INTRODUCTION

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 else’s 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 person’s 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”.

DISTNCTION BETWEEN NUISANCE AND TRESSPASS
· Trespass is direct physical interference with the plaintiff’s possession of land through some material or tangible object while nuisance is an injury to some right accessory to possession but no possession itself.

E.g. a right of way or light is an incorporeal right over property not amounting to possession of it, and hence disturbance of it is a nuisance and not trespass.

· Trespass is actionable per se, while nuisance is actionable only on proof of actual damage. It means trespass and nuisance are mutually exclusive.

Simple entry on another’s property without causing him any other injury would be trespass. In nuisance injury to the property of another or interference with his personal comfort or enjoyment of property is necessary.

They may overlap when the injury is to possessory as well as to some right necessary to possession. E.g. trespass of cattle discharge of noxious matter into a stream and ultimately on another’s land.

· To cause a material and tangible loss to an object or to enter another person’s land is trespass and not nuisance; but where the thing is not material and tangible or where though material and tangible, it is not direct act of the defendant but merely consequential on his act, the injury is not trespass but merely a nuisance actionable on proof of actual damage.

If interference is direct, the wrong is trespass, if it is consequential, it amounts to nuisance.

E.g. Planting a tree on another’s land is trespass, whereas when one plants a tree over his own land and the roots or branches project into or over the land of another person, act is nuisance. (tanay.das, 2020)

KINDS OF NUISANCE–.

Generally nuisance is divided into teocategories..ie.

1. Public nuisance
2. Private nuisance

1  public nuisance–Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public nuisance defined by the Indian Penal Code.

Section 268 of the Indian Penal Code, defines it as “an act or illegal omission which causes any common injury, danger or annoyance, to the people in general who dwell, or occupy property, in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”

Simply speaking, public nuisance is an act affecting the public at large, or some considerable portion of it; and it must interfere with rights which members of the community might otherwise enjoy.

Thus acts which seriously interfere with the health, safety, comfort or convenience of the public generally or which tend to degrade public morals have always been considered public nuisance.

Examples of public nuisance are Carrying on trade which cause offensive smells

Public nuisance can only be subject of one action, otherwise a party might be ruined by a million suits. Further, it would give rise to multiplicity of litigation resulting in burdening the judicial system. Generally speaking, Public Nuisance is not a tort and thus does not give rise to civil action.

In the following circumstances, an individual may have a private right of action in respect a public nuisance.

1. He must show a particular injury to himself beyond that which is suffered by the rest of public i.e. he must show that he has suffered some damage more than what the general body of the public had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but another is left open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.

Case law- Dr. Ram Baj Singh vs Babulal on 2 September, 1981

Equivalent citations: AIR 1982 All 285

Author: S Hyder

Bench: S Hyder

JUDGMENT S.J. Hyder, J.

1. The plaintiff-appellant has been denied the relief sought by him on the ground that brick grinding machine of the defendant did not cause any substantial injury or special damage to the plaintiff. Learned Counsel appearing for the plaintiff has argued before me that the two courts below have not correctly appreciated the meaning of the expressions ‘substantial injury’ and ‘special damgage,’ as used in law.

2. The plaintiff-appellant commenced the action giving rise to this second appeal for permanent injunction to restrain the defendant-respondent from running his brick-grinding machine.

3. It is not in controversy between the parties that the plaintiff is a Medical Practitioner. He has built a consulting chamber before the brick-grinding machine was erected by the defendant-respondent. There is a controversy between the parlies as to whether the consulting chamber was established by the plaintiff in the year 1962 or in the year 1965. I shall refer to this controversy later in this judgment. It is also not disputed that the brick-grinding machine is electrically propelled and that it is situate at a distance of about 40 feet from the consulting chamber of the plaintiff-appellant in a north-eastern direction. There is a road which intervenes between the consulting chamber of the plaintiff-appellant and the brick-grinding machine.

4. The grievance of the plaintiff-appellant was that the brick-grinding machine was generating dust which polluted the atmosphere and entered the consulting chamber of the plaintiff-appellant and caused physical inconvenience to him and his Patients who came to his chamber. It was further stated that the said machine had been set up by the defendant-respondent without any permission or licence from the Municipal Board.

