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Constituents Of Tort Of Nuisance

Introduction of Nuisance
The word nuisance has been derived from the French word 'nuire' which means, to hurt or to annoy. Ordinarily, nuisance means to disturb someone. According to Winfield, nuisance is incapable of the exact definition. But for the purpose of law of tort, it may be described as an unlawful interference with a another person's use or enjoyment of land or of some right over,or in connection with it. Hence it is an inconvenience faced by a person in the use of his property because of another person who unreasonably uses his own property in a way which negatively affects the former.

According to Stephens "Nuisance is anything done to hurt or annoyance of the land, tenements of another, and not amounting to trespass. [1]

Moreover, Nuisance can be committed through the medium of intangible objects also like vibrations, gas,noise,smell,electricity or smoke.

Nuisance in Legal Terms
In law, nuisance has more restrictive meaning than it has in an ordinary parlance. It is not all inconveniences that will succeed in an action for nuisance. Minor inconveniences which are usually a result of normal human interaction in the society are not actionable in law. The law always tries to strike a balance conflicting between the interest of the plaintiff and the defendant in the society. So we can define the tort of nuisance as an act which gives rise to unlawful, unwarranted or unseasonable annoyance or discomfort to the plaintiff which results in damage to the property of the plaintiff or interfere with his use and enjoyment of his land.[2]

How is Nuisance different from Tresspass?
An additional distinction that separates nuisance from a trespass is that a nuisance protects the right of an individual to enjoy his land, while the trespass protects an individual's right to exclude others from his land. Nuisances are not held to strict liability standard; instead, courts now a days look at the reasonableness and nature of a nuisance to determine if the defendant is liable.

The big thing here is that trespasses are physical invasions, while nuisances do not have to be physical invasions. Here The nature of the nuisance does matter, but the nature and intent of the trespass does not matter.

When nuisances or trespasses occur, what are the remedies to alleviate the damages?
Two main legal remedies are injunction relief and money damages. An injunction restrains a party from the enjoyment of their property. One example is the case of Whalen v. Union Bag and Paper Co, wherein a farmer sued a huge pulp mill for polluting his land. The pulp mill hired 500 employees and taken in tens of thousands and thousands of sales every year, however the harm to the farmer became only $a hundred every year. Still, he decided to prefer of the farmer and ordered an injunction towards the pulp mill.

This result, as Cole and Grossman explain, became "incredibly inefficient" as "the defendant's behavior produced internet social benefitsin extra of costs, which include damage to nuisance plaintiffs." For a situation wherein to enjoy the nuisance exceeds the value of the nuisance, ordering an injunction isn't always the suitable criminal remedy. Money damages are a green manner to pay for the value of a nuisance without ordering an efficient agency to prevent the leisure in their property.

In instances like Whalen wherein the agency generating the nuisance has a superb effect on society, cash damages could each cowl the farmer's damages and nevertheless permit the pulp mill to gain society.[3]

Essential elements of Nuisance:
For making a Nuisance act actionable under the law of torts the following essentials must be satisfied:
  • Wrongful Act by the Defendant:
    For the Action against Nuisance to arise the first essentiality is the conduct of a wrongful act by the Defendant. This may include action which is prima facie not legal and unreasonable in the eyes of a prudent man.

    Caveat-Though the Plaintiff is sensitive and perceives the Defendant's action to be unreasonable as a result of his sensitivity, even if the activity is generally reasonable to a prudent man, the case for Nuisance cannot be brought.
  • Damage/Loss/Inconvenience caused to the Plaintiff
    The next essentiality that requires a substantive damage or inconvenience to be caused to the Plaintiff. The maxim "De minimis non curat lex" comes into play and provides that the law shall not consider trifles or minimal damage claimed by the plaintiff due to his own sensitivity.

Nevertheless, if the act of the Defendant involves the hampering of a Legal Rights of the plaintiff, nuisance comes into play. [4]

In Ushaben V Bhagyalaxmi Chitra Mandir
The plaintiff's- appellant's sued the defendant's- respondent's for a permanent injunction to restraint them from exhibitnh the " Jai Santoshi Maa "claiming that it hurts the Religious sentiments of a particular Hindu community, the court dismissed the Plea stating that hurt to religious feeling 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.[5]

In Halsey v. Esso Petroleum Co. Ltd. (1961)
The defendant's deal with fuel oil in its light from the chimneys projected from the boiler house, acid smuts containing sulphate were emitted and were visible falling outside the plaintiff's house. There was a proof that the smuts had damaged clothes hung out to dry in the garden of the plaintiff's house and also paint work of the plaintiff's car which he kept on the highway outside the door of his house.

