In recent times public nuisance has invariably been used to address tobacco use,
smoking, firearms distribution and global warming. The court considers public
nuisance as a tort and they, as common law tribunal try to qualify these acts as
public nuisance. This article will focus public nuisance as a tort rather than a
Nuisance came into picture in 1970 when it was used as a weapon to
tackle environmental hazards but if public nuisance is properly used as a public
action, then it may deviate from its very purpose of social reform without
authorizing the legislation. Like any other law, it could not proceed further
unless it has been specified what exactly comes under public nuisance.
also should not have any absolute authority to determine which acts come under
public nuisance that means all of the decisions that has been taken under public
nuisance till now are just the interpretation made by the judges and maybe
reinterpreted again in the near future. This research paper will discuss all the
aspect of public nuisance with the case laws of USA, UK and India and finding
the relevancy of public nuisance as a tort in these countries.
In the never-ending struggle between people who wants to broaden the scope of
public nuisance so as to include a cause of action for which they have suffered
harm and those who wants to keep public nuisance actions only to its historical
roots. These conflicting interests have forced scholars to compromise with any
fixed definition of public nuisance. A theory suggests that public nuisance is
not and never was a tort.
It is considered as an action through which larger
public interest can be preserved. This action can be charged criminally by
statutory authorities that's why public nuisance is most closely compared to
criminal law and not tort in terms of conceptual and historical understanding.
On contrast some says that public nuisance interferes with the enjoyment of
health, comfort, security of public at large it does not affect only one
individual or group, so there must be a civil action i.e., tort.
Meaning of Tort
The word tort comes from a Latin word 'tortum' which means 'to twist'. Thus, we
can say that tort is not something which is straight, lawful but something which
is unlawful, twisted or crooked. In English language the word tort has purely a
legal meaning - wrongful act for which the law provides compensation. Actually,
law imposed some duty on citizen which they have to abide and breach of that
duty will constitute a wrongful act.
If an act which is done is against the
criminal law, then that act will constitute as crime or if a party to a contract
doesn't fulfill its promise, then it will constitute as breach of contract.
Similarly, tort is also a breach of duty which has been recognized under law of
Although there is no a universal definition of law of torts which can cover all
the aspects unlike in contract laws, reason for saying this is tort law include
different wrongs having different historical background so it is not possible to
cover all of them in a single definition. Some definition given by scholars are
"Tortious liability arises from the breach of a duty primarily fixed by law;
this duty is towards persons generally and its breach is redressable by an
action for unliquidated damages."
"Tort is a civil wrong for which the remedy is a common law action for
unliquidated damages, and which is not exclusively the breach of a contract or
the breach of a trust, or other merely equitable obligation."
The very basic things that we can derive from these definitions are � first, the
tort is a civil wrong and second, every civil wrong is not a tort.
In simple terms we can say that nuisance is unlawful interference with a
person's use or enjoyment of land any act which is interfering with health,
safety and comfort will come under the tort of nuisance. This act may include
smell, smoke, noise, gas, or germs that may spread disease etc.
There are two kinds of nuisance:
- Private Nuisance
- Public Nuisance
Public nuisance is that type of nuisance in which persons right of enjoyment of
property is violated by another. It can also affect another person by injuring
his property or may also by only affecting the enjoyment of the property. In
private nuisance, an individual usage and enjoyment of his property has been
violated but not of the whole society or public at large which is not the case
in public nuisance. Civil action can be filed by the plaintiff in order to
receive the remedies.
Elements which constitute private nuisance are:
- The interference that has been done by another person should be unreasonable or
unlawful that means that the act committed should not be justified in the eyes
of law and should be an act which a reasonable man would not do in a certain
- That interference must be with the use or enjoyment of land or with
the right of the property or it may also be in the case of physical
discomfort or in connection with the property.
- There should be a foreseeable damage to the property or with the use
or enjoyment of the property in order to term that act as private
Section 268 of the Indian Penal Code talks about the definition of public
nuisance as "A person is guilty of a public nuisance who does any act or is
guilty of an illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy property
in the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right."
