2. INTERFERENCE WITH USE AND ENJOYMENT
Private nuisance is a balancing act between the defendant’s right to use their land as they wish and the claimant’s right to enjoy their land without interference. The claimant must establish that the defendant has caused a substantial interference with their use or enjoyment of their land. No account is taken of trivialities.
The interference may take a number of forms but some of the commonest are;
Injury to Property, Any unlawful interference with a person’s use or enjoyment of land through some object which cause damage to the property is actionable as nuisance. It may be allowing the branches of a tree to overhand on the land of another person, or the escape of roots of the tree, water, gas, smoke or fumes, etc. on the neighbor’s land or even by vibration. The right of every owner of land such land in its natural conditions, shall have support naturally rendered by the subjacent and adjacent soil of another person. A person has natural right to have his land supported by his neighbor’sand therefore removal of support, lateral or form beneath is a nuisance. The natural right of support of neighbor’s land is available only in respect of land without buildings.
Therefore, such a right is not available in respect of building or other structure of land. Although the law does not recognize the right of support of building, yet if the damage to the building is consequential to the damage to natural right of support of land, an action for withdrawal of support can lie.
Injury to comfort or health, Substantial interference with the comfort and the convenience in the using the premises is actionable as a nuisance. A mare trifling or fanciful inconvenience is not enough. The law does not take account of very trifling maters. There should be a serious inconvenience and interference with the comfort of the occupiers of the dwelling house according to notions prevalent among reasonable man and woman. The standard of comfort varies from time to time and place to place. Inconvenience and discomfort from the point of view of a particular plaintiff is not the test of nuisance but the test is how an average man residing in the same area would take it. The plaintiff may be over sensitive.
Whether the interference amounts to a nuisance is a question for the court. Normally this will be determined by applying a reasonableness test, but where the interference causes material damage to the claimant’s land, the defendant will be liable unless the claimant is oversensitive or one of the defenses to nuisance applies. In St Helens Smelting Co v Tipping (1865] 11 HL Cas 642, The plaintiff bought an estate near to the defendant’s copper smelting works. Fumes from the works damaged the plaintiff’s trees and crops. The court drew a distinction between nuisances causing material damage to the land and those which caused sensible personal discomfort. In the latter case the question of locality was relevant. As the plaintiff’s land had suffered material damage, the fact that the locality was a manufacturing area was irrelevant and an injunction was granted. The problem with this decision is that it is difficult to determine what is meant by material damage. Any substantial interference with residential land may lower its value, but unless the land itself is damaged the locality factor may defeat the claimant’s action. (Emphasis supplied).
In Tanzania the case of Sandhu Construction Company Limited v. Peter E.M. Shayo (1984] TLR 127 (CA) is authoritative on the issue of interference, reasonableness and locality. In this case the respondent had sued the appellant in private nuisance and prayed for an injunction to restrain the appellant from continuing the nuisance and for general damages. The respondent had alleged that his enjoyment of his house situated at Elerai village in the Arusha Municipality was seriously interfered with by the excessive noise, vibrations and obnoxious dust emanating from a stone crusher operated by the appellant situated 30 metres from his house. The respondent himself had a maize mill operating within the compound of his house. The respondent was successful in the High Court and it is against that decision that the appellant is appealing.
The Court of Appeal as per Mustafa JA (as he then was) held that: In considering the standard of comfort or convenience of living of the average man, the character of the neighborhood must be taken into account; an average man's standard of comfort and convenience involves the toleration of acts done by his neighbour in the course of ordinary and reasonable use of his property; a nuisance to be actionable must be such as to be a real interference with the comfort or convenience of living according to the standard of the average man; discomforts caused are not actionable if they fail to qualify as intolerable or unacceptable; the discomforts must cause suffering to the party complaining.
3. DAMAGE
Actual damage is required to be proved in an action for nuisance. In the case of public nuisance, the plaintiff can bring an action in tort only when he proves a special damage to him. In private nuisance, although damage is one of the essentials, the law will often presume it.
4.NUISANCE ON HIGHWAY
Obstruction on highway or creating dangers on it or on its close proximity is a nuisance. Obstruction need not to be total. The obstruction must, however, be unreasonable. Thus to cause the foundation of queues without completely blocking the public passage is a nuisance. In Ware v. Garston Haulage Co. Ltd, the defendant left his lorry with an attached trailer by the side of highway. The trailer had no rear light in the night and the plaintiff on his motor cycle ran into the back of the trailer. In an action by the plaintiff against the defendant for nuisance. It was held that defendant was liable as his leaving the vehicle in the darkness on the highway. Leaving a vehicle a place for an unreasonable long time even during the day has been held to be nuisance. Creation of dangers on the highway by making excavations, projection of tree or lamps, leaving slippery or dangerous substance on the road also amount to nuisance. Doing an act in one’s own premises, even though that offends the sentiments of the passer-by of a person is not a nuisance.
