MODULE V

NUISANCE

Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it. Acts
interfering with comfort, health, safety are examples of it. The interference may be any way by noise, vibration, heat, smoke, smell, fumes,
water, gas, electricity, excavation, or disease producing germs. It has been defined as anything done to hurt or annoyance of the lands,
tenements or hereditamant of another and not amounting to a trespass.

The word nuisance has been derived from the French word nuire and Latin word nocere or nocumentum which in its legal sense means
annoyance or harm and indeed the element of unlawful annoyance is the only thing common to all nuisances.

There are three main types of nuisances they are public nuisance, private and statutory nuisance.

Public nuisance

Public or common nuisance is a criminal offence. It materially affects the reasonable comfort and convenience of life of the people in general or
a class of persons who come within the sphere or neighborhood of its operation. Section 268 of the Indian Penal Code provides that a person is
guilty of public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the
public or the people in general who dwell or occupy property in the vicinity or which must necessarily cause, injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right. For e.g. throwing fireworks in the street or in a public park or obstructing
public high ways. The offender may be punished under criminal law. When from such act there is some special injury to an individual, different
from what is suffered by the public in general he may institute civil proceedings for damages against the offender or wrongdoer. Thus a public
nuisance may become private nuisance when there is some special damage or injury to a person. For e.g. In Solatu v. De Held1 , there was a
Roman Catholic Chapel, the chapels bell was rung at all hours of day and night. The plaintiff resided next door to the chapel. All the people of
the vicinity were annoyed by the sound of the bell but the plaintiff being at next door was very much disturbed. It was held by the court that it
was a public nuisance. Since it proved particularly obnoxious to the plaintiff and satisfied the requirements for a suit by a private individual for
nuisance and the plaintiff was entitled to an injunction.
1
( 1851) 2 Sim NS 133

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But where a public nuisance does not cause any special damage or particular injury an individual being annoyed like others cannot file a civil
suit.

Statutory nuisance

Every statutory nuisance is a criminal offence created by statute. Certain statutory nuisance are defined in Part III of the Environmental
Protection Act, 1990 of UK which gives wide powers to magistrates court and in certain circumstances to the High Court to grant orders putting
an end to anti-social conduct amounting to a nuisance.

Private nuisance or Tort of Nuisance

Private nuisance may be described as unlawful interference with a person’s use or enjoyment of land or some right over or in connection with
it. Generally the essence of nuisance is a condition or activity which is either continuous or recurrent and unduly interferes with the use or
enjoyment of land. To constitute the tort of nuisance the following essentials are required to be proved:

1. Unreasonable interference: interference may cause damage to the plaintiff’s property or may cause personal discomfort to the plaintiff in
the enjoyment of property. Every interference is not a nuisance. To constitute nuisance, the inference should be unreasonable. What
interference is unreasonable varies according to different localities and instances. It was stated in Struger v. Bridman, what would be a
nuisance in Belgrade square would not necessary be so in Bremondsey. For the purpose of nuisance it has to be seen as to what is reasonable
according to the ordinary usages of the mankind living in society or more correctly in particular society.

In Andreae v. Selfridge & Co2. it has been held that anything which is not reasonable according to the ordinary usages of mankind living in
society or more correctly in particular society can be called unreasonable.

In Radhey Shyam v. Gur Prasad3, the plaintiff filed a suit against the defendant and others for a permanent injunction to restrain them from
installing and running a flour mill in their premises. It was alleged that the said mill would cause nuisance to the plaintiffs who were occupying
the first floor portion of the same premises in as much as the plaintiff would lose their peace on account of rating noise of the flour mill and
thereby health would also be adversely affected. It was held that substantial addition to the noise in a noisy locality by the running of the
2
( 1938) Ch.1 CA
3
AIR 1963 MP 89

2
impugned machines, seriously interfered with the physical comfort of the plaintiffs as such it amounted to nuisance and the plaintiffs were
entitled to an injunction against the defendant.

In Robinson v. Kilvert4 it was held that an act which is otherwise reasonable does not become unreasonable and actionable when the damage
even though substantial caused solely due to the sensitiveness of the plaintiff or the use to which he puts his property. In this case the plaintiff
warehoused brown paper in building. The heat created by the defendant in the lower portion of the same building for his own business dried
and diminished the value of the plaintiffs brown paper. The loss was due to an exceptionally delicate trade of the plaintiffs operations. So the
court held that a person cannot increase the liability of his neighbors by carrying an exceptional delicate trade.

