SOA National Institute of LAW

ASSIGNMENT ON : NUISANCE AND ITS REMEDIES

AND DEFENCES
SUBJECT : LAW OF TORTS-II

NAME : Abhipsa Priyadarsani Singh

REGISTRATION NO : 2241802133
BATCH : 2022-27
BRANCH : B.A L.L.B
SEMESTER : 3RD Semester

UNDER THE GUIDANCE OF :

MR. OM PRASAD TRIPATHY
INTRODUCTION :
According to the law, whomever is in possession of a property is entitled to its
uninterrupted enjoyment. However, we can state that the tort of annoyance has
taken place if another person's inappropriate use or enjoyment of his property
results in an unlawful interference with his enjoyment or use of that property or
of part of the rights over it, or in connection with it.
The Old French term "nuire," which meaning "to harm, to hurt, or to annoy," is the
root of the English word "nuisance." "Nocere" is the Latin word for annoyance
and it implies "to harm."
A person's right to enjoy his property without interference is injured by a
nuisance when it is used improperly. The common law guarantees the right to the
quiet enjoyment of land to those in possession of real property, such as owners,
lessees, and other occupiers. Visitors and people who aren't thought to have a
stake in the land aren't included in this, though. A party may file a nuisance claim
if a neighbor disturbs their ability to enjoy peace and quiet by generating noise,
odours, pollution, or any other danger that goes beyond their property lines.
The term "nuisance" has three traditional uses in law: to describe an action or
circumstance that causes pain or annoyance to others (such as impolite behavior,
a pile of trash, or a chimney that smokes); to describe the harm brought about by
the action or circumstance (such as loud sounds or unpleasant behavior).
The law of nuisance was developed to put an end to these irritating behaviors
when they unnecessarily interfered with either the rights of other private
landowners (private nuisance) or the rights of the general public (public
nuisance).
An unjustified interference with the public's property rights is referred to as a
public nuisance. It involves actions that disrupt public peace, tranquility, or
convenience. The legislation or the nature of the conduct, such as how long it may
last and how detrimental its ramifications might be, may serve as proof of the
unreasonableness. A person's right to the use and pleasure of their land is
protected by the private nuisance law that resulted from the case's litigation.
Trespass is excluded from it.
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.
To be a nuisance, the level of disturbance must rise above a purely aesthetic level.
For example: if your neighbor paints his house purple, that may offend you;
however, it does not rise to the level of annoyance. In most cases, even ordinary
quiet possession cannot be limited as a nuisance. For example, the sound of a
crying baby may be annoying, but it is an expected part of the quiet enjoyment of
a property and does not constitute a nuisance. [citation needed] Non-injury
distinguishes cases where the alleged nuisance behavior caused material.
property damage and cases where it caused "reasonable personal
inconvenience". Every property has the right to sue for a private nuisance. If the
nuisance is extensive enough but still has a public purpose, it is often treated as a
public nuisance under the law. Owners of real property (whether owners,
lessors, or owners of railroad or other interests) may only bring private nuisance
actions. In Oldham v Lawson (where it was held that the husband had only a
license and no right of action, while his wife, as owner, had a right of action) and
some later cases, an exclusive right is necessary to cure an action. private
nuisance . However, one situation is related to the change of private land
disturbance against a person, this case is no longer considered authoritative.

MEANING
The word Nuisance is derived from the French word "Nuire" which means to
annoy or hurt. it is unlawful interference with the use or use of a person's land.
Under normal circumstances the person has the right to fully and reasonably
enjoy and use this material property, intangible, movable or immovable,
whatever. This legal right cannot be waived without legal basis. Contrary to the
protection offered, if someone illegally interferes with this right of the person, he
is guilty of an offence. According to the most widely accepted Birmingham
definition of disability, Trespass is an unlawful interference with the use and
enjoyment of land by a person or otherwise directly or in connection with it.
Therefore, it is an injury or a problem that a person faces use his property for the
benefit of another person who uses his property unjustifiably a in a way that
negatively affects the first.

