Assignment
on
“Nuisance”
Submitted to :
DR. SANDEEP
NAME: MUKUL PRATAP SINGH
SUBJECT: LAW OF TORTS
COURSE: LLB. HONS 1ST YEAR FIRST SEMESTER
ROLL NO: 20491
COLLEGE : CENTRE FOR PROFESSIONAL AND ALLIED STUDIES, GURUGRAM
UNIVERSITY- MAHARISHI DAYANAND UNIVERSITY ROHTAK
INDEX
Content Page
1. Introduction 1
2. Meaning and Definition 1-2
3. Essentials Elements of Nuisance 2-3
4. Kind of Nuisance 4-6
5. Remedy of Nuisance 7-8
6. Defenses to an Action for Nuisance 8-10
7. Conclusion 10
Introduction
A person in possession of a property is entitled to its undisturbed enjoyment as per
law. However, if someone else’s improper use or enjoyment in his property ends up
resulting into an un lawful interference with his enjoyment or use of that property or
of some of the rights over it, or in connection with it, we can say that the tort of
nuisance has occurred. Nuisance is an injury to the right of a person’s possession of
his property to undisturbed enjoyment of it any results from an improper usage by
another individual. Nuisance is a word that everybody understands and we can say
that nuisance in common parlance means nothing more than inconvenience to
people or to another. The law recognizes that minor inconveniences should be
endured as they are inevitable; example if you build your house along a high way,
cars will always pass with their horns hooting
Meaning and Definition
The word Nuisance is derived from the French word ‘Nuire’ which means to annoy
or hurt. It is an unlawful interference with a person’s use or enjoyment of land. Under
normal circumstance, a person is entitled to the full and reasonable enjoyment and
use of this property tangible, intangible, movable or immovable, whatsoever. This
being his legal right cannot be taken away without lawful justification. Contrary to the
provided protection if someone unlawfully interferes with this entitlement of a person
he/she commits a tort of Nuisance. As per the most accepted definition of Nuisance
which is the one given by Bermingham,
Nuisance is an unlawful interference with a person’s use and enjoyment of land, or
of some right over, or in connection with it. Hence it is an injury or inconvenience
faced by a person in the use of his property because of another person who
unreasonably uses his own property in a way which negatively affects the former.
According to Stephens
“Nuisance is anything done to the hurt or annoyance of the lands, tenements of
another, and not amounting to trespass.
Another Jurist Salmond expresses
“The wrong of Nuisance consists in causing or allowing without lawful justification
the escape of any deleterious thing from his land or from elsewhere into land in
possession of the plaintiff, e.g. water, fumes, smoke, gas, noise, heat, vibration,
electricity, disease, germs, animals.
Nuisance in Legal Terms
In law, nuisance has a more restrictive meaning than it has in an ordinary parlance.
It is not all inconveniences that will succeed in an action for nuisance. Minor
inconveniences which are usually as a result of normal human interaction in the
society are not actionable in law. The law always tries to strike a balance between
the conflicting interest of the plaintiff and the defendant in the society. So we can
define the tort of nuisance as an act which gives rise to unlawful, unwarranted or
unseasonable annoyance or discomfort to the plaintiff and which results in damage
to the property of the plaintiff or interfere with his use and enjoyment of his land.
Essential Elements of Nuisance
For making an act of Nuisance actionable under the law of tortsthe following
essentials must be satisfied-
Wrongful Act by the Defendant-
For the Action against Nuisance to arise the first essentiality is the conduct of a
wrongful act by the Defendant. This may include any action which is prima facie not
legal and unreasonable in the eyes of a prudent man.
Caveat –If the Plaintiff is extra sensitive and finds the action of the Defendant to be
unreasonable due to his sensitivity, which otherwise is reasonable as per a prudent
man, the action for Nuisance cannot arise.
Damage/Loss/Inconvenience caused to the Plaintiff-
The next essentiality requires a substantive damage or inconvenience to be caused
to the Plaintiff. The maxim “De minimis non curat lex” comes into play and provides
that lw shall not consider trifles or minimal damage claimed by the plaintiff due to his
own sensitivity. Nevertheless, if the act of the Defendant involves the hampering of a
Legal Rights of the plaintiff, nuisance comes into play.
Case Law: In Ushaben V. Bhagyalaxmi Chitra Mandir, where thePlaintiff sued the
Defendant against the screening of the movie “Jai Santoshi Maa” claiming that it
hurts the Religious sentiments of a particular Hindu community, the court dismissed
the Plea stating that hurt to religious feeling was not an actionable wrong and the
Plaintiff is free to not watch the Movie again.
Hence it was held that in order to claim damages for Nuisance, the interference shall
be in a state of continuing wrong.