5. The defendant-respondent contested the suit. He did not deny that the machine was erected by him in April, 1965. He contended that no dust emanated during the process of grinding bricks and there was no question of any pollution being caused in the atmosphere. He further stated that the bricks were moistened before being subjected to grinding process and no dust resulted therefrom. He further staled that his machine did not produce any noise and according to him, the erection and working of the machine did not cause any nuisance–whether public or private. He concluded by saying that the suit had been filed against him only on account of enmity and the same was not legally sustain able,

6. The trial court came to the conclusion that the brick grinding machine had been erected by the defendant-respondent in the year 1965 without obtaining any licence from the appropriate authority. It further held that the dust did emanate and pollute the atmosphere and that such dust was injurious to health. It also came to the conclusion that the dust produced by the machine entered the consulting chamber of the plaintiff-appellant depending on the direction of the wind. It further found that the defence taken up by the defendant-respondent was false and the evidence produced by him could not be relied upon. It, however, dismissed the suit of the plaintiff-appellant on the finding that the dust resulting from the machine did not cause any substantial injury either to the plaintiff or to his patients. The trial court also went into the question as to whether the machine belonging to the defendant-respondent caused any actionable nuisance to the plaintiff-appellant and decided that controversy against him.

7. The court of appeal has affirmed the findings recorded by the trial court with a slight modification. Whereas the trial court had rejected the testimony of P. W. 1 Dr. Hari Shankar Prasad, who was Medical Officer of Health at Ghazipur, where the machine in dispute is situate, on the ground that the same is based on hearsay, the lower appellate court has accepted his testimony. Dr. Hari Shankar Prasad had categorically stated that dust which came out from the machine of the defendant-respondent entered the chamber of the plaintiff-appellant in large quantity. He further stated that on account of that dust, the clothes of the persons sitting in the chamber of the plaintiff-appellant became coated with red particles of earth.

8. Learned counsel for the plaintiff-appellant urged that on the facts found by the two courts below, the only legal inference which could be drawn was that the plaintiff suffered a substantial injury on account of the working of the machine and special damage was caused to him. On the other hand, the learned counsel for the defendant-respondent submitted that the finding recorded by the court of appeal on the question that no substantial injury was caused to the plaintiff-appellant and that he did not suffer any special damage are essentially findings of facts which cannot be called in question before this court in second appeal. I am unable to agree with the submission of the learned counsel for the respondent. In the case of Jugal Kishor v. Ram Saran Das, AIR 1943 Lah 306 it was held that the question whether certain proved facts established a nuisance was a question of law.

9. Learned counsel for the defendant-respondent has himself relied upon a Division Bench case of this court in Behari Lal v. James Maclean, AIR 1924 All 392. In that case, the first court of appeal had come to the conclusion that the ads complained of by the plaintiff-respondent in that case constituted an actionable nuisance. I had accordingly decreed the claim for mandatory injunction made out on behalf of the plaintiff-respondent of that case. The Division Bench of this court treated the facts as found by the court of appeal as findings of fact only. It, however, went into the question whether in law the said facts amounted to an actionable nuisance. On this aspect of the case, this court differed with the first court of appeal and allowed the appeal preferred by the defendant-appellant and dismissed the suit of the plaintiff-respondent of that case. There is a plethora of decisions of different High Courts of this country in which only the facts found by the first court of appeal have been treated as findings of facts. The High Courts have nevertheless gone into the question whether on the facts found to have been proved, a legal ‘inference whether a nuisance was or was not being committed could be gone into. It is unnecessary to burden this judgment by referring to all those decisions.

10. Now ordinarily it is a right of the owner of a property to use it in any manner he likes. Human beings are, however, social animals. The right to enjoy one’s properly is, therefore, necessarily restricted so as to enable the owner of an adjoining property to use his own properly in a beneficial manner. No person has a right to make such user of his property as materially interferes with the similar right of his neighbour to enjoy his properly. The relations of the members of the society are necessarily to be governed by the principles of “live and let live” and “give and lake.” The rights of the owner of a property to use his own property are necessarily to be limited by the similar rights in others.

