LLB Notes: First Year: Law Of Torts: Unit II: Specific Torts- I

Coverage of this Article

NUISANCE

-Nuisance is the wrong committed by a person by unlawfully interfering with another person’s enjoyment of property or exercise of a lawful right. 

Kinds of Nuisance

-Nuisance may be public (common) or private (individual).

Public Nuisance

-Public or common nuisance is the act or, as the case may be, omission which causes any common harm, or injury, or disturbance, or annoyance to the public in general who dwell or occupy property in the vicinity. An act that causes annoyance, obstruction, injury, or danger to people who may have occasion to use any public right is also a public nuisance. 

Private damage in Public Nuisance

-A public nuisance affects the society at large, and therefore, it is punishable under the Indian Criminal Law.

Private Nuisance or Tort of Nuisance

-Private nuisance is an offence against an individual or individuals and not against the general public. To constitute a private nuisance, three conditions must be proved:

Unreasonable interference

-Interference is that involvement which causes a discomfort to a person in the lawful enjoyment of his property, or it may also cause damage to that property. 

Case Laws:

-RadheyShyam v. Gur Prasad (A.I.R. 1978 All. 86): The defendant was running a flour mill in the upper floor that was alleged to have caused nuisance to the plaintiffs who were occupying the first floor of the premises. A suit was filed by the plaintiffs seeking a permanent injunction to prevent them from running the flour mill as its running noise of the flour mill adversely affected their health. The Court allowed the suit and held that the act of the defendant did amount to nuisance. Hence, the order of injunction was granted in favour of the plaintiffs.

Interference with the use or enjoyment of land

-This interference is mainly in the form of obstruction of light; pollution of air, water and noise.

Damage

-In case of public nuisance, it is essential to prove that damage has been caused. However, in private nuisance, the law presumes damage. In Fay v. Prentice (1854), the fact that a cornice of the defendant’s house projected over the plaintiff’s garden raised the presumption that rain would fall into the garden causing to it damage. This was presumable and no proof was necessitated, hence it was held to be a nuisance.

Who may sue and who is liable?

-The injurer has the right to sue in general, even if he/she is a tenant. The landlord cannot sue for damage caused to the tenant unless the same is permanent and inflicts lasting damage to inheritance (Mumford v. Oxford). However, with respect to lease, the lessee has no right of action but can join as co-plaintiff along with the actual occupier of the land.

Remedies for Nuisance

-There are three remedies available for the injured party in case of a nuisance: 1) Abatement, 2) Damages, and 3) Injunction. While the first one is done by the act of the injured party, the others are based on the process of law.

Abatement

-Abatement is the removal of the nuisance by the aggrieved party himself.

Damages

-Exemplary damages are awarded by Courts only on proof of some special damage. However, there should be a one-time danger to attract this kind, and if it is a continuous nuisance, the Courts may prefer injunction over damages. However, exceptionally, damages are given even in cases of continuous nuisance. The following requirements are necessary while deciding on the grant of damages: 1) the injury must be small; 2) it should be capable of being estimated in money; 3) it should be capable of being compensated by small sum; and 4) when injunction would seem inappropriate or oppressive (Shelfer v. City of London Elec. Light. Co., 1895).

Injunction

-Injunction as a remedy for nuisance is chosen as per the gravity of the case. It must be proved that the injury caused cannot be adequately compensated by way of damages. Generally, nuisances that are continuous or that cause irreparable damage can attract injunction. In fact, it is considered as the most efficient and flexible remedy for nuisance.

Defences

Prescriptive Right:

-If a person has continued to do nuisance over a land for more than 20 years peacefully and without interruption, he gets a legal right by prescription to continue with it in future also. This means that on the expiration of the said 20 years, the right to commit that particular nuisance becomes legal. However, this period of 20 years cannot commence unless the act is complained to be a nuisance. 

Statutory Authority:

-An act of nuisance done under the authority of State is a complete defence.

NUISANCE

Nuisance is the wrong committed by a person by unlawfully interfering with another person’s enjoyment of property or exercise of a lawful right. Any act that disturbs the comfort, health, or safety of a person is nuisance. In Ratanlal & Dhirajlal’s“The Law of Torts”, nuisance was defined as anything done to the hurt or cause annoyance of the lands, tenements, here ditaments of another, and not amounting to a trespass. A nuisance may be caused in a number of ways, like noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease producing germs. 

Kinds of Nuisance

Nuisance may be public (common) or private (individual).

1.    Public Nuisance

Public or common nuisance is the act or, as the case may be, omission which causes any common harm, or injury, or disturbance, or annoyance to the public in general who dwell or occupy property in the vicinity. An act that causes annoyance, obstruction, injury, or danger to people who may have occasion to use any public right is also a public nuisance. 

