Nuisance

By Dr. Sapna Bansal

 Definition
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 an improper
usage by another individual.

Nuisance may be described as unlawful interference with person’s use or enjoyment of a land or of some right over or in connection with
it. (Winfield)

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.

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:

• Right belonging to him as a member of public when it is a public nuisance, or

• 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.
 Essentials Of Nuisance
• Wrongful Act (i.e. unlawful interference)
For an act to constitute nuisance it must be prima facie wrongful, or it should be an unlawful interference with a person or
his property.

• Actual Damage or Loss

Inconvenience or annoyance caused to another which the law considers as substantial, or material as opposed to sensitivity
or delicacy.
In Ushaben v. Bhagyalaxmi Chitra Mandir, the Plaintiff prosecuted the Defendant against the screening of the movie “Jai
Santoshi Maa”, declaring that it undermines the religious sentiments of a particular Hindu community, the court dismissed
the plea stating that undermining a religious emotion 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. It was held that hurt to religious feelings was not an actionable wrong.
 Types of Nuisance
 Public Nuisance
 Private Nuisance

Public Nuisance-

As per Section 270 of BNS (Bhartiya Nyaya Sanhita), 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 but a common nuisance is not excused on the ground that it causes some convenience
or advantage.

Public Nuisance is defined as an unreasonable and unlawful act of the defendant that causes substantial inconvenience and
legal injury to the people at large. It comes into play when by the Act of the defendant, a mass of people is influenced
negatively.

Public Nuisance, being a crime under the Indian as well as English Laws, finds its recognition in various statutes of the country.
Thus, any action which seriously hinders with the health, safety, comfort and convenience of the public in general or which
intend to demean morals come under public nuisance.
 Continues…….
It is a crime under IPC s.268, now section 270 BNS.

Public nuisance is actionable by any public authority.

Rose v miles defendant obstructed the canal by putting his barges across – plaintiff had to incur additional expenses in
transporting the cargo due to the obstruction – held to be a private nuisance as a there was a special damages

Campbell v Paddington Corporation - plaintiff by accepting payments allowed public to view the funeral procession of King
Edward VII from her building on the side of the highway – but before the date of procession the defendant corporation
constructed a stand in front of the plaintiffs building - thereby obstructing the view to the highway- held she is entitled for
damage

Instances where an individual may have a private right of action in respect to a public nuisance:

• He must show the existence of any personal injury which is of a higher degree than the rest of the public.

• Such an injury has to be direct and not just a consequential injury.

• The injury must be shown to have a huge effect.

 Continues…….
In India under Section 91 of the Civil Procedure Code, allows civil action without the proof of special damage.
1. In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and
injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted by the Advocate
General, or with the leave of the court, by two or more persons, even though no special damage has been caused to such
persons by reason of such public nuisance other wrongful act.

2. Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its
provisions.

In Solatu v. De Held, the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest
and the chapel bell was rung at all hours of the day and night. It was held that the ringing was a public nuisance and the
plaintiff was held entitled to an injunction.

In Attorney General v. P.Y.A. Quarries, In an action at the instance of the Attorney General, it was held that the nuisance form
vibration causing personal discomfort was sufficiently widespread to amount to a public nuisance and that injunction was
rightly granted against the quarry owners restraining them from carrying on their operations.
 Private Nuisance
Private Nuisance, influences an individual rather than the world at large. It provides the affected person a claim of “Right in Personam”. Private
Nuisance occurs when the action of the Defendant affects only the Plaintiff in his own enjoyment of land and property and no one else.
Technically, when a person does an action which influences another person and intercepts the latter from performing rights over his own
property. The Plaintiff can claim for unliquidated damages and considering the seriousness of injury, the same are decided and awarded to him.

There can be injury to property or physical discomfort to the plaintiff. In either of the case, if the nuisance is caused to the plaintiff specifically,
he/she can claim for the remedy of such nuisance.

