Nuisance & Negligence: Common Law perspective on environmental liability and claims

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Environmental Quality Act 1974 is Federal Act relating to the prevention, abatement, control of pollution and enhancement of the environment, and for purposes connected therewith. This Act makes provision for the prevention, abatement, control of pollution and enhancement of the environment.

However, there are limited cases reported in Malaysia under the Act on the infringement of the provisions even though it can be summarise that numbers of legislation that governed the environments are quite comprehensive.

Based on the reported cases in Malaysia, the environmental liability and claims can also arise from common law causes of actions such as Nuisance and Negligence. Thus the liability are not limited from a breach of the EQA 1974. Claims in respect of nuisance and negligence can be see in the following reported cases:[1]


The act of nuisance can be defined as a condition or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property. Liability might or might not arise from the condition or situation. Formerly also termed annoyance[2]. According to the case of Chan Jen Chiat v Allied Granite Marble Industries Sdn Bhd [1994] 3 MLJ 495.The plaintiff had leased land for horticulture and fishery and used as a source of drainage an existing system flowing through the defendant’s lot. The defendant then built a factory on his land which affected the plaintiff’s flow of water as well as polluting it. The court held that the defendant’s earthworks in connection with the con­struction of the factory constituted an interference with the plaintiff’s lawful use of his land and was therefore an actionable nuisance.


Negligence in law signifies a coming short of the performance of duty. It is said very truly that the definitions of negligence, by court and text-writers, are perhaps more numerous than of any other title in the scope of the law, and are not altogether harmonious. Negligence is the absence of care according to the circumstance. The sole standard is the want of that amount of care which required to be shown in the circumstance of each particular case by reasonably careful man [3] . An example of this can be found in the case of Mc Gowan & Anor v Wong Shee Fun & Anor,[1966] 1 MLJ 1. where the first defendant was the owner and developer of the land known as Jalan Water Works Estate. The second defendant was the owner and developer of land adjacent to the first defendant’s land. The plaintiff alleged that the defendants had indiscriminately stripped off the top soil of their lands and so caused and allowed the stream to be become silted due to the erosion of the land, thus causing flooding that caused damage to the plaintiff’s land. In addition, the first defendant had constructed across the river a culvert which was inadequate to cope with the water that was likely to flow down the stream during or after a heavy rainfall. The court held that both the defendants were negligent for not having taken all reasonable steps to prevent fine earth from being washed down the sides of the slopes into the stream.



[2]Words, Phrases and Maxims/Lexis Nexis

[3] Words, Phrases and Maxims/Lexis Nexis

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