THE TORT OF NUISANCE

THE TORT OF NUISANCE

The word ‘nuisance’ is derived from the French word nuire, which means ‘to do hurt, or to annoy’. Blackstone describes nuisance as something that “worketh hurt, inconvenience, or damage.” Nuisance has been defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another, and not amounting to trespass. Nuisance is one of the tort which talks about unlawful interference. This unlawful interference could be with a person’s use or enjoyment of land, or some right over, or in connection with it. This interference must be consequential like to allow stones to fall upon one’s neighbour premises from a ruinous chimney or a person creating offensive smell or noise on his own land thus causing nuisance to neighbour.

According to the oxford dictionary, it means a person or thing that is causing inconvenience or annoyance. Nuisance can be committed through the medium of tangible and intangible objects also like vibrations, gas, noise, smell, electricity or smoke. The purpose of the law of nuisance is to provide comfort to persons who have proprietary interests in land to members of society generally through the control of environmental conditions. It is to note that in nuisance, there is interference with a person’s use or enjoyment of the land irrespective of possession of such land which is not the case in tort of trespass. Thus all acts interfering with the comfort, health or safety are examples of it. Nuisance is not actionable per se, but in an action for nuisance, special damage has got to be proved.

Nuisance is of basically two types:-

• Public Nuisance or Common Nuisance
• Private Nuisance or Tort of Nuisance

PUBLIC NUISANCE

Public Nuisance is a criminal wrong and involves interference with right of public in general and is punishable as an offence. However, if a person suffers from some special or particular damage i.e. damage is caused to the party in contradiction to public at large, then, then it creates a different damage being inflicted upon public as a whole, then a civil right of action is available to the person injured. It is given in such manner as the person getting affected by such nuisance is of such gravity that making him or her avail the right to sue under civil law is more appropriate option. In order to sustain a civil suit in respect of public nuisance, special or particular damage is essential and is required to be proved. In Soltau v. De, 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.

PRIVATE NUISANCE

Private nuisance is a civil wrong and essentially involves such interference that causes damage to the plaintiff’s property or may cause personal discomfort to the plaintiff in the enjoyment of his property. It deals with dispute between adjacent landowners. It demarcates balance between the right of one person to use their land in whatever way they wish and the right of their neighbor not to be interfered with. A plaintiff in a private nuisance action need not prove special or particular damage.

Following are the essentials required to prove private nuisance:-

i) Substantial Interference

To constitute private nuisance, it is necessary to be proved that it involves substantial interference, and what constitutes substantial interference differs according to which of the two recognized types of damage or interference, i.e. interference with the use, comfort or enjoyment of his land, and physical damage, has been suffered by plaintiff. In Dato Dr Harman Singh v Renal Link( KL) Sdn Bhd, plaintiff had since eighteen years operated a clinic and hospital for the treatment of ear, nose and throat ailments. The defendant operated a renal clinic at which patients receive haemodialysis on the floor above the plaintiff’s clinic. The defendant was found liable for emitting from their clinic obnoxious fumes which escapes downwards into the plaintiff’s clinic. The plaintiff, his staff and patients were found to have suffered substantial damage ranging from skin diseases, red and swollen eyes, headaches, lethargy and breathing difficulties.

A trivial interference does not give rise to nuisance. The court have held that disturbing someone’s sleep at night due to excessive noise, using adjoining premises for prostitution or a sex shop and persistent telephone calls all constitute substantial interference. Interference arising from the use, comfort or enjoyment of land is known as amenity nuisance resulting into discomfort, inability to live peacefully and comfortably in one’s own land due to defendant’s actions.

ii) Unreasonableness

The unreasonableness of the defendant activity is the second requirement in establishing nuisance. There must be unreasonable interference with the use of enjoyment of land, damage infliction. All such interferences would not constitute nuisance, it needs to be unreasonable to come under its ambit. Substantial interference may amount to unreasonable interference and vice versa, quite often the court have held defendant’s activities as being actionable nuisance on the basis that they constituted both substantial and unreasonable interferences. It is important to realise that the two elements of nuisance are interconnected and interdependent.

In Woon Tan Kan & 7 Ors v Asian Rare Earth Sdn Bhd, the plaintiff residents of Bukit Merah village sued the defendants, principally for an injunction to restrain the company (ARE) from operating. The plaintiffs alleged that the activities from the factory produced dangerous radioactive gases harmful to the residents of Bukit Merah. The court granted a quia timet injunction and held that private nuisance was established. It was also held that the plaintiff’s health was being affected harmfully, to a substantial degree.

