The Tort of Nuisance

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 in unlawful
interference with his enjoyment or use of that property or some of the rights over it, or in
connection with it, we can say that the tort of nuisance has occurred. The word “nuisance” has
been derived from the Old French word “nuire” which means “to cause harm, or to hurt, or to
annoy”. The Latin word for nuisance is “nocere” which means “to cause harm”. Nuisance is an
injury to the right of a person’s possession of his property to undisturbed enjoyment of it and
results from improper usage by another individual. Nuisance is a term used to register or express
one’s condition of inconvenience or annoyance caused by a direct or indirect action of another
person. It can also be said that nuisance is the negative effect of somebody’s action or omission
against the normal enjoyment of life by the complainant. According to Salmond, nuisance
consists in causing or allowing to cause without lawful justification, the escape of any
deleterious thing from one’s land or from anywhere into land in possession of the plaintiff, such
as water, smoke, gas, heat, electricity, etc.

Essential elements of Nuisance

1. Wrongful act
Any act done to cause the infringement of the legal rights of another is considered a wrongful
act.

2. Damage or loss or annoyance caused to another individual.

Damage or loss or annoyance must be such that the law should consider substantial material for
the claim.
Examples of Nuisance

1. Emissions of noxious gas or fumes from a factory.

2. Emission of noxious gas or fumes from moving lorries, trains or aircraft.
3 Noise from the crowing of cocks in the early hours of the morning.
4 The obstruction of public highways for social or religious activity.
5 The collapse of a building due to the vibrations of another company next door.

Kinds of Nuisance

1. Public Nuisance
The Indian Penal code defines nuisance as an act that causes any common injury, danger, or
annoyance, to the people in general who dwell or occupy the property, in the vicinity, or which
must necessarily cause injury, obstruction, danger, or annoyance to the people who may have
occasion to use any public right. Public nuisance affects society and the people living in it at
large, or some considerable portion of the society and it affects the rights which the members of
the society might enjoy over the property. The acts which seriously affect or interfere with the
health, safety, or comfort of the general public are a public nuisance. The Attorney General
usually acts for the public. A private person cannot sue in public nuisance unless he proves that
he suffers a ‘particular damage’ far above the general damage suffered by others. Public nuisance
can be prosecuted as a criminal matter. Instances where an individual may have a private right of
action in respect to a public nuisance (a) He must show the existence of any personal injury
which is of a higher degree than the rest of the public. (b) Such an injury has to be direct and not
just a consequential injury. (c) The injury must be shown to have a huge effect.

2. Private Nuisance

Private Nuisance is a kind of nuisance in which a person’s use or enjoyment of his property is
ruined by another. It may also injuriously affect the owner of the property by physically injuring
his property or by affecting the enjoyment of the property. Unlike public nuisance, in private
nuisance, an individual’s usage or enjoyment of property is ruined as distinguished from the
public or society at large. The remedy for private nuisance is a civil action for damages or an
injunction or both.

Elements that constitute a private nuisance

(1) The interference must be unreasonable or unlawful.

It meant that the act should not be justifiable in the eyes of the law and should be by an act that
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.

(2) There should be seeable damage to the property or with the enjoyment of the property to
constitute a private nuisance.
In 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 goods through land because of which he suffered extra costs 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 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 concerning 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, two essential conditions are required.

(a)In excess of the natural and ordinary course of enjoyment of the property.
The third party’s usage should be out of the natural course of enjoyment from one party.

(2)Interfering with the ordinary conduct of human existence.

