The Tort of Nuisance

  
Introduction
A person in possession of a property is entitled to its undisturbed enjoyment as per law.
However, if someone else’s improper use or enjoyment in his property ends up resulting into an
unlawful interference with his enjoyment or use of that property or of some of the rights over it,
or in connection with it, we can say that the tort of nuisance has occurred.

The word “nuisance” has been derived from the Old French word “nuire” which means “to cause
harm, or to hurt, or to annoy”. The Latin word for nuisance is “nocere” which means “to cause
harm”.
Nuisance is an injury to the right of a person’s possession of his property to undisturbed
enjoyment of it and results from an improper usage by another individual.
Definitions by Various thinkers
According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of
another, or of the lands, one which doesn’t amount to trespass.
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.
Essential elements of Nuisance
Wrongful act
Any act which is done with the intention to cause the infringement of the legal rights of another
is considered to be a wrongful act.
Damage or loss or annoyance caused to another individual.
Damage or loss or annoyance must be such which the law should consider as a substantial
material for the claim.
Kinds of Nuisance
1. Public Nuisance
The Indian Penal code defines nuisance as an act which causes any common injury, danger or
annoyance, to the people in general who dwell or occupy the property, in the vicinity, or which
must necessarily cause injury, obstruction, danger, or annoyance to the people who may have
occasion to use any public right.
Public nuisance affects the society and the people living in it at large, or some considerable
portion of the society and it affects the rights which the members of the society might enjoy over
the property. The acts which seriously affects or interferes with the health, safety or comfort of
the general public is a public nuisance.
Instances where an individual may have a private right of action in respect to a public nuisance:
 He must show the existence of any personal injury which is of a higher degree than the
rest of the public.
 Such an injury has to be direct and not just a consequential injury.
 The injury must be shown to have a huge effect.
2. Private Nuisance
Private Nuisance is that kind of nuisance in which a person’s use or enjoyment of his property is
ruined by another. It may also injuriously affect the owner of the property by physically injuring
his property or by affecting the enjoyment of the property. Unlike public nuisance, in private
nuisance, an individual’s usage or enjoyment of property is ruined as distinguished from the
public or society at large. The remedy for private nuisance is a civil action for damages or an
injunction or both.
Elements which constitute a private nuisance
 The interference must be unreasonable or unlawful. It is meant that the act should not be
justifiable in the eyes of the law and should be by an act which no reasonable man would
do.
 Such interference has to be with the use or enjoyment of land, or of some rights over the
property, or it should be in connection with the property or physical discomfort.
 There should be seeable damage to the property or with the enjoyment of the property in
order to constitute a private nuisance.
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.
2. 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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What are the defences available to Nuisance?
There are many valid defences available to an action for tort, these are:
1. Prescription
 A prescription is a title acquired by use and time and which is allowed by the law, a
person claims any property because his ancestors have had the possession of the property
by law.
 Prescription is a special kind of defence, as, if a nuisance has been peacefully and openly
been going on without any kind of interruption then the defence of prescription is
available to the party. On the expiration of this term of twenty years, the nuisance
becomes legalised as if it had been authorised in its commencement by a grant from the
owner of the land.
 The essence of prescription is explained in Section 26 of the limitations act and Section
15 of the Easements Act.
There are three essentials to establish a person’s right by prescription, these are
 1. Use or enjoyment of the property: The use or enjoyment of the property must be
acquired by the individual by law and the use or enjoyment must be done openly and
peacefully.
2. Identity of the thing/property enjoyed: The individual should be aware of the identity
of thing or property which he or she is peacefully or publically enjoying.
3. It should be unfavourable to the rights of another individual: The use or enjoyment
of the thing or property should be of such a nature that it should be affecting the rights of
another individual thus causing a nuisance and even after knowing of such a nuisance
being caused there must’ve been no action taken against the person causing it for at least
twenty years.
