Law Of Tort

PROJECT ON NUISANCE

SUBMITTED TO Mr. Ankit Bhojwani Asst. Professor TORT

SUBMITTED BY Shiwanshu Ranjan Prasad Roll no.44 , B.A-LL.B 1st SEM

SCHOOL OF LAW GURU GHASIDAS UNIVERSITY,BILASPUR DATE OF SUBMISSION-

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DECLARATION I ShiwanshuRanjan Prasad, Roll no - 44 of B.A-LL.B 1st SEM, of Guru Ghasidas University, do hereby specially declare that this project is my original piece of work and I have not copied this project from any source without due acknowledgment. I am highly indebted from the author of the books that I have referred in my project as well as all the writers of the articles and the owners of the information taken from the website for it. It is only because of their contribution and proper guidance of my faculty adviser Asst. Prof. Mr. ANKIT BHOJWANI that I was able to gather light on the subject.

ShiwanshuRanjan Prasad Roll no. 44 B.A-LL.B 1st SEM

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CERTIFICATE

I am glad here to submit this project on NUISANCE as a part of my academic assignment. The project is based on Research Methodology. It further studies meaning. Sources and Methods of research Methodology and further discusses the Interview Method. I hope this would be significant for academic purposes as well as prove informative to all readers. Here though I declare that this paper is an original piece of research and all are borrowed text and ideas have been duly acknowledged.

Faculty Sign

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ACKNOWLEDGMENT

I am using this opportunity to express my deepest appreciation to all those who provided me the possibility to complete this project work. I pay my special gratitude and warm thanks to my subject teacher Asst. Prof. MR. ANKIT BHOJWANI for her aspiring guidance, invaluably constructive criticism and friendly advice during the project work. I would like to extend my sincere thanks to my respective seniors and dear friends for sharing their truthful and illuminating views on a number of issues and topics related to this project. Least but not the last I would also like to thank my parents who supported me economically a lot in finalizing within the limited time frame. So I could present it so well.

ShiwanshuRanjan Prasad Roll no-44 B.A-LL.B 1st SEM

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TABLE OF CONTENTS: INTRODUCTION……………………………………………………………………………………………….3 INTRODUCTION TO NUISANCE.....................................................................................................................4 ESSENTIALS FOR NUISANCE……………………………………………………………………………….5 TYPES OF NUISANCE…………………………………………………………………………………………6 LIABILITY FOR NUISANCE…………………………………………………………………………………10 WHO CAN SUE FOR NUISANCE…………………………………………………………………………….13 BIBLIOGRAPHY……………………………………………………………………………………………….17

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INTRODUCTION: WHAT IS TORT The word ‘tort’ had been derived from Latin word ‘tortum’ which means twisted or crooked conduct. Tort is a civil wrong not arising of a contract or statute for which the appropriate remedy is an action for unliquidated . It consists of a various wrongful act. Law of torts consist of various torts or wrongful act whereby results in damages of some legal rights vested to society’s members. A tort is “a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.”1The person committing a or a wrong is called a tortfeasor or wrong doer, and his act is called a tortuous act. Tort is an act or omission of a duty that leads to legal injury of some other person.

TORTIOUS LIABILITY Tortious liability arises from the breach of a duty primarily fixed by law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. 2Tort is based on a legal maxim – injuria sine damno that means legal injury of a person without substantial damage of a person’s money, health, and comfort. Example: In the famous case of Ashby v. White, a listed voter was not allowed to cast his vote by the polling officer. The voter’s candidate of choice ultimately won the election. So no actual damage was caused but there was a violation of the person’s legal right to vote. This is injuria or legal injury even though no actual damage has been caused. This is a tort and the aggrieved party has a right of action in tort.

CONSTITUENTS OF TORTS 

There must be a wrongful act committed by a person.



The wrongful act must give rise to legal damage or actual damage.



The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action or damages.