Projections
As regards projection on highway by object like overhanging branches of tree or a clock, etc. from the land or building adjoining the highway, no action for nuisance can be brought for such projection unless some damage is caused thereby. The mare fact that some object projects on the highway does not mean that is a nuisance. If every projection was to be considered to be nuisance, it would seem that, a fortiori every lamp so overhanging, every signboard, every clock every awning outside a shop, are in themselves illegal erection, not to mention the upper storey corbelled out over the roadway, which were common in every town of country. In Noble v. Harrison [1914] K.B. 30, the branch of a beach tree growing on the defendant’s land hug on the highway to a height of about 30 feet above the ground. In fine weather, the branch of tree broke down and fell upon the plaintiff vehicle which was passing along the highway. For the damage to the vehicle plaintiff sued the defendant to make him liable for nuisance.
The right of the public in a highway was merely to pass so long that right was not interfered with, they could not complain of what was in the air above or on the earth beneath. If the occupier of the premises knows of the defects in the projection but he does not get the same removed, he would be liable. It is no answer to an action that he had employed an independent contractor to remove that defect but the same was not done properly.
REMEDIES AVAILABLE FOR TORT OF NUISANCE
i. INJUNCTION
The injunction is the primary remedy in nuisance actions and its objective is to force the defendant to cease their activities. The injunction may be perpetual and terminate the activity or limit it to certain times. It is possible for the court to suspend the injunction and give the defendant the opportunity to eliminate the source of the complaint. Injunctions are equitable remedies and as such are not available as of right.The question of when the court should exercise its discretion to refuse an injunction was considered in the following case:
In Shelfer v City of London Electric Lighting Co 1895] 1 Ch 287, Vibration and noise were caused by the defendant’s activities. The defendant claimed that the plaintiff should be limited to damages as the award of an injunction would deprive many Londoners of electricity.
The court held that the discretion not to award the injunction should be exercised only in exceptional circumstances: (a) where the injury to the plaintiff’s legal right is small; and (b) is capable of being estimated in money terms; and (c) is one which can be adequately compensated by a small money payment; and (d) it would be oppressive to the defendant to grant an injunction.
ii. DAMAGES
In public nuisance actions the claimant must prove special damage in order to succeed. Damage must usually be proved in a private nuisance action but may be presumed. It is normal for the claimant to seek damages for past losses and an injunction to prevent future losses. The remoteness of damage test in nuisance is the same as that in negligence: the defendant must have been able reasonably to foresee the kind of damage which occurred. ( 2 Wagon Mound No [1967] 1 AC 617.) Where the nuisance causes damage to the land, the measure of damages will usually be the depreciation in value of the land. Where the nuisance consists of interference with use and enjoyment, then assessment of damages presents problems. In Bone v Seale (1975] 1 All ER 787,The defendant’s pig farm was adjacent to the plaintiff’s land. The plaintiff sought an injunction and damages in nuisance in respect of smells caused by pig manure and the boiling of pig swill.
The court held that there was no damage to the plaintiff’s property or his health and awarded damages of £1,000 based on the amount that would have been awarded in a personal injuries action for loss of sense of smell.
ABATEMENT
This remedy of abatement is a form of self help and consists of the claimant taking steps to stop the nuisance, for example, by cutting off the branches of overhanging trees or unblocking drains. Where the exercise of the remedy requires the claimant to enter another person’s land, then notice must be given, otherwise the abator will become a trespasser. It is fair to say that the law does not usually favour this remedy and in most cases it is not advisable. ( Delaware Mansions Ltd Council [2002] 1 AC 321.)
DEFENCES IN TORT OF NUISANCE
General defenses apply to most torts, there are some tort where only certain defenses are accepted and nuisance is one of them! Some of the defenses recognized by the courts as valid defenses and some other have been rejected. The following defenses are considered valid in nuisance cases:-
1. Statutory Authority
If the act said to be causing unreasonable interference, or it is related to, an unauthorized under a statute, there can be no claim of private nuisance. There is no liability for that under the tort.
2. Prescriptive Right
Law recognizes that if for a long period of time plaintiff has not objected to an act that potentially disturbing, then the plaintiff cannot, after such passage of time, turn around and complain of the act. The period of time to acquire this right to continue with the activity is 20 years.
For instance if you live next door to musician for 20 years, and he has been playing his drums every morning without complaint from you, then you are not entitled to complain about it in the 21st year. The musician has an prescriptive right to do the act that you claim to be a nuisance. In Sturges v Bridgman [1879] 11 Ch D 852,The defense of prescription failed, as the noise from the confectioner’s activities only became a nuisance when the doctor had his extended consulting room built. Only from this time did the 20 years start to run.
3. Usefulness
Usefulness is simply the question of public utility as a defense, rather than a factor going towards reasonableness. The fact that the defendant’s activity is a useful one is not a defense.
4. Nuisance due to many
Where the nuisance is caused by a number of persons, it is not a defense for the defendants to prove that their contribution alone would not have amounted to a nuisance.Coming to the nuisance is not a defense. The defendant cannot argue that the claimant was aware of the nuisance when they moved to the area. In Sturges v Bridgman (1879) 11 Ch D 852 ,the confectioner argued that when the doctor built his extended consulting room he was aware of the noise and had therefore come to the nuisance. The court rejected this argument as this was not a recognised defense in nuisance. In Miller v Jackson [1977] QB 966 , Lord Denning argued that as the plaintiffs had bought a house next to a cricket field they could not be heard to complain about interference by cricket balls. This was rejected by the rest of the Court of Appeal so far as establishing a nuisance was concerned, but it was a factor in the decision of the majority not to grant an injunction.