In Pollock’s Law of Torts, public nuisance was defined as an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any common right.

It is called a public or common law because it affects the common public in general equally, however, it might also affect a person individually. Some examples include obstructing a public way, constructing a structure in the middle of the road, etc. The State’s failure to repair a road, or obstruct the path of a highway is also a public nuisance.

Private damage in Public Nuisance

A public nuisance affects the society at large, and therefore, it is punishable under the Indian Criminal Law. The main reason for this is simple. Suppose a person blocks a public road for some purposes, thereby restricting the travelling right and freedom of all those who pass by it. Since it had impacted a lot of people, imagine what would happen if each of the affected persons filed a civil suit against the wrongdoer. This cannot give an idle solution, and thus, public nuisance is treated as a criminal case. This will help in reducing the inconvenience of the people while lessening the burdens of the Courts that would otherwise have to entertain hundreds of petitions concerning one issue.

However, as already mentioned, public nuisance may affect an individual’s rights too. This is when a public nuisance causes relatively more damage to a particular person. In such cases, the concerned person can claim compensation by instituting a civil suit. However, for a successful claim for special damages, the individual must fulfill three conditions: 1) He must show the particular injury suffered by him that is beyond the injuries suffered by the general public; 2) Such injury must be direct and not consequential; and 3) The damage caused must be particular and substantial, and must entitle the person to maintain an action (Benjamin v. Storr, 1874)

Let’s understand the concept of private damage in public nuisance with an example. Suppose a man digs a trench across the highway. A person cannot simply sue him for special damages if it only obstructs his path because it is an inconvenience that would be suffered by almost every single person who passes by that highway. However, if a person is lawfully passing by the road in dark, and falls into the trench and breaks his arm or the goods that he was carrying falls into it and gets spoiled, then this is a particular damage to that person and he can file a civil suit in this regard.

Public nuisance, except in case of special damages, is considered as a criminal subject and therefore is not a tort. The Tort of Nuisance is nothing but what is referred to as private nuisance.

2.    Private Nuisance or Tort of Nuisance

Private nuisance is an offence against an individual or individuals and not against the general public. To constitute a private nuisance, three conditions must be proved:

1)    Unreasonable interference

2)    Interference with the enjoyment of property

3)    Damage caused thereby

Unreasonable interference

Interference is that involvement which causes a discomfort to a person in the lawful enjoyment of his property, or it may also cause damage to that property. Not every interference is a nuisance, and in order to constitute a private nuisance, the interference must be unreasonable. What is unreasonable interference varies from case to case. As stated in Sturges v. Bridgman (1979), a nuisance in one place would not necessarily be so in another. When unreasonable interference is proved beyond doubt, then such an act cannot be excused on the ground that it was for public good, or that reasonable care had been taken to prevent the nuisance.

Case Laws:

1.    RadheyShyam v. Gur Prasad (A.I.R. 1978 All. 86): The defendant was running a flour mill in the upper floor that was alleged to have caused nuisance to the plaintiffs who were occupying the first floor of the premises. A suit was filed by the plaintiffs seeking a permanent injunction to prevent them from running the flour mill as its running noise of the flour mill adversely affected their health. The Court allowed the suit and held that the act of the defendant did amount to nuisance. Hence, the order of injunction was granted in favour of the plaintiffs.

2.    Ushaben v. Bhagya Laxmi Chitra Mandir (A.I.R. 1978 Guj. 13): The plaintiffs sought the Court’s direction to restrain the exhibition of ‘Jai Santoshi Maa’ film as they contended that the film’s depiction of Goddesses Saraswati, Laxmi, and Parvati would hurt their religious feelings. The Court analysed the balance of convenience and favoured the defendants. It was stated that the plaintiffs have the freedom and choice to not watch the movie again and hence, there was no nuisance.

Interference with the use or enjoyment of land

This interference is mainly in the form of obstruction of light; pollution of air, water and noise. In Tipping v. St. Helen’s Smelting Co. (1865), it was held that any sensible injury would be sufficient to prove an action against injury to land. In this case, the defendant company's works had caused damage to the plaintiff's trees and shrubs. Such damage was held to be an injury to property, and therefore the defendants were liable. 

A person is allowed to take action against a nuisance that existed even before his accommodation in that place. Similarly, when a person’s land is supported by another’s, removal of such support would amount to nuisance (Humperies v. Brodgen, 1850). The Indian Easement Act also acknowledges this principle under Section 7, however, Section 34 of the Act also makes it clear that in order to bring an action in this respect, the plaintiff must prove the occurrence of a substantial damage to his property.