1 2

See Salmond & Huetson, Law of Torts (20th edition,1997)14,15 See Winfield and Jolowicz, (Tort 12th edition,2007)3

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INTRODUCTION TO NUISANCE The term nuisance is derived from French word ‘NUIRE’, which means to cause hurt, or to annoy, or to cause inconvenience to a person. The term nuisance originally comes from Latin word nocumentum and then the French word ‘nuire’ that means nuisance. ‘Henry de Bracton define tort of nuisance as an infringement of easement.’3 In earlier time, it mainly deals with the issues related to land. ‘It referred to the action that took place on the land of the defendant but interfered with the right of the plaintiff.’ 4Nuisance is an unlawful interference with a person’s use or enjoyment of land, and property. Nuisance is a tort that plays precious role to decide the right of neighbor. It is essential because it deals with undue interference in the use or enjoyment of land or property. The court must make equilibrium in deciding the right and duty of defendant and to what extent defendant can enforce his right so that his right does not interfere with the right of enjoyment of land and property of plaintiff. For Example-: If X is fond of rock music and one night he started listening music at 2:00 a.m. which disturbs Y because of which he can’t sleep whole night here tort of nuisance is actionable

LEGAL MAXIM FOR NUISANCE: Sic utere tuo ut alienum non laedas: - This is usually expressed by saying that nuisance is a breach of duty indicated by Latin maxim- sic utere tuo ut alienum non laedas- one should use one’s property in such a way that it not injures other’s property. ‘But no user who doesn’t infringe another’s legal right is wrongful.’5Conduct of defendant should be reasonable and it is relevant in determining whether he has created nuisance or not. There are some factors which affects that whether nuisance is actionable or not and they are age, some disease, insanity. For Example-: X is a person having heart disease and is 80-year-old, one day his neighbor ‘Y’ Started listening music in a loud noise at 2:00 p.m. Which gives shock to ‘X’ in the consequence of which he suffers injury but in this case he cannot ask for damages because listening music was reasonable. As we know, law is made for reasonable and prudent men not for sensitive ones. We can say that there should be legal injury and substantial damage for actionable nuisance. We can take a example if there is a house in roof of which an electric wire is passed in a reasonable distance above the roof and a child want to fly a kite on makarsankranti festival but because of wire he can’t even then 3

< www. Lawhandbook.org.au > accessed on 30 june 2013 < http:// tort. laws.com>accessed on 14 August 2014 5 John Murphy, The Law Of Nuisance ,2010, Oxford 4

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he can’t sue electricity board as there is no legal injury and damage suffered by the child so no actionable nuisance will be there.

DIFFERENCE BETWEEN NUISANCE AND TRESPASS 

Nuisance is a tort that deals with the interference with the use or enjoyment of person’s land or property where as trespass is a tort that deals with the interference of person’s property or person himself.



Nuisance is distinguished from trespass in the sense that in nuisance we have to prove legal injury and damage where as in trespass there should be an action no harm is necessary.



Some intangible object such as smoke, gas, pollution, creates it etc. but trespass is always by some material or tangible object. For Example: - If A is using pesticide in his garden which pollutes B’s water then it is nuisance but if A takes a single step in B’s premises without B’s consent then it is trespass.



Nuisance is indirect interference with plaintiff’s property but trespass is direct interference with plaintiff’s property.

ESSENTIALS FOR NUISANCE

:-



There must be unlawful or unreasonable interference with person’s right.

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There should be interference with a enjoyment of land or person’s comfort.

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There must be consequential damage.

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WARE V. GARSTON HAULAGE CO. LTD., (1944) KB 30: -

In this case defendant a motorcyclist at night ran into the back of a trailer which was attached to a stationary lorry standing on the near side of highway. The lorry and trailer were unattended and no rear light showed from trailer. It was held that the lorry and trailer were an obstruction on the highway, and such constitute an actionable nuisance. There was a dangerous obstruction in the highway and consequentaly there was an absolute duty on the defendents to light it or otherwise efficiently guard it to prevent accidents. 6

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Ratanlal and Dheerajlal, The Law Of Torts(25th edition, 2009)

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TYPES OF NUISANCE: There are mainly three types of nuisance:-



PRIVATE NUISANCE: Unlawful interference with an individual’s use or enjoyment of land and property. Interference with health, comfort, safety, it may be caused by noise, water, gas, pollution etc. It is an actionable tort.

