Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Kruse v Aiafi [2001] WSSC 11 (26 March 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

DONALD KRUSE,
Pastor and his wife
HOPE KRUSE
both of Sogi.
Plaintiffs

AND:

TANIELU AIAFI
of Apia, Businessman.
Defendant

Counsel: S Leung Wai for plaintiff
TRS Toailoa for defendant

Hearing: 23 February and 5, 19 March 2001
Judgment: 26 March 2001

JUDGMENT OF SAPOLU CJ

The plaintiffs are a married couple. They live with their three young children who attend school on the top floor of a two-storey building at Sogi. They have been living there since 1998. The defendant and a partner own and operate a bar and nightclub called Beggars Bar next door on adjoining land. The plaintiffs complain that the defendant creates a nuisance by noise from music played in the nightclub from 6pm to 8pm and excessively loud music from a band which plays from around 8pm to 12 midnight every night of the week from Monday to Saturday. They say the noise is particularly objectionable when the band is playing as the music from the band is always very loud.

The plaintiffs claim that the noise materially and substantially interferes with their comfort and convenience. Any chance of sleep at night is virtually destroyed when the band is playing and their children cannot concentrate on their school homework. Some nights when the loud music becomes exceedingly intolerable, they move with their children to their bedroom which is furthest away from the defendant’s nightclub. Even then, the nuisance remains. On some nights, they have had to leave their house because of the intensity of the noise from the band. The plaintiffs also say they have made complaints to the staff of the nightclub about the intensity of the noise but to no avail. Thus the noise from the defendants nightclub has caused substantial discomfort and inconvenience, and undoubtedly much annoyance to the plaintiffs.

From the photos of the defendants nightclub that were produced for the plaintiffs, it is clear the nightclub has no windows on the front and the eastern and western sides. There are no louvres or panes but just openings to let the air in or out. There are only what appears to be canvases or tarpaulins rolled up to just beneath the corrugated irons which form the roof of the nightclub. Presumably these canvases or tarpaulins will be let down when it rains to keep the water out, or when the nightclub is closed, but not when music is played at night inside the nightclub. The nightclub also has only walls made of wood towards the back. The building where the plaintiffs live is on the western side of the nightclub towards the back by a short distance.

As this Court said in Josie Bernard v Seiuli Paul Wallwork (1995) (unreported judgment delivered on 20 June 1995), the tort of private nuisance is concerned with harmful interference with a person’s beneficial use or enjoyment of land. Such interference includes disturbance of a person’s comfort or convenience. But it is not every harmful interference that will constitute a nuisance. The interference must be substantial and unreasonable. Whether an interference falls within that category is largely a question of fact to be determined according to the objective standards of a reasonable person living in the particular locality where the nuisance complained of takes place. It has been said the question is not to be determined according to the subjective notions, sensitivities or idiosyncrasies of the plaintiff.

In this case, the noise from the defendant’s nightclub is exceedingly loud, particularly when the band plays at right from 8pm to 12 midnight or after midnight. This happens every night of the week from Monday to Saturday. The locality is a mixed commercial and residential one. There are two other nightclubs in this area, one is presently under renovation. But there have been no complaints from people living in the area against those nightclubs. They are nightclubs operated in well constructed buildings which no doubt helps to contain or minimise the noise. The same cannot be said of the structure of the defendant’s nightclub. Perhaps the absence of complaints against those nightclubs is also because they do not play very loud music.

In any event, the music from the defendant’s nightclub has substantially interfered with the plaintiffs comfort and convenience in an unreasonable manner. The plaintiffs have therefore established their claim in nuisance.

At the conclusion of the hearing on 5 March, I granted to the plaintiffs an interim injunction to prohibit the defendant from allowing the playing of the band in his nightclub at night from 8pm onwards except on Friday nights. Proceedings were then adjourned to 19 March for the defendant to take proper measures to eliminate the nuisance. On 19 March, counsel for the defendant informed the Court that the defendant had put up a concrete wall on the western side outside of the existing wooden wall of the nightclub and has done up the roof. Counsel for the plaintiff, on the other hand, informed the Court that the intensity of the noise as heard in the plaintiff’s place has not changed. Counsel for the defendant then asked the Court for an independent witness to be called to inspect the situation and to testify whether the nuisance still exists. I was not prepared to further delay proceedings to find such a witness. The defendant may still call such an independent witness if one is found, and if his evidence supports the defendant’s contention. That may be done in a motion to discharge the injunction. In the meantime proceedings should not continue to be held up in order to find such a suitable independent witness. At this stage, the Court accepts what was said on behalf of the plaintiffs.

