The Tort of Nuisance in Tanzania

Jaba Shadrack, UDSM –School of Law (jaba@udsm.ac.tz )

The law of nuisance has been the traditional means used by courts to balance competing interests of landowners to use land as they see fit against the duty not to use it to injure a neighbour. No one is liable in nuisance unless he either has created the nuisance, or, when it has been created by the act of a trespasser or otherwise without the authority or permission of the occupier, unless he suffers it to continue without taking reasonably prompt and efficient means for its abatement. In other words, the liability for nuisance is conditional upon the defendant having acted either wilfully or negligently in regard to it. 

To be considered public, the nuisance must affect an interest or interfere with a right common to the general public. It is not enough that it disturbs one individual, even in the use of his land, that is why, even a number of interferences with private rights will not add up to interference with the public.

Instances of Public Nuisance

The common law rules against public nuisance were developed, in part, for the protection of the public welfare i.e. that is 'nocumentum iniuriosum propter commune et publicam utilitatem'. 

Industry nuisances: a manufacturer who has polluted a stream or river might be fined and might also be ordered to pay the cost of clean-up. 

Public health nuisances: such as keeping of diseased animals or a malarial pond, or carrying a person with communicable diseases (e.g., a child with smallpox) along the highway. 

Public safety nuisances: include shooting fireworks in the streets, storing explosives, practicing medicine without a license or not qualified, or harbouring vicious animals, or presence of unhitched and unattended animal in the street. 

Public morals' nuisances (noxious trades): houses of prostitution (brothel), illegal liquor establishments, gaming houses, indecent exhibitions (exposures), bullfights, public profanity and unlicensed prize-fights are examples of nuisances that interfere with public morals. 

Disruption of the public peace nuisances: for instance, by loud and disturbing noises, or artistic performances that threatens to cause a riot, or upon interference with the public comfort as in the case of bad odours, smoke, dust and vibration. 

Abuses of the Highway: obstructing public ways or highways or a navigable stream, or creating a condition to make travel unsafe or highly disagreeable, collection of an inconvenient crowd are examples of nuisances threatening the public convenience. 

Architecture: A public nuisance is said to exist in a building, structure, or premise: (a) if it is insufficiently cleaned, drained, lighted, or ventilated for the intended usage, (b) if it poses conditions detrimental to public health or dangerous to human life, and/or (c) if its air or water supplies are unwholesome.

Instances in which the Same Act is both a Public and Private Nuisance

In various scholarly works, acts that are both public and private are termed as 'mixed nuisance'. The phrase 'mixed nuisance' is defined to mean a condition that is both a private nuisance and a public nuisance, so that it is dangerous to the community at large but also causes particular harm to private individuals. In R. V. STEPHENS, Mellor J., (pp.708-709) and Blackburn J., (p.710) respectively, agrees that no private individual, without receiving some special injury, could maintain an action in a public nuisance.

A nuisance may be both public and private in the following instances;

Special injury rule; applies where a large group is affected but some individuals are injured in unique ways. The rule reads as 'where one man has greater hurt or inconvenience than any other man had ... then he, who had more displeasure or hurt, etcetera., can have an action to recover his damages that he had sustained by reason of this special hurt.' Under this rule, a private litigant could bring an action for public nuisance only if he could show particular, personal damage not shared in common with the rest of the public. For example, in ANDERSON V. W.R. GRACE & CO., the plaintiffs sought damages for physical injuries caused by the pollution of public wells, from which their water was drawn, and the groundwater under their homes. The Court held that the plaintiffs had a locus standi to maintain an independent action because injuries to a person's health are by their nature special and not common to the public. Further, in the US case of EDIMUNDS V. DUFF, where the defendant was about to build an amusement park in an exclusive residential district, the plaintiff, a resident of the district, brought suit to enjoin the building of the park. It was held for the plaintiff that he was threatened by a special loss, and defendant's threatened act would be a public nuisance. 

HALSEY V. ESSO PETROLEUM CO., LTD., illustrates the interrelation and overlapping of liability in public and private nuisances. In this case, the plaintiff was the owner and occupier of a house in a residential area. The defendants owned and operated oil storage and issuing depot in an adjoining industrial area where there was other premises dealing with oil. In the depot opposite the plaintiff's house there was a boiler used in connection with the heating of fuel oil. The boilers were heated by burning oil and the chimneys acid smuts were emitted which damaged the plaintiff's washing hung out to dry in his garden, and damaged the paint work of his car standing in the street outside his house. The depot emitted pungent nauseating oily smells which grew in intensity and frequency. Since 1956 the defendants introduced a night shift and thereafter the noise from the boilers reached 68 decibels, despite every effort by the defendants to minimize it. The noise caused the plaintiff's window and doors to vibrate and prevented him from sleeping. Further, at intervals throughout the night, there was a very loud noise from heavy oil tankers which arrived at and left the depot at points near to and opposite the plaintiff's house. Sometimes when they passed in convoy the noise was 83 decibels. The noise from the tankers was made partly in the public highway and partly in the depot. 

