Recommendations to Reform: Save from Current Detrimental Law From the first glance of the question of the assignment,

the questions, What are the defects?, What are the reforms to the current law? will definitely cloud the mind of all fellow students. However, before the paper finally steps into the suggestions of reform, it is absolutely essential to take an insight of the problems that came before these suggestions. Firstly, the current law allows anyone with propriety interest to sue but not anyone who stayed at the place whom was too affected by the nuisance. Private nuisance is only protecting the rights over the land or property as found in Malone v Laskey.i The very initial case that brought the light into the very issue is in the case of Khorasandijan v Bush,1 where the Court of Appeal came to an astounding decision that anyone who is the occupier of a home has the stand to sue for nuisance of that home. It is worth to note the obiter dicta by Dillon L.J which states that: .ridiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or leasehold propriety interest in the premises in which he or she has received the calls.2 The author would fully agree with the above statement by Dillon L.J. It is important to consider that any family member who is also the occupant and who is also the person enjoying the use of the land shall have the stand to sue in private nuisance. Here are some other reasons behind the recommendations of reforms. There is contention that one could sue under negligence for the above issues but negligence is not the appropriate subject if the issue will only cause sufferings purely to the enjoyment of the home such as foul smell.ii As for the claim under intentional tort such a trespass, there will be a pre-requisite of direct interference. Hence, the law should provide a remedy of private nuisance, for instance, to the wife or the son to sue. It would definitely impose many hardships and unfairness if the current law to sue exempts this class of people. One of the scenario is when the husband(with propriety interest ) is away for 3 months for a business trip and continuance of noise and dust from the newly built confectionary operating till 11pm , caused the family of sleepless nights and allergic reactions. Can the wife sue? Can the son sue if the wife to the owner is deceased? If not, the family members have to continue in living uncomfortably till the owner is back after 3 months? That would for sure be unfair and detrimental to the family members who are the occupiers of the land. It is really important to note that, the above scenario has been a common situation in this globalisation world, where people would have to travel abroad to work. Hence, the parliament should consider the current circumstances to reform the current outdated law conforming to the current world scenarios. The next important issue to note is that in the European Court of Human Rights, there is a provision under Article 8 which provides an avenue to citizens of the European countries to sue for private nuisance in the European Court. Article 8 gives rights to private life and the remedy will be under Article 13. However, in the context of Malaysia, there is no such law protecting the people. Thus, it is important for the reform to provide the rights to sue for anyone who is considered as the occupier of the home.

1 2

[1949] 65 LQR 480 Ibid, at 734

Nevertheless, a control will be needed. It is too wide to provide rights to all occupiers of the house. If not, members of the house including the servants, the cooks or even the gardener would have the rights to sue in the overly broad law. Therefore, what is the qualification for an occupier to sue in private nuisance? The suggested answer would be that is to any occupier who considers the property as home. In another word, the person who is qualified to sue in private nuisance should be a resident of the house which is purely the rightful tenant or anybody permitted by the owner of the house and not any person who stayed in the place temporary due to employment purposes. Another concern that should be addressed is that will the broadening of the current law cause unlimited times of claims by the different occupiers of the house? The true intention of the current recommendation is to protect other members of the property when there is no legal action taken by the person with the propriety interest over the land. Hence, if any of the occupier filed a claim under private nuisance, he/she is deemed to have claim on behalf of the entire population of the said property. That will also mean that no one else could sue for the same issue. Another limb that should be included as a pre-requisite requirement is that the person who has a fulfilled presumption of proximate relationship could sue. What is considered as a proximate relationship? A proximate relationship could be derived from the case of McLoughin v OBrianiii on the requirement of having a close relationship with the victim. However, in the current context, the close relationship is not to the victim but to the person with the propriety interest over the land or property. For the recommendation, the author would suggest that close relationship should not only be confined to immediate family but to any person who has blood ties that stays in the propriety for a reasonable period of time to be considered as an occupier of the house or premise.(ex: a grandmother who is under care or an uncle who stayed in the same house). The reasonable time would be subjective and circumstances of the each case should be taken into consideration of the court. Another limb to be recommended is that close relationship should also include other relationship in presumption which is accepted by different countries such as lovers who cohabitated with the owner of the house. In a nutshell, the author suggests that there should be a wider approach to be adopted for the current law. Doubtless when a wider approach is adopted, there will be a need to adopt a set of prerequisite requirements to prevent any parties to have an excessive unfair advantage over another party. Therefore, this is the suggestion; the law should allow any person who is the occupier of the house the stand to sue but the person must fulfill the following pre-requisites: 1) Must have stayed in the house or have proof to continuing staying at the property for a reasonable time(subjective); and 2) Must have close relationship to the owner or person with propriety interest over the property ( including any relative permitted to stay at the property); or 3) Any permitted and acceptable types of relationship related to the cohabitation (examples: girlfriend or housemates).
i ii

[1907] 2 K.B 141 Riley v Merseyside Regional Health Authority [1995] 6 Med L.R 246

iii

[1983] 1 AC 410