2. Interference with the use or enjoyment of land

Interference may cause either a) injuring the property itself or b) injury to comfort or health of occupants of certain property.

Injury to property

An unauthorized interference with the use of the property of another person through some object tangible or intangible which causes damage
to the property is actionable as nuisance. It may be by allowing the branches of tree to overhanging on the land of another person or the
escape of the roots of a tree, water, gas, smoke, fumes etc. on to the neighbors land.

In St. Helens Smelting Co. v. Tipping5, fumes from the defendants company damaged plaintiff’s trees and shrubs. Such damages being an injury
to the property so it was held that the defendant liable.

In Humperier v. Brodgen6, it was held that a person has a natural right to have his land supported by his neighbors and therefore removal of
support, lateral or from beneath is a nuisance.

Injury to comfort or health

4
(1889) 41 Ch.D 88
5
(1865) 11 HL.Cas 642
6
(1850) 12 QB 739

3
Substantial interference with the comfort and convenience in using the premises is actionable as a nuisance. A mere trifling or fanciful
inconvenience is not enough. It was held in Ball v. Ray that disturbance to neighbors throughout the night by the noises of horses in a building
which was converted into a stable was a nuisance.

3. Damage

Unlike trespass which is actionable perse, actual damage is required to be proved in action for nuisance. In the case of public nuisance, the
plaintiff can bring an action in tort only when he proves a special damage to him.

DEFENCES

Prescriptive right to commit nuisance: if the person has continued with an activity on the land of another person for 20 years or more he
acquires a legal right by prescription to continue therewith in future also. A right to commit a private nuisance may be acquired as an easement
if the same has been peaceably and openly enjoyed as an easement and as of right without interruption and for 2o years.

Statutory authority: an act under a statutory authority is a complete defence.

INVALID DEFENCES

a. Nuisance due to the acts of others

b. Public good: it is no defence to say that what is a nuisance to a particular plaintiff is beneficial to the public in general.
c. Plaintiff coming to nuisance: it is no defence that the plaintiff himself came to the place of nuisance. A person cannot be expected to
refrain from buying a land on which a nuisance already exists and the plaintiff can recover if nuisance has been going on long before he
came to that place.

Who can sue?

a. Occupier of land
b. The reversioner can sue if the nuisance is a permanent injury
c. The user of highway can sue when the nuisance cause special injury to him

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Who can be sued?

a. The creator of the nuisance

b. The land lord if it with his consent
c. The occupier

DISTINCTION BETWEEN PUBLIC AND PRIVATE NUISANCE.

1. A public nuisance is an injury, danger or annoyance to the public generally. A private nuisance is an injury to a person’s right to
comfortable occupation of his property.
2. The public nuisance affects common public rights and the latter affects the interests in the use or enjoyment of land of a particular
section of the community.
3. Public nuisance is a criminal offence and the latter is a tort
4. In public nuisance there is no prescriptive right to commit it. A continuous enjoyment will legalize the private nuisance
5. Act committed once may amount to public nuisance but in latter repetition is required
6. In public nuisance for suing interest in land is not necessary but in latter it is a must
7. A private nuisance may be done away with but a public nuisance cannot be abated by an individual.

REMEDIES

a. Abatement: This means the removal of a nuisance by the party affected.

b. Injunction: Section 6 of the Specific Relief Act provides this remedy
c. Damages

DISTINCTION BETWEEN NUISANCE AND TRESPASS

1. Trespass is an injury to the possession itself while nuisance is an injury to some right necessarily connected with possession
2. Trespass is actionable Per se whereas nuisance is actionable only on proof of actual damage

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 3. Unauthorized entry upon another’s land without causing any injury may constitute trespass. Nuisance on the other hand involves
unreasonable interference with the others land.
4. Trespass involves direct interference whereas interference may not be direct but consequential in nuisance.
5. The interference in trespass is always through some tangible object whereas in nuisance it may be through the medium of intangible
objects such as smell, vibrations, fumes, etc.

