital Billboards jutting out 8 feet onto the
highway Huge digital Billboards jutting out 8 feet onto the highway: interference with
airspace. Case: Karuppan s/o Chellapan v Balakrishnen s/o Subban ( Chong Lee Chin &
Ords ,Third Parties: Interference in airspace due to window protrusions. By virtue of s.3
of CA 1956, In Kelsen v Imperial Tobacco,defendant erected a sign which extended some
8 ft into the plaintiff’s property. It was held that the plaintiff was entitled to a mandatory
injunction requiring the defendant to remove the sign. The intrusion was a trespass.
There was an invasion of the airspace necessary for ordinary use and enjoyment of the
land and building.

Jalan-Jalan Sdn Bhd v Madam Tan

The question is that Geese released from pent to waddle onto highway by Madam Tan,
it’s similar to Government of Malaysia v Kong Ee Kim: Plaintiff depastured chickens on
public highway. Here it was held that a member of the public has a right of passage along
the highway for the purpose of getting from one place to another which includes a right
to do what is reasonable connected with that right of passage. However, here there was
trespass because the Plaintiff was using the highway to depasture her chickens which
was not a reasonable use of the highways. So Madam Tan is liable for trespass because
released geese is not a reasonable use of the highway

Jalan-Jalan Sdn Bhd v Velvet Sdn Bhd

Subsoil: Chin lih lih v sunrise alliance: Defendant committed trespass to land by driving
in soil nails, no need for damage to be proven. if the soil nails in this circumstance infringe
the property of the jalan-jalan sdn bhd, then there is interference through subsoil

Wall around apartment complex part of which is on highway: Tay Tuan Kiat v Pritam
Singh: The parties shared a common boundary at the back of their respective houses,
which was a fence, however the fence encroached into the plaintiff’s land. Similarly in
this case the wall around the apartment complex encroaches onto the highway.