DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

LAW OF TORTS II & CONSUMER PROTECTION ACT

Final DraftOna critical analysis of nuisance

Under The Guidance of: Submitted By:

Dr. R. K. Yadav Shivam KumarAsstt. Prof. (Law) Roll No. 123, Section BDr. RMLNLU, Lucnow Semester -IV

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the writing of this project.I would like to express my special thanks and gratitude to my teacher Mr. R. K. Yadav who gave me the golden opportunity to do this project which also helped me in doing a lot of research work and I came to know about a lot of new things.I am really thankful to them.Secondly I would also like to thank my friends who helped me a lot in finishing this project within the limited time. I am making this project not only for marks but also to increase my knowledge. Thanks again to all who helped me.

Shivam Kumar

Contents

INTRODUCTION4ESSENTIALS OF NUISANCE5TYPES OF NUISANCE5Public nuisance5Private nuisance6REMEDIES8DEFENCES10CONCLUSION12Bibliography13

INTRODUCTION

Nuisance is a common law of tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") or private.The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience, or welfare of a community. A public nuisance interferes with the public as a class, not merely one person or a group of citizens. No civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others; a criminal prosecution is the exclusive remedy. However, if the individual suffers harm that is different from that suffered by the general public, the individual may maintain a tort action for damages.A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.The word nuisance is derived from the French word nuire, which means to do hurt, or to annoy. One in possession of a property is entitled as per law to undisturbed enjoyment of it. If someone elses improper use in his property results into an unlawful interference with his use or enjoyment of that property or of some right over, or in connection with it, we may say that tort of nuisance occurred. In other words, Nuisance is an unlawful interference with a persons use or enjoyment of land, or of some right over, or in connection with it. Nuisance is an injury to the right of a person in possession of a property to undisturbed enjoyment of it and result from an improper use by another person in his property. Stephen defined nuisance to be anything done to the hurt or annoyance of the lands, tenements of another, and not amounting to a trespass. According to Salmond, the wrong of nuisance consists in causing or allowing without lawful justification the escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.

ESSENTIALS OF NUISANCE

In order that nuisance is actionable tort, it is essential that there should exist:Wrongful acts Damage or loss or inconvenience or annoyance caused to another. Inconvenience or discomfort to be considered must be more than mere delicacy or fastidious and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material.TYPES OF NUISANCEThere are two recognised types of nuisance, private and public. Both types of nuisance involve interference with an individual's enjoyment of land.Public nuisance is often both a civil wrong and a crime, and there may be penalties such as fines or imprisonment ordered against those responsible for creating the nuisance.Private nuisance is not a crime; it is essentially a dispute between two individuals.

Public nuisanceAn example of public nuisance would be someone blocking off a public road. This action would have an effect on a wide range of people, each of whom would be affected or disadvantaged to differing degrees. For an individual to have an action for compensation for the inconvenience or interference suffered, they would have to show that the impact was such as to cause them special damage. That is, they must show that the impact on them was greater than that on the general public. In the example above, to have any sort of action for compensation for nuisance you would have to show that you needed to use that particular road to go to work each day and that the action of blocking it caused you particular problems in getting to work, or a similar sort of inconvenience. It would not be enough to say to a court that you had suffered a minor inconvenience or could no longer have your usual Sunday drive because the road was blocked. The inconvenience or interference must not be trivial or inconsequential, or lacking in good reason for it occurring or continuing to occur.

Private nuisancePrivate nuisance is just that private. It is enough to show that you have been affected by some act or omission of another person. The effect must be that your enjoyment and use of your land has been interfered with. To have a claim relating to a private nuisance, you must show that you live on the property (this includes if you are living on the land under an agreement with the owner). In making your complaint to the court, you must show that the nuisance complained of is not trivial or unreasonable. When deciding whether what you complain about is a "private nuisance", the court would look at a number of factors, including: the general nature of your neighbourhood; where the interference took place (or is taking place); what activity is causing the interference; how long the interference lasted and whether it is ongoing; the time of day or night the interference occurs; the impact the interference is having on you; whether the interference was pre-existing when you moved into your property; how useful or necessary the activity causing the interference is; and What reasonable people would think of the interference? The court tries to use common sense in assessing these factors. It will also weigh the inconvenience or impact of the interference on you against the cost and effect of having the person responsible for the interference modify or stop their activities. Examples of interference that have been found to be private nuisances include: noisy animals, loud air-conditioners, smoke, overhanging tree branches, tree roots growing into neighbours land and interfering with drainage, vibrations and dust. Activities that have caused people to fear for their safety, such as aerial spraying of crops and firing of guns on a rifle range, have also been assessed as "private nuisance". It is a reality of living in close quarters to our neighbours that there will be competing interests and activities, which on occasion may affect the enjoyment of living in the neighbourhood. A court, in deciding on a complaint of nuisance, will weigh up these competing interests in a pragmatic sense, recognizing that some noise, annoyance, inconvenience and discomfort are likely to occur wherever people live. For example, your neighbours barking dog might wake you up every once in a while, but courts know that dogs bark and that the law allows people to keep dogs. Unless a dog is particularly noisy, a court will not usually help you to keep it quiet.