The depot emanated a pungent and nauseating smell of oil which went beyond a background smell and was more than would affect a sensitive person but the plaintiff had not suffered any injury in health from the smell. During the night there was a noise from the boilers which at its peak caused window and doors in the plaintiff's house to vibrate and prevented the plaintiff's sleeping. An action was brought by the plaintiff for nuisance by acid smuts, smell and noise.The defendants were held liable to the plaintiff in respect of emission of acid smuts, noise or smell.[6]

Types of Nuisance:
  1. Public Nuisance Tort
  2. Private Nuisance Tort

Social Violence / Public Nuisance

Social trouble means what affects the general public or part of the community. This is what affects a segment of society or the social class because it does not discriminate in its effect or spread. Boredom can be a public nuisance from its source or its end result or destination. Also, the nuisance that affects a section or part of a community is a public nuisance and whether the number of people involved is sufficient to offend the community is a matter of fact depending on the facts and circumstances of each case.

Everything should be considered with a positive outlook. Circumstances, which plague the community include roadblocks or public roads, public waterways, noise pollution, oil spills from international oil companies' operations and the disgusting business practices such as using the GR brothel.

Public harassment/ public nuisance is often a criminal offense (see section 234 of the Criminal Code and section 192 & 194 of the Penal Code) which can only be prosecuted by the Attorney General in his or her capacity as custodian of human rights. In other words, an independent person has no right to prosecute a crime of public nuisance; The Attorney-General is prosecuting.

However, in order for an individual to be able to sue for public nuisance, he or she must show that he / she has suffered a special loss / damage in addition to what other members of the community have done.

Daodu v. The NNPC
The supreme Court, according to the Qguegbu JSC, stated the rule thus, "blocking a public highway or restricting public free access to a freeway is a public nuisance and an independent individual. he has the right to take action if he can prove the cause of the damage in addition to the general public nuisance and the damage he has caused and the serious damage he has caused. "

The need to prove certain damages will be satisfied if the complainant can demonstrate that he or she has suffered significant damage to a greater extent than any other public. It is wise to note that, in many cases a section or section of a community will be accused of harassing the public and often the action will fail as the court has always ruled that the class action is not appropriate in such cases. This is because they are all inclusive and independent and cannot force society to be abused. It is better to sue individuals for trying to prove that you are suffering above all else.[7]

A similar decision was reached in the case of Adediran v. Interland Transport Ltd. in which the plaintiff / plaintiffs sue on behalf of themselves and the occupiers of the residence; The Supreme Court held that although all the injuries complained of stemmed from the same grievance complaint, each different injury is a different abuse.[8]

Leanse v. Egerton, (1943)
Plaintiff, while walking on the highway was injured on Tuesday when he fell out of a window through an unoccupied house, the window was smashed while the wind was blowing. last Friday night. Due to the fact that the defendant's embassies were closed on Saturdays and Sundays and the difficulty of working during the week, no steps were taken to rectify the danger to passersby until Monday. The owner had no real knowledge of the location.

It is alleged that the respondent must be presumed to be aware of the existence of the problem, that he failed to take reasonable steps to resolve it even though he had sufficient time to do so, and as a result, he "continued" and was guilty of the offense.[9]

Private Harassment/ Private Nuisance
Troubles infringe on the rights of an individual or organization, considered a confidential matter. Unlike a public nuisance, secret harassment is an act that affects a particular person or persons as they are isolated from society as a whole. The remedy for the act of private harassment is a public act of damage or a suspended order or both not a charge.

Elements of a Private Nuisance Lawsuit Real estate owners have the right to enjoy and use their land. In a situation where another party is violating that right.

For example. the neighbor often plays his music as loudly as possible at night.

In such a case, the landlord may sue the intruder. Talking to your neighbors about the problem is often the best first step, since they may not be fully aware of the consequences of their actions.

