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UUUK2203 Law of Tort II
Question 5
Prepared by
1. George Mark Amirtharaj A/L David Marshall A166881
2. Nur Aiman Bin Johari A163331
3. Nur Aliah Binti Amran A166840
4. Kanimoli Ammaal A/P Subramaniam A166832
Prepared for
Puan Rozlinda Binti Mohamed Fadzil

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QUESTION
One evening, Helmi lighted on bonfire in his garden in order to burn some garden rubbish.
After lighted the bonfire, Helmi went indoors to listen to a radio. The smoke and smell from
the bonfire annoyed his neighbours who were watching television with the windows opened,
and sparks from the fire damaged some clothing belonged to one of his neighbours who has
hung out in his garden to dry. The smoke from the bonfire drifted onto the road and was so
thick that it obstructed the vision of a passing motorist who, as a result ran into a lamp post.
Sometimes later, the bonfire spread to his neighbour’s property and destroyed a garden shed.
Advise Helmi of his legal liability.

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ANSWER
1. Summary
To summarize the facts of the case, Helmi lighted a bonfire to dispose of garden rubbish and
went inside the house to listen to a radio. It damaged neighbour’s fences and neighbour’s
clothes that were drying outside. Besides that, a motorist accidentally ran into lamp post as a
result of the smoke from the fire obstructing his vision. The said bonfire has also caused
annoyance in terms of smoke and smell to neighbours who have their windows opened.
2. First issue
a. Has Helmi committed a public nuisance
The second issue in this case is whether Helmi had committed a public nuisance causing a
motorist on the highway nearby to be involved in an accident.
Public nuisance, based on the case of Attorney General V PYA Quarries Ltd (1957) is
defined as an act which materially affects the reasonable comfort and convenience of life of a
class or society. Similarly seen in the case of Majlis Perbandaran Pulau Pinang V Boey Siew
Tan & Ors (1978) where public nuisance is what materially affects reasonable comfort and
convenience of a class or the subjects of the state. The number of persons required to
constitute to a class is a question of fact. In other words, public nuisance would only be
created if knowing or having the means to know of its existence, a person allows it to
continue for an unreasonable time or under unreasonable circumstances. The defendants
conduct may not be independently unlawful, but it is the effect of his conduct on the plaintiff
that is considered. Therefore, Helmi has committed a public nuisance as it was an
unreasonable conduct to leave the bonfire unattended which had caused the motorist’s
accident due to an obstruction of smoke on the highway. In addition to that, by lighting up a
bonfire without approval, Helmi has also committed an offence under the Environment
Quality Act which is considered a criminal offence.
b. Who can claim under public nuisance
Attorney-General
s 8(1) GPA (1956) provides that the Attorney-General, or two or more persons who have
obtained written permission from the AG, may institute a suit in public nuisance for a

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declaration and injunction or for such other relief as may be appropriate to the circumstances
of the case. In AG v PYA Quarries (1957), dust and vibrations caused by the operation of a
quarry amounted to a public nuisance, although D tried to argue that too few people were
affected by their acts for them to amount to anything more than a private nuisance.
Local Authority
Local authority can act on its own, without consent from the AG based on s 80 of the Local
Government Act 1976. In the case of MPPP v Boey Siew Than [1979], the plaintiff local
authority brought an action for an injunction to restrain D from using their premises as a
restaurant without having obtained a license from P, and for damages for public nuisance.
The Federal Court held that s 80 of LGA 1976 released P from obligations stipulated under s
8(1) of the GPA. This release was said to be in the interests of justice and of the proper
functioning of P as a local authority.
Private Individuals
Private individuals must first obtain consent from the AG. In the case of Koperasi Pasaraya
Malaysia Bhd v Uda Holdings Sdn Bhd & 41 Ors [2002], the action failed as P did not obtain
such consent. The court additionally held that in relator action brought under s 8(1) of the
GPA, P must prove special damage arising from public nuisance. However, in Pacific
Engineering v Haji Ahmad Rice Mill (1966), P succeeded in proving he has suffered special
damages of personal discomfort and damages to property as D’s rice husk flew over to D’s
factories and disrupts D’s comfort and property.
Therefore, we conclude that Helmi is liable for public nuisance due to his negligence and can
be prosecuted based on the Penal Code and the Environment Quality Act. In addition to that,
he is also liable for the injuries faced by the motorist involved in the accident and has to
compensate such monetary losses. Based on this situation we would advise Helmi to
surrender himself to the police and claim liability to such offences and cooperate with them
in order for him to get a reduced and relevant sentence.
3. Second issue
The third issue in this case is whether Helmi has committed private nuisance to his neighbour
who was watching television.