2. Statutory authority
 When a statute authorises the doing of a particular act or the use of land in a way, all the
remedies whether by action or indictment or charge, are taken away. Provided that every
necessary reasonable precaution has been taken.
 The statutory authority may be either absolute or conditional.
 When there is an absolute authority, the statue allows the act and it is not necessary that
the act must cause a nuisance or any other form of injury.
 Whereas in the case where there is a conditional authority, the state allows the act to be
done only if it can be done without any causation of nuisance or any other form of injury.
What are the remedies for nuisance?
There are three kinds of remedies available in the case of a nuisance, these are:
1. Injunction
An injunction is a judicial order restraining a person from doing or continuing an act which
might be threatening or invading the legal rights of another. It may be in the form of a temporary
injunction which is granted on for a limited period of time which may get reversed or confirmed.
If it is confirmed, then it takes the form of a permanent injunction.
2. Damages
The damages may be offered in terms of compensation to the aggrieved party, these could be
nominal damages. The damages to be paid to the aggrieved party is decided by the statue and the
purpose of the damages is not just compensating the individual who has suffered but also making
the defendant realise his mistakes and deter him from repeating the same wrong done by him.
3. 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. Reasonable for may be used to employ the abatement, and the
plaintiff will be liable if his actions go beyond reasonable measures.
Example: Ace and Beck are neighbours, Beck has a poisonous tree on his land which overtime
outgrows and reaches the land of Ace. Now Ace has every right to cut that part of the tree which
is affect his enjoyment of his land with prior notice to Beck. But if Ace goes to Beck, land
without his permission, and chops off the entire tree which then falls on the land of Beck, then
Ace shall be in the wrong here as his action taken would be beyond reasonableness.
Nuisance and Trespass – Distinguished
1. Trespass, on one hand, is the direct physical interference with the plaintiff’s possession of
the property through some material or tangible object whereas, in the case of a nuisance,
it is an injury to some right of the possession of the property but not the possession itself.
2. Trespass is actionable per se (actions which do not require allegations or proof), whereas,
in the case of a nuisance, only the proof of actual damage to the property is required.
Example: Simply entering on another individual’s property without the owner’s consent and
without causing him any injury would be trespass whereas if there is an injury to the property of
another or any interference with his enjoyment of the property, then it will amount to a nuisance.
3. If the interference with the use of the property is direct, then the wrong is trespass. Whereas if
the interference with the use or enjoyment of the property is consequential then it will amount to
a nuisance.
Example: Planting a tree on someone else’s land would amount to trespass whereas if a person
plants a tree on their own land which then outgrows to the land of another would amount to a
nuisance.
Case Law: Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra Mandal AIR 1978 Guj
13, (1977) GLR 424.
In this case, the plaintiff had sued the defendant for a permanent injunction to restrain the
defendant from showing a movie named “Jai Santoshi Maa”. It was said by the plaintiff that the
contents of the movie significantly hurt the religious sentiments of the people belonging to the
Hindu community as well as the religious sentiments of the plaintiff as the movie showed Hindu
Goddess’ Laxmi, Parvati, and Saraswati, to be jealous of one another and were ridiculed in the
film. It was held that hurt to religious sentiments was not an actionable wrong.
Conclusion
The concept of nuisance arises commonly in everyone’s daily life, in fact, the Indian courts have
borrowed quite a lot from the English principles as well as from the decisions of the common
law along with creating their own precedents. This has helped the concept of nuisance in the
field of law develop quite extensively and assures the fairness and well being of all the parties
which may be involved such as in the case of Private nuisance, the party which is being affected,
as well as, in the case of public nuisance, where the society at large is being affected.

Negligence In Law Of Torts -

Introduction
It is already known that the Indian law of torts is based on the English common law. Thus, the
law relating to negligence is adopted and modified by the courts of India on the principles of
justice, equity and good conscience. The term Negligence is derived from the Latin word
negligentia, which means ‘failing to pick up’. In the general sense, the term negligence means
the act of being careless and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a particular situation.
Negligence in English law emerged as an independent cause of action only in the 18th century.