Although the regions may differ in their definition of privacy, the complainant must prove the following:
  • The plaintiff owns or intends to own the land
  • The defendant has acted in a manner that interferes with the plaintiff's enjoyment and use of his property.
  • Defendant's interference was substantial and inconsistent.[10]

Rose v. Miles (1815)
The defendant had improperly blocked a public river that could be used to prevent the defendant from transporting his goods in the river because he had to move his goods across the country because he was facing additional travel expenses. It is alleged that the respondent's action has caused a stir in the community as the complainant has obtained proof that he has lost other members of the community and this has the right to take action against the respondent.[11]
  • Property
    In the case of a nuisance in relation to a building, any reasonable damage to the building will suffice to justify the act of damage.
  • Physical discomfort
    In the case of physical discomfort, two basic conditions are required. In excess of the natural and normal course of an era

Radhey Shyam v. Gur Prasad AIR 1978
Mr Gur Prasad Saxena and another sued Mr Radhey Shyam and five other people for an injunction restraining the accused from installing and operating a flour mill at the respondent's residence. Gur Prasad Saxena has filed another lawsuit against Radhey Shyam and five other individuals to be ordered to run and run the oil industry. Plaintiff stated that the mill was making noise which was disrupting the complainant's life. It is alleged that by operating a flour mill in the residence of the respondent he was causing annoyance to the complainant and severely disrupting his life.[12]

Defense is available at Nuisance
There are many effective protections available for abuse, these are:
  • Doctor's note
    A medical certificate is a title deed obtained by use and time and that is legally permitted, a person may claim any property because his or her ancestors legally own the property.

    Medication is a special form of self-defense, as, if the trouble was going on peacefully and openly without interruption of any kind then prescription protection is available to the group. At the end of this 20-year period, the nuisance becomes legal as if it were initially approved with a grant from the landowner.

    There are three important things to get a human right through a prescription, they are:
    1. The use or enjoyment of a place: The use or enjoyment of a place must be legally acquired by a person and the use or enjoyment of the property shall be made openly and peacefully.
    2. Ownership of an item / property that is enjoyed: A person should know the ownership of the item or property that they enjoy in peace or in the community.
    3. It should not infringe on the rights of another person: The use or enjoyment of an item or property should be of a nature that infringes on the rights of another person thus causing discomfort and even after being aware of that nuisance. because there should be no action taken against the person responsible for that for at least twenty years.
    Sturges v. Bridgman (1879)
    A had used a heavy machine in his business for more than 20 years. B, a doctor's neighbor, built a consultation room connected to house A just before the current action and found himself severely disturbed by the sound of A's machines. B has brought A to the point of eliminating boredom. It was held that B must win. I will not be able to resist the doctor's note as the time does not pass from the date the problem started but from the day the problem started.[13]

  • Legal authority
    1. When the law authorizes the execution of a specific act or use of land, all remedial measures either by act or by indictment or liability, are abolished. Provided that all appropriate safety precautions are taken
    2. The official may be complete or conditional.
    3. If there is absolute authority, the template allows for action and it is not necessary that the action should cause any inconvenience or injury.
    4. As in the case of a conditional authority, the state allows action to be carried out only if it is not carried out without cause of trouble or other form of injury.

In the case of Vaughan v. Taff Vale Rly (1860) , Defendants who had jurisdiction over the Railway Engine Act on their railway line, could not be charged with fire caused by the escape of sparks.[14]

In case of anxiety it is not a protection:
  1. Plaintiff got into trouble: E.g. if a person deliberately buys a place near a melting point that works his solution, because the toxins caused by the smoke from it are not affected. It is not a valid defense to say that the plaintiff has got into trouble


2. In the case of a continuous problem, it is not a defense that all possible care and skills are used to prevent the alleged surgery from becoming a nuisance. In an act of harassment it is not the answer that the defendant has done everything in his power to prevent its existence

3. It is not self-defense that the performance of the defendant would not be a problem in itself. Eg. some firms contribute to the complaining smoke.

4. It is not a defense that the defendant is just using his property properly. No real use of property causes great discomfort to some people.

5. That the grievance, even though it causes harm to the complainant as an individual, brings benefits to the community as a whole. Boredom may be the inevitable result of an activity or other undoubted benefit to the community, but it is a potential problem. No consideration of public services should deprive a person of his or her legal rights without compensation.