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According to the case Read v Lyons & Co Ltd (1945), private nuisance is defined as an
unlawful, substantial and unreasonable interference with a person’s use, comfort, enjoyment
and any interest that a person may have over his land. In the current case, the smoke from
Helmi’s bonfire annoyed his neighbour which interferes with the enjoyment of land.
However, there are certain elements needed to establish private nuisance.
a. Substantial interference
For private nuisance, damage must exist therein to prove private nuisance which is
personal discomfort. In the case of Andrea v Selfridge (1937), court held that the loss
of one night’s sleep due to excessive noise constitutes substantial interference.
Another case related to substantial interference is Hotel Continental Sdn Bhd v
Cheong Fatt Tze Mansion (2003). In this case, it was held that the severe cracks in
plaintiff’s building due to piling work of defendant constituted an interference which
was actionable. This category is under the physical damage to land. This was also
held in the case of MPPP v Boey Siew Than (1978).
In the current case, the bonfire smoke and smell caused annoyance to the neighbour
which shows personal discomfort. Moreover, physical damage can be seen when there
is a possibility that the smoke can also cause unnecessary health problem to the
neighbour. Therefore, the first element is satisified.
b. Unreasonable interference
According to the case Hunter v Canary Wharf Ltd (1997), there are few factors used
as guidelines to determine the unreasonableness of an interference, where in this case,
it was held that the mere presence of a building does not give rise to an actionable
nuisance. The factors that are taken into account are the location of the parties’
premises, public benefit of the defendant’s activities, extraordinary sensitivity,
duration of interference and malice.
i. Location of premises
St. Helen’s Smelting Co v Tipping (1865), held that the level of interference
must be balanced with the surroundings and therefore, the nature of locality
must be taken into account. For instance, a person cannot expect the air in
industrial area to be fresh as air in the mountains. But it was also stated that if
there is physical damage, then the locality is irrelevant. In the case of Bliss v
Hall (1838), defendant has a factory for three years and during that duration of

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time, smoke, smell and other remittances came from it. The court held that the
right to enjoyment of own land belongs to the individual and the rights must
be balanced. Sturges v Bridgman (1879), the court considered the plaintiff’s
location mainly used by medical specialist and therefore, the defendant’s act
of making a loud noise is not reasonable which caused nuisance.
In this case, the locality of the premises is an open neighbourhood area where
it is unreasonable to light a bonfire as it would cause discomfort to the people
in the surroundings.
ii. Public benefit
If the defendant’s act benefits the society generally, the conduct will not be
deemed unreasonable. In Kennaway v Thompson (1981), it is only nuisance of
it causes property damage or substantial interference to the rights of
enjoyment of land. In case Adams v Ursell (1913), defendant’s act of selling
fish and causing release of bad odour is still deemed liable to nuisance as
plaintiff’s comfort and convenience also had to be considered.
In current case, there is no public benefit gained from the Helmi’s act,
therefore it shows that his act is unreasonable.
iii. Extraordinary sensitivity
According to the case McKinnon Industries Ltd v Walker (1951),
extraordinary sensitivity which was the cause of damage will not make the
defendant liable. However, in this case, the defendant is still deemed as liable
as his conduct was unreasonable since the damage would still occur even to an
ordinary sensitive flower. This principle is also applied in Robinson v Kilvert
(1889).
In current case, any person who comes across smoke from fire would get
annoyed therefore, Helmi’s act is unreasonable.
iv. Duration
An interference must be continuous or occurs very often to decide if it is a
substantial or otherwise. In case IJM Corporation Bhd v Harta Kumpulan Sdn
Bhd (2007), court held that defendant’s act in pestering the plaintiff so
persistently amounted to interference of plaintiff’s enjoyment of land if it is
continuous.

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The smoke from bonfire caused discomfort to the neighbour when they were
watching TV which interfered with their enjoyment of land and it was
continuous as the bonfire was still burning.
v. Malice
The existence of malice will cause the defendant’s act to be unreasonable. In
case Hollywood Silver Fox Farm Ltd v Emmett (1936), even though there is
extraordinary sensitivity in the part of plaintiff, since the defendant’s act is of
malice, it was deemed unreasonable and held liable.
In current case, this element does not apply as Helmi’s act of lighting bonfire
was not one of malice.
Who can claim
Only a person with some proprietary or other interest in land can maintain an action, whether
as owner or possession. This can be seen in case Malone v Laskey (1907). Also, the case
Hunter v Canary Wharf Ltd (1997), held that family members of occupiers would not be
entitled to sue. However, in Khorasandjian v Bush (1993), court held that nuisance such as
phone call harassments can be claimed by any person experiencing it, not necessarily person
with land possession. In this case, plaintiff has possession over the land and therefore, the
conditions to claim private nuisance against the defendant is fulfilled.
Who can be sued
According to the case of Marcic v Thames Water Utilities (2002), anyone who creates the
nuisance will be liable, whether or not he occupies the land. Moreover, occupier also liable
towards anyone who works or lives under him. Liability for servant or employees can be seen
in case of Bower v Peate (1876). Landowner are also liable if he allows nuisance to occur as
held in the case of Hussain v Lancaster City Council (1999).
In this case, Helmi as the landowner can be sued for causing private nuisance.
4. Third issue
The third issue in this case is whether Helmi is liable under strict liability.
a. What is strict liability