For Example:-If your neighbor loves gardening he has planted banyan tree at his own land but roots of that tree enters to your land and cause damage to wall and occupy your land then there will be private nuisance.



PUBLIC NUISANCE: Unlawful and unreasonable interference with public at large or causing harm to a number of citizens. It causes any common injury, damage, or annoyance to the public. It comes under law of torts as well as under criminal offences. It comes under section 268 of ‘IPC’. In public nuisance a person cannot sue for general damage that he suffers, he can sue only when a person suffers some special damage and for that injury should be direct and not a mere consequential injury. For example: - If in a road someone put a 5 ft. long hollow cylinder because of which road is blocked then no action of nuisance comes into a picture but if in that scenario a person ‘A’ got late for interview of I.A.S then he can sue for nuisance



STATUTORY NUISANCE: The particular nuisance that are defined in various acts of parliament. Part 3rd of Environmental Protection Act 1990. It comes under crime and is punishable. For example: - If there is a factory in residential area which emit artificial light that causes harm and is dangerous for the health of people residing in that area it will be statutory nuisance. ‘Artificial light emitted from premises so as to be prejudicial to a health or a nuisance.’7

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Environmental Protection Act, 1990.

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PRIVATE NUISANCE Private nuisance is an “invasion of another’s interest in the private use or enjoyment of land. 8” It is a tort in which a person’s right of enjoyment of land is affected by another’s act or omission of his duty. Private nuisance has been developed to cuddle case of physical damage to land. Private nuisance can nowadays be understood as any ongoing or recurrent activity or state of affairs that causes a substantial and unreasonable interference with a claimant’s land or with his use or enjoyment of that land. ‘It is also clear that this tort has developed so as to embrace cases of physical damage to land, even though the precise way in which such harm is covered is somewhat problematic.’9

ESSENTIALS FOR PRIVATE NUISANCE 

There should be unlawful act.



There should be actual damages or presumed and that must be substantial.

FACTORS FOR PRIVATE NUISANCE: 

SUBSTANTIAL INTERFERENCE: - An actionable nuisance depends upon the interference complied of being both unreasonable and substantial as nuisance law doesn’t response to trifling interference. Injury that occurred should diminish the comfort and easement of property.

For example; -There is a priest who used to worship god every morning but his neighbor starts rock and loud music which diverts the concentration of the priest but he cannot sue for nuisance as there is no substantial harm. The persistence is substantial harm, which defers it from trespass where if you have done a trivial thing then also it will be actionable tort. It is also essential that only one person is entitled to sue and that is the owner of the house or who is in right possession. 

UNREASONABLE INTERFERENCE: -

Private nuisance include unreasonable wrongful disturbance of easement like impediment to light, air wrongful escape of into another property like smoke, water and tree etc. For example:- If ‘X’ is a chain-smoker he smokes at his home but smoke go to his neighbor’s home then it will be a nuisance as it will affect the health of neighbor but head of that family can sue neither his wife nor his children. In private nuisance plays a crucial role in determining nuisance is actionable or not. In Imperial 8 9

John Murphy, The Law Of Nuisance ,2010, Oxford Hunter v. Canary Wharf LTD [1997] AC 655.

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Tobacco Co. Ltd, it was held that ‘any negligible interference doesn’t constitute any actionable nuisance.’ 10Any normal use will not consider being interference. 

SENSTIVITY OF THE CLAIMENT: -

The concept of substantial interference is an objective one. It means that any claimant who has an exceptional sensitivity to interferences will not be able to rely upon this abnormal sensitivity in order to convert an ordinary innocuous interference into one that is regarded sufficiently substantial to fit into the ground of nuisance. In Robinson v. Kilvert, ‘a proprietor of certain premises in occupation of cellar to make cardboards he needs heat and dry air. The heat transferred from ceiling and destroyed claimant’s twine paper. It was held that transfer of heat could not be considered as interference in ordinary sense he sued for nuisance because his paper was sensitive and they destroyed.’11 For Example: - In a locality, there is music class in which students sings for 2-3 hours a day which annoy neighbor but he can’t sue for nuisance as it is reasonable and normal use of land. In considering reasonableness, law will not consider abnormal sensitivity. If someone is smell sensitive or noise sensitive then he cannot go to court for nuisance. For example: -X is noise sensitive and in his neighborhood, there is a small child who cries

sometimes,

which infuriate X but he cannot sue as it is abnormal sensitivity.

