An Analytical Study On Nuisance In Torts

Author: Kadimi Lakshmi Harshitha, Alliance University, Karnataka

INTRODUCTION

According to our law of the land, every individual is entitled to enjoy their property and rights without causing any disturbances or inconvenience to others. However, if someone uses the land which results in unlawful interference with the rights of the others, they are said to commit the tort of Nuisance. 

 In general, Nuisance is considered as merely causing inconvenience to others, whereas in law it has a wide comprehensive meaning that defines nuisance as an act that leads to unlawful interference, and inconvenience to the person and his right to enjoy his land or property.

According to Salmond, ‘Nuisance’ is defined as causing or allowing the escape of any harmful substance from one’s land or from anywhere into the plaintiff’s territory without proper legal explanation. It includes tangible and intangible substances such as water, smoke, gas, heat, electricity, and so on. [1]

Nuisance based on its colossal is classified into two types as Public Nuisance and Private Nuisance. In torts, Public Nuisance is considered a crime and punishable as an offence.^[2] According to the Indian penal code, Any behaviour that causes harm, danger, or annoyance to ordinary people living nearby or occupying the property unlawfully is said to have committed Public Nuisance.

Private Nuisance is caused when any person incurs or suffers some kind of special damage, which is more than what is generally inflicted on the public at large.

Essentials of Nuisance

The  conditions that must be satisfied for an act to be considered a nuisance:

• The defendant’s interference must be great enough to cause the plaintiff discomfort and annoyance.
• The  defendant’s acts should be ‘wrongful’ and unreasonable in the eyes of the general public.[3]
• Damage/Loss/Inconvenience caused to Plaintiff explains essentiality of substantive damage or inconvenience to be caused to Plaintiff.
• As the harm or annoyance is indirect, the injury or loss must be caused by actions taken on the defendant’s land but not on the plaintiffs.[4]

KINDS OF NUISANCE

In Law of Torts, as the concept of Nuisance is vast with more scope, it has been divided into two categories.

• Public Nuisance
• Private Nuisance

PUBLIC  NUISANCE

The Public Nuisance is an act of interference with the rights of the general public, which leads to inconvenience, suffering, and annoyance. This nuisance violates the right of the people to enjoy their property without any interruption or disturbance.

It includes all the acts that can lead to the violation of public rights at large. Obstruction of a public road, path by drilling, digging, and constructing structures, noise pollution, oil spillages or any other reason are considered as a public nuisance under law.

Essential Elements of Public Nuisance

1. A person or a body must have done an act or an illegal omission causing inconvenience.
2. The act should cause any common injury, danger, or annoyance to the public at large or to the people in the vicinity.
3. The injury must be shown to be of a substantial character, and not fleeting.

Public Nuisance is considered as a crime or offence under section 268 of Indian Penal Code (IPC), ), which mentions that “Public Nuisance is an act that causes any common injury, danger, or annoyance to the people in general who live or occupy the property in the vicinity, or that must necessarily cause injury, obstruction, danger, or annoyance to the people who may have occasion to use any public right”.[5] Public nuisance is also discussed under section 133 of the Code of Criminal Procedure (CrPC), and section 91 of Civil Procedure Court (CPC).

Example

A person who has a large group of cattle, once in the afternoon the person takes his cattle out to feed them. For some reason, the cattle were left on the road for a long time thereby causing traffic and inconvenience for the people around to move freely. This instance can be considered a public nuisance.

In Tate & Lyle v Greater London Council [1983] 2 AC 509 case, It was held that the claim was successful for public nuisance, as the ferry terminals had interfered with public navigation rights.

In Campbell v. Paddington Corporation [1911] 1 KB 869 case, The company was found to be responsible under the tort of a nuisance for constructing a structure in front of the plaintiff’s residence. She had a right of action against the defendants, as per the court.  Because she was injured “beyond the general public inconvenience” as a result of the defendant’s public nuisance.[6]

PRIVATE  NUISANCE

The Private Nuisance deals with the act of interference with the rights of the specific individuals or persons, which leads to their inconvenience, harm, or their suffering. This nuisance violates the private right of the individual to enjoy their property without any disturbance. Unlike the public nuisance, in private nuisance, the sufferings of the defendant are much more than usual.

In this nuisance, the aggrieved party i.e., the plaintiff can directly file the case himself which is not the case with the public nuisance. When the suit is filed for private nuisance, the plaintiff must prove that the defendant’s actions had caused some special harm or sufferings and prove that there was clear interference with the enjoyment of use of land of the plaintiff.

Example

A person is having horses in his land and he takes care of them. Usually, he takes them out evenings and carefully takes them back. But one day due to some reason, the horses stand out on the road in Infront of the plaintiff’s shop for an unreasonable long time.