11. “The essence of nuisance is a condition or activity; say Clerk and Lindsell in their work on ‘Tort’, 14th Edn. Para 1391, “which unduly interferes with use or enjoyment of land.” They have further stated that nuisance is an act or omission which is an interference with, disturbance or annoyance to a person in the exercise or enjoyments of a right belonging to him as a member of the public, (when it is a public nuisance), or his owner-ship or occupation of land or of some easement, private, or other right used or enjoyed in connection with land, (when it is a private nuisance) In this case, I am not concerned with a public nuisance, since the claim of the plaintiff-appellant was based on a cause of action which is essentially based on private nuisance.

12. I have already stated that a person is ordinarily entitled to do any thing on his own property provided that doing of such a thing is lawful. His conduct, however, becomes a private nuisance when the consequence of his acts no longer remain confined to his own property but spill over in a substantial manner to the properly belonging to another person. However, any thing done by a person on his property, repercussions of which are felt on the neighbour’s land, may not always be a nuisance. The consequences of any thing done by the owner of a land on his own land which are also fell over the neighbouring land may be of such a trivial nature that no reasonable person would object to the same nO precise or universal formula has been devised to determine the distinction between a trivial consequence of an act or a consequence which can be termed to be of substantial magnitude. The test which has always been found to be use-ful in distinguishing the two sets of cases is the test of ascertaining the reaction of a reasonable person according to the ordinary usage of mankind living in a particular society in respect of the thing complained of.

13. After a land had been built upon, the owner of the building cannot ex-peel to have air of the same quality which existed before the building was erected. The freshness of the air is necessarily diminished by the erection of the building. If the whole locality in which a building is situate is built upon, the quality of freshness of air will be diminished further and the same may become tainted to a certain extent. But when some thing is done by the owner of a neighbouringland upon his own land which is not comfortable or is wholly uncomfortable with physical comfort and human existence, the person aggrieved gets a right to sue. The act of the neighbour of which he will complain will be an actionable nuisance. At this stage, a note of caution may be sounded. In order to judge whether the air has been polluted to an extent that it has ceased to be comfortable with human comfort and existence, the standard to be employed again is the standard of a sober and reasonable mind. Concepts of elegant and dainty living will be wholly out of place. Further in judging the question of this comfort or danger to human existence on account of the act complained of, the location of a property is also a relevant circum-stance. A persons living in an industrial locality cannot claim to have as much fresh air as a person living in a non-industrial area.

14. In Ramlal v. Mustafabad Oil and Cotton Ginning Factory. AIR 1968 Punj& Har 399 Tek Chand, J. after a review of numerous decisions has formulated a number of principles to determine whether an injury complained of amounts to actionable nuisance or not. If I may say so with respect, the tests so formulated are neither precise nor exhaustive Tek Chand, J., in that case, has, himself observed that actionable nuisance does not admit of enumeration and any operation which causes injury to health, to property, to comfort, to business or to public moral would be deemed to be a nuisance.

15. Having stated the general principles governing an actionable nuisance, I shall now revert to the facts of the case. Earlier I have referred to the controversy between the parties as to the date when the plaintiff-appellant is said to have started his physician’s Consulting Chamber. In the plaint, it has been specifically stated that the said chamber was started in the year 1962. There is no specific denial of this averment in the written-statement filed by the defendant respondent. In his testimoy before the trial court, the plaintiff has reiterated the stands taken by him in his plaint. He has not been cross-examined on that allegation. The defendant-respondent, on the other hand, has made no clear statement as to when the consulting chamber of the plaintiff-appellant was started. It is, therefore evident from the material on record that the chamber of the plaintiff-appellant commenced functioning in the year 1982. The finding of the two courts below that the said chamber was started in 1965 is clearly erroneous and based on non-reading of the pleading of the parties and their evidence. Anyhow even according to the findings of the two courts below the consulting chamber of the plaintiff-appellant started functioning before the machine set up by the defendant-respondent.