KULDIP SINGH V. SUBHASH CHANDER JAIN AIR 2000 SC 1410: The appellant who constructed a bhatti appealed against the injunction granted to him by the trial court restraining him from operating a bhatti’which was emitting smell, generating heat and smoke that would amount to nuisance. High court justified and confirmed the injunction held by trial court.12

PUBLIC NUISANCE AS TORT: Unlawful and unreasonable interference with public at large or causing harm to a number of citizens. In public nuisance there should some common injury with some or other public right of a person. Public nuisance

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Keelson v. Imperial Tobacco Co. Ltd. (1957) 2 QB 334. Robinson v. Kilvert (1889) 41 CH D 88. 12 Kuldip Singh v. Subhash Chander Jain AIR 2000 SC 1410 11

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becomes actionable only if sufferer shows some special injury, which should be direct, not a consequential one, which must be shown to a substantive character. We can say that defendant’s act need not to be unlawful. Public nuisance cannot be abated except to the extent to which it causes special damage to the person who desire to abate it. Public nuisance is that which affect the public at large. Public nuisance law, after long obscurity, is very much in the news these days. With considerable fanfare, state attorneys general on the east and west coasts have filed actions against major emitters of greenhouse gases, contending that global warming is a public nuisance. The east coast suit, spearheaded by Connecticut, seeks an injunction requiring reductions of CO2 emissions by major coal-burning electric utilities.13The west coast suit, filed by the California Attorney General, sought damages for CO2 emissions from automobiles sold in California by six multinational firms.14 Both suits were initially dismissed as presenting nonjusticiable political questions. ‘The California suit was dropped on appeal, as part of complex settlement involving not only the state and the auto industry, but also the Obama administration.’15 A person is guilty of nuisance when: 1. He does an act not warranted by law. 2. He omits to discharge a legal duty and the effect of an act omission is to endanger the life, health and comfort. For example: - obstructing public way by digging a trench.

ESSENTIAL FOR PUBLIC NUISANCE: 1. Existence of a common injury. 2. Suffering of a particular harm on the part of a claimant. SOLTAU V. DE HELD, (1851) 2 SIM NS 133: -

Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265 (S.D. N.Y. 2005), rev’d, 582 F.3d 309 (2d Cir. 2009), cert. granted, 131 S. Ct. 813 (2010).

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2 California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007).

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3 Unopposed Motion to Dismiss Appeal, California v. Gen. Motors Corp., No. 07-16908 (9th Cir. filed June 19, 2009), available at http://www.globalclimatelaw.com/uploads/file/California%20v%20GM%20dismissal.pdf .

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In this case the plaintiff resided in a house next to a Roman Catholic Church of which the defendant was a priest and the chapel ball was rung at all hours of day and night. It was held that ringing of bell was a public nuisance as it was infringing someone’s easement of life and plaintiff was held entitled to injunction.16

LIABILITY FOR NUISANCE: Generally, in a nuisance action, persons creating a nuisance are liable for damages. While in a nuisance action involving more than one defendant, the person who sets in motion the forces that eventually cause the tortious act are liable along with other persons assisting him/her. Therefore, all other persons who assist or participate in the creation or maintenance of a nuisance will be liable for the resulting damages. The liability imposed for a nuisance will continue so long as the nuisance continues. Therefore ‘the action must be brought against the hand committing the injury, or against the person for whom the act was done.’17 According to the Restatement Second of Torts, a person is liable for a nuisance caused by an activity not only when s/he carries on an activity, but also when s/he participates to a substantial extent in carrying out such a nuisance. The failure to prove the creation or continuance of a nuisance will generally exempt the person who owns, maintains, or controls the premises from liability for a nuisance. Likewise, in the absence of a statute, a landowner or person lawfully in possession of property will not be liable for a nuisance in his/her premises. Provided, such a nuisance should not be the creation of a landowner or by some other persons who were authorized by such landowner and for whose action the landowner was responsible. Liability will also exist in situations where such a nuisance was continued even after a notice to abate, or after knowledge of its existence. Generally, a defendant’s liability for a nuisance will not be terminated by the sale or transfer of a property in which the nuisance was created by him/her. Hence, the liability of a defendant for a nuisance will continue to exist when circumstances show that such defendant exercises de facto control over nuisance-causing property. The fact that title or possession of the property was transferred to others will not absolve the liability of a defendant for a nuisance and it will continue to exist until the new title holder receives a reasonable time to correct such a nuisance. Accordingly the courts in several cases have observed that property ownership is not a prerequisite for nuisance liability.