ESSENTIALS OF TORTS
To be sued under the tort, the following essential elements must be present-
 Wrongful Act by the Defendant
In order for an action for damages to arise, the first important thing is the
commission of an illegal activity by the accused. This may include any activity
that is not prima facie lawful and unreasonable in the eyes of a reasonable
person.
Warning - if the plaintiff is particularly sensitive and considers the defendant's
actions as this unreasonable to his sensibilities, to an otherwise sane person
harmful actions cannot occur.

 Damage/Loss/Inconvenience caused to the Plaintiff

The following important circumstance requires material damage or damage
Conductor. The maxim "De minimis non curat lex" comes in and dictates that law
must does not take into account trifles or small damages caused by the plaintiff's
own sensitivity. However, if the defendant's action involves a violation of his legal
rights carrier, interference is coming.
Case Law: In Ushaben V. Bhagyalaxmi Chitra Mandir, where the Plaintiff sued the
Defendant against the screening of the movie “Jai Santoshi Maa” claiming that it
hurts the Religious sentiments of a particular Hindu community, the court
dismissed the Plea stating that hurt to religious feeling was not an actionable
wrong and the Plaintiff is free to not watch the Movie again. Hence it was held
that in order to claim damages for Nuisance, the interference shall be in a state of
continuing wrong. In Halsey V. Esso Petroleum Co. Ltd, where the defendant’s
factory emitted smokes, oil, fumes and smell and polluted the environment along
with harming the plaintiff’s health because of his own sensitive health issue, the
former were held liable to the latter only for the emission of smoke, oil and fume
and not for health hazard.
Kinds of Nuisance
Nuisance as a tort is again categorized into two types- Private Nuisance and
Public Nuisance, both have their type of actions and types of damages.
Private nuisance
Private nuisance acts protect the interests of owners in the use of land and
buildings, and Joy in his property. This type of nuisance usually originates from
the defendant's private sphere. Land or its deeds in a private capacity. Therefore,
the plaintiff must prove that he did so Certain interest in the country. Therefore,
the property cannot be public property. the law of Personal harassment attempts
to balance two competing interests. That one Residents use their land as they
see fit, and their neighbors enjoy it quietly of his country. Therefore, a person
must not use his property in a way that causes damage cause trouble to the
neighbors.
In an action for private nuisance, the court considers the following:
i) Whether the injury complained of is sensible in the case of material
damage to property and in the case of interference with enjoyment of land,
whether the injury is substantial.
ii) Whether the conduct of the defendant is unlawful, unwarranted or
unreasonable.
Elements which constitute a private nuisance
 The interference must be of a unreasonable or unlawful. It is mean that the act
should not be justifiable in the eyes of the law and should be by an act which have
no reasonable cause.
 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 that the property or physical
discomfort of man.
 There should be damage to the property or with the use of the property in
order to sue a private nuisance under law of torts.
Rose v. Miles (1815) 4M & S.101
The defendant had wrongfully obstructed in a public navigable creek which was
obstructed the defendant from transporting his goods by the creek due to which
he had to transport his good through land because of which he has suffered extra
cost 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 the 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 is with respect to the property, any
sensible type of injury to the property will be enough to the support an
action for the damages.
2- Physical discomfort In a suit of nuisance arising out of physical discomfort,
there are two essential conditions mainly required in this law.
 In excess of the natural and very 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.
 In 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.
Public nuisance
Public nuisance refers to that which affects the general public or a section of the
public. It is that which affects the public segment or class of the public by reason
that it is indiscriminate in its effect or widespread. A nuisance may become public
nuisance either from its source or its final effect or destination. Again, a nuisance
that affects a class or a segment of a society is public nuisance and whether the
number of persons affected is sufficient to merit public nuisance is a question of
facts depending on the facts and circumstances of each case. Everything is to be
looked at from a reasonable point of view. Instances, of public nuisance include
obstruction of highway or public roads, public waterways, noises pollution, oil
spillage from the activities of multi-national oil companies and carrying on
obnoxious business like operating a brothel in a GRA A public nuisance is usually
a crime (see section 234 of the Criminal Code and sections 192 & 194 of the Penal
Code) which can only be prosecuted by the Attorney General in his capacity as
the custodian of public right. In other words, a private person has no right to
prosecute the crime of public nuisance; the Attorney-General prosecutes.
However, for a private person to sue for public nuisance, he has to show that he
has suffered a particular or special loss/damage over and above that suffered by
other members of the public. In the case of Daodu v. NNPC, the Supreme Court,
per Qguegbu JSC, stated the position of the law thus, “an obstruction of public
highway or hindering the free passage of the public along the highway is a public
nuisance and a private individual has a right of action if he can prove that has
sustained particular damage other than and beyond the general inconvenience
and injury suffered by the public and that the particular damage which he
sustained was direct and substantial.” The requirement of proving particular
damage will be satisfied if the plaintiff can show that he has suffered damage
which is appreciable greater in degree than any suffered by the general public. It
is germane to note that, many a time a class or section of the public will sue for
public nuisance and usually the action will fail as the court will always say that a
class action is improper in such cases. This is because all of them put together are
private persons and they cannot enforce public nuisance. It is better to sue
individually by trying to prove that you have suffered over and above all others. A
similar decision was reached in Adediran v. Interland Transport Ltd. (supra),
where the plaintiffs/appellants sued in a representative capacity for themselves
and on behalf of residents of a housing estate; the Supreme Court holding that
although all the injuries complained of arise from the same nuisance complained
of, each separate injury is a distinct tort.

