Chapter-7 NUISANCE-

Updated: Dec 31, 2020

This is the lawful interference with a person‟s use or enjoyment of land or some other rights over or in connection with land. It entails the doing or an unjustifiable thing, which interferes with the use or enjoyment of another‟s land. This tort protects a person‟s enjoyment of land or rights vested in the land. Nuisance may be public or private.

Public Nuisance

This is an act, which interferes with the enjoyment of a right of members or a society in general e.g right of fresh air, noise free environment, use of public highway, waterway, etc. Public nuisance is criminal offence actionable by the state on behalf of the public. However, an individual may sue for public nuisance only if he may prove that he has suffered particular damage or loss over and above what other members of the public have suffered. Such injury caused must be direct and not mere consequential injury. It must also be shown to be of a substantial character in order to avoid multiplicity of litigation. Public nuisance is therefore a tort as well as crime. These suits are dealt with by or in the name of the state.

Private Nuisance

This is the unlawful interference with a person‟s use of land or right connected with the land. It affects a person in his individual capacity and hence a personal action for redress is necessary. It may take the form of noise, heat, smoke, vibrations, overhanging branches, playing loud music etc. Private nuisance is not actionable if the action of the defendant is reasonable in the legitimate use of his property.

The defendant would also not be liable if the plaintiff is over sensitive.

The standard or test applied by courts is that of a reasonable man.

The defendant cannot escape liability by pleading that the plaintiff came to the source of the nuisance.

The defendant cannot escape liability by pleading that the plaintiff came to the source of the nuisance

Relief / Remedies to tort of nuisance.

1. Damages: The tort of nuisance is not actionable per-se. The plaintiff must prove loss or damage unless the same can be presumed.

2. Injunction: The plaintiff may apply for an order to restrain the defendant from continuing with the tortuous acts and the court may grant the order if circumstances so demand.

3.Abatement: This is the discontinuation of the nuisance e.g. cutting overhanging branches or roots. A person may only sue for nuisance if he has an interest in the land affected. A guest whose enjoyment of land is interfered with has no action in nuisance unless he is vested with the management and control of the source of nuisance.

Defenses to the tort of nuisance

1. Prescription: Right to commit private nuisance may be acquired by continuation of the nuisance for 20 years or more. The tortfeaser acquires prescriptive rights if he proves that he has committed the alleged nuisance for such period of 20 years without any interference.

2.Statutory authority: This is the offending act has been enabled by an Act of parliament.

3. Plaintiff’s consent: This is the defense of Volenti non fit injuria i.e. that the plaintiff willingly consented to the nuisance with full knowledge of its character.

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