16. The two courts below have been largely influenced by the fact that the plaintiff-appellant did not examine any of his patients to prove that any actual damage was caused to them on account of the dust emanating from the machine of the defendant-respondent. They have also referred to the statement of the plaintiff-appellant and have held that the plaintiff admitted that the damage caused to his patients was recorded in his register and the same had not been produced. From this omission on the part of the plaintiff, they have drawn an adverse inference against him and have come to the conclusion that the plaintiff-appellant has failed to establish that any special damage or substantial injury was caused to him.

17. The expression “special damage” is used in law to indicate a damage caused to a party in contradistinction to damage caused to the public at large. The damage caused to public at large on account of a nuisance is referred in law as a public nuisance. The expression “public nuisance” has been defined in Section 268 of the I. P. C.: The said section runs as under :–

“268. Public nuisance. — A person is guilty of a public nuisance, who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”

18. The offence of public nuisance has been made punishable under Chapter XIV of the said Code. A public nuisance may also be abated by a criminal Court in the exercise of its jurisdiction under Section 133 of the Cr. P. C. 1973. However, there may be cases where a single act may amount to a public nuisance and also give rise to a cause of action to an individual to sue on the basis of private nuisance. For instance, if night soil is heaped by the side of a public highway, it may be a nuisance to the general public and the persons who pass along the said highway. At the same time it may be a private nuisance to a person who lives in a house which adjoins the place where the night soil is collected. All that the law requires is that when an act amounts to public nuisance, an individual can sue in his own right only if he is able to prove special damage to himself i. a, damage which is personal to him as opposed to the damage or inconvenience caused to the public at large or to a section of the public.

The expression ‘special damage’ was found by the text book writers to be somewhat inaccurate and confusing. In later editions of the text books such as ‘Salmond on Torts’, the expression which has been used is ‘particular damage’. It actually follows from the findings recorded by the two Courts below that the plaintiff had succeeded in establishing damage which was particular to himself. It has been held by the court of appeal that dust emanated from the crushing of bricks was a public hazard and was bound to cause injury to the health of the persons. It has further held that dust from bricks entered in sufficient quantity into the consulting chamber of the plaintiff-appellant so that a thin red coating was visible on the clothes of the persons sitting there. In view of these findings it is difficult to comprehend how it could be said that the plaintiff had failed to prove that special damage was not being caused to him on account of the offending brick grinding machine.

19. Coming to the question of substantial injury, I have already indicated above that every injury is considered to be substantial which a reasonable person considers to be so. In assessing the nature of substantial injury, the test to be applied is again the appraisement made of the injury by a reasonable person belonging to the society. The expression does not take into account the susceptibilities of hyper sensitive person or persons attuned to a dainty mode of living. No other meaning can be assigned or has been assigned to the expression “substantial injury.” In view of the fact found by the two courts below concurrently, it was impossible to hold that no substantial injury was being caused to the plaintiff-appellant. Causing of actual damage by the act complained of as a nuisance is besides the point. If actual damage or actual injury were to be the criterion a person will have to wait before the injury becomes palpable or demonstrable before instituting a suit or its abatement. My opinion, on this point is fortified by the views of the text book writers and the decided cases. Any act would amount to a private nuisance which can reasonably said to cause injury, discomfort or annoyance to a person.

20. For the reasons stated above, this appeal must succeed. The result is that the appeal is allowed. The decree passed by the two courts below are set aside. The plaintiff’s suit is decreed. A permanent injunction is issued against the defendant-respondent restraining him from using Ms brick grinding machine shown by letters Ka, Kha, Ga, Gha in the sketch map given at the foot of the plaint. The plaintiff-appellant shall be entitled to his costs throughout. (court, 2020).

2)  private nuisnce-  

Private nuisance is the using or authorising the use of one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by interfering materially with his health, comfort or convenience.

In contrast to public nuisance, private nuisance is an act affecting some particular individual or individuals as distinguished from the public at large. The remedy in an action for private nuisance is a civil action for damages or an injunction or both and not an indictment.

Elements of private nuisance—

1. unreasonable or unlawful interference;
   2. such interference is with the use or enjoyment of land, or some right over, or in connection with the land; and
   3. damage.
   