As we can understand from its name itself public nuisance affects the society at
large or certain portion of the society and effects the right of the people
living in the society which can be in the form of enjoyment or usage of their
property. The acts which seriously interferes with the health, comfort or safety
of the common people is a public nuisance. Public nuisance is based on legal
maxim "sic uteretuout rem publicam non laedas", which means you should use your
property in such a way that it doesn't affect or injured the rights of public
In this article we'll dealing with public nuisance and its related aspects only.
Distinction Between Public And Private Nuisance
Public nuisance is generally considered as an interference which:
- affects the right of public or
- seriously effects the health, safety and comfort of sufficient number of
people within certain geographical area.
nuisance is unreasonable interference with the enjoyment or usage of the
property an individual.
Public nuisance comes under both criminal law and tort while private nuisance
comes under tort only. A relator action can be taken by the attorney general for
civil action even though the frequency has been considerably controlled by the
public law controls. In private nuisance an individual that has suffered has to
bring an action at all times against the person causing interference.
Public nuisance covers wide range of interest even where the claimant doesn't
have interest, as is generally thought to be in case of private nuisance.
Private injury damages can certainly be claimed in public nuisance by showing a
special damage as compared to others. In private nuisance when we look into the
case of Rylands v. Fletcher the recovery of the damages is not free from doubt.
Nuisance focuses more on the prevention of the damage then to provide the
remedies after happening of that act which can be in the form of injunction.
Section 268 of IPC defines offender of public nuisance as someone (i) who have
done any act or omitted to do certain act which is supposed to do (ii) causes
any kind of damage, annoyance or interfered with the enjoyment of (iii) to the
individual or public who has right to use that property in their vicinity or
which causes any damage, obstruction and annoyance to anyone who has the
opportunity to use any public right.
Meaning of public
In section 12 of the IPC, 1860, the term "public" is defined.
Any class of the public or any group is included in the term "public." As a
result, a class or group living in a certain location may be considered
"public." The term 'public' refers to the whole human population, as well as a
nation, state, or community. However, as defined by the IPC, it covers any
public class, no matter how tiny, that is large enough to become a class and
eliminates the possibility of a single individual. As a result, the terms
'community' and 'public' are used interchangeably here, and a community can be a
sect, race, or group of men united on any particular concept. The term 'public'
can refer to a class or group of people who live in a certain area.
History of Public Nuisance
In contrast to other forms of tort proceedings, public nuisance law has been
defined as an "impenetrable jungle" that "elude[s] clear definition" and is more
simply "negatively defined." In general, a public nuisance is "a person's
inappropriate use of his or her own property that works to impair the public's
rights." It's a component of the larger social contract to which everyone is a
signatory. In its oldest form, public nuisance was a criminal offence meant to
stop acts that were seen to be harmful to the general public's welfare. Such
actions were seen to be abuses of the Crown's rights, and as a result, they were
prosecuted as a crime.
However, over the period, public nuisance legislation has evolved into a more
flexible remedy for protecting public rights such as "roadway safety, air and
water pollution, disorderly behaviour, and public health." Public annoyance
eventually evolved into a cause of action that allowed private citizens to file
claims provided they could show that they had experienced a "special" or
Is it Tort or Crime?
Public nuisance is both a tort and a crime, and the definitions of both of these
concepts are almost similar, with the exception that a private individual can
only claim for the tort if he or she suffers damage in addition to the effect on
the wider public. Unlike other offences of equal severity, public nuisance does
not require the offender to have meant or been irresponsible about whether his
actions produced the appropriate type of injury. The blame criterion in a crime
is the same as in a tort: the defendant must have reasonably foreseen the
consequences of his or her conduct or omission.
The punishment for causing a public disturbance is dealt with under Section 290
of the Indian Penal Code. Any individual found guilty of causing a public
disturbance is subject to a fine of up to 200 rupees, according to the law.
However, Section 291 states that if an injunction has been issued against the
defendant and he continues to engage in nuisance behaviour, he will be sentenced
to a term of imprisonment of up to 6 months, a fine, or both.
Interference with a Public Right
To be held accountable for public nuisance the act has to interfere with the
right which is common to all people. This element is also used to differ public
from private nuisance that means only rights which are common to public and are
not only for some groups of individuals are protected under public nuisance. It
is not like everyone has to be assaulted, cheated, robbed individually to be
held accountable and it is also a very important point because cause of action
that arises in negligence can't absolutely use in public nuisance.
