Nuisance as a Tort

Nuisance as a Tort

By:  Tushar Rai

The word nuisance has been derived from the French word ‘nuire’ which means, to hurt or to annoy. Ordinarily, nuisance means disturbances. According to Winfield, nuisance is incapable of exact definition. But for the purpose of the 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. Learn Nuisance Tort here.

Kinds of Nuisance

  1. Public Nuisance Tort
  2. Private Nuisance Tort

Public Nuisance

A public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public. Simply speaking, a public nuisance is an act affecting the public at large or some considerable portion of it; and it must interfere with rights which members of the community might otherwise enjoy.

Thus acts which seriously interfere with the health, safety, comfort or convenience of the public generally or which tend to degrade public morals have always been considered a public nuisance.

Examples can be obstructing a public way by digging a trench. Carrying on trade which causes an offensive smell.

Essentials of Public Nuisance

A person must have done an act or an illegal omission. Such an act or omission must cause any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity.

Private Nuisance

A nuisance interferes with the right of a specific person or entity, it is considered a private nuisance. Unlike public nuisance, a private nuisance is an act affecting some particular individual or individuals as distinguished from the public at large. The remedy in an action for private nuisance is a civil action for damages or an injunction or both and not an indictment.

The Elements of a Private Nuisance Lawsuit

Property owners have a right to the enjoyment and use of their land. In the event where another party interferes with that right.
For e.g. a neighbor regularly plays his music at the maximum volume possible late at night.

In such a case, the property owner can sue the interfering party. Talking to your neighbor about the nuisance is usually the best 1st step, since they may not fully aware of the effects of their actions. While states may differ on their definition of a private nuisance, a plaintiff must typically prove the following elements:

  1. The plaintiff is the owner of the land or has the right to possess it
  2. The defendant literally acted in a way that interferes with the plaintiff’s enjoyment and use of his or her property
  3. The defendant’s interference was substantial and uncooperative.

Kinds of Private Nuisance

  1. Damage to property
  2. Physical discomfort

Damage to Property

In case of damage to property, any sensible injury will be sufficient to support an action. Nuisances of this class may arise from manufacturing works, chains, etc.
E.g. smoke, fumes, gas, noise, water, filth, trees or animals.

Physical Discomfort

In the case of physical discomfort, the act complained of must be in excess of the natural and ordinary course of enjoyment of the property materially interfering with the ordinary comforts of human existence.
Eg. Carrying any trade causing nuisance, obstruction of light, etc



Difference between Private and Public nuisance

It is an infringement of the right of a private person. It is an infringement of a public right.
The injury is caused to the individual. It causes injury to every person of the public.
The injured person may bring an action. A person may bring an action only if he sustains a special injury.
Here plaintiff must prove interference with his enjoyment of land It is actionable per se





Case Law: Rose v. Miles(1815) 4M &S. 101

The defendant had wrongfully obstructed a public navigable creek which obstructed the defendant from transporting his goods through the creek due to which he had to transport his good through land because of which he suffered extra costs in the transportation. It was held that the act of the defendant had caused a public nuisance as the plaintiff successfully proved that he had incurred loss over other members of the society and this he had a right of action against the defendant.

A nuisance may be in respect of either property or physical discomfort

  1. Property

In the case of a nuisance with respect to the property, any sensible injury to the property will be enough to support an action for the damages.

  1. Physical discomfort

In a suit of nuisance arising out of physical discomfort, there are two essential conditions required.

  • In excess of the natural and ordinary course of enjoyment of the property.

The usage by the third party should be of out of the natural course of enjoyment from one party.

  • Interfering with the ordinary conduct of human existence.

The discomfort should be of such a degree that it would affect an individual in the locality and people would not be able to put up or tolerate with the enjoyment.

Case Law: Radhey Shyam v. Gur Prasad AIR 1978 All 86

Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other individuals for permanent injunction restraining the defendant from installing and running a flour mill in the premises occupied by the defendant. Gur Prasad Saxena filed another suit against Radhey Shyam and five other individuals for a permanent injunction from running and continuing to run an oil expeller plant. The plaintiff has alleged that the mill was causing a lot of noise which in turn was affecting the health of the plaintiff. It was held that by running a flour mill in a residential area, the defendant was causing a nuisance to the plaintiff and affecting his health severely.

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