   

1 )Ureasonable nuisance- interference may cause damage  to the plaintiff property or may cause personal discomfort to the plaintiff in the enjoyment of property. To constitute a nuisance the intreference must be unreasonable. But if any person has a house nearby a higheay then he cannot complain against the sound coming by the vehicle passing on the road.

Case law—  Sturges v Bridgman – 1879

Facts

The claimant, a doctor, moved house and on the premises, he bought and built a shed in his garden to carry out his private practice within.  His shed was on the boundary of the property and happened to be next door to a confectioner.  The confectioner had produced sweets in his kitchen for many years before the doctor had moved in.  The doctor alleged that the noise of the confectioner grinding his pestle and mortar was clearly audible from his shed and that this disrupted his amenity in the form of his enjoyment of his land.

Issues

Whether the doctor could claim loss of amenity when he had ‘moved to the nuisance’ or not.  Whether the character of the area or locality as a residential area meant that there was a nuisance.

Held

There was a nuisance, and the fact that the doctor had ‘moved to the nuisance’ was no defence to the nuisance itself.  Nor was there an easement acquired by the confectioner through long usage that entitled him to continue with his actions.  What constitutes a nuisance was to be decided on a case to case basis, and it is necessary to consider the particular locality itself.  What is not a nuisance in one area may well be a nuisance in another and it would be unjust if the nuisance maker had been permitted to continue with the nuisance indefinitely and without power of law to interrupt if this was to be considered a right acquired by long usage. (lawworld, 2020)

2  INTERFERENCE WITH THE USE OF ENJOYMENT OF LAND—

Property owners have a right to the enjoyment and use of their land. In the event where another party interferes with that right.
For e.g. a neighbor regularly plays his music at the maximum volume possible late at night.

In such a case, the property owner can sue the interfering party. Talking to your neighbor about the nuisance is usually the best 1^st step, since they may not fully aware of the effects of their actions. While states may differ on their definition of a private nuisance, a plaintiff must typically prove the following elements:

1. The plaintiff is the owner of the land or has the right to possess it
2. The defendant literally acted in a way that interferes with the plaintiff’s enjoyment and use of his or her property
3. The defendant’s interference was substantial and uncooperative.

Kinds of Private Nuisance

1. Damage to property
2. Physical discomfort

Damage to Property

In case of damage to property, any sensible injury will be sufficient to support an action. Nuisances of this class may arise from manufacturing works, chains, etc.
E.g. smoke, fumes, gas, noise, water, filth, trees or animals.

Physical Discomfort

In the case of physical discomfort, the act complained of must be in excess of the natural and ordinary course of enjoyment of the property materially interfering with the ordinary comforts of human existence. (kemlight, 2020)

ESSENTIALS OF PRIVATE NUISANCE—

1. The claimant must have an interest in the land.  
2. There must be an unreasonable or unlawful use of the land by the defendant which is the source of the nuisance.
3. Such unreasonable or unlawful use must result in annoyance or discomfort or inconvenience to the claimant which the law considers as substantial or material.  
4. The claimant must suffer some harm/damage.

Who can be the claimants?

A claimant must have an interest in the land affected by the nuisance in order to make a claim of private nuisance. In effect, an ‘interest in land’ means a person must own or have a right over the land. Owners, leaseholders or tenants have an interest in the land and can make a claim of private nuisance.  

This is reflected in the rule that the claimant in an action for private nuisance has to have an interest in the land or exclusive possession of the land which is affected in order to be able to sue. In effect, a person who is in exclusive possession of the land is regarded as having an interest in the land.

In Foster v Warblington UDC (1906), A was an oyster merchant who for many years had been in occupation of oyster beds artificially constructed on the foreshore. He excluded everybody from the oyster beds, and nobody interfered with his occupation of the oyster beds or his removal and sale of oysters from them. However, he could not prove ownership of the oyster beds.

Held: A could bring an action in private nuisance caused by the discharge of sewage by the defendants into the oyster beds. The claimant was able to bring a claim of a private nuisance because he was in exclusive possession of the land even though he could not prove his title to it.