The evenings were the time when a business runs well in the plaintiff shop. Because of the horses standing in front of the shop, there was darkness and a bad smell due to which there were no customers. Here the defendant i.e., the plaintiff can be held by the defendant i.e., the owner of the horses liable under the private nuisance because there was special damage and sufferings caused to him.

Essential Elements of Private Nuisance

• The claimant must have an involvement  and interest in the property.
• The defendant must have committed an unlawful or unreasonable interference with the use of enjoyment of the plaintiff’s land. It includes:
• Injury to Property.
• Interference with the right of support of land and buildings.
• Injury to comfort or health.
• The claimant must suffer annoyance, discomfort, or inconvenience as a result of such unreasonable or unlawful use, which the law considers substantial or material.
• The claimant must be harmed or damaged in some way.

In Dr Ram Raj Singh v. Babulal case, the defendant was being held liable under the tort of private nuisance because there was unreasonable interference with the plaintiff’s enjoyment of use of land and also the case special damage.[7]

In Winterbottom v Lord Derby (1867) LR 2 exch 316^[8] case, It was held that according to the tort of public nuisance, the defendant was not held accountable to the claimant. The court also ruled that the plaintiff could not obtain damages since he had not suffered any more than other members of the general public.

Remedies  of  Nuisance

In Law of Torts, Nuisance has certain remedies and defences for both the parties to seek relief and to recompensate their damage. There are three types of Nuisances:

1. Abatement of Nuisance
2. Injunction
3. Damages

Defences against Nuisance

• Prescription 
• Statutory Authority

The other defences in Nuisance under the law of torts are:

• When there is  consent of the plaintiff or the action of Volenti non fit injuria. Generally, this is not a defence that the plaintiff came into the nuisance but in appropriate cases the court can use it as a basis for refusal or injunction as in the case of Miller v. Jackson.[9]
• Act of a stranger:

 In this case, the plaintiff has not established a case against the defendant; instead, he has established a case against a stranger.[10]

• The situation of Inevitable accident, where the defendant was not able to control the reaction or his conduct such that it does not cause any harm to the plaintiff.

CONCLUSION:

In Law of Torts, Nuisance is one of the vast topics and evolved with various developments and modifications. The nuisance law protects the people against environmental pollution such as gases, noise pollution, vibrations, oil spills, and so on. It also protects against unjustified barriers such as road/highway closures, river closures, and access road closures.[11]

Based on its varsity, Nuisance is categorised into Public Nuisance and Private Nuisance. Under the Indian Penal Code, public nuisance is defined under Section 268 which mentions it as an offence. Section 133 of CrPC and Section 91 of CPC also discusses the Public Nuisance. Though the concept of Private Nuisance is not mentioned in IPC, it has certain specific essentials to be constituted as a private nuisance.

The Nuisance has various remedies and defences available for either of the parties to seek relief and compensate for their loss. This concept and its features have been evolving through various judgements and judicial interpretations.

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[1] Krishnendra Joshi, The Tort of Nuisance, < The Tort of Nuisance (ipleaders.in)>, May 1, 2019.

[2] Dr. R.K. Bangia, Law of Torts, (23^rd edition, 2013). 

[3] Law of Torts and Consumer protection, BL-2005, < BA-LLB-II-SEM-LAW-OF-TORTS-BL-2005-Lecture-on-Nuisance.pdf (ccsuniversity.ac.in) >.

[4] R. Makowski , Torts: The Nature of Nuisance, < Torts: The Nature of Nuisance (marquette.edu) >.

[5] Krishnendra Joshi, The Tort of Nuisance, < The Tort of Nuisance (ipleaders.in)>, May 1, 2019.

[6]  Lucid Law, Why Campbell v Paddington Corporation is important, < Campbell v Paddington Corporation [1911] 1 KB 869 – Lucid Law>.

[7] Dr. R.K Bangia, Law of Torts, Nuisance, published by Allahabad Law Agency, 23^rd edition 2013.

[8] LUCID LAW, Why Winterbottom v Lord Derby is important, < Winterbottom v Lord Derby (1867) LR 2 exch 316 – Lucid Law>.

[9] Law of Torts and Consumer protection, BL-2005, < BA-LLB-II-SEM-LAW-OF-TORTS-BL-2005-Lecture-on-Nuisance.pdf (ccsuniversity.ac.in) >.

[10] Law of Torts and Consumer protection, BL-2005, < BA-LLB-II-SEM-LAW-OF-TORTS-BL-2005-Lecture-on-Nuisance.pdf (ccsuniversity.ac.in) >.

[11] Onyekachi Wisdom Duru Esq, NOTES ON THE TORT OF NUISANCE, < NOTES_ON_THE_TORT_OF_NUISANCE.pdf>.