Difference Between NUISANCE and NEGLIGENCE
Author : Arthi M
The Word Nuisance in general means when a person or a thing causing inconvenience or annoyance.
According to Law, the word Nuisance means an act which is harmful or an offensive to the public or a member of it and for which there is always an legal remedy.
The word Nuisance has been derived from old French word “nuire” which means to cause harm or to “hurt” or to” annoy”
Generally, A person is entitled to enjoy his own property without any disturbances caused to him according to law.
When if someone disturbs or interferes in his property unlawfully, then it is deemed to a Nuisance committed.
DEFINITION OF NUISANCE
According to Salmond, Nuisance consists in causing or allowing to cause without lawful justification, the escape of any deleterious thing from ones land or from anywhere into land in possession of the plaintiff, such as water, smoke, gas, heat, electricity ,etc..
According to Winfield, a Nuisance may be described as “unlawful interference with a persons, use or enjoyment of land or some right over or in connection with it’”..
According to Pollock, a Nuisance is the wrong done to a men by unlawfully, disturbing him in the enjoyment of his property in some cases in the exercise of a common right.
ESSENTIALS OF NUISANCE
1.Right to use or enjoyment of land
2. Licensee without possession
3.Guest of an occupier cannot file a suit
5.damage or loss or annoyance caused to another individual
KINDS OF NUISANCE
According to Indian Penal code Public nuisance means an which causes or harm or danger to the public as a whole. Which violates the public rights and makes a people suffer. Public Nuisance affects the society at a large.
Since the individual may have a private right of action in a public nuisance;
-he must show the injury caused to him or to his property
-injury caused must be direct and visible
-injury must not be a consequential injury
-must show the existence of personal injury caused to him or to his property
Private Nuisance is a kind of Nuisance where it cause harm or danger to the individual or to his property.it may also cause an injury to the owner of the property or his right.
The remedy which can sought out for private nuisance is a civil action for damages caused to him or to his property.
ESSENTIALS TO CONSTITUTE PRIVATE NUISANCE
1.There must be unlawful interference with individual property
2.damages must be caused to the owner or to his property.
KINDS OF PRIVATE NUISANCE
1.Damage to Property
Damage to Property
In damage to property even a little visible damage caused is sufficient for damage caused to the property.
Eg.smoke, fumes, gas, noise, water or animals
; St.Helen Smelting Co.v.Tipping,(1865)77HCL 642
The fumes from the defendant”s manufacturing work has caused an damage to the plaintiffs trees and the shrubs.so the court held that since such damages was being caused an injury to the property gave s rise to cause of action to cure his loss caused to him.
In physical discomfort, the damages must be caused in ordinary course of enjoyment of the property.
Broadbent v. Imperial Gas Co.(1856)7 DE GM & G 436
Since an injunction was granted to prevent a gas company from manufacturing gas in such a close proximity to the premises of the plaintiff, a market gardener, and in such a manner as to injure his garden produce by the escape of noxious matter.
Factors necessary to decide whether the discomfort is substantial;
-The mode of usage of the property
Eg. carrying any trade causing nuisance obstruction of light etc.
DEFENCES AVAILABLE TO NUISANCE
Prescription is an title acquired by the person for his long duration of usage or by the time. It is special kind of defence, as if a nuisance has been peacefully and openly been going on without any kind of interruption
REMEDIES FOR NUISANCE
Injunction may be temporary or permanent.it is kind of order given by the court.it is one of the discretionary power of the court.
The damages may be given to the aggrieved party as nominal damages to compensate his loss caused out of such nuisance and here where the amount of damages is decided by the court and not upon the plaintiff.
It is one of the summary remedy or removal of a nuisance by the party injured without having any legal proceedings.
Since the concept of nuisance in Indian courts helps to provide remedy to the damage harm or loss caused to the individual in his property and public nuisance which makes a loss to the society in large hence the concept of nuisance is most acceptable to be permitted to make good the loss
The term negligence is derived from a latin word ”negligentia” which means “failing to pick up”.