16 17

Ratanlal and Dheerajlal, The Law Of Torts(25th edition, 2009) 603 Ratanlal and Dheerajlal, The Law Of Torts(25th edition, 2009) 617

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Therefore, the key factor determining the liability of an owner or occupant is the control over the land, rather than the creation of a nuisance. The functional test frequently applied by courts for determining the liability mainly aims at finding out whether a defendant “uses” the property in a manner sufficient to subject him/her to liability for nuisance. Usually, consequences resulting from the continuance of a nuisance must be answered by persons who have the responsibility to abate a nuisance. However, no person can be held liable for a nuisance that cannot be personally abated without any legal action against another. Provided, such a nuisance should not be the result of his/her own wrongful conduct. Similarly, a person who adopts and continues a previously existing nuisance will be liable for its continued maintenance. In order to impose liability for the continued maintenance, there must be some active participation in the continuance of the nuisance or some positive act evidencing its adoption. A mere failure to remove a nuisance erected by another will not constitute a continuous maintenance of a nuisance to subject one to liability.A lessor or sublessor who allows a property that is under his/her control to be used for another purpose in a manner that creates a nuisance is liable for a nuisance along with the lessee or sublessee. According to the Restatement Second of Torts, a lessor’s liability for a nuisance is generally based upon his/her consent to or knowledge of the nuisance. Hence, a lessor who had a duty to take positive action can be held liable for a failure to act to prevent or abate a nuisance. The fact that a contractual relationship exists between the tenant and landlord will not take away from the nuisance liability of a lessor or sublessor. Just like a private individual, a public or a private corporation is also liable for the creation or maintenance of a nuisance either by themselves or through their agents. However, a corporation acting solely through an officer will be guilty of committing a nuisance only in situations where such officer was guilty of the offense. Likewise, a corporation will not be held liable if the statute alleged to have been violated imposes liability only on corporate officers or employees individually.

 STRICT LIABILITY IN NUISANCE: Strict liability is a legal doctrine that holds a person responsible for the damages or loss caused by his or her acts or omissions. This doctrine holds a person liability regardless of culpability. Strict liability is important to tort law, particularly in product liability lawsuits. It is also important for corporation law and criminal law. In torts, strict liability is the doctrine that imposes liability on a party or person without a finding of fault. A finding of fault would be negligence or tortious intent. The plaintiff needs to prove only that the tort happened and that the defendant was responsible. Strict liability is imposed for legal infractions that are malum prohibitum rather than malum in se. Malum prohibitum means that an act is wrong because it violates a statute. 14

Malum in se means that an act is wrong because it is evil in and of itself. Because the act was prohibited by statute, neither good faith nor the fact that a defendant took as many as precautions possible is valid defences. Strict liability frequently applies to those who were engaged in a hazardous or inherently dangerous venture. Strict liability is different from absolute liability. In absolute liability, only a guilty act is required for the person to be liable for an injury. With strict liability, a guilty act and guilty mind are required. In strict liability situations, the defendant can raise a defence of absence of fault. The plaintiff, however, does not have to prove fault.

