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B.A., LL.B. (Hons.),
The WB National University of Juridical Sciences
The imprecise boundaries of what exactly constitutes private nuisance makes the task of providing an exhaustive definition of the tort almost impossible. The presently accepted definition of private nuisance that speaks only of substantial interference and unreasonableness is simplistic and inadequate. This article through a focused analysis of the tort of private nuisance, followinging from some landmark decisions and other authorities intends to clarify what kind of situations make for a valid standing of private nuisance in court.
Requirements of a valid claim for Private nuisance:
Private nuisance, broadly, takes three forms, namely; encroachment on the land of the neighbour, direct physical injury to the land and interference with the enjoyment of the land by the neighbour. Collectively, the situations encompassed by the three aforementioned faults are almost infinite. It may vary from the inconvenience caused by unpleasant noise of automobile and smell of cattle to the damage caused to structures by vibrations. But this does not mean that every slight and trivial annoyance is enforceable under the tort of private nuisance. In order for a fault to qualify as private nuisance, it must primarily interfere with the use or enjoyment of one’s land and must be unreasonable in its effect on the plaintiff. Other secondary requirements of private nuisance, like the quality of recurrence et al are subsequently discussed in the essay. The basic objective of the law of private nuisance is however to maintain a series of checks and balances between enforcing the rights of one individual while not taking away the rights of another. It is because of this that there is no cut and dried resolution mechanism for private nuisance. The cases falling under this tort are, therefore, decided on a case to case basis. Some aspects, though, that need fulfilment for an incident to qualify as private nuisance are:
I. Substantial Interference: Since, tort law aims to maintain a balance between the right of the occupier to do what he likes and the right of the neighbour not to be interfered with, it is paramount to show leniency towards the measure of interference that stems out of proximity between two individuals. Therefore, the situations of interference enforceable by law must be higher than a certain magnitude. As Lord Selbourne stated in Gaunt v. Fynney, ‘Such things to offend against law must be done in a manner, which beyond fair controversy, are to be regarded as excessive.’ But once again a question of whether an interference is sufficiently excessive is a question of fact and is different for different cases. The courts have however devised yardsticks in order to gauge the magnitude of harm caused to the neighbour. The first is the material damage caused to the land. The kind of nuisance that causes material damage to land includes collapse of defendant’s property onto claimant’s land, drenching or flooding, damage by noxious fumes and damage by vibration etc in which cases almost indisputably the tort of private nuisance is established. The second is that of the location of the claimant’s premises. This is given importance by the courts because the expectations of the claimant in terms of comfort, quiet and peace varies according to the location of his house or business; also interference which is permissible in one area may not be permissible in another. A good illustration of the same would be a successful claim of private nuisance resulting in an injunction on the practice of prostitution in an adjacent land. There are also secondary requirements like ‘nuisance to servitude’, where in some rare cases law provides remedy for the interference to luxury of right to a view or right to light.
II. Unreasonableness: Unreasonableness can be called the central issue of the tort of private nuisance. However, the reasonableness in case of private nuisance is very different from the reasonableness in case of other torts like negligence, which is discussed in detail later in the article. Reasonableness in private nuisance refers to the reasonable interference of the defendant as against the reasonable forseeability of the actions of the defendant in other torts. The tests that are normally applied by the court to figure out the unreasonableness of the interference of the defendant include the duration of the harm; apart from being a threshold requirement in its own right, the persistence of interference has a direct bearing on its unreasonableness. Generally courts do not entertain claims against activities that are temporary and will in time remedy themselves. Another factor that determines the unreasonableness is the extent of harm caused by the defendant. This is determined exclusively on the basis of the impact on the plaintiff. For instance a noise that would be declared noise by nine out of ten people will not be loud enough for a partially deaf neighbour. Hence, there would exist no cause of action. It is also important to point out that the court does not recognise the claims of a plaintiff who is abnormally sensitive. The idea behind this was laid down in Eastern and SA Telegraph Co. v. Cape Town Tramways as, ‘You cannot increase the liability of your neighbour by applying your property to special uses whether for business or pleasure.’Another illustration of the same would be the case of Robinson v. Kilvertwhere in a dispute between a claimant whose paper business was affected by the defendant’s over heating of the cellar below, the defendant was not held liable owing to the extra sensitive nature of the business carried out by the claimant. Unlike other assertions under unreasonableness, malice is not an absolute necessity to prove private nuisance, however, if proved, it has persuasive effect on the court to rule in favour of the plaintiff. This was proved in the cases of Christie v. Daveyand Hollywood Silver Fox Farm v. Emmet. In the former, the defendant deliberately banging on a common wall and making noises to disrupt the plaintiff’s music lessons and in the latter, the defendant firing gunshots on his land to scare away the vixen on the plaintiff’s land during the mating season were both held liable for private nuisance.
Earl CJ once remarked, the law of nuisance is ‘immersed in undefined uncertainty’. It holds true because the nature of the tort is such that it overlaps with other torts like negligence and the rule of strict liability as laid down in Rylands v. Fletcher.The following paragraphs address the unclear areas of demarcation between private nuisance and negligence had private nuisance and strict liability.
I. Private Nuisance and Negligence: As has been stated earlier one of the most fundamental areas of overlap between the tort of nuisance and the tort of negligence is that of the test of reasonableness. The fact that reasonableness of forseeability is not normally taken into account in the tort of private nuisance does not mean that a claimant is automatically exonerated of a forseeable and malicious damage done by him. Moreover there are also cases, albeit very rare, where a concurrent liability arises out of both nuisance as well as negligence. But in most of these cases the courts stick to proving nuisance, because proof of private nuisance more or less covers the remedies that are available under negligence.
II. Private Nuisance and Strict Liability: Determining liability in case of private nuisance is not easy because there are very few cases that have truly explored the question. But there seems to be a general consensus that the kind of liability attached with nuisance is strict liability. This assertion follows from the following observations; firstly, considering the question of negligence, it is redundant to ask if the defendant had been negligent in carrying out the act. If it is intolerable to the claimant by ordinary, sensible standards, then the defendant is automatically liable.
Conclusion: Under the tort of private nuisance, a claimant mostly seeks the remedy of injunction rather than damages. The logic being that, he may be allowed to go back to the free and peaceful usage of his property as was the case before the defendant’s intolerable activities. However Injunctions are granted by courts on a discretionary basis. The courts may, therefore, even reject the prayer for an injunction even if an actionable nuisance is proved. This may seem unfair to the reader but if considered in the light of the case of Hunter v. Canary Wharf Limited, where the court refused to award damages to the plaintiff just because the construction of a house by the defendant was interfering with his television signals, the stand of the courts seems justified. Furthermore, cases of private nuisance essentially raise questions of fact rather than questions of law. It is therefore impossible to come up with any infallible form of redressal of such grievances. Such cases need to be considered by weighing the veracity of claims of substantial interference and unreasonable intrusion. These factors though essentially separate often form a precondition for the existence of the other.
# Gaunt v. Fynney (1872) 8 Ch App 8, at 11-12
# Wringe v. Cohen  KB 1 229
# Sedleigh-Denfield v. O’Callaghan  AC 880
# Masters v. Brent London Borough Council  QB 841
# Street on Torts, Nuisance, Page 400
# Eastern and SA Telegraph Co. v. Cape Town Tramways  A.C. 381 at 383
# Robinson v. Kilvert (1889) 41 Ch. D 88
# Christie v. Davey  1 Ch D 316
# Hollywood Silver Fox Farm v Emmett  2 KB 468
# Rylands v. Fletcher (1868) LR 3 HL 330
# Hunter v. Canary Wharf Limited  All ER 426
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