Finally, not only the right but the injury that has been sustained should be
public which is also an important element in product liability cases in which
for example let's say people bought wine bottle from a shop end that wine was
not safe for drinking purpose so the people affected by the bottle maybe on a
very large scale but they are only discrete number of people who bought the wine
from this shop only. So, this product will not come under public nuisance.
Court has also been cautious to not broaden the scope of public rights. For
example, in recent case it was argued whether sell of firearms is interfering
with public right. Here court refused to take this into the scope of public
Every interference with the public right will not constitute public nuisance.
That interference must be unreasonable or unjustified and any reasonability test
should be applied to consider whether the act committed was unreasonable or not.
Plaintiff has to prove that defendant's act was unreasonable to claim the
compensation. Considering this some court has also free the manufacturers from
the liability of firearms because they can't foresee the usage of those arms.
One factor which determines unreasonable interference is the violation of
regulation or statute. These regulations and statutes often use to determine
public nuisance in an abroad way which is not required in these types of cases.
Defendant must refrain themselves from using public nuisance with the elements
required for cause of action in a statute or regulation.
Control of the Nuisance
Some court said that the cause of action which has been raised should be in
control of the person that have committed it and this is logical too because
plaintiffs in these causes of action generally seek abatement of some certain
activity, which cannot be satisfied by a defendant without control over the
On the other hand, some courts have also refused this rationale
because they think control requirement is not necessary in public nuisance it is
merely an element to determine the damages or cause. They said that control is
not a different element it is relevant factor in determined the proximity and
court's ability to release appropriate injunction. For example, manufacturer of
firearms has the main defense argument that as they sold the firearm chain of
causation breaks not merely that they lacked control over plaintiff's claim.
Ram Raj Singh v. Babulal
In this case court has recognized the private nuisance that has been arising
from public nuisance.
was such that plaintiff was a doctor and he had clinic in that place he
lives in. The same area defendant also used to work in his brick powdering
mills. The plaintiff filed a case again defendant by saying brick powder is
polluting the atmosphere and also reaching his chamber which is causing
inconvenience to his patient. He also mentioned about the machine which is used
by defendant and has not taken permission from municipal board.
was whether defendant is liable for public nuisance because he claimed
that bricks used to be put in a moisture before actually using it to avoid dust
also, he said that the machine is causing no noise pollution.
Court held that the dust coming out of the mills of the defendant is causing
inconvenience to the general public because the red powder is visible on the
clothes of the people sitting outside and is also health hazard. Court granted
special damages to the plaintiff because he suffered more damage as in reduction
in no. of patients. Also, the court said about the substantial injury that means
when do not have to wait for actual damage but we can seek injunction to avoid
that nuisance or can get compensation.
Municipal Council, Ratlam v. Shri Vardhichand & Others
The case is related to overcoming environmental issues and the responsibility of
statutory bodies to act.
People living in Ratlam city of Madhya Pradesh filed a complaint to the
sub magistrate divisional against the municipality of that area which is not
constructing appropriate drains because of which there's a lot of stench and
stink in that area. The sub divisional magistrate of Ratlam asked the
municipality to setup a proper plan within six months and when they could not do
that the case was brought before the Supreme Court. Municipality defended
themselves by saying that they don't have appropriate funds to construct the
Whether municipality's unavailability of fund will save them from
fulfilling their liability.
Supreme Court upheld the decision of High Court and said that unavailability of
funds is not an excuse and they have the duty to perform under a statutory
authority towards the public.
Attorney-General v PYA Quarries Ltd 
In this case court said that substantial number of private nuisances constitutes
a public nuisance.
The defendant was the owner of quarry and he used blasting technique which
caused a lot of noise and emitted huge quantity of dust, vibrations interfering
with the enjoyment of the property for the people living there. Plaintiff asked
for an injection to prevent the continuation of nuisance. Defendant claimed that
he was liable for private instead of public nuisance because the damage was
happening to only particular people in that area and thereby not bound by
injunction prohibiting public nuisance.
The issue was whether defendant's action was private or public nuisance. What
exactly is the difference between public and private nuisance and when we can
determine the private nuisance had become public nuisance.
