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NUISANCE
The word 'nuisance' is used in popular speech to mean any source of inconvenience or
annoyance, but the tort of nuisance has a more restricted scope and not every inconvenience
or annoyance is actionable. Nevertheless, this tort 'has become a catch-all for a multitude of ill-
assorted sins'/ such as the emission of noxious fumes from a factory, the crowing of cocks in
the early hours of the morning, the obstruction of a public highway, the destruction of a
building through vibrations, and the interference with a right of access to private property. The
remedies available to one who complains of a nuisance are:
(a) damages;
(b) an injunction to restrain further nuisance; and
(c) abatement.
Public nuisance
A public nuisance is committed where a person carries on some harmful activity which affects
the general public or a section of the public, for example, where the owners of a factory cause
fumes and smoke to pollute the atmosphere in the locality, or where an obstruction is caused
on the public highway. Public nuisance is basically a crime, actionable by the Attorney General.
It is a tort, actionable by an individual claimant, only where the latter can show that the
defendant's conduct has caused
him 'particular damage' over and above that suffered by the general public.1 The reason for
this requirement of proof of particular damage is that where a wrong is committed against the
community at large, it is considered to be more appropriate to leave the action in the hands of
the Attorney General as the representative of the public, rather than to allow the defendant to
1 Ramsaran v Sandy (2004) Court of Appeal, Trinidad and Tobago, Civ App No 55 of 2003
be harassed by an unlimited number of suits by private individuals, all complaining of the same
damage.
As to the meaning of 'particular damage', one view is that the claimant must show, that
he has suffered damage which is different in kind, and hot merely in degree, from that suffered
by the general public;2 another view is that it is sufficient for the claimant to show that he has
suffered damage which is appreciably greater in degree than any suffered by the general
public.3 Particular damage will include not only special damage in the sense of actual pecuniary
loss, but also general damage, such as delay or inconvenience, provided that it is substantial.4
In Chandat v Reynolds Guyana Mines Ltd,5 the claimant farmers adduced evidence that
their crops had been damaged by dust escaping from the defendants' bauxite works, but they
were unable to recover damages under public nuisance individually, because none could show
'particular damage'. George J stated that 'before a nuisance can be a public one, it must affect
the reasonable comfort and convenience of a class of the citizenry', and he found that 'whether
one uses the yardstick of a class of citizenry affected by the nuisance complained Of or its effect
and widespread range, the only reasonable conclusion which can be arrived at in this case is
that the nuisance complained of must be a public nuisance'.
Examples where 'particular damage' was established are:
(a) where the defendant wrongfully obstructed a public navigable stream by anchoring his
boat there, thus compelling the claimant to unload his boats and transport his cargo by
land at great expense;6
(b) where the claimant intended to let rooms in her house to persons wishing to watch a
procession, and the defendants unlawfully created a structure in the public street which
obstructed the view from the rooms, thus reducing their letting value;7
3 Southport corp o Petroleum co Ltd 2 All ER 561, at 570, per Lord Denning
5 (1973) High Court, Guyana, No 249 of 1969 (unreported) (Carilaw GY 1973 HC 341.
Private nuisance
Introduction:
The principal underlie theme in respect of private nuisance is give and take. Land owner can
expect to put up with some inconvenience from their neighbours but not to an unreasonable
extent. For the action of private nuisance it is not the action of the defendant that matters, but
it is the activity or the state of affairs which has been allowed to continue. While damages
10 Norman v Telecommunication Services of Trinidad and Tobago Ltd (1996) High court, Trinidad and
Tobago, No S 1668 of 1992 (unreported).
Definition:
Private nuisance is the continuous, unlawful and indirect interference with the use or
enjoyment of land, or some right over or in connection with it.
N.B:
To successfully maintain an action for private nuisance, a plaintiff must show the
defendant has, through his actions, continuously and unlawfully (unreasonably)
interfered with the plaintiff’s use or enjoyment of land or some right over or in
connection with it (Walter v Selfe).
