December 5, 2020

Nuisance under Law of Torts: Elements, Kinds, Remedies, and Defences

INTRODUCTION TO NUISANCE UNDER LAW TORTS

The word Nuisance is derived from the French word ‘Nuire’[1] which means to infuriate or hurt. It is an unlawful interference with a person’s use or enjoyment of land. This legal right cannot be taken away without lawful justification. Contrary to the given protection if someone unlawfully interferes with this entitlement of a person he/ she commits ‘Nuisance’ under Law of Torts. Generally, a person is entitled to the full and reasonable enjoyment and use of his property tangible, intangible, movable or immovable.

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[2].”

ESSENTIAL ELEMENTS OF NUISANCE UNDER LAW TORTS

For making an act of Nuisance actionable under the law of torts the following essentials must be satisfied-

  • Wrongful Act by the Defendant
  • Damage/Loss/Inconvenience caused to the Plaintiff

CASE LAWS TO NUISANCE UNDER LAW TORTS

In the case of Ushaben v. Bhagyalaxmi Chitra Mandir[3], where the Plaintiff prosecuted the Defendant against the screening of the movie “Jai Santoshi Maa”, declaring that it undermines the religious sentiments of a particular Hindu community, the court dismissed the plea stating that undermining a religious emotion 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[4], 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 UNDER LAW TORTS

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, influences an individual rather than the world at large. It provides the affected person a claim of “Right in Personam”. Private Nuisance occurs when the action of the Defendant affects only the Plaintiff in his own enjoyment of land and property and no one else. Technically, when a person does an action which influences another person, and intercepts the latter from performing rights over his own property. It does not affect any other person.

The Plaintiff can claim for unliquidated damages and considering the seriousness of injury, the same are decided and awarded to him.

Essentials of Private Nuisance

  • Unlawful or Unreasonable Interference.
  • Such Interference causes a legal injury to the plaintiff only. The injury may be in respect of either Property or Physical Discomfort to the Plaintiff.

Case Laws

In St. Hellen Smelting Co. v. Tipping[5] where the fumes from the Defendant’s Factory damaged the Trees of the Plaintiff, the court held that the damage to trees is an unlawful damage of the Latter’s property and hence give rise to an action for Nuisance against the former.

In Dilaware Ltd. v. Westminister City Council[6] where the roots of the Defendant’s trees caused cracks to the adjacent building, the Plaintiff i.e. the owner of the building was made entitled to recover suitable damages from the defendant by the Virtue of tort of Nuisance.

In Dattamal Chiranji Lal v. Lodh Prasad[7], the defendants were awarded an injunction to stop the grinding mill which led to a non-peaceful life for the Plaintiff and his family.

In Palmar v. Loder[8], the Defendants were awarded a perpetual injunction against loud laughing, noise making and continuous ringing of the Plaintiff’s Doorbell.

Public Nuisance

Public Nuisance is defined as an unreasonable and unlawful act of the defendant that causes substantial inconvenience and legal injury to the people at large. It comes into play when by the Act of the defendant, a mass of people is influenced negatively. In the words of Bermingham, Public Nuisance, where the defendant’s actions “materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects[9]”

Public Nuisance, being a crime under the Indian as well as English Laws, finds its recognition in various statutes of the country. Thus any action which seriously hinders with the health, safety, comfort and convenience of the public in general or which intend to demean morals come under public nuisance.[10]

Examples :

(a) Fully or partially blocking a highway – New Group Newspapers v. SOGAT[11].

(b) Picketing on a road – Thomas v National Union of Mineworkers[12]

(c) Blocking a canal – Rose v Miles[13]

(d) Making obscene telephone calls to large number of women – R v Johnson (Anthony Thomas[14])

(e) Premises near to highway in dangerous state – Tarry v Ashton[15]

(f) Parking coaches on public highway – Attorney-General v Gastonia Coaches[16]

(g) Golf course to close to public road – Castle v St Augustine Links [17]

REMEDIES FOR NUISANCE UNDER LAW TORTS

Damages-

Depending upon the gravity of inconvenience suffered by the aggrieved party, the Court may direct the defendant to pay proportionate damages to the former. Such Damages may include both monetary and material compensation.

