Nuisance

Bhumika Nanda
Nuisance

• Tort of Nuisance sets out to protect the right to use and enjoy land, without interference from others.

• Types of Nuisance – Private and Public Nuisance

• Private Nuisance – unreasonable interference with another’s use or enjoyment of land or some right over, or
in connection with it.
• Encroachment on a neighbour’s land, physical injury to the land; or interference with the enjoyment of
the land.
• Generally – the essence of a nuisance is a state of affairs that is either continuous or recurrent – a
condition or activity which unduly interferes with the use or enjoyment of land.
• Assessing what is reasonable – the court will try to balance each party’s right to use the land as they wish –
an attempt to preserve a balance between two conflicting interests – that of one occupier in using his land
as he thinks fit and that of his neighbours in the quiet enjoyment of his land.
• Therefore – the nature and quality of the defendant’s conduct is a factor of great importance.

• Nuisance to Servitudes – tort of nuisance provides a remedy for the infringement of a servitude – such as
obstruction of a right of way or the blocking of an acquired right to light.
• Elements

• An indirect interference with the enjoyment of the land,

• That the interference was unreasonable, and
• That this interference caused damage to the claimant.

• Interference – Must be indirect and that they usually be the result of a continuing state of affairs – rather than
a one-off incident. E.g. – roots of a neighbour’s tree spreading into the claimant’s land, water flooding onto
land, nuisance caused by something intangible such as noise or smells - Substantial interference.

• Nuisance by encroachment,
• Physical injury to a neighbour’s land
• Interference with a neighbour’s quiet enjoyment of land

• Continuing a nuisance – an occupier of land can also be liable for nuisance caused by naturally arising
hazards, providing they are aware of their existence and fail to take reasonable precautions.
• Reasonableness –

• A balancing exercise – the central issue – is the question of reasonableness of the defendant’s conduct
according to the ordinary usages of mankind living in a particular society.
• Reasonableness used – is different from that in the law of negligence
• To balance the competing rights of neighbours – a process of compromise – directing the attention
towards the ‘reasonableness’ of defendant’s conduct rather than to whether defendant took
reasonable care in the negligence sense
• Reasonableness signifies what is legally right between the parties taking account of all the
circumstances of the case.

• 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.

• Question of Fact – whether an act constitutes a nuisance cannot be determined merely by an abstract
consideration of the act itself – but by reference to all circumstances of the particular case, the time and place
of its commission, the seriousness of the harm, the manner of committing it, and the effect of its
commission, etc.
• The type of harm and the character of the locality –

• Distinction between ‘sensible injury to the value of property’ or ‘material injury to property’ and
physical discomfort.
• Sensible inconveniences – an inconvenience materially interfering with the ordinary physical comfort of
human existence
• Damage – substantial – actual damage and not contingent, prospective or remote damages.
• Character of the locality – relevance of the defendant’s own activity & relevance of planning
permission – use of land in common and ordinary way or unnatural or unusual way – only material
interference with the ordinary comfort of life.
• Obstruction of light; pollution of air or water and noise

• Social utilities or general benefit to the community of the defendant’s conduct – will only justify an
injurious activity up to a certain point and that point is reached when serious damage is being done to the
claimant’s property or to his livelihood.

• Abnormal Sensitivity – if the only reason why a person complains of fumes is that he has an unusually
sensitive nose or that he owns an exotic flower, he cannot expect any sympathy from the courts.
• A Continuing State of Affairs –

Often said that a continuing state of affairs is normally necessary in nuisance – the frequency of the
escape to the claimant’s land and the gravity of the harm likely to be caused are important factors in
determining whether a dangerous state of affairs existed
On the other hand – it has been said that there can be liability in private nuisance for a single or isolated
escape as opposed to a state of affairs where there is both unreasonable or negligent user of land and
foreseeability of escape.

• Is malice material in nuisance –

• If A’s legitimate use of his own property causes to B annoyance which does not amount to a nuisance, will
the fact that A’s acts are done solely for purpose of annoying B convert them into a nuisance?
• Malice here means a bad motive. Where a defendant acts with malice, that may be relevant to the question
of reasonableness, in that it may make what would have been reasonable conduct unreasonable.

• Standard of liability in Nuisance

• The extent to which fault (in the sense of negligence) is necessary to establish liability in damages for
nuisance?
• Nuisance was originally a tort of strict liability - Regardless of whether they had done so deliberately,
carelessly or quiet unknowingly – whether it is still the same?
• Damages to be reasonably foreseeable
• Damage – Physical damage to the land, discomfort, inconvenience – actual and/or substantial damages
• Although damage needs to be proved – the law will often presume it – inference – applies to any
nuisance where the damage is so likely to occur that it would be superfluous to demand evidence that it
has occurred.
• Evidence of substantial annoyance is required
• No claim for physical injury

• Who can sue – a claimant in nuisance must have a legal interest in the land which is affected by the
nuisance.
• For what is being remedied by the law is not the personal discomfort of the persons on the land but the
diminution in the value of the land – ‘amenity value of the land is diminished so long as the nuisance
continues’
• Who can be sued –

• Creator of the nuisance

• Not necessary that the nuisance should have been created by the use of the defendant’s land

