A nuisance may be caused by negligence, and there may be cases in which the same act will support an action of either kind, but, generally speaking these two classes of actions are distinct, and the evidence necessary to support them is different. Nuisance is no branch of the law of negligence, and it is no defence that all reasonable care to prevent it is taken.
The law of nuisance is wrapped up in pool of uncertainty. The boundaries of this tort are in no way fixed or easy to identify. Recent cases have constantly been changing the ambit of nuisance and to a considerable extent, the tort or negligence has eclipsed important elements of the law of nuisance.
In Durga Prasad V. State (AIR 1962 Raj 92), it was observed that ‘nuisance’ ordinarily means anything, which annoys, hurts or that which is offensive. Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it (Winfield). Acts interfering with the comfort, health or safety are the examples of it.
Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property, or, in some cases, in the exercise of a common right (Pollock). Nuisance includes any act, omission, injury, damage, annoyance or offence to the sense of sight, smell, hearing or which is or may be dangerous to life or injurious to health actually causing annoyance will be nuisance.
Nuisance is generally a continuing wrong (state of affairs). It must not be momentary though it could be temporary. A constant noise smell or vibration is a nuisance and ordinarily an isolated act of escape of noise cannot be considered to be a nuisance e.g. an isolated act of hitting a cricket ball on to a road. However, in Dollman V. Hillman Ltd. (1941) 1 All ER 355, the defendant was held liable for the isolated act, when the plaintiff slipped on a piece of fat lying outside the defendant’s butcher’s shop, in nuisance and negligence.
There are two Kind of nuisance:
I. Public Nuisance
II. Private Nuisance
Nuisance is of two kinds:
Public or common nuisance and private nuisance. Public nuisance is Crime under Section 268 IPC, Whereas private nuisance is a tort wrong.
Public Nuisance (Crime): A public nuisance can be defined as an unreasonable interference with a right common to general public. Obstructing a public way by digging a trench, carrying on trades which cause offensive smells or intolerable noises, etc. are examples of public nuisance. Thus, the acts constituting public nuisance are all of them unlawful acts; those, which constitute private nuisance, are not necessarily or usually unlawful. Public nuisance does not create a civil cause of action for any person. In order that an individual may private right of action respect of a public nuisance.
Private Nuisance (Tort of Nuisance): To constitute the tort of nuisance the following essential are required to be proved:
(i) Unreasonable interference- interference may cause damage to the plaintiff’s property or may cause personal discomfort to him in the enjoyment of the property. Every interference is not a nuisance. Every person must put up with some noise, some vibration, some smell or inconvenience, etc. so that other member of the society can enjoy their own rights. Thus, a person having a house by roadside must put up with such inconvenience, which is incidental to the traffic. So long as the interference is not unreasonable no action can be brought.
(ii) Interference with the the use or enjoyment of land- Interference may cause either injury to the property itself (for example, by allowing the branches of a tree to overhang on the land of another person, or the escape of the roots of a tree, water, gas, smoke or fumes, etc. on the neighbour’s land or even by vibrations) or injury to comfort or health of occupants of certain property (for example, excessive noise being emitted by a mill in a residential area).
This can highlighted in the case of wisma punca Emas sdn BHD V. Dr Donal, Where the plaintiff was doing some construction job beside the plaintiff’s clinic. The job included piling and excavation works. As a result of the activist done by the defendant, the plaintiff’s clinic was cracked. The defendant argued that he had taken all reasonable precaution and measurement. The court allows the plaintiff claim for damages. The defendant appealed that the main issue was negligence and since nuisance was not specifically pleaded, the appeal should be allowed. The court held that the plaintiff need not to prove any negligence in a nuisance case and it is enough just to prove there was damage to his property due to the activities done by the defendant. The appeal was dismissed.