NEGLIGENCE

Negligence implies absence of intention to cause the harm complained of. It means careless or unreasonable conduct. But merely
unreasonable conduct without damage is not actionable though it may be punishable offence. Such conduct when followed by harm to
another gives rise to liability for negligence.

In 1856 in Blyth v. Brimingharm Water Works co7., Anderson B, defined negligence as under: it is the breach of duty caused by the omission
to do something which a reasonable man guided by those principle which ordinarily regulate the conduct of human affairs, would do or
doing something which a prudent and reasonable man would not do.

In another case Lord Wright defined negligence as under: negligence means more than headless or careless conduct whether in
commission or omission, it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom
the duty owed.

According to Swayne J of the US negligence is the failure to do what a reasonable and prudent person would ordinarily have done under
the circumstances of the situation.

According to Winfield, negligence as tort is the breach of a legal duty to care which results in damage undesired by the defendant to the
plaintiff.

From the above definitions it appears that there are three essential ingredients in constituting a negligent tort

7
(1856) Ex 781

6
 1. Duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed to him a
specific duty to take care of which he has made a breach. There is no general rule of defining such duty, it depends in each case whether a
duty exists or not.

In Donoghue v. Stevenson8, a company manufactured ginger beer. The beer was put in an opaque bottle which was sold to retailers. A
purchased a bottle from the retailer and gave it to his lady friend. She poured some of the contents in a tumbler and consumed the same.
When the remaining contents of the bottle were poured into the tumbler the decomposed body of a snail floated out with the ginger beer.
She had a shock and fell ill. She filed a case claiming compensation against the manufacturer for negligence. The House of Lords held that
the manufacturer owed a duty to take care that the bottle did not contain noxious matter and that he was liable for the breach of the duty.

In Ishwer Devi v. Union of India 9, one Shamlal Malik, the deceased boarded one bus when the same arrived at the bus stop. Just when he
had placed his foot on the foot board of the bus and had not yet gone in, the conductor rang the bell and the driver started the bus. The
driver made an attempt to overtake another stationary bus closely that the deceased got squeezed between the buses and sustained
serious injury which ultimately result in his death. In an action the court held that both driver and the conductor were rash and negligent in
taking proper care of the safety of the passengers.

See

Maha Prasad v. Union of India AIR 1978 All 303

Muncipal Board, Jaipur v. Brahm Kishore AIR 1973 Pat 168
Prag ice and oil mills v. Union of India AIR 1980 All 168
Glasgow Corpn v. Muir (1948) 2 All ER 44R
8
1932 AC 562
9
AIR 1869 Delhi 183

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 Cater v. Mongini Bros (1917) 17 Bom LR 778

Whether the defendant owes a duty to the plaintiff or not depends on reasonable forseeability of the injury to the plaintiff. If at the time of
the act or omission, the defendant could reasonably foresee injury to the plaintiff he owes a duty to prevent that injury and failure to do
that makes him liable.

In Donoghue case it was held that ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbor’. Then the neighbor defined as persons so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

In Grant v. Australian Knitting Mills Ltd.10, the defendants were manufactures of swimming suit. They dispatched the swimming suits in
paper packets to retailers. The plaintiff bought one packet and used for swimming. She contracted a skin disease by the use of this suit. The
cause was traced to the use of certain chemicals in the process of manufacture. The question was whether the manufacturer was liable to
the ultimate user. By applying the foreseeability test the Privy Council held that since the defect existed at the point of manufacture itself
there was breach of a duty owed to the ultimate user and upheld the tortious liability of the manufacturer

In Cates v. Mongini Bros11, the plaintiff a lady visited to a restaurant was injured by the falling of ceiling fan on her. The reason for the falling
of the fan was a latent defect in the metal of the suspension rod of the fan. The defect could not have been discovered by a reasonable
man. In an action against the defendants, who were running the restaurant, it was held that since the harm was not foreseeable they were
not negligent and therefore were not liable for the loss to the lady plaintiff.