If the interference is unreasonable, there can be no defence of public good. Further, an unreasonable activity cannot be excused on the ground that reasonable care had been taken to prevent it from becoming a nuisance.

iii) Interference with the use or enjoyment of land

Talking about interference with the use or enjoyment of land, it may be caused either by tinjury to the property itself or injury to comfort or health of occupants of certain property.

• Injury to property– Any unauthorized interference with the property of another person through some tangible or intangible object which causes damage to the property is actionable as nuisance. This damage could be material or physical. Such actual physical damage must be established to be of substantial interference so that damage could be recovered. In Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd, the appellant who owned the hotel were building a 20-storey extension to their hotel. The respondent who owned the adjacent land claimed that the piling works of the appellants caused severe cracks to appear in their heritage building. Their application for injunction was allowed as it was found that unless an alternative system of piling was adopted, the safety and structural stability of their building would be endangered. In Rose v. Miles, 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.

• Injury to comfort or health– Substantial and serious interference with the comfort and convenience in using the premises is actionable as nuisance. This standard of comfort obviously vary as per time, place, notions of society but will not be ascertained according to plaintiff’s point of view given the fact that test to distinguish this discomfort or inconvenience should be placed upon how an average man residing in the same place and in same situation would have acted over. Smoke, noise and offensive vapour may cause nuisance even though they are not injurious to health. Reasonable interference incidental to the carrying on of a lawful trade is not an actionable nuisance. But interference with health, comfort or enjoyment of property through an offensive trade is actionable nuisance. In Radhey Shyam v. Gur Prasad, Gur Prasad Saxena and anothers filed a suit against 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. G. P. 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.

iv) Damage

Nuisance requires proof of actual damage inflicted to the plaintiff. In case of public nuisance, special or particular damage is required to be proved to bring any action under civil law. Whereas, in private nuisance, although damage is one of the ingredients, still law presumes its presence and it is not required to be proved.

LEGAL DEFENCES

There are some ineffectual defences which are rejected by the court in case of Nuisance like nuisance for public good, nuisance due to act of the others, use of reasonable care, plaintiff’s fault etc.​​ Valid defences to plead in an action for nuisance is mentioned below:-

• Statutory Authority- If any act that is causing nuisance is being authorized by any statute, there is no liability for that under law of tort. It is an absolute defence. Also, if nuisance is necessarily incident to what has been authorized by the statute, there will arise no liability under the law of torts.
• Prescriptive right to commit nuisance- A right to do an act, which would otherwise be a nuisance, may be acquired by prescription. The prescription can legalise an act of Nuisance in the case of Private Nuisance. In simple words, it means that if the defendant has been doing that same activity causing interference with the enjoyment of property of the plaintiff for more than 20 years, he gets a legal right by prescription to continue with the same in future also. This right to commit private nuisance can thus be acquired by as an easement if the same has been openly and peacefully enjoyed as an easement and as of right, without interruption, and for 20 years. On the expiration of 20 years, the nuisance becomes ab initio legalized as if it has been authorized by the grant of owner of serviant land from the beginning itself.

************************************

References:

• Justice G. P. Singh (ed.), Ratanlal & Dhirajlal on Law of Tort (26^th edn., 2012)
• The Tort of Nuisance, available at: https://blog.ipleaders.in/the-tort-of-nuisance/#:~:text=Th (last visited on May 3, 2021)
• Dr. R.K. Bangia, Law of Torts (Allahabad Law Agency, Haryana, 24^th edn. 2017)
• Soltau v. De, (1851) 2 Sim NS 133
• Radhe Shyam v. Gur Prasad Sharma, AIR 1978 All. 86
• Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd, [2002] 3 AMR 3405 CA
• Private Nuisance, available at: https://www.lawteacher.net/free-law-essays/land-law/private-nuisance.php (last visited on May 3, 2021)
• All you need to know about Tort of Nuisance and False Imprisonment, available at: https://lawctopus.com/clatalogue/all-you-need-to-know-about-torts-of-nuisance-and-false-imprisonment/ (last visited on May 3, 2021)
• Rose v. Miles, (1815) 4M &S. 101
• Nuisance under Law of Torts, available at: https://www.legalbites.in/nuisance-under-law-of-torts/ (last visited on May 3, 2021)