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Strict liability is a term used to describe liability which is imposed on the defendant without
any proof of fault on his part. So although the defendant might have taken all reasonable
precaution to avoid or minimise risks arising from his activity, he may still be found liable if
the tort which has arisen falls under the category of strict liability torts. Unlike the defendant
in a cause of action for intentional torts, the mental state of a defendant in a strict liability
action is irrelevant. Therefore, it is to say that Helmi’s mental state is irrelevant as to his
intention to cause the damage for the ignitation of the of the bonfire.
In the case of Rylands v Fletcher (1868), the House of Lords held the defendants liable
despite them not negligent nor were they vicariously liable for the negligence of their
independent contractors (of not blocking the shafts that flooded plaintiff’s mine). Blockburn J
in the Court of Exchequer Chamber said, “the person who for his own purposes brings on his
lands and collects and keeps there anything likely to do mischief if it excapes, must keep it in
at his perit, and, if he does not do so, is prima facie answerable for all the damage which is
the natural consequence of its escape.” Another requirement was later added to use this rule is
the proof of a non-natural use of land.
b. Three elements established
i. Dangerous things
There must exist a dangerous ‘thing’. What is dangerous is a question of fact and it applies to
anything that may cause damage if it escapes. Once this element is fulfilled, then the ‘thing’
is a dangerous ‘thing’.The object need not be dangerous per se but are dangerous if they
escape. This principle may be apply to gas, noxious fumes, explosives, fire, electricity, water
and sewage. In the case of Ang Hock Tai v Tan Sum Lee & Anor, the court found the
defendant liable under the rule Rylands v Fletcher as petrol was a dangerous thing as it
caused the spread to the premises, resulting in death of two people.
Applying the rule to our current case, Helmi started a bonfire and a bonfire is a dangerous
thing as when it spreads it can damage other premises. This element is therefore fulfilled.
ii. Intentional storage
The rule only applies to an object which the defendant purposely keeps and collects. If they
were naturally on the land, this rule will not be applicable. In the case of Giles v Walker,
defendant ploughed his land but left it unattended. Thistles grew on the land, which later
escaped to the plaintiff’s land and seeeded. The court held that the thistles were the natural

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growth of the defendant’s land and so he could not be found liable. In pontardawe RDC v
Moore-Gwyn, due to changes in the weather some rocks from the defendant’s land fell onto
the plaintiff’s land. The defendant was held not liable as he did not accumulate the rocks.
Moreover, the escape was not caused by the defendant’s act.
Since a bonfire is not something that grows naturally on a person’s premises, it can be
concluded that this rule is be applicable to Helmi. Besides, that, it was his conduct that the
bonfire was started (in contrast of the case RDC v Moore-Gwyn) and spread and therefore, he
fulfills the element that it was his intentional storage.
iii. Escape
Escape means the thing has escaped from a palce over which the defendant has control and
authority to a place over which the defendant has no control and authority. In Weng Lok
Mining Co Ltd v Hiap Lee Brickmakers Ltd, the court held that escape must be proven before
the principle in Rylands v Fletches is applicable. In Ponting v Noakes, the plaintiff’s hourse
reached its head into the defendant’s land and ate the poisonous leaves of a yew tree which
was planted on the defendant’s land. The court held that there was no escape as the tree and
its leaves did not extend beyond the defendant’s boundry and so the plaintiff failed in this
action.
In contrast, Helmi’s bonfire has extended beyond his premises boundry in which it has
entered his neighbours’ and destroyed the garden shed. Therefore, it can be said that there has
been an escape.
Who can claim
Clearly a person who has an interest in land and who has suffered damage to his land or other
property has a right to claim under this rule. The House of Lords in Hunter v Canary Wharf
Ltd held that a plaintiff in a nuisance action must have an interest in land or be in exclusive
possession of it.
Who can be sued
The one that can be sued is the one responsible for the accumulation of the dangerous thing
and has control over it at the time of the escape. Accumulation could be the direct act of the
defendant himself

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5. Conclusion
Helim has legal liability under public nuisance, private nuisance and strict liability.