REMEDIESA person injured from private nuisance can make a claim for either damages or injunctive relief or for both. Accordingly, remedies available for nuisance under law include: damages; or injunctive relief; or A combination of both damages and injunctive relief for separate harms alleged.In the case of a public nuisance,an injured party can initiate a criminal prosecution against an offender. However, in some cases a nuisance can be disposed of summarily without any judicial proceedings.Generally, nuisance falls within the jurisdiction of the state courts. However, in cases where the foundation of nuisance lies in the Constitution, or specific federal statutes, or regulations, and case law, nuisance is determined by the federal courts.A private citizen who suffered an injury by reason of a public nuisance can sustain an action for nuisance, if s/he establishes that an injury special and peculiar to himself/herself and different from the one suffered in common by the general public was caused to him/her.In ordinary nuisance cases, the standard adopted by the court for determining relief is the standard of reasonableness. In determining the standard of reasonableness, the court usually depends upon the effect of an activity upon ones neighbours in the particular circumstances and locality.A notice or a request to abate a nuisance is a prerequisite in cases where a nuisance action is brought against a person who did not create a nuisance and who did not have knowledge of its existence. Likewise, a notice or request to abate the nuisance is necessary in cases where a nuisance results from an operation that is ordinarily harmless.A nuisance action without notice is permitted in the following cases: where a substantial injury is caused by a nuisance; where a danger to health, life, or property is imminent from the nuisance; where there is an urgent necessity to remove the nuisance; and Where after complaint and notice of damage, the landowner continues to offend and refuses to correct the nuisance.Therefore, before imposing liability upon a political subdivision for injuries caused by nuisance, an actual or constructive knowledge of nuisance that posed danger to the public is essential.Both in public and private nuisance actions, the allegations must allege those facts that would bring the thing or conduct complained of within the definition of nuisance. In an action for damages, the word nuisance need not be used, if the alleged facts when proved would constitute a nuisance. In other words the allegations must specifically plead that there was a substantial interference with the use and enjoyment of the premises.Generally, the burden of proving a nuisance is upon a party who alleges it. The complaining party must show that the facts alleged constituted a nuisance to a reasonable man. Hence a complaining party through clear evidence must prove: the existence of nuisance; and The injury caused by nuisance.Any nuisance action brought before the court of law will be determined on the basis of the facts of each case. Apart from determining the existence of a nuisance, the court shall also determine the following facts: whether the proximate cause of a plaintiffs injury was defendants act; whether there is sufficient injury or annoyance to constitute nuisance; whether there was a loss of ordinary use and enjoyment by a plaintiff; whether a plaintiffs reaction to the alleged interference was a normal one; whether nuisance is permanent or temporary in nature; whether nuisance is abatable; whether nuisance was created negligently or intentionally; and Whether a defendant acted with malice or in reckless disregard of the rights of others.

DEFENCES Generally, nuisances cannot be justified on the ground of necessity, pecuniary interest, convenience, or economic advantage to a defendant. An act cannot be a nuisance if it is imperatively demanded by public convenience. Thus, when the public welfare requires it, a nuisance may be permitted for special purposes.However, at times, private interests must yield to the public good, and under the pressure of public necessity what may amount to a nuisance otherwise may be inflicted upon certain members of the community. Therefore, necessity is a defence to the tort of nuisance. It is to be noted that injuries to a private property that result from the exercise by a private corporation of public functions are damnum abs que injuria.Generally, there is no justification for maintaining a nuisance because the party complaining of it came voluntarily within its reach. In other words, a defence cannot be made to an action for nuisance that a plaintiff came to the nuisance by knowingly acquiring property in the vicinity of the defendants premises. The duty to use due care is not abated towards one who has elected to live or reside in the vicinity of the nuisance.It is to be noted that if a person merely assents to or participates in the erection for hire of a plant, s/he would not be estopped to complain of injury caused by the operation of the plant so as to constitute an actionable private nuisance without regard to negligence or want of due care. Consent is generally a full and perfect shield, when what is complained of is a civil injury which was consented to. A person cannot complain of a nuisance, the erection of which s/he concurred in or countenanced. In actions founded on tort, the leave and license of the plaintiff to do an act complained of constitutes a good defence by reason of the maxim volenti non fit injuria and as a rule, a man must bear loss arising from acts to which s/he has assented.A right to maintain a private nuisance may rest in a license from the individual affected by the licensees offensive conduct. In an action seeking redress for such a nuisance, if the defendant can show an authorization from the plaintiff, then s/he completely discharges himself/herself from liability. A party aggrieved has the right to remove a private nuisance by abatement. As an obstruction or encroachment can constitute a private nuisance, the owner of the easement may under the rules applicable to the abatement of nuisances proceed to abate it.An easement may be created by words of covenant as well as by words of grant. An easement may permit an activity on land which otherwise amounts to nuisance in relation to other land. If the right to maintain the nuisance amounts to an easement, it is held that a license or authorization to maintain it must rest in an express grant in order to confer a right that is beyond the power of the licensor to revoke.

Conclusion

Nuisance is one of the oldest actions in the common law. The object of nuisance is to protect a person's proprietary interest in land, as opposed to protecting any personal interests. There are two types of nuisance: public and private. Public nuisance is a crime which will be prosecuted by the appropriate authority though individuals can sue for damages if they have suffered special damage (damage above what the public has suffered). Most of this tutorial is concerned with private nuisance. Private nuisance requires that the Defendant is using his land in an unreasonable manner. If a Claimant is successful at trial they can claim damages and/or an injunction to prevent the nuisance from continuing or occurring in the future.

Bibliography

1. Bangia, R.K., Law of Torts, Allahabad Law Agency, Faridabad, 22nd Edition, 2010.2. Ratanlal&DhirajlalsThe Law of Torts, LexisNexis, Nagpur, 26th Edition, 2010.3. Winfield &JollowizsLaw of Torts4. Shugerman, Jed Handelsman, The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylandsin the Gilded Age, The Yale Law Journal, Vol. 110, 2010, page 333-377.