The blast that the defendant was doing can lead to a public nuisance and so the
injunction can be granted. While it is difficult to differentiate between
private and public nuisance, we can say a public nuisance is the one where it
affects the reasonable comfort or safety of particular group and what
constitutes a group depends on the facts and circumstances of the case.
Actually, it is impossible to define certain number of people and call it a
public nuisance. Public nuisance is too indiscriminate that it doesn't even
expect any individual to take the duty to stop it instead the it is
responsibility of society at large and this is what happened in the case,
injunction was granted.
Campbell v Paddington Corporation 
In this particular case compensation was granted apart from the public nuisance
because of the special injury.
was such that plaintiff was the owner of the place from where one can see
the funeral of King Edward VII. Hence, she allowed people to come over her place
in exchange of money to see the funeral but a day before the event defendant
constructed a stand on the road to see the funeral clearly and because of this
there was reduction in the price leading to the loss of plaintiff and then she
filed case against defendant owing compensation under public nuisance.
was whether the stand constructed on a highway will come under public
nuisance or not.
The court held that the defendant was liable for constructing a stand on an open
highway and in front of plaintiff's building. The court reasoned that the
plaintiff had a right of action against the company since she suffered loss more
than any other general public due to nuisance.
Missouri v. Illinois & Sanitary District of Chicago
In this particular case the court applied the formula of remoteness which was
also use U.S. Supreme court's first Interstate pollution case.
was such that state of Missouri in USA filed a case against state of
Illinois in which it said that city of Chicago discharge sewage into Mississippi
River as a public nuisance actually city of Chicago has reversed the stream of
Chicago Rovers so that it could not go into Lake Michigan and pollution will
flow into Mississippi River. State of Missouri said that reverse flow has
poisoned that river and caused typhoid to the people living there.
was whether state of Illinois will be liable for public nuisance by
throwing sewage into Mississippi River and indirectly causing typhoid to people
The court rejected the nuisance claim on the basis of causation. Justice Holmes
said that the sewage thrown 350 miles downstream and the disease discovered was
so far away and too remote for any disease to occur. The state also failed to
prove that typhoid bacteria flow through the river. Also the industries which is
already located in the state of Missouri discharge such practices as well. Hence
the court said that more evidence of causation may lead to a different result
however that is not the case now and gave the judgement in favour of Illinois.
St Helen's Smelting Co v Tipping 
In this case court has explained the difference between the enjoyment of land
and nuisance which causes the damage to the property. The decision whether the
defendant has committed nuisance will depend upon his type and frequency of
interference alleged and for the damage of property plaintiff only need to show
that the damage has been occurred because of defendant.
of the case was such that plaintiff purchased a land which is over
thousands of acres and this land was nearby defendant's smelting factory which
has been in operation for a very long time. This factory produces toxic gases as
a result of its manufacturing which is often considered to be a normal in the
part of smelting company. There were damages to the plaintiff's property and he
sued for compensation under tort of nuisance.
was that whether the defendant has right to carry on his business who is
discharging smelt or whatever as a result of the industry or whether defendant's
act will come under nuisance.
The plea was allowed and the court said that it is not a defense to say that the
plaintiff himself came to that place where smelting operation was already going
on. While the court accepted that smelting operations are not unlawful and
neither was in place where there could be any nuisance expected. However, there
should be a difference between unreasonable interference to the enjoyment and
damage occurred to the property. Finally, the court held defendant liable.
There has been a strong urged by the scholars to abolish this indefinite
extensive offense as public nuisance and it will not have any harmful effect on
country's legal system.
However, there are some contrary viewpoints also who
said that instead of abolishing the whole concept we can make changes in the act
itself otherwise we have to make "general offence of doing anything which
creates a major hazard to the physical safety or health of the public
" to fill
the gaps that can occur in the absence of public nuisance in this way we can
keep a check on those individuals only who try to disrupt public peace they can
be polluters or environment destroyers and also cause less disturbance then the
one which can occur by abolishing public nuisance altogether.
In conclusion I
want to say there are some ambiguities in this law which needs to be addressed
and for that we don't need to abolish it at all but we need some affirmative
changes to serve its purpose of maintaining public peace.
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