RYLAND V. FLETCHER: FACTS: - Plaintiff owned and operated a mine adjacent to which Defendant constructed an artificial pond. The latter caused a mineshaft collapse, which resulted in a flood, and damaged Plaintiff’s operation. The plaintiff sued, the matter was brought before an arbitrator to independently establish facts. The trial court found for Plaintiff; the appellate court affirmed; Defendant appealed to the House of Lords, which also affirmed. DECISION: - A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

British Road Services Ltd. V. Slater, (1964) All ER 693: In this case there was a man, an owner of the farm adjoining to public road. In the farm an oak was growing before the defendant owned the land and oak was growing in such a way that most of its part comes on road, but neither the plaintiff, nor the defendant or highway authority took it as nuisance. One night a lorry was passing carrying cases and a very high loaded, driver of that lorry in order to give side to another lorry took over a near side in the consequence of which load struck to the branch of oak and one cases fell on the road and another lorry also sustained damages when trying to avoid the packing case. So plaintiff sue the defendant for nuisance but in this case it was held that plaintiff cannot claim damages as although the overshadowing of the branch was nuisance, defendant could not be presumed to know about the nuisance and therefore he cannot be held liable for continuing it.18

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British Road Services Ltd. V. Slater, (1964) All ER 693 , Ratanlal and Dheerajlal, The Law Of Torts(25th edition, 2009) 619

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WHO CAN SUE ON NUISANCE: -

WHO CAN SUE ON PUBLIC NUISANCE: -

Any person whose property is injuriously affected or whose personal enjoyment is lessened by a nuisance can bring an action for private nuisance. Therefore, an action for private nuisance can be maintained by those: 

Whose rights have been disturbed; or



Who have been injured by the alleged private nuisance?

However, such a disturbance or injury must be in relation to a right such person possesses by reason of ownership interests in land or by those who have some interests in the property affected. Likewise, any person who has no interest in the property affected, such as a licensee, employer, employee, mere occupant, or lodger of premises, or members of the possessor’s family cannot maintain an action for private nuisance. Even a state has no right to maintain an action for private nuisance.

With respect to a public nuisance, it is the state or the federal government who has the authority to maintain an action in court. In a public nuisance, a state generally brings an action in a parens patriae. Here a state is deemed to represent all its citizens and there is a presumption that the state will adequately represent the position of its citizens. While in cases involving an inquiry as to the property or civil rights of the public at large, the suits can be maintained by the state through its attorney general or other authorized officer. Provided, there must be a statutory or constitutional provision authorizing such delegation. But, as a general rule, a suit to abate a public nuisance must be maintained by the United States, or board of health, or a district attorney, or a county or municipal corporation depending on the nature of each case. Therefore, neither an individual nor an unauthorized organization can have a right of action with regard to a public nuisance. However, there is an exception to this general proposition. Accordingly, a private party can sustain an action to recover damages for a public nuisance if such party can allege and prove a special damage, distinct from that common to the public. Here it is not mandatory that a plaintiff must suffer a damage that is different in kind from that suffered by the general public. Similarly, a plaintiff will not lose his/her rights as a landowner merely because others suffered damage of the same kind, or even to the same degree.

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WHO CAN SUE ON PRIVATE NUISANCE: -

There has been a preference to sue under private nuisance because it is not based on fault and therefore is less difficult to prove. Private nuisance is the continuous, unlawful and indirect interference with a person’s use or enjoyment of land or some rights over or in connection with it and as long as all these elements are present, there is a valid case. However, several cases have pointed to the limitations of this definition that makes it difficult to start an action under nuisance. Because private nuisance is a tort against land, not against the person only those with rights to the land namely an interest in land or exclusive possession can sue. It has never really been clear what amounts to a proprietary interest in land for the purposes of nuisance, and on closer inspection it is obvious that it isn't a particular helpful concept in general – Pemberton v Southwark LBC 2000 decided that a tenant, who had reverted to being a trespasser by his non-payment of rent, but was tolerated by the landowner, had standing to sue in nuisance. “In Khorasandjian v Bush the law of nuisance could be invoked by those who had a substantial link to the land, and this would include the relatives of landowners however Hunter v Canary Wharf reinstated the proprietary interest principle stated in Malone v Laskey that the claimants must have an interest in the land and must have exclusive possession tin their own right and overturned the decision to allow occupiers with a substantial link to the landowner to sue.”19