The discomfort should be to such a degree that it would affect an individual in the locality and
people would not be able to put up or tolerate the enjoyment. In Radhey Shyam v. Gur Prasad
Mr Gur Prasad Saxena and another filed a suit against Mr. Radhey Shyam and five other
individuals for a permanent injunction restraining the defendant from installing and running a
flour mill in the premises occupied by the defendant. Gur Prasad Saxena filed another suit
against Radhey Shyam and five other individuals for a permanent injunction from running and
continuing to run an oil expeller plant. The plaintiff alleged that the mill was causing a lot of
noise which in turn was affecting the health of the plaintiff. It was held that by running a flour
mill in a residential area, the defendant was causing a nuisance to the plaintiff and affecting his
health severely.
Injury and Interference that may constitute a private nuisance.
1] Whether there is physical injury or sensible material damage.
2) Whether there is substantial interference with the use and enjoyment of the
land.
3) Unreasonableness of the conduct of the defendant.
4) The malice or motive of the defendant.
5) The utility of the act of the defendant.
6) Duration of the harm or inconvenience.
7) Practicability of the relief sought by the plaintiff.
8) The carelessness of the defendant.

Who Can sue for Private Nuisance

!} Anyone who has or uses land, or has an interest in land.
2) An occupier or user of land.
3) A reversioner of land may sue if his reversionary interest in land is being or has been
interfered with.
Who can be Sued for Nuisance :
(1) The Creator of the Nuisance
(2) The Landlord:
The liability of the landlord depends on the following factors (a) If he created a nuisance. (b)
Expressly or impliedly authorized or ratified the nuisance. (c) If he allowed the state of affairs to
continue. (d) If the property constitutes a nuisance.
(3) An Occupier.
The liability of the occupier depends on the following circumstances (a) If he created a nuisance.
(b) If his servant or agent created a nuisance, [c) If he engages an independent contractor to
commit the nuisance.

Difference Between Public and Private Nuisance

1. Public nuisance is a crime and private nuisance is a civil wrong only.
2. To succeed in private nuisance, the plaintiff must have an interest in land. No such
requirement for public nuisance.
3. Damages for personal injuries can be recovered in public nuisance whether such a claim
will lie in private nuisance is doubtful.

Defences for a claim of Nuisance

1) Reasonableness of His Act or Omission:

A defendant may plead that the alleged act of a nuisance was a normal or a reasonable act to be
expected in that circumstance and in that community at that period in time and that there was no
malice in the act complained against. A person who decides to build his residential house in an
industrial estate cannot complain of
interference or inconvenience occasioned by the noise coming from the generator of a company
near his house.
2) Statutory Authority:
When a statute authorizes the doing of a particular act or the use of land in a way, all the
remedies whether by action or indictment, or charge, are taken away. Provided that every
necessary reasonable precaution has been taken. The statutory authority may be either absolute
or conditional. When there is an absolute authority, the statute allows the act and it is not
necessary that the act must cause a nuisance or any other form of injury. Whereas in the case
where there is a conditional authority, the state allows the act to be done only if it can be done
without any causation
3) Act of God:
Acts of God may be a defence in some circumstances. A road that is carved in and cut into two
after heavy rain and flooding of the area may not be attributable to the contractor that constructed
the road. This is because the defendant can plead an Act of God in that circumstance.
4) Act of a Stranger:
An act of a stranger may be a good defecne if it is shown that the defendant has taken steps to
discontinue the effect of the stranger’s act immediately after the act came to his knowledge.
5) Consent:
Consent will be a defence if the defendant has acted within the terms of the agreement and has
been reasonable in his act.

Damages for Nuisance

1. Injunction
An injunction is a judicial order restraining a person from doing or continuing an act that might
be threatening or invading the legal rights of another. It may be in the form of a temporary
injunction which is granted for a limited period and may get reversed or confirmed. If it is
confirmed, then it takes the form of a permanent injunction.

2. Damages
The damages may be offered in terms of compensation to the aggrieved party, these could be
nominal damages. The damages to be paid to the aggrieved party are decided by the statute and
the purpose of the damages is not just compensating the individual who has suffered but also
making the defendant realize his mistakes and deter him from repeating the same wrong done by
him.

3. Abatement

Abatement of nuisance means the removal of a nuisance by the party who has suffered, without
any legal proceedings. This kind of remedy is not favoured by the law. But is available under
certain circumstances. This privilege must be exercised within a reasonable time and usually
requires notice to the defendant and his failure to act. Reasonable for may be used to employ the
abatement, and the plaintiff will be liable if his actions go beyond reasonable measures.