Just householders with a privilege to land could initiate an action in private nuisance, not their relatives.

Occupation of the property as a house isn’t adequate. An action might be brought by the proprietor or by the inhabitant or by an individual who enjoyed exclusive possession but lacked any proprietary interest. No action can be brought by a licensee. On the off chance that the harm in issue is physical harm to property, at that point, the individual with the privilege to sue should be the individual with the commitment to fix or have the burden of fixing the property. A licensee will seldom be in this position.(joshi, 2020)

1. Interference With The Use, Comfort Or Enjoyment Of Land

This interference is collectively known as an amenity nuisance. They result in a feeling of discomfort whereby one is unable to live peacefully and comfortably on one’s own land arising from the defendant’s activity.

What constitutes substantial interference depends on the fact and circumstances each case. A trivial interference does not give rise to nuisance. The court have held that the loss of one night’s sleep due to excessive noise, using adjoining premises for prostitution or a sex shop and persistent telephone calls all constitute substantial interference. There is no formula upon which a situation may conclusively be said to amount to substantial interference or otherwise. Decisions have to be made on a case-by-case basis, and the courts have to take into account, whether the plaintiff’s complaint is reasonably justified in the context of the surrounding circumstances.

In the case of Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth SdnBhd the plaintiff residents of Bukit Merah village sued the defendants, principally for an injunction to restrain the company (ARE) from operating. The plaintiffs alleged that the acivities from the factory produced dangerous radioactive gases harmful to the residents of Bukit Merah. The court granted a quiatimet injunction and held that private nuisance was established. It was also held that the plaintiff’s health was being affected harmfully, to a substantial degree.

In Dato Dr Harman Singh v Renal Link( KL) SdnBhd where the plaintiff’s had for eighteen years operated a clinic and hospital for the treatment of ear, nose and throat ailments. The defendant operated a renal clinic at which patients receive haemodialysis on the floor above the plaintiff’s clinic. The defendant was found liable for emitting from their clinic obnoxious fumes which escapes downwards into the plaintiff’s clinic. The plaintiff, his staff and patients were found to have suffered substantial damage ranging from skin diseases, red and swollen eyes, headaches, lethargy and breathing difficulties.

2. Material Or Physical Damage To Land Or Property

Where actual physical damage to land occurs, the general principle is that it amounts to substantial interference and is therefore recoverable. But the actual physical damage is not recoverable automatically. The physical damage must be establish substantial in nature and it appears that what amounts to substantial interference is also a question of fact and determinable on a case by case basis.

As in the case Darley Main Colliery Co v Mitchell minor subsidence on the plaintiff’s land was not actionable. A clear example of substantial interference is found in Goh Chat Ngee & 3 Ors v Toh Yan & Anor. The defendant who held a mining licence carried on mining work on his land. The plaintiff whose land was adjacent to the defendant’s land alleged that through mining activities the defendants had committed negligence and nuisance. The mining activities constitute unnatural use of land as water had escaped and flooded the plaintiff’s land causing to collapse and sink, subsequently causing flooding , erosion and settlement. The court found that a landowner had a common law obligation not to interfere with the support structure of his neighbour’s land, which is provided under s44(1)(b) of the National Land Code 1965. The defendant had breached this statutory duty was also liable in nuisance for the unreasonable, unlawful and substantial interference with the use and enjoyment of his neighbour’s land.

Hotel Continental SdnBhd v Cheong FattTze Mansion SdnBhd is another useful example. In this case the appellant who owned the hotel were building a 20-storey extension to their hotel. The respondent who owned the adjacent land claimed that the piling works of the appellants caused severe cracks to appear in their heritage building. Their application for injunction was allowed as it was found that unless an alternative system of piling was adopted, the safety and structural stability of their building would be endangered. The Court of Appeal, on the authority of Rapier v London Tramways Coheld that once the defendant’s activity constitutes an actionable nuisance in law, it is no defence that the defendant has taken all reasonable precautions to prevent it. In this case, although the piling works were temporary, it did not exclude the respondent right to an injunction as the physical damage to their property constituted a substantial interference which was actionable.