The law accepts that there must be a certain degree of “give and take” between
neighbours and therefore, therefore the intereference must be substantial and not
fanciful (Walter v Selfe).
The rationale and origins of private nuisance are quite different from those of public nuisance.
Whereas, public nuisance involves injury to the public at large, and the rights of the private
individual receive protection in tort where he can prove particular damage to himself,
irrespective of his ownership or occupation of land, the law of private nuisance is designed to
protect the individual owner or occupier of land from substantial interference with his
enjoyment thereof. Therefore, the main differences between the two species of nuisance are
these:
(a) public nuisance is a crime, and is a tort where particular damage is proved. Private
nuisance is a tort only;
(b) to succeed in private nuisance, the claimant must have an interest in land. In public
nuisance, there is no such requirement;13
(c) damages for personal injuries can be recovered in public nuisance. Whether such a
claim will lie in private nuisance is doubtful.14
Notwithstanding these basic differences, there may be occasions where the facts of a particular
case will give rise to liability in both public and private nuisance, for example, where large-scale
pollution of the atmosphere causes particular damage to the claimant's property. Furthermore,
the two causes of action share some common principles. For instance, in both public and
private nuisance, the interference complained of must be substantial and unreasonable, and
'the law of give and take' applies to both.
Categories of private nuisance
15 Ibid
16 (1865) 11 ER 1483.
Substantial interference with enjoyment of land
Where an action in nuisance is founded on interference with enjoyment of land, such as where
the claimant complains of inconvenience, annoyance or discomfort caused by the defendant's
conduct, the interference must be shown to be substantial.
The classic formulation of the rule is that of Luxmoore J in Vanderpant v Mayfair Hotel
Co Ltd:17
… whether the act complained of is an inconvenience materially interfering with the
ordinary physical comfort of human existence…
1) Continuous Interference.
There must be some continuous interference over a period of time with the claimant’s
use or enjoyment of land. Keyser’s Royal Hotel v Spicer Bros, noisy pile driving at night
during temporary building works was held to be private nuisance.
In British Celanese v Hunt, foil from D’s land caused damage to an electricity substation,
causing the electricity to an industrial estate to be cut off. This had occur once a few
year previous because of the way in which the material was stored. The trial judge held
this to be private nuisance. In both cases the court was of the view that ‘continuous’ can
be for one act lasting for a period of time.
In Crown River Cruises v Kimbolton Fireworks, it was held that fireworks display
constituted nuisance when it was inevitable that for the nest 15- 20 minutes debris of a
flammable nature would fall upon nearby property, thereby damaging the property in
ensuing fire.
a) The locality
In Sturges v Bridgman, what would be nuisance in one place, would not necessarily
ne nuisance in another. While it is not a defence that someone has moved to the
nuisance, the fact that the locality i.e. industrial area will go a very long way in
determining whether a claimant can complain of nuisance.
Robinson v Kilvert, plaintiff’s claim for damages was for damage to an abnormally
sensitive paper stored in the cellar which was affected by heat from the adjoining
premises. The claim failed because the ordinary paper would not have been affected
by the temperature.
In McKinnon v Industries v Walker, fumes from D’s factory damaged delicate orchids.
Since the fumes would have damaged flowers of ordinary sensitivity, there was
nuisance.
c) Utility of the defendant’s conduct- it will be unlikely for an activity to amount to
nuisance if it is useful for the community as a whole, taking into account all the
surrounding circumstance. In Harrison v Harrison v Southwark Water, building works
carried out at reasonable time of the day did not amount to nuisance.
d) Malice; it is not necessary to establish malice on the part of the defendant but it
may be regarded as evidence of unreasonableness.
Christie v Davey, C had been giving music lessons when D irritated by the noise,
banged on the walls, shouted, blew whistles with malicious intentions of annoying
his neighbour and spoiling the music lessons. An injunction was granted to restrain
the behaviour.
e) The state of the defendant’s land- an occupier must take reasonable steps to to
prevent or minimize danger to the adjoining land from natural hazards on his land.