Similarly in Indian law, the IPC, 1860 contained no provision for causing the death of a person
by negligence which was subsequently amended in the year 1870 by inserting section 304A.
Definition of Negligence

According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the
plaintiff which results in undesired damage to the plaintiff.
In  Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do
something which a reasonable man would do or doing something which a prudent or reasonable
man would not do.
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It can be characterized in three forms-
Nonfeasance: It means the act of failure to do something which a person should have done. For
example, failure to carry out the repairs of an old building when it should have been done.
Misfeasance: It means the act of not doing an action properly when it should have been done
properly. For example, Doing the repairs of an old building but doing so by using very poor
quality materials creating a major probability of a collapse which injures people.
Malfeasance: It means the act of doing something which should not have been done in the first
place itself. For example, using products that are not allowed and combustible to carry out the
repairs of an old building, therefore, converting the building into a firetrap leading to an accident.
Illustration
Z, An owner of a big dog requests his friend X to take care of the dog while he is away. X leaves
the dog unattended who attacks a passerby badly injuring him. Here it will be said that the act
occurred due to the negligence of X.
In the general sense, the extent of liability in tort is determined by the number of damages a party
has incurred. Consequently, in criminal law, the extent of liability is determined by the amount
and degree of negligence.
How is Criminal Negligence Different from Civil Negligence?
 Criminal negligence is said to take place when a person acts in a particular way which is
an extreme departure from which a reasonable person would act in a similar or same
circumstance. The difference in civil negligence is that the conduct may not be seen as a
radical departure from the way a reasonable person would have responded.
 Civil negligence occurs when a person fails to exercise ordinary care or due diligence but
criminal negligence relates to a conduct that is considered so extreme and rash that it is a
clear divergence from the way an ordinarily prudent person would act and is considered
to be more than just a mistake in judgment or distraction.
 In civil negligence, there is a lesser burden of proof because the plaintiff in such a case
only has to prove that it is most likely that the defendant was negligent. But in criminal
negligence, the plaintiff has to prove “beyond a reasonable doubt” that the defendant was
negligent which is the highest standard of proof which means that the evidence is so
strong that there is no other logical explanation besides the fact that the defendant acted
with criminal negligence.
 The punishment for a person who was liable in a civil negligence case only extends to the
extent of damage caused to the plaintiff i.e compensation for the damages.
In criminal negligence cases, the punishment is much more serious and can be convicted
for a prison term, fine and probation supervision. Example the punishment for criminal
negligence amounting to death under section 304A of IPC can extend to 2 years of jail
and fine or both.
 For example, if someone driving a vehicle under the influence of drugs and alcohol and
caused the death of an individual, it would amount to criminal negligence since this is
considered extreme carelessness on their part.
But if a housekeeper in an office is mopping the floor and has forgotten to keep a ‘wet
floor’ signboard, any accident that occurs would amount to civil negligence as there was
only a lack of due diligence on the part of the housekeeper but not extreme neglect.
Essentials of negligence
To commit the tort of negligence, there are primarily 6 main essentials that are required. An act
will be categorized as negligence only if, all the conditions are satisfied namely –
1) Duty Of Care
It is one of the essential conditions of negligence in order to make the person liable.
It means that every person owes, a duty of care, to another person while performing an act.
Although this duty exists in all acts, but in negligence, the duty is legal in nature and cannot be
illegal or unlawful and also cannot be of moral, ethical or religious nature.
In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out decorations in a
house. Soon after The decorator left the house without locking the doors or informing anyone.
During his absence, a thief entered the house and stole some property the value of which the
owner of the house claimed from the decorator. It was held that the decorator was liable as he
was negligent in leaving the house open and failed his duty of care.
2)The Duty must be towards the plaintiff
A duty arises when the law recognizes a relationship between the defendant and the plaintiff and
requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient that the
defendant owed a duty of care towards the plaintiff but it must also be established which is
usually determined by the judge.
