NUISANCE
(LAW OF TORT SERIES)
PROF. KRUTI GOGRI
• The tort of nuisance refers to violation of the right of a person to
‘reasonable convenience and comfort in life’.
• The word is derived from the French word ‘Nuire’ which means to hurt or to
annoy or to cause inconvenience or damage.
• Ordinarily nuisance means disturbances.
• Stephen defined nuisance as, ‘to be anything done to the hurt or
annoyance of the lands, tenement or hereditaments of another, and not
amounting to a trespass’.
• Blackstone, ‘nuisance as some thing that worketh hurt, inconvenience or
damage’.
• Winfield, ‘ nuisance is incapable of exact definition but for the purpose of
law of tort, it may be described as unlawful interference with a person’s use
or enjoyment of land or of some right over, or in connection with it.
• Clark and Lindsell,‘nuisance is an act or omission which is an interference with
disturbance of or annoyance to a person in the exercise or enjoyment of –
a. Right belonging to him as a member of public when it is a public nuisance, or
b. His ownership or occupation of land, or some easement, quasi easement, or
other right used or enjoyed in connection with land, when it is private nuisance
• Examples- acts interfering with comfort, health or safety of the person in the
way of Noise, Vibration, Heat, Smoke, Smell, Fumes,
• Water
• Gas, Electricity
• Excavation
• Disease producing germs
• Sewer
• Obstructions
• It is therefore necessary to establish:
I. Whether the act or omission created an inconvenience
II. Whether the act or omission was reasonable
III. What actual loss or harm was caused
• KINDS OF NUISANCE:
I. Public Nuisance
II. Private Nuisance
PUBLIC NUISANCE
• The main aim of the tort of public nuisance is to protect the general public
from unwarranted disturbances. An action for public nuisance is only
available if the plaintiff can show that he or she is more affected than other
members of the public.
• Section 268 of Indian Penal Code define public nuisance as, ‘an act or
omission which causes any common injury or annoyance to the public or to
the people in general who dwell or occupy property in vicinity, or which
must necessarily cause injury, obstruction, danger, or annoyance to persons
who may have occasion to use any public right.
• An example of a public nuisance is obstructing a footpath by leaving goods
strewn across it, which would cause inconvenience, and could cause injury,
to all the people using the footpath.
• Essential Ingredients for Public Nuisance
A. A person must have done an act or an illegal omission.
B. Such act or omission
i. Must cause any common injury, danger or annoyance to the public or to the
people in general who dwell or occupy property in the vicinity
ii. Must necessarily cause injury, obstruction, danger, or annoyance to person
who may have occasion to use any public right
• In public nuisance, a private person cannot bring action. But action may be
possible under sec. 133 of Criminal Procedure Code. Generally action is taken
by State against person causing public nuisance.
• A private person can take action against public nuisance if –
1. There must be specific damage.
2. Injury must be direct.
3. Injury must be substantial
• Examples
1. Obstructing public way by digging a trench.
2. Construction of structure on public way
3. Obstruction of air and light
4. Obstruction of views.
• Soltou v. De Held - Ringing of bell through out 24 hrs held public nuisance.
• Land mortgage bank of India v. Ahmedbhoy and others - smoke and noise of
cotton mill held public nuisance.
• When Public Nuisance becomes actionable
1. Plaintiff must show a particular or special damage- Not general damage.
2. Such injury must be direct and not a mere consequential injury.
3. The injury must be shown to be a substantive character.
PRIVATE NUISANCE
• The law of private nuisance aims to strike a balance between competing
uses of land and conflicting claims of neighbours.
• Underhill, ‘ a private nuisance is some unauthorized use of a man’s own
property causing damage to the property of another or some unauthorized
interference with the property or proprietary right of another causing
damage, but not amounting to trespass.
• Private nuisance is a substantial and unreasonable interference with the use
and enjoyment of land. This can take the form of damage to property such
as golf balls breaking windows, or personal injury such as damage to health
by noxious fumes. A private nuisance can also be an interference with the
enjoyment of the property by such things as noise, smells and vibrations.
• Generally speaking the wrong of private falls under two classes
a) Damage to property - In the case of damage to property any sensible injury
will be sufficient to support an action. Nuisances of this class arise from
manufacturing works, chains etc. Ex. – smoke, fumes, gas, noise, water, filth,
trees, animals
b) Physical discomfort - In the case of physical discomfort the act complained
of must be
1. in excess of the natural and ordinary course of enjoyment of the property.
2. 2. materially interfering with the ordinary comfort of human existence.
Eg. Carrying any trade causing nuisance, obstruction of light, pollution of air,
noise, water, land.
• Discomfort should be such as an ordinary or an average person in the
locality and environment would not put up with or tolerate.
• For discomfort degree or intensity, duration, locality, and mode of use of
property is considered.
• Christie v. Davey- irritation by Music teacher- malice-hammering wall-held
nuisance.
• Barber v. Penley - Big queues at defendant’s theater which went up to
premises of the plaintiff-held nuisance.
• Zakinuddin(1887) All. 44 and Shaikh Amzad(1942) Pat.- Cutting of cows by
muslins in their own compound for religious purpose held no nuisance
even though the compound was partly visible from a public road. WHY?
DEFENCES UNDER NUISANCE
1. Grant - It is a valid defence to an action for nuisance that the
said nuisance is under the terms of a grant.
2. Prescription - It is a special defence in cases of nuisance; if it is
used peaceably and openly enjoyed as an easement and as of right
without interruption and for 20 years. This is not useful in public
nuisance.
3. Statutory authority - If defendant has committed the act
complained under statutory authority and all precaution required
under law are complied; he is not liable.
• The defendant may be able to defend an action by claiming that:
i. the interference suffered is trivial, not substantial
ii. the interference is not unreasonable in the circumstances
iii. the plaintiff did not suffer any damage.
• FOLLOWING ARE NOT DEFENCES:
i. That the plaintiff himself come to nuisance.
ii. In case of continuous nuisance, all possible care has been taken.
iii. Defendant merely making reasonable use or property.
iv. It would confer benefit to public at
REMEDIES FOR NUISANCE
• 1. Abatement
• 2. Damages
• 3. Injunction
• 4. Criminal action under the provisions of Indian Penal Code and Code
of Criminal Procedure
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