Interference does not necessarily mean the disturbance with respect to property alone. It can also indicate discomfort to a person’s health. In Walter v. Selfe, it was held that material interference that disturbs the ordinary comfort of human existence is actionable under nuisance. However, there should be serious interference with the comfort and convenience of the person, otherwise the same may or may not be actionable. This is based on the maxim, de minimis non curatlex that means law does not consider very trifling matters.

Damage

In case of public nuisance, it is essential to prove that damage has been caused. However, in private nuisance, the law presumes damage. In Fay v. Prentice (1854), the fact that a cornice of the defendant’s house projected over the plaintiff’s garden raised the presumption that rain would fall into the garden causing to it damage. This was presumable and no proof was necessitated, hence it was held to be a nuisance.

Who may sue and who is liable?

The injurer has the right to sue in general, even if he/she is a tenant. The landlord cannot sue for damage caused to the tenant unless the same is permanent and inflicts lasting damage to inheritance (Mumford v. Oxford). However, with respect to lease, the lessee has no right of action but can join as co-plaintiff along with the actual occupier of the land.

A person who actually creates the nuisance is liable for it (Thomson v. Gibson). This means that not only the person who commits it but also those involved in creating it are liable. It includes those who directly do it or direct others to do it, that is both the principal as well as the employer are liable. This is irrespective of whether the offence is committed in his land or not.

Remedies for Nuisance

There are three remedies available for the injured party in case of a nuisance: 1) Abatement, 2) Damages, and 3) Injunction. While the first one is done by the act of the injured party, the others are based on the process of law.

1)    Abatement

Abatement is the removal of the nuisance by the aggrieved party himself. This means that if a person constructs a house in such a way that it obstructs the right of a common man, then the commoner is entitled to pull down the house if the person fails to remove it after due notice within a reasonable period. (Davies v. Williams).If a neighbor’s tree overhangs in a person’s house, the said person can lawfully cut down the overhanging branches (Norris vs. Baker). 

However, a private individual cannot simply abate a public nuisance.Similarly, there are certain conditions associated with abating private nuisance too. A party’s act of abatement must be peaceful, without causing any danger to life or limb, the removal must be reasonable enough and a notice must be served. The damage caused by abatement should not be more than necessary.

2)    Damages

Exemplary damages are awarded by Courts only on proof of some special damage. However, there should be a one-time danger to attract this kind, and if it is a continuous nuisance, the Courts may prefer injunction over damages. However, exceptionally, damages are given even in cases of continuous nuisance. The following requirements are necessary while deciding on the grant of damages: 1) the injury must be small; 2) it should be capable of being estimated in money; 3) it should be capable of being compensated by small sum; and 4) when injunction would seem inappropriate or oppressive (Shelfer v. City of London Elec. Light. Co., 1895).

3)    Injunction

Injunction as a remedy for nuisance is chosen as per the gravity of the case. It must be proved that the injury caused cannot be adequately compensated by way of damages. Generally, nuisances that are continuous or that cause irreparable damage can attract injunction. In fact, it is considered as the most efficient and flexible remedy for nuisance.

There is no need to prove any specific damage and continuous interference with a person’s legal right that has the capability of causing material damage is enough for obtaining an injunction order (Clowes v. Staffordshire Potteries Co.)

Defences

1)    Prescriptive Right: If a person has continued to do nuisance over a land for more than 20 years peacefully and without interruption, he gets a legal right by prescription to continue with it in future also. This means that on the expiration of the said 20 years, the right to commit that particular nuisance becomes legal. However, this period of 20 years cannot commence unless the act is complained to be a nuisance. 

When confectionery materials were pounded in the defendant's kitchen using large mortars and pestles, the noise and vibrations did not initially disturb the plaintiff. However, he complained it was a nuisance only when he made a consulting room nearby and got disturbed by the noise and vibrations. The order of injunction was granted.

2)    Statutory Authority: An act of nuisance done under the authority of State is a complete defence. So, if such act is done by virtue of a law or statute, then no remedy is available against the same. A railway company which is authorised to run railway trains on a track cannot be held liable if the sparks from the engine sets fire to the adjoining land, or damages are caused by the noise, vibrations or smoke it releases. (Hammer Smith Ry. Co. v. Brand, 1869)

The above too are the most effective defences that can entitle the persons causing nuisance to escape from punishment. However, there are some defences such as nuisance due to the act of others; if nuisance is caused due to a work that benefits the public in general; if the work causing nuisance is undertaken lawfully and with the maximum care and precaution; and if the plaintiff himself has a role in the nuisance.