• Occupier of that land

• Nuisance created by persons lawfully on Premises
• Servants vis a vis Independent Contractor
• Non-delegable duty and special danger of nuisance
• Licensees – occupier is liable if he had knowledge, means of knowledge, of the nuisance and failed to
take steps to control the licensee.
• Nuisance created by a trespasser or resulting from an act of nature
• ‘Adopts’ the nuisance by using the state of affairs for his own purposes
• ‘Continues’ a nuisance – if once he had actual or contractual knowledge of the existence he fails to
take reasonably prompt and efficient steps to abate it.
• Once the occupier becomes aware of the nuisance and fails to remedy it within a reasonable time, he
may be liable for any damage it may cause, either to his neighbour or the user of the highway.
• Subjective standard of care – not disregarding the fact that occupier is confronted with a nuisance not
of his own creation – the court is entitled to consider the occupier’s individual circumstances – cannot
be made liable unless he is in a position to take effective steps to abate the nuisance.
 • Nuisance created by predecessor in title
• Only if it can be proved that he knew or ought reasonably to have known of its existence
but not otherwise

• Owner of the land/Landlord on which the nuisance originates

• Nuisance authorized by landlord – if landlord has expressly or impliedly authorised his tenant
to create the nuisance.

• Landlord knew or ought to have known of the nuisance before the letting.

• Landlord has covenanted to repair or has the right to enter and repair.
• Defences –

• Statutory Authority
• Prescription
• Consent

• Non Defences –
• Coming to Nuisance – if annoyance is unreasonable – the claimant can claim damages – even if it has
been going on long before he came there,
• Usefulness – no defence once the nuisance has been proved
• Nuisance due to many
• Reasonable care -

• Remedies –
• Injunction – discretion – public interest – temporary or mandatory injunction
• Damages – measure of damages
• Abatement [Self help/extra judicial remedies] – notice must be given
• Public Nuisance

• Different from the tort of private nuisance – need not have any connection with the use of land, either by
defendant or claimant and is as likely to arise form a single act as from a continuing situation.

• Same set of facts/affairs may constitute both private nuisance as well as public nuisance.

• Public Nuisance – an act affecting public at large or some considerable portion of it – must interfere with rights
which members of the community might otherwise enjoy – acts which seriously interferes with the health, safety,
comfort or convenience of the general public.

• Public nuisance is a crime. Private nuisance is a tort. They are dealt with by, or in the name of the State.

• Section 268 Indian Penal Code, 1860 – A person is guilty of a public nuisance who does any act, or is guilty of
an illegal omission – which causes common injury, danger or annoyance, to the public or to people in general who
dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance
to persons who may have occasion to use any public rights
A common nuisance is not excused on the ground that it causes some convenience or advantage.

• Include diverse activities – carrying on an offensive trade, keeping a disorderly house, selling food unfit for human
consumption, obstructing public highways and throwing fireworks in the street.
• Public nuisance can only be the subject of one action – otherwise a party might be ruined by a million
suits.

• Public nuisance does not create a civil cause of action for any person – in order that an individual may
have a private right of action in respect of a public nuisance –

• Must show a particular injury to himself beyond that which is suffered by the rest of public

• Such injury must be direct and nor a mere consequential injury – means damage other or different
from the damage caused to the rest of the public [narrower than when ‘direct’ is used in
determining whether damage is too remote.]

• Injury must be shown to be of a substantial character

• Damages for personal injury may be recovered in public nuisance.

• The defence of prescription is available in cases of private nuisance, but not in cases involving a public
nuisance
Remedies in cases of Public Nuisance

• Criminal Prosecution under such section of chapter XIV of the Indian Penal Code as may be applicable
to the case - Section 268 IPC

• Removal of nuisance or stopping the nuisance-causing activity by the orders of the magistrate under
section 133 CrPC [Chapter X (Part B) – Maintenance of Public order and Tranquillity] and Section 188
of IPC

• Section 91 of CPC - action by the Advocate General, or two or more persons with the leave of the Court
where a declaration or injunction or some other appropriate relief is desired to put an end to a public
nuisance.

• Action by a private individual, where s/he has sustained some particular direct and substantial damage.
[damages/compensation and injunction]
• Defences –

• Statutory Authority

• Remedies –
• Injunction
• Damages – measure of damages
Datta Mal Chiranji Lal v. L. Ladli Prasad and Ors., AIR 1960 ALL 632

Electric Flour mill adjacent to house – causing lot of noise and vibration and causes great
inconvenience and discomfort to them plaintiff and his family members.

Ram Baj Singh v. Babulal, AIR 1982 ALL 285

Plaintiff a medical practitioner and having his own consulting chamber – the defendant operates a
brick-grinding machine. Brick grinding machine was generating dust which polluted the atmosphere
and entered the consulting chamber of the plaintiff and caused physical inconvenience to him and his
patients.
Books:
1. Ratanlal & Dhirajlal, The Law of Torts, Lexis Nexis, 2016 (27th Edition.)
2. W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010 (18th Edition.)
3. Catherine Elliott and Frances Quinn, Tort Law, (Pearson; 10 editions, 2015)

Websites:
1. www.manupatra.com
2. www. westlaw.com