DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

LAW OF TORTS II & CONSUMER PROTECTION

ACT

Final Draft
On

a critical analysis of nuisance

Under The Guidance of:

Submitted By:

Dr. R. K. Yadav

Shivam Kumar

Asstt. Prof. (Law)

Dr. RMLNLU, Lucnow

Roll No. 123, Section B

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
INTRODUCTION...........................................................................................................................4
ESSENTIALS OF NUISANCE.....................................................................................................5
TYPES OF NUISANCE.................................................................................................................5
Public nuisance...........................................................................................................................5
Private nuisance..........................................................................................................................6
REMEDIES....................................................................................................................................8
DEFENCES..................................................................................................................................10
CONCLUSION.............................................................................................................................12
Bibliography..................................................................................................................................13

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 NUISANCE
There 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 nuisance
An 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 nuisance
Private 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.

REMEDIES
A 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 Torts
4. 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.