Reasonable froeseability does not mean remote possibility:

In Fardn v. Harcout-Rivington12, the defendant parked his car by the road side and left a dog inside the car. The dog jumped about and
smashed a glass panel. A splinter from this glass injured the plaintiff while he was walking past the car. It was held that the accident being
very unlikely, there was no negligence in not taking a precaution against it and therefore the defendant was not liable. Lord Dunedin said

10
1936 AC 85
11
(1917) 19 Bom. LR 778
12
(1932) 146 LT 391

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 that, if the possibility of danger emerging is only a mere possibility which would never occur to the mind of reasonable man, then there is
no negligence in not having taking extra ordinary precautions. People must guard against reasonable probabilities but they are not bound
to guard against fantastic probabilities.

See Sekhraj v. SRTC, Calcutta AIR 1966 Cal. 620

SK Devi v. Uttam Bhol Air 1974 Ori. 207

SP, Dharwar v. Nikhil Bindurao, (1974) 2 Kan LJ 495

Bolton v. Stone (1951) 1 All ER 1078

Duty must be owed to the plaintiff: Mere carelessness on the part of the defendant does not entitle the plaintiff to sue him; it has to be
proved that the defendant owed a duty of care to the plaintiff. When the defendant owes a duty of care to persons other than the plaintiff,
the plaintiff cannot sue even if he might have been injured by the defendants act.

For e.g. in Palsgraf v. Long Island Railroad Co13., a passenger carrying a package was trying to board a moving train. He was seemed to be
unsteady as if about to fall. Two servants of the defendant came forward to help the passenger and one of them, a railway guard pushed
the passenger from behind to help him to get into the train. In the act the package in the possession of the passenger was dislodged and
fell upon the rails. The package contained fireworks and its fall resulted in an explosion. The package was small and nature of its content
could not be noticed from its appearance. Due to this explosion one lady got injured. She sued the defendant alleging negligence on the
part of their servants. The court held that the conduct of defendants guard was a wrong in relation to the holder of the package, was not a
wrong in its relation to the plaintiff, standing far away. Relatively to her it was not a negligence.

2. Breach of duty

In an action for negligence the plaintiff must prove that defendant committed a breach of duty to take care. Breach of duty here means
non-observance of due care which is required in a particular situation. If the defendant has not acted like a reasonably prudent man there is
breach of duty. The law does not require greatest possible care but the care required is that of reasonable man under circumstances. What
13
( 1928) 284 NY 339

9
 may amount to breach of duty of care in a particular place and occasion may not be a breach of duty of care in another place or occasion.
Thus a certain speed may not be negligence for a fire brigade vehicle but the same speed may be an act of negligence for another vehicle. It
was also held in Blyth v. Birmingham Waterworks co14, negligence is the omission to do something which a reasonable man guided upon
those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable
man would not do.

In KSEB v. Suresh Kumar15 , a minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground got
electrocuted and received burn injuries. The electricity Board had a duty to keep the overhead wire 15 feet above the ground. So the board
was held liable for the breach of its statutory duty.

In Glasgow Corporation v. Taylor16, a public garden was under the control of the defendant’s corporation. In the garden there was a
poisonous tree. The fruits of the tree looked like cherries. A child aged seven ate those fruits and died. It was found that the shrub was
neither properly fenced nor noticed regarding the deadly character of the fruit was displayed. It was therefore held that the defendants
were liable for breach of duty of care.

See

Haley v. London Electricity Board (1964) 3 All ER 158

Bhagwat Swarup v. Himalaya Gas co. AIR 1985 HP 41
Mysore SRTC v. Albert Disa AIR 1973 Mys 240
Nirmala v. TNEB AIR 1984 Mad 201

14
(1856) Ex 781
15
1986 ACJ 998
16
(1992) 1 AC 44

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 3. Damage

The third ingredient of the tort of negligence is that the plaintiff’s damage must have been caused by the defendants breach of duty and
not due to any other cause.

The general rule is that in an action of negligence the burden of proof is on the person who complaints negligence. He must show that he
was injured by an act or omission for which the defendant is liable. There must be proof of some duty owed by the defendant, breach of
that duty and consequent damage suffered by the plaintiff.

RES IPSA LOQUITOR.

The rule that it is for the plaintiff to prove negligence of the defendant may cause hardship to the plaintiff if it is impossible for him to know
what precise acts or omissions lead to his injury or damage and this is most obviously so where the cause of the damage is peculiarly within
the means of knowledge of the defendant who caused it. In these circumstances this hardship can be avoided by the application of the
maxim res issa loquitor.

