Pocket Notes

Nuisance and Negligence

The word ‘Tort’ is derived from the Latin word ‘Tortum’ which means something twisted, crooked or wrung. A tort is simply a civil wrong. In India, Law of torts is an uncodified law which works on the principle of Ubi jus ibi remedium that is where there is a wrong, there is a remedy.

Nuisance

The word ‘Nuisance’ draws its origin from the French word ‘nuire’ which translates to hurt or to cause damage. According to Winfield, nuisance is an unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it.

Illustrations
Aayushi while walking on the highway was injured on a Tuesday by glass falling from a window in an unoccupied house belonging to Bhavika. The window broke in an air raid on last Friday night. The fact that the offices of the defendant’s agents were shut on Saturday and the Sunday and to the difficulty of getting labour during the weekend, no steps to remedy the risk to passers-by had been taken until the Monday. The owner had no knowledge of the state of the premises. Bhavika is liable since it is presumed that Bhavika must have had knowledge of the existence of the nuisance and that he had failed to take reasonable steps to bring it to an end although he had ample time to do so (Leanse v. Egerton)

Nuisance can be of two types:-

  • Private Nuisance
  • Public Public Nuisance

Private Nuisance

A private nuisance is interfering with a person’s enjoyment and use of his land for example smoking, excessive noise, light, foul odours, vibrations, water etc. In other words, it is the unreasonable/unlawful use of one’s property which interferes with the enjoyment or use of another individual’s property, without an actual trespass or physical invasion to the land. 

Elements

Apart from the plaintiff being the owner/in possession of the land the following elements are necessary

  1. Unlawful Act
  2. Interference with the use or enjoyment of land
  3. Damages

Kinds of Private Nuisance

  • Damage to property
    In the case of St. Helen Smelting Co. v. Tipping, The plaintiff’s trees were damaged due to the fumes released by the defendants manufacturing work. This is an example of Damage to property 
  • Physical discomfort
    Physical damage is an act which is in excess of the natural and ordinary course of enjoyment of the property. For example excess sound, light etc.

Public Nuisance

Public nuisance is when the injury, loss, or damage is suffered by the public, in general. In other words, a public nuisance is an act affecting/interfere with the health, safety, comfort or convenience of the public at large. For example: digging on the road, the illegal liquor establishments. Public nuisance is also an offence under Section 268 of the Indian Penal Code. In case of a breach, the accused may be punished in terms of fine or imprisonment.

Elements of Public Nuisance

A person must have done an act or an omission and such an act or omission must cause any common injury, danger or annoyance to the public.

Defences Available

  1. Prescription is a special defence. Use or enjoyment of the property is acquired by law or the right to continue a private nuisance may be acquired as an easement by prescription. The easement must be enjoyed peacefully and openly for a period of at least 20 years for it to be legalised.
  2. Statutory authority that is when the state allows the act to be done.

Remedies Available

In the case of a nuisance, the remedy is monetary compensation. However, an injunction or abatement may be issued.

Difference between Private and Public Nuisance

Basis Private Nuisance TortPublic Nuisance Tort
Nature It affects only Individuals or determinate body thereof. It cannot be a crime   It affects the public at large.  It can be a crime.
Right to sue A private individual or his legal representative, to whom or to whose property injury is caused can sue. Any public motivated or spirited person can sue.  
Legality May become a legal prescription by continuous use. Can’t be legalized.

Negligence

The term Negligence has its origin drawn from the Latin word ‘negligentia‘ which means ‘failing to pick up’ or carelessness. According to Winfield ‘Negligence is the breach of a legal duty to take care which causes in damage, the defendant does not actually desire to cause such damage to the plaintiff’. In the case of Blyth v. Birmingham Water Works Co., it was held that Negligence is also defined as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do. Negligence is based on the principles of Res ipsa loquitur that is the thing speaks for itself. The landmark case of Donoghue v Stevenson recognized the modern law of negligence, laying the foundations of the duty of care and the fault principle.  

Illustration
Armaan purchased two sets of woollen underwear from a retailer and contacted a skin disease by wearing underwear. The woollen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers will be held liable as they failed to perform their duty to take care and have acted negligently (Grant v. Australian Knitting Mills Ltd.)

Illustration
Alladin, owner of a tiger requests his uncle to take care of the dog while he is away. His uncle leaves the dog unattended who attacks a passerby badly injuring him. Here it will be said that the act occurred due to the negligence of his uncle.

Kinds of Negligence

  • Civil negligence arises when a person fails to exercise ordinary care or due diligence.
  • Criminal Negligence means that a person fails to be aware of a substantial and unjustifiable risk and there is a gross deviation from the standard of care that a reasonable person would observe. Eg- a doctor who gives a patient an extra dose of medicine and due to this the patient dies. The doctor has committed criminal negligence. 

Elements

  • Legal duty exists
  • Breach of the said duty
  • Consequential Damages-  damages that can be proven to have occurred because of the failure of one party to meet a contractual obligation(Bodily harm, Harm to the reputation, Harm to property, Financial Loss, Mental Harm)
  • Foreseeability. While determining whether an act of negligence has been committed, the damage caused must be foreseeable. What is important is the foreseeability of the risk and not the probability of its occurrence.

Defences Available

Contributory Negligence:- the plaintiff’s failure to exercise reasonable care for their safety.

Illustration
Aashiq was driving on the wrong side of the road. Binod while over speeding and without wearing a seatbelt hits Aashiq, the defence of contributory negligence can be taken

ACT OF GOD OR VIS MAJOR an act outside of human control, such as a natural disaster is referred to as an act of God.

INEVITABLE ACCIDENT is an unavoidable accident which cannot be prevented regardless of the precautions a reasonable man can take. For this, the cause of the result must be inevitable/unavoidable and unforeseeable.

Illustration
Abhikriti bought a brand new car. On her way back from the showroom, Abhikriti skipped a red light due to brake failure and hit a Bus. Abhikriti can take the defence of inevitable accident.

Remedies

Compensatory damages are provided as remedies.

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