Law of Torts
Nuisance: Who May Sue, Who May Be Liable, the Defences, and the Remedies
Private nuisance is a tort against land, so the right to sue follows an interest in the land affected, and a person without one has no action however badly he is inconvenienced. Liability may attach to three different people at once: the creator of the nuisance, the occupier who continues or adopts it, and in defined cases the landlord. Of the defences commonly pleaded only two are defences at all, prescription and statutory authority, and the list of things that are not defences is the longer and more instructive one.
Who may sue, who may be liable, the landlord's position, the defences, and the three remedies
1. Who May Sue
The person | Can he sue |
An owner in possession | Yes |
A tenant or other occupier with a right to exclusive possession | Yes. It is his enjoyment that has been interfered with |
A reversioner | Yes, but only where the injury is of a permanent character such as to affect his reversionary interest |
A person in wrongful possession | Yes, against a stranger, since possession is good against all but the person with a better title |
A mere licensee, guest, lodger or family member without an interest | No. Such a person has no interest in the land and must look to negligence or, if he can show special damage, to public nuisance |
2. Who May Be Liable
The defendant | The basis of liability |
The creator of the nuisance | He is liable whether or not he occupies the land, and whether or not he is now in a position to abate it. That he has parted with the land is no answer |
The occupier | He is liable for a nuisance he creates, and also for one created by another which he continues or adopts, once he knows or ought to know of it |
The landlord | In the three defined cases set out below |
- Continuing or adopting a nuisance is the important extension. An occupier continues a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take reasonable steps to bring it to an end. He adopts it if he makes use of the thing that constitutes it.
- It applies to a nuisance created by a predecessor in title, by a trespasser, or by nature itself. An occupier who knows that a tree on his land is dying, or that a trespasser has blocked a drain, cannot simply leave it.
- The duty in those cases is measured by what is reasonable for that occupier, having regard to his resources and his ability, in much the same way as the duty of common humanity owed to a trespasser under Herrington.
- Liability is joint and several where several people contribute to a single nuisance, and each is liable for his own contribution even where his contribution alone would have been harmless.
3. The Landlord's Liability
- Where he authorised the nuisance, by letting the premises for a purpose which must necessarily produce it, or by expressly permitting the activity complained of.
- Where the nuisance existed at the date of the letting and he knew or ought to have known of it.
- Where he covenanted to repair, or reserved a right to enter and repair, and the nuisance arises from the want of repair.
- Otherwise the tenant in possession is the occupier and answers alone, and the landlord is not liable merely because he owns the premises.
4. Prescription: A Defence
📖 Sturges v. Bridgman (1879) 11 Ch D 852 Facts The defendant, a confectioner, had for more than twenty years used large mortars and pestles in his kitchen, which adjoined the garden of the plaintiff, a physician. The noise and vibration had caused no complaint, because the physician's house stood away from the wall. The physician then built a consulting room at the end of his garden, against the party wall of the kitchen, and found that the noise and vibration made it impossible to use the room for examining patients. Held An injunction was granted. The defence of prescription failed. Ratio A right to commit a private nuisance may be acquired by prescription, but the prescriptive period runs only from the time when the activity became an actionable nuisance to the person against whom the right is claimed. Until the consulting room was built there was no nuisance at all, so nothing had been enjoyed as of right and no time had begun to run. The case also established that coming to the nuisance is no defence, and contains the observation that what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey. |
- In India the right is acquired under section 15 of the Indian Easements Act, 1882, on twenty years of peaceable and open enjoyment as an easement and as of right, without interruption.
- The enjoyment must have been as an easement and as of right, that is, openly, without force and without permission.
- No length of time legalises a public nuisance. Prescription operates only in respect of a private nuisance.
5. Statutory Authority: The Other Defence
- Where a statute authorises the very thing complained of, and the nuisance is the inevitable consequence of doing it, no action lies.
- Whether the authority is absolute or conditional is a question of construction. Absolute authority protects even against the inevitable consequences of the authorised act; conditional authority protects only if the act was done with reasonable care and in the manner least injurious to others.
- The burden of establishing that the nuisance was inevitable lies on the defendant.
