Nuisance

Nuisance in general

For a nuisance claim to be actionable, the plaintiff must prove the defendant has caused substantial and unreasonable interference in which the determination depends on the nature of damage suffered. According to St Helen’s Smelting Co v Tipping [1865] 11 HL Cas 642, physical damage such as water leakage automatically implies substantial and unreasonable interference, while for intangible interference such as noise and smell, the plaintiff is obliged to prove this element.

The noise sounds familiar to Hong Kong citizens due to the cramping living environment. Section 4 of the Noise Control Ordinance prohibits people from generating noise, which is a source of annoyance to any person between the hours of 11 pm and 7 pm, and section 2 defines ‘annoyance’ as interference that would not be tolerated by a reasonable person. In Capital Prosperous Ltd & Anor v Sheen Cho Kwong [1999] 1 HKLRD 633, the plaintiff complained about the noise originating from the showers’ water pump late at night and sought an injunction to stop his use of the shower after 11 pm. Yet, the Court considered that most Hong Kong people stay up late at night. It was reasonable for the defendant to take pump-assisted showers after 11 pm, showing that whether the ‘noise’ accounts for interference largely depends on the circumstances and people’s usual practice.

For smoke and smell, the same principle is applied that a reasonable person’s tolerance level is considered. In Hu Wei Hsin v Ma Hung Wing [2011] HKEC 736, the plaintiff complained that the burning of incense by defendants cause substantial and unacceptance interference to their lives and health and applied for a permanent injunction. The Court affirmed the impact on the plaintiff and granted damages, as the interference indeed caused illness to the plaintiff and her family. It is worth to notice that the standard for intangible interference is objective; a plaintiff’s over-sensitivity to noise, smoke or smell would not be taken into account. Therefore, before raising any claims, you are advised to examine the gravity of the interference, such as measuring the decibel of noise and seek guidance from professionals to assure such interference counts as a kind of annoyance.

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