In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down from a tram car
and while she was being helped in putting her basket on her back, a motor-cyclist after passing
the tram collided with a motor car at a distance of 15 yards which was on the other side of the
tram. The motorcyclist died instantly and the plaintiff could not witness the accident or the dead
body since the tram was standing between her and the place where the accident occurred. She
had only heard the sound of the collision and once the body had been removed from the place of
accident, she visited the place and saw some blood which was left on the road. As a reaction to
this incident, she suffered a nervous shock and gave birth to a still-born child of 8 months
because of which she sued the representatives of the deceased motorcyclist. It was held that the
deceased had no duty of care towards the litigant and therefore she could not claim any damages
from the deceased’s representatives.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty of
care to our neighbor or someone we could reasonably expect to be affected by our acts or
omissions. It was held that, despite no contract existed between the manufacturer and the person
suffering the damage an action for negligence could succeed since the plaintiff was successful in
her claim that hat she was entitled to a duty of care even though the defective good i.e a bottle of
ginger beer with a snail in it was bought, not by herself, but by her friend.
3)Breach of Duty to take care
It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must
also establish that the defendant breached his duty to the plaintiff. A defendant breaches such a
duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a
duty of care means that the person who
has an existing duty of care should act wisely and not omit or commit any act which he has to do
or not do as said in the case of Blyth v. Birmingham Waterworks Co, (1856). In simple terms, it
means non-observance of a standard of care.
In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities failed to
maintain the compound wall of a post office in good condition on the collapse of which the
defendant sustained injuries. It was held that postal authorities were liable since that had a duty
to maintain the post office premises and due to their breach of duty to do so, the collapse
occurred. Hence they were liable to pay compensation.
In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)
A very old clock tower situated right in the middle of a crowded area of Chandni Chowk
suddenly collapsed thereby causing the death of many people. The clock tower was 80 years old
although the normal life span of the clock tower should have been 40-45 years. The clock tower
was under the control of The Municipal Corporation of Delhi and they had a duty of care
towards the citizens. By ignoring to repair the clock tower, they had breached their duty of care
toward the public and were thereby liable
4)Actual cause or cause in fact
In this scenario, the plaintiff who is suing the defendant for negligence has the liability to prove
is that the defendant’s violation of duty was the actual cause of the damages incurred by him.
This is often called the “but-for” causation which means that, but for the defendant’s actions, the
plaintiff would not have incurred the damages.
For example, When a bus strikes a car, the bus driver’s actions are the actual cause of the
accident.
5)Proximate cause
Proximate cause means “legal cause,” or the cause that the law recognizes as the primary cause
of the injury. It may not be the first event that set in motion a sequence of events that led to an
injury, and it may not be the very last event before the injury occurs. Instead, it is an action that
produced foreseeable consequences without intervention from anyone else. A defendant in a
negligence case is only responsible for those damages that the defendant could have foreseen
through his actions.
In the case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying while trying to
catch a train and was carrying a packed item with him. The employees of the railway saw the
man who was attempting to board the train and thought that he was struggling to do so. An
employee on the rail car attempted to pull him inside the train while the other employee who was
on the platform attempted to push him to board the train. Due to the actions of the employees, the
man dropped the package. Which had contained fireworks, and exploded when it hit the rails.
Due to the explosion, the scales fell from the opposite end of the station and hit another
passenger, Ms. Palsgraf, who then sued the railway company. The court held that Ms. Palsgraf
was not entitled to damages because the relationship between the action of the employees and the
injuries caused to him were not direct enough. Any prudent person who was in the position of the
railway employee could not have been expected to know that the package contained fireworks
and that attempting to assist the man the railcar would trigger the chain of events which lead to
Ms. Palsgraf’s injuries.
6)Consequential harm to the plaintiff
Proving that the defendant failed to exercise reasonable care is not enough. It should also be
proved that the failure of the defendant to exercise reasonable care resulted in damages to the
plaintiff to whom the defendant owed a duty of care.