By doing up the roof of the nightclub and putting up a concrete wall outside of its western wooden wall, it was suggested on behalf of the defendant that the defendant has taken substantial measures to prevent the nuisance. In my view, this provides no defence in this case if the nuisance still persists. In the New Zealand case of Mayfair Ltd v New Zealand Properties Ltd [1940] NZGazLawRp 9; [1940] NZLR 190, which was a case of nuisance, Myers CJ said at p. 195:

"It should be said at this stage that neither of the defendant companies has been in any way contumacious or assertive of its nights or indifferent to the rights of others. On the contrary, they have at various times sought advice as to the steps to be taken to avoid a nuisance, and have done everything they have been so far advised to do to that end. Moreover the permit for the construction of the building was not granted by the City Council until the City Engineer and the By-laws Committee had made investigations with a view to satisfying themselves that no nuisance would arise. It is clear on both principle and authority, however, that these facts afford no defence if in fact a nuisance has been created."

A similar view is taken by two of the leading English textbooks on the law of torts. In Salmond and Heuston on the Law of Torts (1992) 20^th edn, it is stated in p. 77:

"In the case of continuing nuisances, where the defendant himself or someone for whom he is responsible has created the nuisance, it is no defence that all possible care and skill are being used to prevent the operation complained of from amounting to a nuisance. If an operation cannot by any care and skill be prevented from causing harm, it cannot lawfully be undertaken at all, except with the consent of those injured or by the authority of a statute."

In Winfield and Jolowicz on Tort (1994) 14^th edn, it is stated in pp 406-407.

"On the other hand, if, after balancing the competing interests of the parties, the Court considers that the interference is excessive by any standards then the fact that the defendant has taken all reasonable care and reduced it to a minimum provides no defence – the irreducible minimum is itself the nuisance."

A similar view is also expressed in The Law of Torts (1992) 8^th edn by Professor Fleming, which is not an English textbook, where it is stated in p. 424:

"Secondly, we shall see that the ‘duty’ not to expose one’s neighbours to a nuisance is not necessarily discharged by exercising reasonable care or even all possible care. In that sense, therefore, liability is strict. At the same time, evidence that the defendant has taken all possible precaution to avoid harm is not immaterial, because it has a bearing on whether he subjected the plaintiff to an unreasonable interference, and it is decisive in those cases where the offensive activity is carried on under statutory authority."

In this case, there is no question that the band which plays in the defendant’s nightclub does not do so under statutory authority. Given the present structure of the nightclub, it would be very difficult, if not impossible, to contain the loud noise from the band within the nightclub, or prevent it from disturbing neighbouring residents. The preventive measures taken by the defendant so far have been unsuccessful. Even if those measures are taken into account, they do not, in my view, make the offensive interference caused by the loud music from the band to the comfort and convenience of the plaintiffs reasonable.

All in all then, an injunction is granted to restrain the defendant, his agents, employees, servants, workman or any other person acting by or under his authority from playing or singing, or allowing to be played or sing, loud music at Beggars Bar as to cause a nuisance by reason of noise to the plaintiffs. Leave is, however, reserved to either party to apply at a future time to have the injunction varied or discharged. This should enable the defendant to apply in the future if he finds an independent witness who can satisfy the Court that the nuisance no longer exists.

As the plaintiffs were willing to withdraw their claim for damages if their motion for an injunction is granted, the Court makes no award for damages.

The plaintiffs are awarded costs to be fixed by the Registrar according to scale.

CHIEF JUSTICE

Solicitors:
Leung Wai Law Firm for plaintiffs
Toailoa & Associates for defendant