6. That the source of the boredom is the only appropriate place to continue the complaining work. If no place can be found where such type of business will not cause a nuisance, then it cannot be done at all, without the consent or consent of the nearest owners or under legal penalty.[15]

Act of stranger: i.e, that the plaintiff has not filed any case against the defendant, he has only succeeded in making out a case against a stranger who cause the nuisance.

Inevitable accident

Act of necessity

Statutory authorization: i.e power given by statute. In exercising such powers, the defendant must ensure that all reasonable care and skill is used and he does not go outside the powers given by the statute. Again, statutory defences are usually construed strictly against the person exercising the power so to protect the citizens.It can be Seen in the case of Ekemode v. Alausa where a public officer was given power to clear inland waterways. In exercising that power he removed some canoes from the water but in the process he damaged a particular part and the court held that the power to remove any part is incidental to the power to clear the waterway but damaging the partis not a part of the powers given to him by statue, therefore he was held liable for the damage.[16]

Disruptive Remedies
There are three types of remedies available when you get bored, they are:

1. Injunction- It can be a temporary injunction which is granted on an interim basis and that maybe reversed or confirmed. If it's confirmed, it takes the form of a permanent injunction. However granting of an injunction is again the discretion of the Court. There are many types of injunction
Interim injunction obtaining pending determination of the interlocutory injunction (it is applicable in urgent cases).
Interlocutory injunction obtaining pending determination of the final injunction.
Final injunction It exists to prohibit one from doing something.
Prohibitory injunction this exists to prohibits someone from doing something.
Mandatory injunction this exists to mandate one from doing something.
Injunction is a discretionary remedy. The court has discretion to grant or refuse injunction so that even if one has made a good case for the grant of injunction, the court may still find a good reason to refuse injunction. However, the court's discretion should be exercised judiciously and judicially.
2. Damages- The damages that are offered to the aggrieved party could be nominal damages i.e. damages which are to recognize that technically some harm has been caused to plaintiff or statutory damages i.e. where the amount of damages as decided by the statute and not dependent on the harm suffered by the plaintiff or exemplary damages i.e. where the purpose of paying the damages is not compensating the plaintiff, but to prevent the wrongdoer from repeating the wrong committed by him.
3. Abatement- It means the removal of a nuisance by the party injured without having recourse to legal proceedings. It is not a remedy which the law always favours and is not usually advisable. E.g. The plaintiff himself cuts off the branch of tree of the defendant which hangs over his premises and this causes nuisance to him.[17]

All in all, it is to note that in most cases of oil spillage, the plaintiff would not know If to sue for negligence, or for nuisance, whether public or private or under the rule in Rylands v Fletcher,On how to bring the action, a lot depends on the facts of each case; but, it may be wiser to sue for all alternatives, and also to add a claim simply for damages on the basis of Ubi Jus lbi Remedium.

The concept of nuisance appears pervasive in people's daily lives, in fact, Indian courts have borrowed a quite from English principles as well as common law decisions while setting their own precedent. This has helped the concept of nuisance in the legal field to develop quite widely and ensure the fairness and welfare of all parties that can participate such as in the case of a private nuisance, the affected party, as well as the affected party. Such as in the case of public nuisance, where the society at large is being affected.

  4. Dr. R K Bangia,Law of Torts 180-183 ( 25 th ed 2020)
  5. Ushaben v. Bhagyalaxmi Chitra Mandir A.I.R. 1978 Guj. 13.
  6. Halsey v. Esso Petroleum Corporation (1961) 2 ALL ER 145.
  7. Daudu v. NNPC & ORS (1998) LPELR - 927 (SC).
  8. Adediran v. Interland Transport Ltd(1991) LPELR 88-(SC).
  9. Leanse v. Egerton (1943) K.B. 323 : (1943) 1 ALL E.R. 489.
  11. Rose v. Milles (1815) 4 M. & S. 101.
  12. Radhey Shyam v. Gur Prasad A.I.R. 1978 ALL. 86.
  13. Sturges v. Bridgman (1979) 11 ch. D. 852, at p. 865.
  14. Vaughan v. Taff Vale Rail Co. , (1860) 5 H. and N. 697.
  16. Ekemode v. Alausa (1961) ALL NLR Pg. 135
  17. Supra Note 2 Pg 5.

Written By: Aditi Sharma; BBA LLB HONS. 2 nd year ; Mody university of science and technology Laxmangarh

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