Nuisance

 

NUISANCE : A TORT

By – Parushi Sharma

Nuisance, simply means disturbance Or we can say that it is an unlawful interference with out a justification. It can cause discomfort to a individual or public at large. It is activity which is harmful or offensive to others and can give rise to a legal action. It result in inconvenience and annoyance to a person. Nuisance as a tort was firstly introduced by

WINFIELD.

TYPES OF NUISANCE

• Public Nuisance

Nuisance that affect society as a whole are known as public nuisance. These nuisance are actionable only by the state through proceedings under. When nuisance affect morals, safety or health of a community it is considered as offence against state. For example urinating in public place, blocking roads, polluting environment, storing explosives etc. Section 268 of indian penal code, defines it as “ an act or illegal omission which causes any common injury.

• Private nuisance

Disturbing a individual of infringing someone’s enjoyment of land or any private item is known as private nuisance.

Because a private nuisance is based upon interference with the use and enjoyment of land, it is actionable only by persons who have a property interest in such land. If the interference merely makes the use and enjoyment less comfortable, without inflicting physical damage to the land, the courts consider the character of the neighbourhood to determine whether the activity or condition is an unreasonable interference. An activity that causes physical damage to neighbouring land, however, will be held to be an actionable nuisance irrespective of the character of the neighbourhood. Such cases usually involve vibrations that cause walls to crack or noxious vapours that destroy vegetation.

The legal remedies available in the case of a private nuisance are actions to enjoin the operation or continuance of the activity or condition or to collect money damages. If the abatement of a nuisance by injunction would impose an excessive hardship on the community (the closing of factories that would deprive community workers of their livelihood), the usual practice of the courts is to deny an injunction and award money damages for the injury suffered .

Defence to nuisance

There are several defense available to nuisance some of them are as follows

1. PRESCRIPTION / EASEMENTRY RIGHTS

When a nuisance is happening from a long period of time it do not come under the category of nuisance. For example – processions.

2. Statutory authority

When a act of nuisance is done by a statutory authority or done under the law are not named as nuisance. For example – railway noises

3. Right to commit nuisance

If permission for doing an act which in normal scenario considered as crime is given then the act will not be an nuisance. For example if some one does farming on a person’s land with permission of that individual then this will not be an nuisance.

Therefore, traditionally the term nuisance can be defined as an unreasonable interference with the rights of the public or conduct that interferes with an individual’s use and enjoyment of his land can be termed as a nuisance. It is a very vast concept of law which includes in it many harms and damages being suffered whether it is mental or physical harm caused by tangible or intangible objects. Any wrongful interference, which is the consequence of the act being done, can lead to the offence of a nuisance.

essentials:

For proving a nuisance, the following essentials are required:

1. Unreasonable interference:

Interference with one’s enjoyment of land can constitute a nuisance, but not every interference so caused by the person can’t constitute a nuisance. Like playing music at normal voice which might disturb a neighbour, but that can’t constitute a nuisance, as everyone has got the freedom to enjoy their own rights of enjoyment. Therefore, interference that causes damage to plaintiff’s property or personal discomfort can constitute a nuisance, provided that such interference should be unreasonable i.e. beyond the limit of their own granted enjoyment right. Like if A has a house by the side of the road, then he can’t have a claim for the inconvenience which is necessarily incidental to the traffic on the roads.However, the reasonability of nuisance varies according to localities. As in the case of Sturges vs. Bridgman[3] the Thesiger LJ said, “what may be the nuisance in Belgrade Square would not be so in Bremondsey.”

As in the case of, Radhey Shyam vs. Gur Prasad[4] the defendant’s alleged to put a permanent injunction to restrain them from installing and running of floor mill industry in the locality, as that would make already noisy locality noisier. Moreover, due to the installation of the machine, the plaintiff would lose their peace because of the rattling noise of the machine and resultant would be an adverse effect on their health. It was held that the installation of the machine would lead to unreasonable interference on the plaintiff’s right and therefore injunction was granted against the defendant.

2. Interference with enjoyment on use of land:

Interference with the use of land may either lead to the damage or loss to the property itself or injury to the health or comfort of the occupant of the certain property. An unauthorized interference with the use of another property causing him to lose to suffer, whether it be tangible or intangible which may lead to damage of one’s property then in that situation it leads to action for nuisance. Like in the case of St. Helen’s Smelting Co. vs. Tipping[5], here due to the release of fumes from the defendant’s company, plaintiff’s trees and flowers were damaged. It was held that the defendant was liable for the damage being done to the property of others.

Moreover, interference with the property of other causing him discomfort and inconvenience in using the premises can be held him liable for nuisance. But the rule for the same is De minmis non curatlex, i.e. the law does not take account of ordinary matters. There should be interference and inconvenience which is of a serious nature and is causing harm to the property. However, the inconvenience and discomfort do not depend upon the point of view of the plaintiff. The test is based upon how an average man residing in the same locality would consider.

3. Damage:

For bringing an action against nuisance it is necessary for the plaintiff to prove for the damage being suffered by the plaintiff through the act of the defendant. Like in Fay vs. Prentice[6] there was a cornice being built of defendant house was projected towards the plaintiff’s house. Plaintiff presumed that during rain the water would fall from the defendant’s house to plaintiff’s garden which would damage his property. This was needed to be proved by the plaintiff and therefore the defendant was held liable for the same.

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Cases:

• Colls vs. home and Colonial Stores Ltd. (1904) A.C. 179

In this case, a building built by the defendant because of which there was diminished in the amount of light into the room on the ground floor. That room was used as an office where the anyways electric light was anyways needed. It was held that the defendant was not liable because for proving the defendant liable there must be a substantial privation of light.

• Campbell vs. Paddington Corporation, (1911) 1 K.B. 869

In this case, the plaintiff was the owner of a building from where the funeral procession of King Edward VII was to be passed and can be seen from her place. Therefore she decided to take some money in place of allowing people to sit as see the procession. But one day before the procession the defendant corporation constructed a stand on the highway so as to see the procession from their clearly. And due to this, the plaintiff suffered loss due to the reduction in price because of the obstruction of view. She sued the defendant corporation, contending that the structure on the highway was a public nuisance. It was held that the public nuisance was committed and the plaintiff was entitled to a commission.

• Ushaben vs. Bhagya Laxmi Chitra Mandir, A.I.R 1978 Guj. 13

In this case, the plaintiff-appellants argued before the court for putting permanent restraining order against the film “Jai Santoshi Maa” as according to her it hurt the religious sentiments as in that film Goddesses Saraswati, Laxmi and Parvati were defined as jealous and were ridiculed. It was held that hurt religious feelings were not an actionable wrong. Moreover, the plaintiff’s were free not to watch the movie again and hence the plaintiff claim against nuisance was not succeeded.

• Health vs. Mayor of Brighton, (1908) 98 L.T. 718: 24 T.L.R. 414

In this case, there was a suit filed for the order to grant the order of injunction in favour of incumbent and trustees of Brighton Church to restrain a Buzzing noise from defendant’s power station. It was held that the noise was not disturbing any other person other than the incumbent, and neither the noise was of such loud that it distracts other person came to attend church.

 

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