In Halsey V. Esso Petroleum Co. Ltd, where the defendant’s factory emitted
smokes, oil, fumes and smell and polluted the environment along with harming the
plaintiff’s health because of his own sensitive health issue, the former were held
liable to the latter only for the emission of smoke, oil and fume and not for health
hazard.
Kinds of Nuisance
Nuisance as a tort is further categorized into two types-Private Nuisance and Public
Nuisance, both having their own areas of actions and types of damages.
Private nuisance
Private nuisance protects the interest of the occupier of land or premises in the use
and enjoyment of his land. This type of nuisance usually emanates from the
defendant’s private land or his actions in his private capacity. Accordingly, a plaintiff
must show that he has some interest in the land in question. Thus, the land must not
be public land. The law of private nuisance seeks to strike a balance between two
conflicting interests; that of an occupier in the using his land as he thinks fit and that
of his neighbor in the quiet enjoyment of his land. Thus, a person must not use his
property is such a way that will cause inconvenience to his neighbors.
In an action for private nuisance, the court considers the following:
i) Whether the injury complained of is sensible in the case of material
damage to property and in the case of interference with enjoyment of land,
whether the injury is substantial.
ii) Whether the conduct of the defendant is unlawful, unwarranted or
unreasonable.
Elements which constitute a private nuisance
The interference must be unreasonable or unlawful. It is meant that the act should
not be justifiable in the eyes of the law and should be by an act which no reasonable
man would do.
Such interference has to be with the use or enjoyment of land, or of some rights
over the property, or it should be in connection with the property or physical
discomfort.
There should be seeable seeable damage to the property or with the enjoyment of
the property in order to constitute a private nuisance.
Rose v. Miles (1815) 4M & S.101
The defendant had wrongfully obstructed a public navigable creek which obstructed
the defendant from transporting his goods through the creek due to which he had to
transport his good through land because of which he suffered extra cost in the
transportation. It was held
that the act of the defendant had caused a public nuisance as the plaintiff
successfully proved that he had incurred loss over other members of the society and
this he had a right of action against the defendant.
A nuisance may be in respect of either property or physical discomfort.
1-Property
In the case of a nuisance with respect to the property, any sensible injury to the
property will be enough to support an action for the damages.
2-Physical discomfort
In a suit of nuisance arising out of physical discomfort, there are two essential
conditions required.
In excess of the natural and ordinary course of enjoyment of the property. The
usage by the third party should be of out of the natural course of enjoyment from
one party.
Interfering with the ordinary conduct of human existence.The discomfort should be
of such a degree that it would affect an individual in the locality and people would
not be able to put up or tolerate with the enjoyment.
Public nuisance
Public nuisance refers to that which affects the general public or a section of the
public. It is that which affects the public segment or class of the public by reason that
it is indiscriminate in its effect or widespread. A nuisance may become public
nuisance either from its source or its final effect or destination. Again, a nuisance
that affects a class or a segment of a society is public nuisance and whether the
number of persons affected is sufficient to merit public nuisance is a question of
facts depending on the facts and circumstances of each case. Everything is to be
looked at from a reasonable point of view.
Instances, of public nuisance include obstruction of highway or public roads, public
waterways, noises pollution, oil spillage from the activities of multi-national oil
companies and carrying on obnoxious business like operating a brothel in a GRA.
A public nuisance is usually a crime (see section 234 of the Criminal Code and
sections 192 & 194 of the Penal Code) which can only be prosecuted by the
Attorney General in his capacity as the custodian of public right. In other words, a
private person has no right to prosecute the crime of public nuisance; the Attorney-
General prosecutes.
However, for a private person to sue for public nuisance, he has to show that he has
suffered a particular or special loss/damage over and above that suffered by other
members of the
public. In the case of Daodu v. NNPC, the Supreme Court, per Qguegbu JSC, stated
the position of the law thus, “an obstruction of public highwayor hindering the free
passage of the public along the highway is a public nuisance and a private individual
has a right of action if he can prove that has sustained particular damage other than
and beyond the general inconvenience and injury suffered by the public and that the
particular damage which he sustained was direct and substantial.” The requirement
of proving particular damage will be satisfied if the plaintiff can show that he has
suffered damage which is appreciable greater in degree than any suffered by the
general public.
It is germane to note that, many a time a class or section of the public will sue for
public nuisance and usually the action will fail as the court will always say that a
class action is improper in such cases. This is because all of them put together are
private persons and they cannot enforce public nuisance. It is better to sue
individually by trying to prove that you have suffered over and above all others. A
similar decision was reached in Adediran v. Interland TransportLtd. (supra), where
the plaintiffs/appellants sued in a representative capacity for themselves and on
behalf of residents of a housing estate; the Supreme Court holding that although all
the injuries complained of arise from the same nuisance complained of, each
separate injury is a distinct tort.