Though as a general rule the plaintiff has to discharge the burden of proving negligence on the part of the defendant, there are however
certain cases when the plaintiff need not prove that the defendant was negligent. The negligence of the defendant under such
circumstances would be inferred from the facts on the basis of the maxim res ipsa loquitor, which means the thing speaks for itself. When
the accident explains only one thing and that is the accident could not ordinarily occur unless the defendant had not been negligent, the
law raise a presumption of negligence on the part of the defendant. Then the burden of proof is shifted from the plaintiff to the defendant
and the defendant has to prove that he was not negligent.

Winfield sated that there are two requirements for applying the maxim res ipsa loquitor a) that the thing causing the damage be under the
control of the defendant or his servants b) that the accident must be such as would not in the ordinary course of things have happened
without negligence. For e.g. in Asa Ram v. Muncipal Corporation, Delhi 17, due to uninsulated overhead electric wire becoming lose death of
plaintiff son was caused by electrocution. It was found that inspite of previous complaints the Electricity Board had failed to take due care.
The presumption of negligence was raised and the parents of the deceased who was held entitled to get compensation.
17
AIR 1995 Delhi 164

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 In Jasbir Kaur v. State of Punjab18, a newly born child found missing from a bed in Government run hospital. He was stated to have been
carried away by a cat and he was found perfusily bleeding in a bathroom with one eye completely gouged out. A presumption of negligence
was raised against the hospital authorities and they were held liable to pay compensation.

See

Aparna Dutta v. Aopollo Hospital ltd AIR 2000 Mad 340

Agya Kan v. PEPSU RTC AIR 1980 P&H 183

KSRTC v. Krishnan AIR 1981 Kant.11

The maxim res ipsa loquitor applies when the only inference from the facts is that the accident could not have occurred but for the
defendants negligence. If from the facts two inferences or different inferences possible then this maxim will not apply to such cases. It was
so held in Walkein v. London and South Western Rly Co19.

See

Madhavi v. Karan 1971 KLT 63

Syad Akbar v. State of Karnataka AIR 1979 SC 1848

NEGLIGENCE IN MEDICAL PROFESSION

In Dr. LB Joshi v. TB Godbole20, the Supreme Court held that a medical practitioner has the following duties when a patient consults him for
treatment:

18
AIR 1995 P&H 278
19
(1886) 12 App Cas 41
20
AIR 1989 P&H 183

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 a. A duty of care in deciding whether to undertake the case
b. A duty of care in deciding what treatment to give and
c. A duty of care in the administration of the treatment.

A breach of any of the above mentioned duty of care gives a right of action for the negligence to the patient.

NEGLIGENCE IN LEGAL PROFESSION

In England for over a century it has been held that barristers cannot be sued for breach of professional duty. This was settled in Swinfen v.
Chemsford and Batcelor v. Pattison21 cases. The same was recognized by Halsburys Laws of England also (3 rd Edn-1953). Recently it was
statutorily recognized in the Courts and Legal Services Act, 1990 under sec. 62

In India sec.5 of the Legal Practitioners Fees Act, 1926 provides that no legal practitioner who has acted or agreed to act shall by reason
only of being a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of
his professional duties. Thus in Veerappa v. Evelyn Squira22, the Supreme Court held that an advocate who has been engaged to act is
clearly liable for negligence to his client.

See

Manjit Kaur v. Deel Bus Service AIR 1989 P&H 183.

Contributory negligence- Refer Module III

DEFENCES

1. Contributory negligence
2. Act of god
3. Inevitable accident

21
(1860) 5 H&N 890; (1876) 3 R (Ct. Sess.) 914
22
AIR 1988 SC 506

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 4. Novus actus intervenes

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Suggested References:

1. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts, 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapter’s 5,9]

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2. Vivienne Harpwood, Principles of Tort Law, 4th Edn- 2000, Cavendish Publishing Limited, London. [ Chapter 11]

3. SP Singh & Indrajith Singh, Law of Torts, 4th Edn – 2006, Universal Law Publishers, Delhi. [ Chapter’s 13,20]

4. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter’s 16,17]

5. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapter’s 9,11,12]

6. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur.
[Chapter 20]

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