Unreasonableness

The first thing in establishing nuisance is to prove that the interference is substantial in nature. The plaintiff must prove the interference to be unreasonable. The unreasonableness of the defendant activity is the second requirement in establishing nuisance. The following factors have been used as guidelines by the courts in order to determine whether interference is unreasonable and therefore substantial and actionable.

There are two important points that have to be considered in these factors. One is that, unless otherwise stated; none of the factors are conclusive of whether the interference is unreasonable or otherwise. They are merely relevant consideration to be taken into account. Secondly because a substantial interference may amount to unreasonable interference and vice versa, quite often the court have held defendant’s activities as being actionable nuisance on the basis that they constituted both substantial and unreasonable interferences. It is important to realise that the two elements of nuisance are interconnected and interdependent.

There is no clear cut definition as to what constitutes unreasonable interference may be seen in the HOL decision in Hunter v Canary Wharf Ltd. The plaintiff claimed damages in respect of interference with their television reception for a period of two years, caused by the defendant’s nearby building which was 250 meters high. The court held that in the absence of an easement the mere presence of a neighbouring building did not give rise to an actionable nuisance. The court however, acknowledged that interference with television reception may amount to an amenity nuisance in appropriate circumstances. Generally, for an action in private nuisance to lie in respect of interference with the plaintiff enjoyment of his land, it has to arise from something emanating from the defendant’s land, examples being, noise, dirt, fumes, a noxious smell, vibration and such like. (freelaw, 2020)

Case law– Ushaben v. Bhagyalaxmi Chitra Mandir-\

The plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request of injunction was rejected.

DEFENCES—

Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort and he is not allowed to complain about the same. The reason behind this defence is that no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be express or implied. 

Some examples of the defence are:

• When you yourself call somebody to your house you cannot sue your guests for trespass; 
• If you have agreed to a surgical operation then you cannot sue the surgeon for it; and
• If you agree to the publication of something you were aware of, then you cannot sue him for defamation.
• A player in the games is deemed to be ready to suffer any harm in the course of the game.
• A spectator in the game of cricket will not be allowed to claim compensation for any damages suffered.

In Hallv. Brooklands Auto Racing Club[1], the plaintiff was a spectator of a car racing event and the track on which the race was going on belonged to the defendant. During the race, two cars collided and out of which one was thrown among the people who were watching the race. The plaintiff was injured. The court held that the plaintiff knowingly undertook the risk of watching the race. It is a type of injury which could be foreseen by anyone watching the event. The defendant was not liable in this case.

The consent must be free

• For this defence to be available it is important to show that the consent of the plaintiff was freely given. 
• If the consent was obtained under any compulsion or by fraud, then it is not a good defence. 
• The consent must be given for an act done by the defendant.
• For example, if you invite someone to your house for dinner and he enters your bedroom without permission then he will be liable for trespass.

In the case of Lakshmi Rajan v. Malar Hospital[6], a 40 year old married woman noticed a lump in her breast but this pain does not affect her uterus. After the operation, she saw that her uterus has been removed without any justification. The hospital authorities were liable for this act. The patient’s consent was taken for the operation not for removing the uterus. 

Consent obtained by fraud

• Consent obtained by fraud is not real consent and does not serve as a good defence. 

In Hegarty v. Shine[7], it was held that mere concealment of facts is not considered to be a fraud so as to vitiate consent.  Here, the plaintiff’s paramour had infected her with some venereal disease and she brought an action for assault against him. The action failed on the grounds that mere disclosure of facts does not amount to fraud based on the principle ex turpi causa non orituractio i.e. no action arises from an immoral cause.

Consent obtained under compulsion

• There is no consent when someone consents to an act without free will or under some compulsion.
• It is also applicable in the cases where the person giving consent does not have full freedom to decide.
• This situation generally arises in a master-servant relationship where the servant is compelled to do everything that his master asks him to do.
• Thus, there is no applicability of this maxim volenti non fit injuria, when a servant is compelled to do some work without his own will. 
• But, if he himself does something without any compulsion then he can be met with this defence of consent.

