Subjek: Constitutional & Tort Law Tahun: 2013 Semester 2 (2013/2014)

1. PROBLEM BASED LEARNING
TORT LAW +
CONSTITUTIONAL LAW

2. SALMAH
ASLINDA
SYAKIRAHATHEEFA
RAFIDAHNABILAH HANIS

3. OUTLINE
OF PBL
PRESENTATION
Introduction
Nuisance
Federalism
Suggestion

4. INTRODUCTION

5. Heavy vehicles
usually emitted/
produced
black smoke
STATUS QUO

6. SUBSTANCE IN
BLACK SMOKE
Water Nitrogen
Carbon Aldehydes
Carbon MonoxidePolycyclic Aromatic
Hydrocarbon
Oxide of
Sulphur
Oxide of
Nitrogen

7. Quality of Diesel used
Type of Engine
State of Engine Tuning
Fuel Pump Setting
Workload Demand of Engine
Engine Temperature
Maintenance of Engine
FACTORS THAT AFFECT
BLACK SMOKE

8. 1) Nuisance to people
2) Health Problem
Respiratory Problem
Irritation of Eyes
Lung Problem
Cancer
Can even led to death if it is excessive
PROBLEMS

9. NUISANCE

10. Majlis Perbandaran Pulau Pinang v Boey Siew Than
& Ors [1978] 2 MLJ 156
Gunn Chit Tuan J (at 158): “… it is clear that a nuisance
is a public nuisance, if, within its sphere, which is the
neighbourhood; it materially affects the reasonable
comfort and convenience of a class of the subjects of
the State”
PUBLIC OR PRIVATE NUISANCE?

11. Section 268 of Penal Code, Act 574
A person who is found guilty of public nuisance
may be subject to a criminal sanction
PUBLIC NUISANCE IS A CRIME

12. The smoke emission was likely to cause annoyance to
any persons and thereby committed an offence under
rule 107 of the Motor Vehicles (Construction &
Use) Rules, 1959, and punishable under section
146(1)(d) of the Road Traffic Ordinance, 1958
PUBLIC PROSECUTOR V CHANG
HUI PAT [1969] 2 MLJ 74

13. REQUIREMENTS FOR
ALLEGATION
Annoyance
• Whether the emitted smoke is likely
to cause annoyance to any person?
Claimant
• Whether there must be a complaint
by a specific person?

14. Based on opinion is allowed
Ibrahim J: “… the prosecution witness who had seen the
smoke emitted expressed the opinion that it was likely
to cause annoyance to others and one of them had given
the reason why he was of that opinion, a case had been
made out by the prosecution which if unrebutted
would warrant a conviction.”
ANNOYANCE

15. Witness of the offence is sufficient
Ibrahim J: “ … the learned magistrate was wrong in
holding that there must be a specific person to whom
annoyance was likely to be caused by the smoke
emitted.”
CLAIMANT

16. Wing v. The New Brunswick Brick And Pottery Co.
Pty. Ltd
Meaning of „dense‟, „opaque‟ and „black‟
No certain objective standard with respect to the above
words has been prescribed
Construed according to their dictionary meanings
No definition thereof being required
INTERPRETATION OF „BLACK
SMOKE‟

17. A system of smoke observation – exhibit in this case
Consist of five squares numbered respectively 1 to 5
Square No. 1 is white, square 2 to 4 each has graph lines
criss-crossed
Graph lines darken from square 2 to square 5
Square 5 is completely black
“THE RINGELMANN METHOD”

18. • Public nuisance is an act or omission which inflicts damage ,
injury , or inconvenience on subjects of the State or on
members of a class who come within the sphere or
neighborhood of its operation , and it might affect some
members to a greater extent than others.
• Section 8(1) of the Government Proceedings Act 1956(GPA)
provides that the Attorney-General , or two or more persons
who have obtained written permission from the Attorney-
General , may institute a suit in public nuisance for a declaration
and injunction or for such other relief as may be appropriate to
the circumstances of the case. This may be done even without
suffering any special damage.
WHETHER OTHER ROAD USERS MAY
SUE THE LORRY DRIVER ON THE
GROUND OF PUBLIC NUISANCE?

19. In MPPP v Boey Siew Than,
it was held in High Court that the plaintiff local authority brought an action
without the written consent of the AG. On appeal from the plaintiffs, the
Federal Court held that since the plaintiff had commenced its action based on
section 80 of the Local Government Act 1976 which allowed a local authority
to take in its own name, it was therefore released the local authority from the
obligation stipulated in section 8(1) of GPA for the interest of justice and of
the proper functioning of the plaintiff as a local authority of the plaintiff as a
local authority.
CASE 1