Remedies for Nuisance

The following remedies exist for nuisance. They are
1. Abatement of Nuisance: This refers to self-help in order to stop nuisance.
Generally self-help is not allowed by the court or the law. The court usually
frowns at the remedy of self-help This is to avoid chaos in the society. In
minor cases of nuisance, self help as a remedy may be allowed by law
considering that court cases are usually expressive and may take long to
determine. 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.

2. Injunction: This is the most important judicial remedy in cases of nuisance. 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. There are many types of injunction –

a. Interim injunction – obtained pending the determination of the interlocutory

injunction (applicable in urgent cases).
b. Interlocutory injunction – obtained pending the determination of the final
injunction.
c. Final injunction – this exists to prohibit one from doing something.
d. Prohibitory injunction – this exists to prohibit one from doing something.
e. Mandatory injunction – this exists to mandate one to do something. Injunction
is a discretionary remedy and the court has discretion to grant or refuse
injunction so that even if one has made out a good case for the grant of
injunction, the court may still find a good reason to refuse injunction. However,
the court’s discretion must be exercised judiciously and judicially. Thus, in the
case of Miller v. Jackson (1977) 3 All ER 338, a village
3. 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. This is the monetary compensation for any loss or
injury occasioned to the plaintiff by reason of the nuisance. There are many types
of damages, namely
a. Aggravated damages: Aggravated damages are a class of repayment provided in
civil court cases, generally in cases concerning defamation, intentional infliction
of emotional misery, or other conditions wherein the defendant's conduct is
going beyond mere negligence and involves an element of malice, recklessness, or
willful wrongdoing. Those damages are meant to provide additional
reimbursement to the plaintiff past the overall compensatory damages, including
those for actual financial losses (unique damages) or pain and suffering
(wellknown damages).
Key factors approximately irritated damages include:
 Malicious behavior: aggravated damages are normally offered whilst the
defendant's behavior is observed to be specifically malicious, high-passed,
or oppressive. Because of this the defendant's actions no longer handiest
triggered harm but did so in a way that proven a aware brush aside for the
plaintiff's rights or nicely-being.
 Compensation for Emotional distress: aggravated damages are in most
cases geared toward compensating the plaintiff for the emotional misery,
humiliation, or intellectual suffering they persisted as a result of the
defendant's behavior. They serve to well known the extra harm because of
the defendant's egregious conduct.
 Deterrence and Punishment: similarly to compensating the plaintiff,
irritated damages also can function a form of deterrence and punishment.
By way of awarding those damages, the felony machine seeks to deter
defendants from engaging in such malicious conduct inside the future.
  Proof Requirement: To comfy annoyed damages, the plaintiff normally
desires to provide proof that demonstrates the defendant's malicious or
oppressive conduct. This can involve proving intent, recklessness, or
behavior that goes beyond ordinary negligence.