Leaky v National Trust, the National Trust owned a land upon which there was a
large mound of earth, which naturally eroded and was sliding on P’s property. It was
held that an occupier must take such steps as was reasonable to prevent or
minimize dangers to adjoining land from natural hazards on his land.
f) Duration of the harm The question of the duration of the harm complained of may
arise in two contexts: (a) It has been said that the essence of nuisance is a continuing
state of affairs on the defendant's land which causes damage to the claimant,38 for
example, a factory emitting constant noise and fumes, or a golf course or cricket
pitch so sited that balls are frequently struck on to the claimant's adjacent land. The
actual damage to the claimant's property may arise from a single isolated
occurrence (such as where, owing to defective electrical wiring in the defendant's
house, a fire broke out which destroyed the claimant's neighbouring house),18 but
the essence of the nuisance is the continuing state of affairs (in this latter example,
the faulty wiring). (b) A relevant factor in determining the reasonableness of the
defendant's conduct is whether it is temporary or permanent. Thus, a mere
temporary inconvenience, such as noise and dust from demolition or building work
on the defendant's land, may not be unreasonable, whereas a permanent
inconvenience, such as noise and smoke emanating from the defendant's factory, is
more likely to be held unreasonable and, therefore, actionable. Furthermore, it is a
well-established principle of equity that an injunction will not be granted to restrain
a nuisance which is merely temporary, except in extreme cases and the claimant will
thus be confined to seeking damages.
3) Interference with the use or enjoyment of land or some right over or in connection with
it. The claimant must usually prove damage to the land itself or property; or injury to
health, such as headache caused by noise, which prevents a person from enjoying the
use of their land.
Solloway v Hampshire County Council, allowing the roots to suck moisture from
the adjoining soil, thereby causing subsidence.
Right of Access- A defendant may be liable for interfering with the claimant’s
right of access to his property. Where an obstruction on the highway prevents
the owner or occupier of the property adjoining the highway from gaining access
to his property. The person responsible for the obstruction may be liable for in
public nuisance (on the basis that the owner or occupier suffered particular
damage over and above that suffered by the general public) or in private
nuisance (for interference with private right), in Boxill v Grant (1978).
Only a person who has proprietary interest in the land affected by nuisance will success
in a claim. Example an owner, or some in exclusive possession of occupation of it as a
In Malone v Laskey, P’s claim failed because she had no proprietary interest in the land
herself.
a) The creator of the nuisance; any person who creates the nuisance can be sued,
whether or not the person is the occupier of the land at the time of the action.
b) Occupiers; occupiers who adopt and continue to allow nuisance on their land may
also be liable, even if such nuisance were created by the predecessor in title,
trespasser or third party (Denfield v O’Callaghan).
c) Landlords; a landlord may be liable for nuisance emanating from his land e.g. If the
landlord had knowledge of the nuisance before letting or where the landlord
reserves the right to enter and repair premises.
Tetley v Chitty, council granted permission for a go-Kart on a council owned land.
The council was liable in nuisance for noise.
Defences (3):
1) Prescription
If the nuisance has been continued for 20 years without interruption the
defendant will not be liable if s/he pleads a prescriptive right to the nuisance.
2) Statutory authority- this will be a defence to private nuisance if it can be shown that the
activities complained of by the defendant were authorized expressly or impliedly.
Allen v Gulf Oil, where parliament intended to be constructed. There was statutory
immunity in respect of any nuisance which was an inevitable result.
Bliss v Hall, where P moved next to a candle making factory, which had been
operating for three years, held that was no defence.
Remedies
1) Injunction; this will only be granted at the discretion of the court (since it is an equitable
remedy), where it is thought fit. Miller v Jackson, an injunction was refused, where a
cricket club was liable for nuisance by the balls being hit to the ground.
3) Abatement; this is a remedy of self-help e.g. cutting down overhanging branches which
are nuisance.
3) Potential claimant
4) General premise
5) Elements of nuisance
6) Defences
Reference
Kodilinye, G. (2015). Commonwealth Caribbean Tort Law (5th ed.). Third Avenue, New York:
Routledge.