In general the term negligence means the act of being careless.
Definition of Negligence
According to “Winfield” negligence means it is a breach of legal duty of care by the plaintiff which results in undesired damage to the plaintiff.
Blyth v Birmingham Water Works co,
In this case negligence was defined s omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.
Nonfeasance means the failure to do something which the person is entitled to do in his part.
Malfeasance means the act which he does where he should not have done in ordinary course of nature.
Misfeasance means the act of not being an action properly when it should have been done properly.
Essentials of Negligence
1. Duty of Care
Since in the concept of duty of care every person is bound to do his duty with utmost care which he is bond to do in course of his employment and he must do it lawfully which he is bond to do it.
2. Duty must be towards the plaintiff
It is not only sufficient that the defendant owns his duty on himself to take utmost care he is also bound to do a duty towards the plaintiff to take care.
3. Breach of contract
One of the most important factor in negligence is the concept of breach where the plaintiff must prove that the defendant had breached to take care on his duty.
4. Actual cause or cause in fact
The plaintiff who is damages or loss ,he is bond to prove that the defendant has violated to do his duty he has done a thing in such a way which resulted in actual cause to the plaintiff.
5. Proximate cause
The word proximate cause means a legal cause a legal one accordingly as cause of injury.
6. Consequential harm to the plaintiff
Since the plaintiff is bound to prove that the defendant has failed to exercise a reasonable care that would have resulted in damages to the plaintiff.
Such harm may be caused to the person, bodily harm, or harm to his property or any financial loss caused to the plaintiff due to the negligence on the part if the defendant and when such harm is proved on the part of the plaintiff the defendant is liable to compensate the loss or harm caused to the plaintiff.
DEFENCES AVAILABLE IN NEGLIGENCE
1. Contributory Negligence by the Plaintiff
Contributory negligence means since the damage or loss caused to the plaintiff due to his own cause of negligence he cannot sue the defendant for such a cause since it is based on the concept of a legal maxim volenti non fit injuria which states that if someone willingly places themselves in a position which might result in harm, they are not entitled to claim damages caused by such harm.
The burden of proving the contributory negligence is on the defendant at first instance.
Joseph v Dr.George Moonjely(1994)
In this case since the Kerala high court awarded a damages amounting to Rs.1,60,000 against a Surgeon for doing an operation to an 24year old lady without proper medical procedures and used local anasethesia.
2. Act of god
Act of god is one of the direct violent and a sudden of amount of nature which a person must not have foreseen and if foreseen such harm or loss cannot be avoided by the person in nature.
Nichols v Marsland
In this case since the defendant had artificial lakes on his land. there had been no negligence on his part of construction or in maintenance of such lakes in his land, due to unpredictable rain,
Some reservoirs burst out and swept away the bridges and court held that running of such water was due to act of god and where the defendant could not be held responsible.
RES IPSA LOQUITUR
Which means” the thing speaks itself’’
It is one of the legal concept where the facts and circumstances surrounding the injury allows the court to presume that negligence has occurred.
In an ordinary negligence case plaintiff must prove that the defendant owned the plaintiff a duty and that his conduct failed to measure up to that duty.
However under res ipsa loquitur, the defendant s negligence may be presumed and thus does not need to be proven.
ESSENTIALS OF res ipsa loquitur
-the defendant must have exclusive control on the situation or on the instrument that have been caused the injury
-injury must not have been ordinarily occurred but for the defendants negligence
-the plaintiff injury must have been caused
-such harm must be not due to his own action or his contribution.
REMEDIES AVAILABLE IN SUIT OF NEGLIGENCE
-Punitive or nominal damages
Since the concept of negligence has evolved from the English law and also accepted by the Indian law.in order to prove the concept of negligence it is essential to fulfill all the ingredients such as duty, breach of duty, damages and proximate cause. The concept of negligence provides an atmost remedy or loss caused to the plaintiff form such negligence.