It is crucial to be aware that the supply and criteria for awarding annoyed
damages can range from one jurisdiction to any other. Now not all legal
systems understand this class of damages, and even within those who do,
the unique policies and standards for their award can vary. In some
jurisdictions, punitive damages may be used to reap similar targets
through punishing wrongful behavior and deterring future misconduct.
b. Nominal damages: Nominal damages are a small, frequently symbolic,
economic award granted by way of a courtroom to a plaintiff in a civil lawsuit
while it's miles determined that the plaintiff's prison rights have been violated,
however no considerable or actual damage or financial loss resulted from the
defendant's moves. These damages are usually minimum, frequently only a
nominal amount, along with one dollar, and are meant to renowned the felony
violation and set up the plaintiff's legal proper without offering tremendous
financial reimbursement.
Key points approximately nominal damages include:
 Acknowledgment of criminal Rights: Nominal damages function a manner
to understand that the plaintiff's felony rights were violated, although no
large harm or economic loss came about as a result of the defendant's
movements.
 Proving a point: In some instances, a plaintiff can also are searching for
nominal damages to make a factor or set up a criminal precedent. They'll
wish to reveal that a violation took place and they had been in the right,
even if they don't require huge financial repayment.
 Commonplace in Constitutional law: Nominal damages are frequently used
in instances related to constitutional rights violations, where the primary
purpose can be to establish the violation in preference to are seeking
financial redress.
 Felony expenses: In a few instances, even if the plaintiff receives simplest
nominal damages, the defendant can be accountable for the plaintiff's
felony costs, which may be extensive. This could still serve as a deterrent to
wrongful conduct.
 No Requirement for Provable Loss: unlike compensatory or punitive
damages, nominal damages do now not require the plaintiff to show a
specific economic loss or damage. They're awarded primarily based on the
precept of upholding legal rights.
Nominal damages can have a symbolic or moral fee, and that they play a function
in upholding the criminal machine's popularity of individuals' rights and the
significance of adherence to the law, even in instances in which the damage
suffered is minimum.
Defences to an Action for Nuisance
There are many valid defences available to an action for tort, these are:
Prescription
A prescription is a identify obtained by use and time and that is allowed by using
the regulation, someone claims any belongings due to the fact his ancestors have
had the possession of the property by way of regulation.
Prescription is a special kind of defence, as, if a nuisance has been peacefully and
brazenly been occurring without any form of interruption then the defence of
prescription is to be had to the birthday celebration. On the expiration of this
time period of twenty years, the nuisance turns into legalised as if it had been
accredited in its commencement via a provide from the owner of the land.
The essence of prescription is defined in section 26 of the restrictions act and
segment 15 of the Easements Act.
There are 3 essentials to establish someone’s right by using prescription, those
are

 Use or amusement of the assets: The use or enjoyment of the property

ought to be acquired by way of the man or woman through law and the use
or entertainment have to be completed openly and peacefully.
 Identity of the thing/property enjoyed: The man or woman ought to be
aware about the identity of aspect or property which he or she is
peacefully or publically enjoying.
 It need to be negative to the rights of every other person: The use or
entertainment of the factor or property have to be of this sort of nature
that it must be affecting the rights of another character as a result inflicting
a nuisance or even after knowing of this kind of nuisance being brought on
there ought to’ve been no movement taken in opposition to the person
causing.
Statutory Authority
When a statute authorises the doing of a selected act or the use of land in a
manner, all the treatments whether or not by using action or indictment or
charge, are taken away. Supplied that each vital affordable precaution has been
taken.
The statutory authority may be both absolute or conditional.
When there's an absolute authority, the statue permits the act and it is not
necessary that the act must reason a nuisance or some other form of harm.
While in the case where there may be a conditional authority, the state allows the
act to be completed simplest if it can be carried out with none causation of
nuisance or every other shape of harm.
The defences are;
i) That the act complained of is not unreasonable, unjustifiable,
unwarranted or unlawful.
ii) That there was consent of the plaintiff or volenti non fit injuria. Note
generally that it is not a defence that the plaintiff came into the
nuisance but in appropriate cases the court may use it as a basis for
refusal or injunction such as in Miller v. Jackson.
iii) Prescription – that is the defense in law which is to the effect that the
plaintiff has slept over this right for too long and has therefore lost his
right to sue. At common law in England, where nuisance lasts for 20
years, te plaintiff can no longer sue.
iv) Contributory negligence: Contributory negligence is a prison doctrine
that relates to non-public damage instances, mainly inside the context
of negligence claims. It could effect how legal responsibility is assigned
and damages are offered in such cases. Contributory negligence takes
place while the person who has been injured (the plaintiff) also acted
negligently and their negligence contributed to the coincidence or
harm. In other phrases, the plaintiff's personal moves, in component,
induced or contributed to their damage.
v) Act of a stranger: that is, that the plaintiff has not made out any case
against the defendant, he has only succeeded in making out a case
against a stranger who cause the nuisance.
vi) Inevitable accident: An "inevitable accident" is a legal term that refers
to an unforeseeable and unpreventable occasion or circumstance that
outcomes in damage, damage, or damage. Within the context of tort
regulation and coverage, the idea of an inevitable accident is used to
absolve a celebration from liability or duty whilst an incident occurs
due to situations past their manipulate.
To be taken into consideration an inevitable accident, the subsequent
standards are typically required:

