Understanding the tort of 'Nuisance'

MEANING

The word Nuisance owes its origin to the French word “nuire” which means “to do hurt or to annoy”.

Law of nuisance was established to protect the right of the property owner from any annoyance, trespass, hereditament of another or tenement. It was enacted to grant the owner of the property absolute control and enjoyment of his property. Nuisance can either be public or private.

Unlike trespass which is actionable, in case of a nuisance it needs to be proved that damage has been incurred due to the nuisance.

DEFINITION

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

ESSENTIALS OF NUISANCE

1. Wrongful Act: A wrongful act should have been committed by the defendant. There should be unlawful interference with the person or to his property.

2. Actual damage or loss: The act which was committed by the defendant should have caused some actual damage or loss to the plaintiff. The damage should have been a severe one and should not be inconsequential, or a minor one.

TYPES OF NUISANCE

• Public Nuisance

A person can be held liable for Public Nuisance if he must have interfered with public property or with a right common to the general public. It is an act that affects the public at large.

For instance, interference in the use of public Park, creation of health hazards to the public. It can be caused due to a negligent or intentional act.

Ram Raj Singh v. Babulal AIR 1982 All. 285

In this case, the defendant had created a brick grinding machine adjoining to the premises of the plaintiff, who was a medical practitioner. The brick grinding machine generated lots of dust, which in turn polluted the atmosphere. The dust that was generated due to the brick grinding machine entered the consulting chamber of the plaintiff and caused physical inconvenience to the plaintiff and his patients and a red coating on the clothes which was clearly visible. It was held that special damages were proved regarding the plaintiff and a permanent injunction was issued against the defendant which would restrain him from running his brick grinding machine there.

• Private Nuisance

Private Nuisance is an inconvenience which is caused to an individual and not the public at large. To obstruct one’s enjoyment of his own property by another leads to private nuisance. The remedy for private nuisance is a civil action for damages or an injunction or both. An essential element for private nuisance is that the interference must be unreasonable or unlawful. It should affect the person severely or his right to his property by another.

Radhey Shyam v. Gur Prasad AIR 1978 All. 86

Gur Prasad and another had filed a suit against Radhey Shyam and others for a permanent injunction to restrain them from installing and running a flour mill in their premises. It was alleged that the mill was causing a nuisance to the plaintiff, who was residing on the first floor of the same premises. The plaintiff was losing peace on account of noises generated by the flour mill and it was also affecting their health severely. It was held that by keeping the mill in a residential area is had created a nuisance for the plaintiff and affected his health as well. The plaintiff was entitled to an injunction against the defendants.

DEFENCES AVAILABLE FOR NUISANCE

• Prescription

Defence of Prescription is available when the defendant can show that he has a proprietary right to do the thing which is the cause of unreasonable interference. Defendant has to prove that he has acquired an easement by Prescription over Plaintiff's land.

• Statutory Authority

When nuisance has been authorised by an Act of Parliament, either expressly or by implied implication, it is said to be Defence by Statutory Authority. This defence is not applied in places where the Statutory power relied upon was wrongly exercised. The statutory authority may be either absolute or conditional.

REMEDIES FOR TORT OF NUISANCE

• Injunction

An Injunction is an order of the court ordering someone to do something or prohibiting some act of a person. The court may issue a temporary injunction or a permanent injunction. If a public nuisance is found to exist, the court may order an injunction to stop it.

• Damages

Damages in the form of nominal damages may be offered in terms of compensation to the aggrieved party. The statute decides the damages which are to be paid to the aggrieved party. The purpose of the damages is not just to give compensation to the individual who has suffered but also to make the defendant realise his mistakes and deter him from repeating the same wrong done by him.

• Abatement

Abatement of nuisance means the removal of a nuisance by the party who has suffered, without any legal proceedings. This kind of remedy is not favoured by the law. But is available under certain circumstances. This privilege must be exercised within a reasonable time and usually requires notice to the defendant and his failure to act.