The harm may fall into the following classes:-
a.) Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.
When such damage is proved, the defendant is bound to compensate the plaintiff for the damages
occurred.
In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court awarded damages
amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl
without following proper medical procedures and not even administering local anaesthesia.
Res ipsa loquitur
Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type of circumstantial evidence which permits the court to determine that
the negligence of the defendant led to an unusual event that subsequently caused injury to the
plaintiff. Although generally the duty to prove that the defendant acted negligently lies upon the
plaintiff but through res ipsa loquitur, if the plaintiff presents certain circumstantial facts, it
becomes the burden of the defendant to prove that he was not negligent.
This doctrine arose out of the case of Byrne vs Boadle(1863)
The plaintiff was walking by a warehouse on the road and suffered injuries from a falling barrel
of flour which rolled out of a window from the second floor. At the trial, the plaintiff’s attorney
argued that the facts spoke for themselves and demonstrated the warehouse’s negligence since no
other explanation could account for the cause of the plaintiff’s injuries.
Thus the following are the three essential requirements for the application of this maxim-
1)The thing causing the damage must be under the control of the defendant or his servants
2)The accident must be such as would not have happened in the ordinary course of things
without negligence.
3)There must be no evidence of the actual cause of the accident.
Defenses available in a suit for negligence
1)Contributory negligence by the plaintiff
Contributory negligence means that when the immediate cause of the damage is the negligence
of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the defendant can
use it as a defense. This is because the plaintiff in such a case is considered to be the author of
his own wrong. It is based on the maxim volenti non fit iniuria which states that if someone
willingly places themselves in a position which might result in harm, they are not entitled to
claim for damages caused by such harm.
The plaintiff is not entitled to recover from the defendant if it is proved that-
1)The plaintiff by the exercise of ordinary care could have avoided the consequence of the
defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an
exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the defendants part
and the former cannot sue the latter for the same.
The burden of proving contributory negligence rests on the defendant in the first instance and in
the absence of such evidence, the plaintiff is not bound to prove its non-existence
In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line, a
servant of the railway company who was in charge of crossing shouted a warning to him. Due to
the plaintiff being deaf, he was unable to hear the warning and was consequently injured. The
court held that this amounted to contributory negligence by him.
2) An Act of God
An Act of God is a direct, violent and sudden act of nature which by any amount of human
foresight could have been foreseen and if foreseen could not by any amount of human care and
skill have been resisted. Thus such acts which are caused by the basic forces of nature come
under this category.For example storm,tempest,extraordinary high tide,extraordinary rainfall etc.
If the cause of injury or death of a person is due to the happening of a natural disaster, then the
defendant will not be liable for the same provided that he proves the same in the court of law.
This particular defence was talked in the case of Nichols v. Marsland (1876) in which the
defendant had a series of artificial lakes on his land. There had been no negligence on the part of
the defendant in the construction and maintenance of the artificial lakes. Due to unpredictable
heavy rain, some of the reservoirs burst and swept away four country bridges. It was held by the
court that the defendant could not be said to be liable since the water escaped by the act of God.
3) Inevitable Accident
An inevitable accident can also be called as a defense of negligence and refers to an accident that
had no chance of being prevented by the exercise of ordinary care, caution, and skill. It means a
physically unavoidable accident.
In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were fighting and their
owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a stick
and accidentally injured the Plaintiff, severely injuring him in the eye. The Plaintiff brought suit
against the Defendant for assault and battery. It was held that the injury of the plaintiff was as a
result of an inevitable accident.
Conclusion
Negligence as a tort has evolved from the English law and accepted by the Indian law as a
substantially important tort. As discussed negligence is of two types, civil and criminal and each
has various repercussions. In order to prove that an act was negligent, it is necessary to prove all
the essentials namely duty, breach of duty, damages and actual and proximate cause. An
important maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a
negligent act cannot be explained. Also, the defences in a suit for negligence can be used by the
defendant to defend himself from a suit issued by the plaintiff.