- The subject is examined fully in TORT 022.
6. What Are Not Defences
The plea | Why it fails |
Coming to the nuisance | It is no answer that the plaintiff acquired or occupied his property knowing that the activity was already carried on: Sturges v. Bridgman |
Public benefit or utility | That the activity is useful, or even essential, to the public goes to the remedy and not to liability |
A licence or permission from a public authority | A licence to carry on a trade is not an authority to commit a nuisance while carrying it on, and planning permission does not authorise one |
Reasonable care | The test is the unreasonableness of the interference, not the defendant's carelessness, so due care is irrelevant |
Contribution by others | That the nuisance is the combined result of many contributions, each innocuous alone, is no answer. Each contributor answers for his own |
Suitability of the place for the activity | That the locality is the most suitable available for the trade is not by itself an answer, though the character of the locality is relevant on the separate question of reasonableness |
7. The Remedies
The remedy | What it gives, and when |
Damages | For the diminution in the value of the land, the cost of repair, and the discomfort actually suffered. Damages in lieu of an injunction are awarded sparingly: where the injury is small, capable of being estimated in money, adequately compensated by a small payment, and an injunction would be oppressive |
Injunction | The primary remedy, because the plaintiff wants the interference to stop rather than to be paid for. Perpetual or temporary; prohibitory, or mandatory where something must be removed or altered. Governed by sections 37 to 42 of the Specific Relief Act, 1963, and discretionary |
Abatement | Self help: the plaintiff removes the nuisance himself. Notice must ordinarily be given before entering the defendant's land, no more force than necessary may be used, and the least harmful method must be chosen |
- Abatement is not favoured. It invites a breach of the peace, it risks liability in trespass if the limits are exceeded, and a plaintiff who takes matters into his own hands may forfeit the assistance of the court.
- Where two methods of abatement are available, the less harmful must be chosen, and where entry on the defendant's land is unnecessary it must not be made.
- The commonest legitimate instance is cutting back overhanging branches and roots to the boundary line, which requires no entry at all.
- The court will frequently mould an injunction rather than grant or refuse it outright, by regulating the hours, the level or the manner of the activity, which is the practical reason why so many nuisance decrees are conditional.
⚠ Why the requirement of an interest in land matters more than it appears to The rule that only a person with an interest in the land may sue in private nuisance looks like a technicality and is in fact the feature that keeps the tort within bounds. Nuisance imposes liability without fault, without proof of carelessness, and for interferences that are often unavoidable consequences of ordinary activity. If every person inconvenienced could sue, a single factory would face actions from an entire neighbourhood, each independent of the others. Confining the action to occupiers ties the liability to a definite and limited class, makes the relief practicable, since an injunction can resolve the position between two adjoining properties in a way it never could between a factory and a town, and keeps the tort doing what it exists to do, which is to regulate the relations of neighbouring occupiers. A person genuinely injured who holds no interest in land is not without a remedy: he sues in negligence, or in public nuisance if he can show special damage. |
8. The Position Stated Shortly
1. Only a person with an interest in the land affected may sue in private nuisance, so a mere licensee, guest or family member cannot.
2. A reversioner may sue where the injury is of a permanent character affecting his interest.
3. The creator of a nuisance is liable whether or not he occupies the land and whether or not he can now abate it.
4. An occupier is liable for a nuisance he continues or adopts, including one created by a predecessor, a trespasser or nature, once he knows or ought to know of it.
5. A landlord is liable where he authorised the nuisance, where it existed at the date of the letting and he knew of it, or where he was under an obligation to repair.
6. Prescription is a defence, but the twenty year period runs only from when the activity became an actionable nuisance to this plaintiff: Sturges v. Bridgman.
7. Statutory authority is a defence where the nuisance is the inevitable consequence of what the statute authorised.
8. Coming to the nuisance is not a defence, nor is public benefit, a licence, reasonable care, or the fact that others contributed.
9. The remedies are damages, an injunction and abatement, and the injunction is the primary one because the plaintiff wants the interference to stop.
10. Abatement is not favoured: notice must ordinarily be given, only necessary force used, and the least harmful method chosen.