Injunction-

If in the eyes of Law, monetary or material relief shall not be sufficient to provide justice and equity to the aggrieved Party, the Court may direct the Defendant to stop with the work that causes such Nuisance. Injunction may be Temporary or Permanent depending upon the facts of the case.

Abatement-

This is synonymous to a summary trial, where the Plaintiff by himself may remove the act of Nuisance without seeking to the courts. This must, however, be lawful and not otherwise.

DEFENSES TO NUISANCE UNDER LAW TORTS

Following are the valid and legally recognized defence against the action of Nuisance-

Prescription-

As per Section 26 of Limitations Act and Section 15 of the Easements Act, the Plaintiff cannot claim measures for Nuisance against the actions of the Defendant, even if they are prima facie contrary, if the Defendant has continued to do the same action without any interruption from the same plaintiff for the past 20 years.

In Elliotson v. Feetham[18], it was held that the Defendant has obtained tyrannical rights to continue malodorous trade as he continued to do so for the past 20 years without any interference from the Plaintiff.

However, in Mohinimohan v. Kashinath Roy[19], it was held that there is no authority to continue kirtans can be acquired on other’s land despite the traditions.

Statutory Authority

Where a statute or Law has empowered the action in a particular way, the plaintiff cannot prosecute the defendant for Nuisance, even if the act comes under the purview of the same. Statutory Authority may be Conditional or Absolute[20].

In Vaughan v. Taff Rly[21], the act of the defendant of building the locomotive lines, under the statutory authority, prevented the Plaintiff from taking any action against the former, despite the damage suffered by the latter.

De-Minimis Non-Curat Lex

An Action for damages against the defendant cannot be brought if it is shown that the Plaintiff is extra sensitive and an otherwise prudent person would not complain of such non-substantive trifle.

EXCEPTIONS TO THE DEFENCES TO NUISANCE UNDER LAW TORTS

In spite of the various defences available to the Defendant, he cannot claim the following if an action for nuisance is brought against him-

1. It is no defence to claim that the Plaintiff himself came to the place of Nuisance.

2. It is no defence to claim that all reasonable care had been adopted by the defendant to prevent the act of Nuisance interrupt or harm the Plaintiff.

3. It is no defence to claim that there are others as well who commit Nuisance against the Plaintiff and that the defendant is not the sole wrongdoer.

4. It is no defence to claim that the act of Nuisance is for the benefit of Public and affects negatively to the Plaintiff only.

CONCLUSION

The notion of nuisance relates to the regular activities of an individual. The laws made against Nuisance are almost conventional except the criminal aspect of Public Nuisance. Nuisance as a tort gained breadth through a surfiet of judgments along with the works of many eminent jurists. India was once a British colony has counted widely on the English judgments to understand and develop the conception 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 delivering justice to almost each of its people and maintain the reign of Rule of Law along with Justice, Equity and Good Conscience.

References

[1] Oxford Dictionaries | English. (n.d.). nuisance | Definition of nuisance in English by Oxford Dictionaries. [online] Available at: https://en.oxforddictionaries.com/definition/nuisance

[2] John Salmond Salmond on Torts (16th ed, Sweet & Maxwell, London, 1973) at 52

[3] AIR 1978 Guj 13

[4] (1961) 2 All ER 145.

[5] (1865) 77 HCL 642

[6] (2001) 4 All ER 737 (HL)

[7] AIR 1960 All 632

[8] (1962) CLY 2233

[9] Bermingham (2008) p.241

[10] Attorney General V. PYA Quarries Ltd. [1957] 2 QB 169

[11] [1987] ICR 181

[12] Thomas v National Union of Mineworkers [1986] Ch 20

[13] (1815)

[14] (1996)

[15] [1876] 1 QB 314

[16] Attorney-General v Gastonia Coaches [1957] 2 QB 169

[17] Castle v St Augustine Links [1922] 38 TLR 615

[18] Elliotson V. Feetham [1835] 2 Bing NC 134

[19] Mohinimohan V. Kashinath Roy (1909) 13 CWN 1002

[20] Nuisance : a tort, Tanya Das, https://www.legalservicesindia.com/

[21] Vaughan v. Taff Vale Rly (1860) 5 H.N. 679,


Author Details: Vasundhara Dhar (Birla Global University)

The views of the author are personal only. (if any)

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