Negligence and Nuisance: The two facets of Tort

Negligence and Nuisance: The two facets of Tort

Negligence and Nuisance are civil wrongs under the tort law. It causes harm to others because of an act of commission or omission by an individual and makes the person liable to pay compensation to the victim. The legal liabilities are similar in both the cases, but there are some differences between these two civil wrongs depending upon the context and the intention of the wrongdoers or the person who commits the tort.

Negligence is mostly an act done mistakenly or an omission that causes harm to another person leading to a civil wrong. In the case of trespass that is caused by negligence, the interference to the enjoyment of one’s private property is because of the fact that the defendant did not exercise proper care. Here, the intention to cause harm is absent.

Nuisance is such type of civil wrong in which a person enjoys his property in such manner that causes interference with the rights of the other person. It is punishable under tort law. In this case, the intention should present on the part of the person doing such act or omission. There is strict liability for material harm in case of nuisance.

Negligence

Negligence is defined as:”The violation of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affaire would do, or doing something which a prudent and reasonable man would not do. Simply, Negligence is nothing but the breach of legal duty to take care which results in damage and undesired harm to the plaintiff. It can also be defined as an act which can’t be done by a reasonable person and not doing such act which a reasonable person needs to do. This negligence can involve acts of commission and acts of omission. Medical negligence is defined as lack of reasonable care and skill or wilful negligence on the part of a doctor with respect to the acceptance of a patient, history taking, examination, diagnosis, investigation, treatment- medical or surgical, etc. resulting an injury or damage to the patient.

The elements necessary for this wrong- (1) A legal duty to exercise the due care 2) Breach of the said duty and 3) Consequential damage.

1. LEGAL DUTY TO TAKE CARE: One of the essential conditions of liability for negligence is that the defendant owed a legal duty towards the plaintiff. In the case of Grant v. Australian Knitting Mills Ltd., [1]the plaintiff bought two sets of woolen underwear from a retailer and contacted a skin disease by wearing that underwear. The underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.
2. BREACH OF DUTY TO TAKE CARE: another essential condition for the liability is that the plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform that duty. In Municipal Corporation of Delhi v. Subhagwanti,[2]; a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The Municipal Corporation of Delhi having the control of the structure failed to take care, its maintenance has been discarded by the municipal corporation and was therefore, liable.
3. CONSEQUENTIAL DAMAGE– The last essential condition for the tortuous liability is that the damage caused to the plaintiff due to the breach of the duty. The harm may fall into following classes:- physical harm; harm to reputation; harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods; economic loss; and mental harm or nervous shock.

DEFENCES AVAILABLE FOR THE NEGLIGENCE

1. CONTRIBUTORY NEGLIGENCE: It was a rule under the common law that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it.
2. ACT OF GOD OR VIS MAJOR: It is such type of acts which are direct, violent, sudden and irresistible act of nature as could not, by any amount of human foresight have been foreseen or if foreseen, could not by any amount of human care and skill, have been resisted. The human agency has no control in this regard. Examples for such acts are storm, extraordinary fall of rain, extraordinary high tide, earth quake etc. In Nichols v. Marsland,[3] the defendant had a series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four bridges. Defendant was not liable as the water escaped by the act of God.3. INEVITABLE ACCIDENT: It also works as a defence of negligence. An inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. It means accident physically unavoidable.

NUISANCE

The word “nuisance” is derived from the French word “nuire”, which means “to do hurt, or to annoy”. The person who possesses the property has the right to enjoy that property. In simpler terms, nuisance means the enjoyment of one’s property in such a manner that causes harm to the other person. It is basically infringement of other’s rights. 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.

Definitions-

Stephen- Nuisance is to be “anything done to the hurt or annoyance of the lands, tenements of another, and not amounting to a trespass.”

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”.

ESSENTIALS OF NUISANCE

For the action of nuisance, following things are necessary- (1) wrongful acts;
(2) damage or loss or inconvenience or annoyance caused to another.

KINDS OF NUISANCE

1. Public Nuisance

The Indian Penal code defines nuisance as an act which causes any common injury, danger or annoyance, to the people in general who dwell or occupy the property, in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to the people who may have occasion to use any public right.

It affects the public at large. The act which seriously affects or interferes with the health, safety or comfort of the general public comes under the public nuisance.

Instances where an individual may have a private right of action in respect to a public nuisance:

• There should be higher degree of injury with respect to the rest of the public.
• Such an injury has to be direct and not just a consequential injury.
• The injury must be shown to have a huge effect.

2. Private Nuisance

Private Nuisance is such type of nuisance in which a person’s use or enjoyment of his property is ruined by another. Unlike public nuisance, in private nuisance, an individual’s usage or enjoyment of property is ruined as distinguished from the public or society at large. The remedy for private nuisance is a civil action for damages or an injunction or both.

Elements which constitute a private nuisance

• The interference must be unreasonable or unlawful.
• Such interference has to be with the use or enjoyment of land, or of some rights over the property, or it should be in connection with the property or physical discomfort.
• There should be foreseeable damage to the property or with the enjoyment of the property in order to constitute a private nuisance.

Defences available for nuisance

There are many valid defences available to an action for tort, these are:

1. Prescription- it is a special kind of defence, as, if a nuisance has been peacefully and openly been going on without any kind of interruption then the defence of prescription is available to the party. On the expiration of this term of twenty years, the nuisance becomes legalised as if it had been authorised in its commencement by a grant from the owner of the land. The essence of prescription is being explained in Section 26 of the limitations act and Section 15 of the Easements Act.
2. Statutory authority- The statutory authority may be either absolute or conditional. If there is an absolute authority, the statue allows the act and not necessary that the act must cause a nuisance or any other form of injury. Whereas in the case where there is a conditional authority, the state allows the act to be done only if it can be done without any causation of nuisance or any other form of injury.

Remedies available for nuisance-

There are three kinds of remedies available in the case of a nuisance, these are:

1. Injunction- An injunction is a judicial order restraining a person from doing or continuing an act which might be threatening or invading the legal rights of another. It may be in the form of a temporary injunction which is granted on for a limited period of time which may get reversed or confirmed. If it is confirmed, then it takes the form of a permanent injunction.
2. Damages- It may be offered in terms of compensation to the aggrieved party, these could be nominal damages. The damages to be paid to the aggrieved party is decided by the statue and the purpose of the damages is not just compensating the individual who has suffered but also making the defendant realise his mistakes and deter him from repeating the same wrong done by him.
3. Abatement- it means the removal of a nuisance by the party who has suffered, without any legal proceedings. This kind of remedy is not favoured by the law. It does not available de jure but exists de facto.

Conclusion

The crux of this whole discussion is that both negligence and nuisance are the two facets of torts. In both the cases, remedies and defences are available. The wrongdoers have to pay compensation if the act has been done intentionally or negligently. It avoids those cases where the tortfeasor has nothing in its hand.

[1] 1935 AC 85;

[2] AIR 1966 SC 1750.

[3] (1875) LR 10 Ex.255.

Author: Prity Kumari,
Central University of South Bihar