Injury to property
In the case of damage to property any sensible injury will be sufficient to support an action. In St. Helen Smelting Co. v. Tipping, (1865), the
fumes from the defendant's manufacturing work damaged plaintiff's trees and shrubs. The Court held that such damages being an injury to
property gave rise to a cause of action.
In Ram Raj Singh v. Babulal, the plaintiff, a doctor, complained that sufficient quantity of dust created by the defendant's brick powdering mill,
enters the consultation room and causes discomfort and inconvenience to the plaintiff and his patients. The Court held that when it is
established that sufficient quantity of dust from brick powdering mill set up near a doctor's consulting room entered that room and a visible
thin red coating on clothes resulted and also that the dust is a public hazard bound to injure the health of persons, it is clear the doctor has
proved damage particular to himself. That means he proved special damage.
 Continues…….
In Hollywood Silver Fox Farm Ltd v Emmett, A carried on the business of breeding silver foxes on his land. During the
breeding season the vixens are very nervous and liable if disturbed, either to refuse to breed, or to miscarry or to kill their
young. B, an adjoining landowner, maliciously caused his son to discharge guns on his own land as near as possible to the
breeding pens for the purpose of disturbing A's vixens. A filed a suit for injunction against B and was successful.

Physical discomfort
There is either excess enjoyment of the property as opposed to natural or ordinary enjoyment of the property. In case of
physical discomfort there are two essential conditions to be fulfilled:
In excess of the natural and ordinary course of enjoyment of the property- In order to be able to bring an action for nuisance
to property the person injured must have either a proprietary or possessor interest in the premises affected by the nuisance.

Materially interfering with the ordinary comfort of human existence- the discomfort should be such as an ordinary or
average person in the locality and environment would not put up with or tolerate.
 Continues…….
Following factors are material in deciding whether the discomfort is substantial: Degree or intensity
• Duration
• Locality
• Mode of user of the property.
Duration- There must be a continuous interference over defendant's with the claimant's use or enjoyment of land.
• Constant noise smell or vibration is a nuisance
• Isolated act of interference cannot be construed as a nuisance
Stone v Bolton P standing on a highway injured by a cricket ball form the adjoining ground held not a nuisance.

Essentials of private nuisance-

1. UNREASONABLE / UNLAWFUL INTERFERENCE- Interference caused – plaintiff’s property –personal discomfort
The claimant must prove that the defendant's conduct was unreasonable, thereby making it unlawful. The rule is that use
your own property as not to injure your neighbour’s .
 Continues……
2. Test of reasonableness
“The law does not regard trifling inconveniences; everything is to be looked at from a reasonable point of view”
In order to establish the reasonableness following factors are to be taken into account
• The locality
• Sensitivity of the claimant
• the utility of the defendant’s conduct
• malice
• the state of the defendant’s land

(a)The extent of harm and nature of locality- What is nuisance in one particular locality need not necessarily be a nuisance in another
locality

(b) Sensitivity of the claimant- The standard of tolerance is that of the 'normal' neighbour. Therefore, abnormally sensitive plaintiffs are
unlikely to succeed in their claims for private nuisance. Contrast:

Robinson v Kilvert P has a warehouse for brown paper on the first floor – D manufacturer of a paper box occupied the floor beneath –
paper box manufacturing required to have hot and dry room– this caused damage to the P’s paper - held that the sensitivity of P’s trade is
not relevant in liability hence not liable.

Heath v Mayor of Brighton priest and the trustees of the church file suit for nuisance - noise from the adjoining power station caused
disturbance - the personal inconvenience due to high sensitivity of the priest is not a ground – held no injunction can be granted.
 Continues…….
(c) The utility of the defendant's conduct
An activity will amount to a nuisance even if it is useful for the higher-level.
Adams v Ursell- A fried-fish shop was a nuisance in the residential part of a street. An injunction would not cause hardship to
the D and to the poor people who were his customers.
Kennaway v Thompson- injunction was issued against a motor racing club for causing nuisance as the noise of race was too
high
(d) Malice
In Tort It is not necessary to establish malicious behaviour on the part of the defendant but it may be regarded as evidence of
unreasonableness.