Although Hunter seems clear enough, there continue to be uncertainties about who has a right to sue in nuisance. The first problem arises from those cases where the courts have accepted that it is a nuisance to prevent someone getting access to land (rather than interfering with his use of that land). These cases have mostly arisen out of the actions of pickets on industrial disputes. In both Thomas v NUM [1986] Ch 20 and Newsgroup v SOGAT [1987] ICR 187 the courts accepted that pickets caused a nuisance by preventing nonstriking workers getting into their places of work. In none of these cases had the victim of the nuisance had any proprietary interest in land; at best they were licencees. However, unlike Malone, these cases concerned rights of access to land, not right of enjoyment of land, and might represent a different species of nuisance. Limiting who can sue to those with rights to land is contrary to Article 8 of the European Convention on Human Rights which demands respect for private and family life, and if a person occupies his home as a licencee, or even as a trespasser, it seems that he should still be able to get the protection of the Article. Another contentious point is the requirement for the interference to be continuous which is said to distinguish 19

John Murphy, The Law Of Nuisance ,2010, Oxford

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nuisance from negligence which can be based on a single event. ‘In British Celanese v Hunt Capacitors 1969, the defendant's metal foil blew onto a power line and shut off power to the claimant's plant’20. This was a single event, but the defendants were liable. The reasoning was that the single event followed from an ongoing state of affairs (the inadequate storage of the foil). Then, in Leakey v National Trust 1980, the defendants were held liable for a (single) landslide onto the claimant's property. Again, the reasoning was that the defendant's land was defective, and had been so for a long time. Additionally in deciding nuisance cases, the courts have to balance the right of the claimant to use his land, with the right of the defendant to use his. Not every trivial interference will amount to a nuisance. It must be a balancing exercise between rights of the claimant and other householders: ‘Miller v Jackson. Factors to take into consideration:- defendant’s conduct in light of the circumstances - nature of the locality – Sturges v Bridgman making a disruptive amount of noise is more likely to be unreasonable in a quiet rural area than in an industrial zone - abnormal sensitivity – Robinson v Kilvert - malicious – Christie v Davey, Holleywood Silver Fox Farm v Emmet 1936, the defendant's shooting was perfectly lawful, and would not have amounted to a nuisance had it not been done with malice. - does not normally occur - occurs at an unreasonable time - objectives could have accomplished in a less intrusive manner - dangerous - natural nuisance recognised and the same duty of positive action on the part of the occupier of the land was recognised – Leakey v National Trust’21

Unsure what amenity interests are protected. In Tetley v Chitty 1986, noise from a go-kart track was held to be an actionable nuisance, as was the bad smell emanating form a pig farm in Bone v Seal 1975. But no action lay in the blocking of a view or prospect : AG v Doughty or prospect of TV and radio reception : Hunter v Canary Wharf.

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21

British celance v. Hunt capacitors (1969) Ratanlal and Dheerajlal, The Law Of Torts(25th edition, 2009) 617-619

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If a loss of amenity resulting from personal discomfort can be actioned, then the courts have from time to time extended this head of liability to encompass actual personal injury. After all, it seems logical in a way that if discomfort is actionable, injury should be actionable. However, in Hunter v Canary Wharf the House of Lords doubted that personal injury could amount to a nuisance - nuisance is concerned with the rights in land, not with bodily integrity.

Although some losses of amenity value may be actionable, the courts have not accepted that all losses are so actionable. For example, in Hunter, interference with television reception was not held to amount to a nuisance. In a way this is strange, because many people would be deterred from owning land that did not obtain adequate television reception; this particular part of the Hunter decision has been rejected by some other common-law jurisdictions (e.g., in the Canadian Nor-Video case). A further problem with the principle that loss of amenity is recoverable is that whether there is a loss of amenity will depend on what the claimant does on his land. If the defendant has the poor fortune to live next to someone who carries on a particular line of business, and the defendant's actions are deemed to reduce the amenity of the neighbouring land with respect to that business, then he will be liable. Admittedly the courts have been reluctant to impose liability where the claimant's activities are unsually sensitive to interference.

o

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BIBLIOGRAPHY: -

BOOKS REFERED:  RATANLAL AND DHEERAJLAL, THE LAW OF TORTS, 25TH EDITION, 2009  JOHN MURPHY, THE LAW OF NUISANCE,(OXFORD), 2010 

SITES REFERRED:  www.lawhandbook.org.au  http://torts.law.com  www.indiankanoon.org

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