Mere knowledge does not imply assent

For the applicability of this maxim, the following essentials need to be present:

• The plaintiff knew about the presence of risk.
• He had knowledge about the same and knowingly agreed to suffer harm.

In the case of Bowater v. Rowley Regis Corporation[10], a cart-driver was asked to drive a horse which to the knowledge of both was liable to bolt. The driver was not ready to take that horse out but he did it just because his master asked to do so. The horse, then bolted and the plaintiff suffered injuries. Here, the plaintiff was entitled to recover.

Negligence of the defendant

In order to avail this defence it is necessary that the defendant should not be negligent. If the plaintiff consents to some risk then it is presumed that the defendant will not be liable. 

For example, when someone consents to a surgical operation and the same becomes unsuccessful then the plaintiff has no right to file a suit but if the same becomes unsuccessful due to the surgeon’s negligence then in such cases he will be entitled to claim compensation.

In Slater v. Clay Cross Co. Ltd.[13], the plaintiff suffered injuries due to the negligent behaviour of the defendant’s servant while she was walking along a tunnel which was owned by the defendants. The company knew that the tunnel is used by the public and had instructed its drivers to give horns and drive slowly whenever they enter a tunnel. But the driver failed to do so. It was held that the defendants are liable for the accident.

Rescue cases

• When the plaintiff voluntarily comes to rescue someone from a danger created by the defendant then in such cases the defence of volenti non fit injuria will not be available to the defendant.

In Haynes v. Harwood[14], the defendants’ servant left two unattended horses in a public street. A boy threw a stone on the horses due to which they bolted and created danger for a woman and other people on the road. So, a constable came forward to protect them and suffered injuries while doing so. This being a rescue case so the defence of volenti non fit injuria was not available and the defendants were held liable.

Volenti non fit injuria and Contributory negligence 

• Volenti non fit injuria is a complete defence but the defence of contributory negligence came after the passing of the Law Reform (Contributory Negligence) Act, 1945. In contributory negligence, the defendant’s liability is based on the proportion of fault in the matter.
• In the defence of contributory negligence, both are liable – the defendant and the plaintiff, which is not the case with volenti non fit injuria.
• In volenti non fit injuria, the plaintiff knows the nature and extent of danger which he encounters and in case of contributory negligence on the part of the plaintiff, he did not know about any danger.

Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non orituractio” which says that “from an immoral cause, no action arises”. 

If the basis of the action by the plaintiff is an unlawful contract then he will not succeed in his actions and he cannot recover damages.

If a defendant asserts that the claimant himself is the wrongdoer and is not entitled to the damages, then it does not mean that the court will declare him free from the liability but he will not be liable under this head.

Inevitable accident

Accident means an unexpected injury and if the same accident could not have been stopped or avoided in spite of taking all due care and precautions on the part of the defendant, then we call it an inevitable accident. It serves as a good defence as the defendant could show that the injury could not be stopped even after taking all the precautions and there was no intent to harm the plaintiff.

In Stanley v. Powell[20], the defendant and the plaintiff went to a pheasant shooting. The defendant fired at a pheasant but the bullet after getting reflected by an oak tree hit the plaintiff and he suffered serious injuries. The incident was considered an inevitable accident and the defendant was not liable in this case. 

Act of God

Act of God serves as a good defence under the law of torts. It is also recognized as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v. Fletcher[28].

The defence of Act of God and Inevitable accident might look the same but they are different. Act of God is a kind of inevitable accident in which the natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, etc. 

Essentials required for this defence are:

• Natural forces’ working should be there.
• There must be an extraordinary occurrence and not the one which could be anticipated and guarded against reasonably.

Occurrence must be extraordinary

Some extraordinary occurrence of natural forces is required to plead the defence under the law of torts.

In Kallu Lal v. Hemchand[31], the wall of a building collapsed due to normal rainfall of about 2.66 inches. The incident resulted in the death of the respondent’s children. The court held that the defence of Act of God cannot be pleaded by the appellants in this case as that much rainfall was normal and something extraordinary is required to plead this defence. The appellant was held liable.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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