Bradford Corporation v Pickles- P had been drawing water from D’s land at a higher- level D sank a shaft in his own land which
diminished and discoloured the water flowing to P’s land – held D is not liable even if did that act maliciously

Christie v Davey- The P had been giving music lessons in his house for several years. The D, irritated by the noise, banged on
the walls, shouted, blew whistles and beat tin trays with the malicious intention of annoying his neighbour and spoiling the
music lessons. An injunction was granted to restrain the D's behaviour.
 Continues…….

In Radhey Shiam v. Gur Prasad Sharma, It was held by the Allahabad High Court held that a permanent injunction may be issued against
the defendant if in a noisy locality there is substantial addition to the noise by introducing flour mill materially affecting the physical
comfort of the plaintiff.

(e) The state of the defendant's land- An occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining land
from natural hazards on his land.

Leakey v National Trust [1980]- The NT owned land upon which there was a large mound of earth which was being gradually eroded by
natural processes and was sliding onto the P's property. It was held that an occupier must take such steps as are reasonable to prevent or
minimise dangers to adjoining land from natural hazards on his land.

3. Proof of Damage- The claimant must usually prove damage, ie physical damage to the land itself or property; or injury to health, such as
headaches caused by noise, which prevents a person enjoying the use of their land. Case examples include:

Fay v Prentice- A projection form D’s house caused the rain water fall on the P’s Garden. Damage was presumed from the flow of water.
Proof of damage was established - Actionable per se.

Nichollas v Ely Beet sugar Factory- P had exclusive right over fisheries in a particular river D’s factory released large quantity of waste
which contaminated the river causing injury to P’s fishes – held actionable per se
 Continues…….
Who may sue- Only a person who has a proprietary interest in the land affected by the nuisance will succeed in a claim, eg as
owner or reversioner, or be in exclusive possession or occupation of it as tenant or under a licence to occupy.

WHO MAY BE SUED-

• Creator of the nuisance

Any person who creates the nuisance can be sued, whether or not that person is the occupier of the land at the time of the
action.

• Occupiers
Sedleigh Denfield v O'Callaghan [1940]- Occupiers who adopt and continue to allow nuisances on their land may also be
liable, even if such nuisances were created by predecessors in title, trespassers or third parties. See:

• Landlord
A landlord may be liable for nuisances emanating from land, eg if the landlord had knowledge of the nuisance before
letting, or where the landlord reserved the right to enter and repair the premises. For example:
 DEFENCES
1) Prescription or person having right of easement - If the nuisance has been continued for 20 years without interruption
the defendant will not liable if s/he pleads a prescriptive right to the nuisance. See

Sturges v Bridgman (1879) - Doctor built consulting room next to a confectioner's workshop which had been operating for
over 20 years; court held that the prescriptive right began on the use of the room.

2) Statutory authority
There will be a defence to private nuisance if it can be shown that the activities complained of by the claimant were
authorised (expressly or impliedly) by a statute or governmental action:

3) Consent- implied in circumstances where the plaintiff’s premises form part of the defendant’s building

4) Plaintiff’s Own Default

5) Abnormal sensitivity of the plaintiff- A man who carries on an exceptionally delicate trade cannot complain because it
is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but
an exceptionally delicate trade
 REMEDIES
• Injunction
An injunction will only be granted at the discretion of the court. For example, an injunction was refused in Miller v Jackson
[1977], where a cricket club was liable for the nuisance created by balls being hit out of the ground.

• Damages
In cases of nuisance by encroachment or damage to land, the measure of damages will be the decrease in the value of
land; in cases of interference with enjoyment the measure will be the reduction in amenity value (per Lord Lloyd in Hunter
v Canary Wharf). The cost of repairs or other remedial works is also recoverable (per Lord Hope).

• Abatement
This is the remedy of self-help, eg removing over-hanging tree branches, which are a nuisance.