 Unforeseeability: The event or situation main to the accident

have to had been impossible to expect or expect using reasonable
care and foresight.
  Lack of Negligence: The birthday celebration worried in the
coincidence ought to now not have acted negligently or
recklessly in any manner that contributed to the incident. In
different words, they must have taken affordable precautions to
prevent damage.

 No alternative actions: There ought to had been no reasonable

opportunity movements or selections that could were taken to
prevent the twist of fate.

Within the legal context, if an twist of fate is deemed inevitable, the

responsible birthday celebration won't be held liable for damages or
accidents due to the incident. But, setting up an accident as "inevitable"
can be a complex legal be counted, and it regularly depends at the
precise circumstances and applicable legal guidelines. Prison effects
can range, and courts might also don't forget various factors whilst
determining liability in a selected case.
vii) Act of necessity: The term "Act of necessity" commonly refers to
movements or decisions that are taken out of urgent and compelling
instances wherein there aren't any other feasible alternatives. These
acts are regularly pushed via the need to address a critical scenario or
emergency, and they may contain actions that could now not be
considered under everyday or habitual occasions. Acts of necessity are
typically finished inside the hobby of public safety, character well-
being, or the more correct, and they'll every so often require felony or
moral justifications to mitigate capacity effects. The particular
definition and criminal implications of acts of necessity can vary relying
at the context, jurisdiction, and relevant legal guidelines.
viii) Statutory authorization: that is power given by statute. In exercising
such powers, the defendant must ensure that all reasonable care and
skill is used and it he does not go outside the powers given by the
statute. Again, statutory defences are usually construed strictly against
the person exercising the power so as to protect the citizens. See the
case of Ekemode v. Alausa where a public officer was given power to
clear inland waterways. In exercising that power he removed some
canoes from the water but in the process he damaged a particular
canoe and the court held that the power to remove a canoe is incidental
to the power to clear the waterway but damaging the canoe is not part
of the powers given to him by statue, he was therefore liable for the
damage.
CONCLUSION :
In conclusion, the concept of nuisance is a multifaceted legal doctrine that
addresses various sorts of interference with the use and leisure of assets or the
overall well-being of individuals and communities. Nuisances can tackle many
paperwork, such as noise, pollutants, encroachments, and other disturbances
that disrupt the peaceful and lawful use of property. The criminal framework
surrounding nuisances varies by using jurisdiction and can be governed by using
each commonplace regulation and statutory guidelines.
Nuisance law serves a essential position in retaining a stability between
individual assets rights and the broader interests of public fitness, protection,
and network nicely-being. It gives a mechanism for individuals to are trying to
find redress while their rights are infringed upon through the movements of
others. It also encourages accountable behavior and the consideration of one's
effect on their surroundings.
Resolving nuisance problems frequently includes an intensive exam of the
information, assessing the degree of harm or interference, and considering
capacity remedies along with damages, injunctions, or abatement orders. In a few
cases, negotiation and mediation can be used to find amicable answers to
nuisance disputes, promoting neighborly members of the family and network
concord.
In the long run, the principle of nuisance underscores the significance of
balancing person property rights with the broader pursuits of society. As our
groups evolve and face new demanding situations, nuisance regulation will
maintain to adapt to address rising issues and offer a framework for resolving
conflicts and ensuring the peaceful coexistence of buddies and the wider
network.