Tort Noots of Sir,Lecture By M. Mujahid Rana (Advocate High Court)Class LLB Part 1 Q.12

“PRIVATE AND PUBLIC NUISANC”

1.  INTRODUCTION

                         Nuisance is legal wrong. It is actionable tort. It may be caused by negligence. It is a thing which causes injury or damage or annoying or discomfort to others. Nuisance has mainly two kinds, private and public nuisance.

2.  MEANING OF NUISANCE

                       The word nuisance is taken from the French word Nuire or Nuis and the Latin, word Nocere which means to do hurt, or to annoy.

3.  DEFINITION OF NUISANCE

Ø According to Black Stone

                                       “Nuisance is worketh hurt, inconvenience or damage.”

Ø According to Winfied

        “ Nuisance is incapable of exact definition but for the purpose of law of torts it may be describe as unlawful interference with a person’s use or enjoyment of land or of some right over or connection, whit it”

Ø Oxford Dictionary

                                     “It is an annoying action.”     

                                          

4.  ESSENTIAL ELEMENTS OF NUISANCE

                        Following are essentials elements of nuisance:

a)                  Wrongful act

b)                  Damage or loss

5.  KINDS OF NUISANCE

(i)           Private nuisance

(ii)         Public nuisance

I.       DEFINITION OF PRIVATE NUISANC

Private nuisance may be defined as unlawful interference with a person’s use or enjoyment of land, or some right over in connection with it.

Ø Case Law

                                  Ware vs. Garston 1944 AC 30

                                        It was held that if any thing is placed on the highway which is likely to cause an accident though being an obstruction to those who are using the highway and an accident results there is an actionable nuisance.

6.  ESSENTIALS OF PRIVATE NUISANCE

a)                Unlawful interference

b)                Such interference with a person’s use or his right

c)                 Damage

7.  KINDS OF PRIVATE NUISANCE

(i)          Private Nuisance by Material Damage to Property

                                   In this kind of nuisance damage is caused to property of another. For an action under this kind any sensible injury would be sufficient.

(ii)       Private Nuisance by Physical Discomfort

                                                                      When one uses his property in such manner which causes discomfort to other it would be private nuisance. This kind of nuisance based on the Latin maxim “sic utere Tuo ut Alienum no Leades” it means one must not use his property in such a manner as to inconvenience of another person.

8.  REMEDIES FOR PRIVATE NUISANCE

                           Following are the remedies of private nuisance.

(i)           Abatement

        Abatement is extra judicial remedy. It means the removal of a nuisance by the injured party or who suffered without recourse to legal proceedings.

Ø Conditions

a)      Peacefully

b)     No damage should be caused

c)      Notice should be given of necessity

d)     Without danger to life

(ii)         Action for damages

                                            An action for damages can be brought before a court. The plaintiff must prove some special damage. Special damage is that damage which by reason of nuisance would be suffered by some individual beyond what is suffered by him in connection with other person affected by that nuisance.

(iii)       Injunction

             An order for injunction under specific relief Act can also be obtained by the court.

9.  WHAT MUST BE PROVED BY THE PLAINTIFF

                         Plaintiff must prove the following factors.

(i)   Actual damage.

(ii)  Substantial damage.

10.  DEFENCES

                       These are following:

(i)                      Prescription

                               The defendant acquired the right of easement through prescription.

(ii)                   Statutory Authority

                              The act was done by the defendant in exercise of statutory authority.

(iii)                 Grant by Plaintiff

 The plaintiff had granted the right to the defendant to commit private nuisance.

(iv)                 Acquiescence

       The act was done due to acquiescence on the part of the plaintiff.

11.  DEFINITION OF PUBLIC NUISANCE

                                       Public nuisance is an act affecting the public at large, or some considerable portion of it and with be interference with the rights as to health, safety comfort or which members of society otherwise enjoy.

12.  ILLUSTRATIONS

c)   The unlawful use of loud speaker.

d)   Discharge the chemical waste in the river.

e)   Obstruction in the public way.

13.  WHO CAN SUE FOR PUBLIC NUISANCE

                          A private individual can not sue for a public nuisance.

Ø Object

                               To avoid the multiplicity of litigation.

Ø Exception

  A private person can sue for a public nuisance if he prove the following condition.

a)                        He has suffered a particular injury.

b)                       Injury must be direct.

c)                        Injury should not be consequential.

d)                       Injury must be substantial.

14.  REMEDIES

Following are remedies for public nuisance.

(i)                 Civil Remedy.

(ii)               Criminal Remedy.

I.                   CIVIL REMEDY

                            Under Sec. 91 of civil procedure code 1908 Advocate General or two persons authorized by him, in writing can sue for public nuisance.

II.                CRIMINAL REMEDY

                             A person committing public nuisance may be proceed against under criminal law because public nuisance is also a crime.

15.  DEFENCES FOR AN ACTION OF PUBLIC NUISANCE

                        Defences or justification for an action of public nuisance are as under:

a)                        Act authorized by status.

b)                       If the act was done with the consent of the defendant.

16.     DISTINGUSH BETWEEN PRIVATE NISANCE AND PUBLIC NUISANCE

I. AS TO INFRINGMENT

Ø Private nuisance interferes with an individual right.

Ø Public nuisance infringes a public right.

II.  AS TO INJURY

Ø Private nuisance causes injury to individual.

Ø Public nuisance causes injury to the public.

III. AS TO PROSECUTION

Ø in private nuisance a private person can proceed at law.

Ø in public nuisance Advocate General is authorized to proceed at law. A private person cannot do so.

IV. AS TO OFFENCE

Ø Private nuisance is purely a civil wrong.

Ø Public nuisance is a civil wring as well as a criminal offence.

V.  AS TO REMEDY

Ø a private nuisance the remedy is by way of damages and injunction.

Ø in public nuisance the remedy is either criminal prosecution or an injunction to restrain the continuance.

VI. AS TO PROOF

Ø In private nuisance proof of damage is required.

Ø In public nuisance proof of damage is not required.

VII.  AS TO RIGHT

Ø Private nuisance relate to private right.

Ø Public nuisance relate to public right.

VIII. AS TO PRESCRIPTION

Ø Private nuisance can be acquired as prescription under the Easement  Act.

Ø Public nuisance can not be acquired as prescriptive easement.

IX. AS TO SCOPE

Ø The scope of private nuisance is less.

Ø The scope of public nuisance is wider.

17.  CONCLUSION

       Public and private nuisance are kinds of nuisance. These are different from each other. The private nuisance is unauthorized use of one’s own property causing damage to another’s property or a unauthorized or unauthorized use of another property. While to public nuisance act or omission.