Tort

• Public nuisance


  Committed where a person carries on some harmful activities which affect the whole people or part of the people
• Private nuisance


  Designed to protect the individual owner or occupier of land from substantial interference with their enjoyment thereof
• Categories of private nuisance

  • Physical injury to the plaintiff's property
  • Substantial interference with the plaintiff's use and enjoyment of their land
  • Interference with easements and profits
• In Scotland, the distinction between public and private nuisance is not recognized
• Apart from nuisances declared to be so by statute, nuisance is not a ground for criminal proceedings
• Only the party materially inconvenienced by actions may complain of them as a nuisance
• Nuisance is a civil matter, but it may be criminal sometimes as in public nuisance
• The Attorney General usually acts for the public in public nuisance cases
• A private person cannot sue in public nuisance except they prove they suffer a 'particular damage' far above the general damage suffered by others
• Public nuisance can be prosecuted as a criminal matter
• To succeed in private nuisance

  The plaintiff must have an interest in land
• Damages for personal injuries

  Can be recovered in public nuisance, but it is doubtful whether such a claim will lie in private nuisance
• Private nuisance falls into three categories: physical injury to the plaintiff's property, substantial interference with the plaintiff's use and enjoyment of their land, and interference with easements and profits
• Factors considered in determining reasonableness of defendant's conduct

  • Locality
  • Utility of defendant's conduct
  • Plaintiff's abnormal sensitivity on property
  • Duration of harm or injury
  • Defendant's malice
• Locality


  The standard of conduct and comfort protected by the law for a community varies from place to place
• There is no locality where the right of access to light for a building will be allowed to be interfered with as this will constitute nuisance in all localities
• Utility of defendant's conduct

  The law allows a person to enjoy their property, and the enjoyment of such properties can be of great benefit to the community
• The law will not allow a private nuisance to continue just because the defendant has shown that their conduct or act has social value, or is beneficial to the community
• Plaintiff's abnormal sensitivity on property


  An unusually or abnormally sensitive plaintiff is not likely to succeed in a claim
• The law of nuisance will normally protect a plaintiff who is a normal person and who suffers from an unreasonable conduct of the defendant
• Where the conduct of the defendant is unreasonable they will be liable in nuisance to the plaintiff
• In deciding whether the defendant's conduct is reasonable or not, the court will look at factors including locality, utility of defendant's conduct, plaintiff's abnormal sensitivity, duration of harm, and defendant's malice
• The tort of private nuisance is concerned with balancing the interests of landowners or users and their neighbours or adjoining landowners and other dwellers
• The court as a general rule always puts itself under caution in determining whether such conduct is nuisance and as a general rule will not compel a plaintiff to bear the burden alone of an activity which may be of benefit to others in the locality
• Abnormally sensitive plaintiff


  A plaintiff who is unusually sensitive to the activities of others around him
• The law of nuisance will not protect a plaintiff who is abnormally or unusually sensitive to the conduct of the defendant
• The law of nuisance will not protect the defendant who is aware that the plaintiff is very sensitive to a conduct but carries out the conduct to affect him in an unreasonable manner
• Case of ROBINSON v. KILVERT (1889)


  • Defendant was manufacturing paper boxes and heated his store with hot dry air, which damaged the plaintiff's stored brown papers due to their sensitivity to temperature
• When a plaintiff or his property is unusually sensitive to a tolerable or reasonable act of the defendant, which is a normal and regular act, the plaintiff will not succeed in a claim for nuisance
• Duration of nuisance


  How long the nuisance or injury suffered by the plaintiff must continue before they can bring a successful claim
• Case of SEDLEIGH-DENFIELD v. O'CALLAGHAN (1940)


  • Defendants allowed a public pipe draining water from their land to remain blocked, flooding the plaintiff's adjoining land, which was held to be a nuisance
• Case of BARKER v. HERBERT (1911)


  • Defendant was not liable for nuisance as he had no knowledge of a broken railing on his vacant house that caused injury
• Defendant's malice


  The intention, motive or malicious behaviour of the defendant, which can make their conduct unreasonable and amount to nuisance
• Malice is generally not necessary to succeed in a claim of nuisance, but a wanton, reckless or malicious conduct to spite or annoy a neighbour will readily be considered a nuisance
• Persons who can sue for private nuisance

  • Anyone who has or uses land, or has an interest in land
  • An occupier or user of land
  • A reversioner of land if their reversionary interest is interfered with
• Persons who can be sued for private nuisance

  • The creator of the nuisance
  • The landlord
  • The occupier
• Defences to a claim of private nuisance

  • Reasonableness of the defendant's act or omission
  • Statutory authority
  • Act of God
  • Act of a stranger
  • Consent
• Damages in nuisance


  Nuisance is not actionable per se, the plaintiff must prove they suffered damage, but damage is presumed in certain cases
• Property - Discuss with the aid of decided cases.
• References/Further Reading


  • Fleming, J. (1992), The Law of Tort (8th ed.) Sydney: The Law Book Company Limited.
  • Gardiner, D. (1991), Outline of Torts. Sydney, Butterworths.
  • Gillies, P. (1993), Business Law (5th ed.), Federation Press.
  • Holmes, D. (1984), Butterworth's Student Companion-Torts. Sydney: Butterworths.
  • Latiner, P. (1995), Australian Business Law, North Ryde: CCH.
  • Smyth, J.E, Soberman, D.A, Telter, J.H and N.V Australian Business Law (2nd ed.) Sydney: Prentice Hall.
  • Kodilinye and Aluko (2005), The Nigerian Law of Torts, Revised Edition, Spectrum.
  • Ese Malemi (2008), Law of Tort, Princeton Publishing Co., Ikeja, Lagos.