20. Lee Boon Tien@ Lee Mun Teng & 19 Ors v Hiap Lee (Petrol) Sdn Bhd &
2 Ors
The Plaintiffs' contention that they had experienced physical and emotional
suffering as a result of being constantly exposed to gasoline fumes or
petrol smoke is entirely unsupported by any cogent or compelling
evidence. The Plaintiffs' allegations that the Defendants have committed
acts of inter alia trespass, negligence or nuisance are inherently incredible.
Indeed, a perusal of the contents of the affidavits indicates that the Plaintiffs
have not produced any evidence to support the allegations and as such have
failed to make out a case for the said trespass/negligence/nuisance. After
weighing all the matters adumbrated above I find that the Defendants would
suffer greater injustice by the grant of the injunctions sought, than by its
refusal. In the result the court dismissed the plaintiff's application for injunctive
relief with costs.
CASE 2

21. A person who have suffered particular damage need not have an interest in
land to sue the tortfeasor. The plaintiff would be award damages if he can
prove the degree of injury and it must a substantial and direct consequences.
In conclusion, the other road users may sue the lorry driver on the ground
public nuisance.
CONTINUE

22. FEDERALISM

23. WhichAuthoritiesgovern
theenvironmentalissue?
Environmental
Quality Act
1974
Environmental
Quality
(Control of
Emission from
Diesel Engine)
Regulation 1996
Environmental
Quality
(Compounding
of Offences)
Rules 1978
DEPARTMENT OF
ENVIRONMENT

24. Section 1(1) : apply to the whole Malaysia
Ketua Pengarah Jabatan Alam Sekitar & Anor V Kajing Tubek & Ors And
Other Appeals
Issue :Whether Environmental Quality Act 1974 applies in Sarawak
(Per Gopal Sri Ram and Mokhtar Sidin JJCA) Courts should, when determining the
scope of Federal and state legislation upon a particular subject, ensure that the
enactments of each legislative power were read so as to avoid inconsistency or
repugnancy between them.Sarawak had exclusive authority to regulate,by legislation
,the use of it in such manner as it deemed fit.
Court held that Environmental Quality Act does not apply in Sarawak
ENVIRONMENTAL
QUALITY ACT 1974

25. Rules 1(2) : shall apply throughout Malaysia
Interpretation : „emission of pollutants‟
First Schedule : emission standards of pollutants
Part III : smoke emission control of motor vehicle
ENVIRONMENTAL QUALITY
(COMPOUNDING OF OFFENCES)
RULES 1978
ENVIRONMENTAL QUALITY (CONTROL
OF EMISSION FROM DIESEL ENGINES)
REGULATIONS 1996

26. The main function of the DOE is to prevent, eliminate, control pollution and
improve the environment, consistent with the purposes of the
Environmental Quality Act 1974 and the regulations there under DOE is
also responsible for the implementation of the resolutions decided by the
conventions and other areas while the success of programs of bilateral
cooperation and multilateral cooperation between Indonesia, Singapore and
other ASEAN countries on environmental management.
DEPARTMENT OF
ENVIRONMENT (DOE)

27. DEPARTMENT OF
ENVIRONMENT (DOE)
Minister of Natural Resources
and Environment – YB Datuk
Seri G. Palanivel
Deputy Minister – YB Dato‟ Sri Dr.
James Dawos Mamit

28. • Implement the enforcement program EQA 1974 and the regulations
promulgated thereunder.
• To conserve and enhance the quality of the environment.
• Monitoring and control of air pollution from factories, vehicles and open
burning.
• To provide advice to developers development.
• To provide input and advice to the State Government and local authorities in
the planning of development projects.
• To carry out an investigation into alleged environmental contamination.
• Processing of Environmental Impact Assessment (EIA).
PRIMARY FUNCTION OF DOE
STATES OFFICES

29. OUTSOURCE
the task of conducting smoke
emission tests on diesel-run
vehicles compounded for excessive
smoke emission

30. What are the compound that can be exerted towards the vehicles with
excessive smoke emission?
COMPOUND OF EXCESSIVE
SMOKE EMISSION

31. WhichAuthoritiesgovern
thecompoundissue?
 ENVIRONMENTAL QUALITY ACT
1974
Section 21
 ENVIRONMENTAL QUALITY
(CONTROL OF EMISSION FROM
DIESEL ENGINES) REGULATION
1996
Regulation 21 :Offences which may be
compounded
 ENVIRONMENTAL QUALITY
(COMPOUND OF OFFENCES)
RULES 1978
Rule 2 : Sum to be collected and
method of payment
FEDERAL SUBSIDIARY
LEGISLATION

32.  ENVIRONMENTAL QUALITY ACT 1974
• Section 21
 ENVIRONMENTAL QUALITY (CONTROL OF EMISSION FROM
DIESEL ENGINES) REGULATION 1996
• Regulation 21 :Offences which may be compounded
 ENVIRONMENTAL QUALITY (COMPOUND OF OFFENCES)
RULES 1978
• Rule 2 : Sum to be collected and method of payment
FEDERAL SUBSIDIARY
LEGISLATION

33. SUGGESTION

34. • Introduction of National Biofuel Policy 
encourage the public to utilise the affirmative fuel as a clean fuel
source (from the paperwork of PETRONAS)
• Initiative of Department of Environment
1) using alternative fuel
2) encourage car poolamong road users
3) improve the efficiency of public transport
4) adoption of european fuel quality standards
5) adoption of stringent engine emission standards
6) regulation enforcement

35. FLYERS