Remedies for Nuisance.
The following remedies exist for nuisance. They are
1.Abatement of Nuisance:
This refers to self-help in order to stop nuisance. Generally self-help is not allowed
by the court or the law. Thecourt usually frowns at the remedy of self-help This is to
avoid chaos in the society. In minor cases of nuisance, self help as a remedy may
be allowed by law considering that court cases areusually expressiveand may take
long to determine.
2. Injunction:
This is the most important judicial remedy in cases of nuisance. There are many
types of injunction –
a. Interim injunction – obtained pending the determination of the interlocutory
injunction (applicable in urgent cases).
b. Interlocutory injunction –obtained pending the determination of the final
injunction.
c. Final injunction –this exists to prohibit one from doing something.
d. Prohibitory injunction –this exists to prohibit one from doing something.
e. Mandatory injunction –this exists to mandate one to do something.
Injunction is a discretionary remedy and the court has discretion to grant or
refuse injunction so that even if one has made out a good case for the grant
of injunction, the court may still find a good reason to refuse injunction.
However, the court’s discretion must be exercised judiciously and judicially.
Thus, in the case of Miller v. Jackson (1977) 3 All ER 338, a village.
3.Damages:
This is the monetary compensation for any loss or injury occasioned to the plaintiff
by reason of the nuisance.
There are many types of damages, namely
a. Aggravated damages,
b. Nominal damages.
c. Special damages
Defenses to an Action for Nuisance
It is germane to note that some of the defenses in nuisance are strictly speaking not
defenses but only go to show that nuisance has not been proved. The defenses are;
i) That the act complained of is not unreasonable, unjustifiable, unwarranted
or unlawful.
ii) That there was consent of the plaintiff or volenti non fit injuria. Note
generally that it is not a defense that the plaintiff came into the nuisance
but in appropriate cases the court may use it as a basis for refusal or
injunction such as in Miller v. Jackson.
iii) Prescription –that is the defense in law which is to the effect that the
plaintiff has slept over this right for too long and has therefore lost his right
to sue. At common law in England, where nuisance lasts for 20 years, te
plaintiff can no longer sue.
iv) Contributory negligence.
v) Act of a stranger: that is, that the plaintiff has not made out any case
against the defendant, he has only succeeded in making out a case
against a stranger who cause the nuisance.
vi) Inevitable accident.
vii) Act of necessity.
viii)
Statutory authorization: that is power given by statute. In exercising such powers,
the defendant must ensure that all reasonable care and skill is used and it he does
not go outside the powers given by the statute. Again, statutory defenses are usually
construed strictly against the person exercising the power so as to protect the
citizens. See the case of Ekemode v. Alausawhere a public officer was given power
to clear inland waterways. In exercising that power he removed some canoes from
the water but in the process he damaged a particular canoe and the court held that
the power to remove a canoe is incidental to the power to clear the waterway but
damaging the canoe is not part of the powers given to him by statue, he was
therefore liable for the damage
All in all, it is germane to note that in most cases of oils pillage, the plaintiff would not
know whether to sue for negligence, for nuisance, whether public or private or under
the rule in Rylands v. Fletcher. On how to bring the action, a lot depends on the
facts of each case; but, it may be wiser to sue for all in alternatives, and also add a
claim simply for damages on the basis of Ubi Jus lbi Remedium.
The concept of nuisance relates to the day to day activities of an individual.
The laws made against Nuisance are almost uncodifed save the criminal
aspect of Public Nuisance. Nuisance as a tort got comprehensiveness
through a plethora of judgments along with the works of many eminent
jurist. India were once a British colony has relied heavily on the English
judgments to understand and develop the concept of this tort. However, it
has also amended and modified various aspects of interpretation,
depending upon its own geographical, cultural and economic diversity in
order to strive for providing justice to almost each of its people and
maintain the reign of Rule of Law along with Justice Equity and good
conscience.
Conclusion
A nuisance arises whenever a person uses his property to cause material
injury or annoyance to a reasonable neighbour. Odours, dust, smoke,
other airborne pollutants, water pollutants and hazardous substances
have all been held to be a nuisance. Under both private and public
nuisance law, the plaintiff must prove that the defendant’s activity
unreasonably interfered with the use or enjoyment of a protected interest
and caused the plaintiff substantial harm.
The trier of fact determines whether an activity is unreasonable by
balancing the social utility of the activities against the harm they create.
Private nuisance actions to gain compensation and force polluters to
discontinue interference with their physical private property as well as with
their comfort and enjoyment of their property. Public nuisance law protects
from interference a “right common to the general public.”