Veale, J., held the defendants liable in an action by the plaintiff for nuisance by smuts, smells and noise as follows; (a) for emission of acid smuts which caused damage to the plaintiff's washing hanging on his land and to his car standing in the street, they were liable; for damage to the washing there was liability in private nuisance. They were also liable for damage to his motor car as for a public nuisance in respect of which the plaintiff had suffered special damage. (b) For the smells there was liability in private nuisance. It was more than a general background of oily smells, it went far beyond a triviality and in view of its frequency and intensity it was more than it would affect a sensitive person. In Veale's words, it was 'horrible', 'stinking', 'pungent' and 'nauseating'. In the circumstances, injury to health was not a necessary ingredient in an action for nuisance by smell. (c) The noise from the boilers and the tankers while in the depot at night was actionable as a private nuisance. Since it was an inconvenience materially interfering with the ordinary comfort physically of human existence according to the plain sober and simple standards among ordinary people living in Fulham, for the ordinary man takes his rest at night. (d) The noise from tankers at night on the highway was a public nuisance, for the concentration of particularly noisy vehicles outside the plaintiff's house was an unreasonable use of the highway, in just the same way as parking a number of unlit vehicles on the road, and the plaintiff had suffered special damage by it. Further, it was a private nuisance, as it constituted interference with the plaintiff's enjoyment of his house.

In certain circumstances where the public nuisance substantially interferes with the use of an individual's adjoining land. For example, pollution of a stream (or river) might constitute both a public and a private nuisance. Thus the pollution of a stream (or river) which merely affects a large number of river bank owners is a private nuisance only, but it becomes a public one when it kill fishes. It is not, however, necessary that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the exercise of the public right. The obvious illustration, of course, is the obstruction of a public highway which inconveniences only those who are travelling upon it. The rationale is that any condition or activity that substantially interferes with the private interests of any considerable number of individuals in a community will normally interfere also with some public right. 

There are also some statutes which create torts that are both private and public nuisance in nature, and therefore in rare situations statutes do authorise individual persons to sue on behalf of the public (state). The good example of this is 'environmental statute'. 

At this juncture, it suffices to note that what peculiar or special damage is sufficient to enable a private party to sue is a question which courts have found difficult to decide. Some cases have maintained that the private party must suffer damages different in kind from those suffered by the public. In LIVINGSTON V. CUNNINGHAM, for example, the plaintiff used a highway daily for his business purposes, and an obstruction put on the road by the defendant made him use a less convenient road, but the court held that he could not sue to abate the nuisance because his damages were not different in kind from those suffered by the public. But again, the Courts have interpreted the rule to mean that the private litigant must suffer losses greater only in degree from those suffered by the public; as in GULF STATES STEEL CO. V. BEVERIDGE. 

However, Professor Prosser, point out several ingredients that may be proven to give a private individual a locus standi to sue in a public right; first, that he must have suffered damage of a kind and degree different from those sustained by members of the public in general. Second, that he has sustained physical injury special and particular to him, rather than common to the public. Third, as in HART V. BASSETT, a plaintiff can recover damages by proving pecuniary loss in a public nuisance claim. Fourth, when a public way is obstructed, the plaintiff may prove delay and inconvenience of a detour as special harm suffered by him. Fifth, that the public nuisance has deprived him the access to land so as to constitute sufficient particular damage, for example when the land of the plaintiff is entirely cut off, whether by land or by water. Finally, a private litigant may sue in a public nuisance where the nuisance substantially interferes with the use or enjoyment of his rights in the land. 

Conclusion:

At common law, the same act or structure may be a public nuisance, also a private nuisance as to a person who is thereby caused a special injury other than that inflicted upon the general public. As we have seen, the private individual can recover in tort for a public nuisance only if he has suffered harm of a different kind from that suffered by other persons exercising the same common right. However, it is not enough that he has suffered the same kind of harm or interference to a greater extent or degree. 

In addition to the requirement that the plaintiff have suffered an injury different from that suffered by the public, the plaintiff must have suffered the injury in the exercise of a public or common right. By a public right, it means a right that is common to all members of the general public. Therefore, when the nuisance, in addition to interfering with the public right, also interferes with the use and enjoyment of the plaintiff's land, it is a private nuisance as well as a public one i.e. mixed nuisance. 

NB: This document is also available in PDF & iPaper (with footnotes) at:
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REFERENCES:
Books 
Abbott, K, (2002), Business Law 7th Ed, Continuum publishers, London
Binamungu, C.S (2002), Law of Torts in Tanzania, Research and Publication Department, Mzumbe
Bryan A. Garner, (2004), Black's Law Dictionary, 8th Ed, Thomson West
Cooke John, (1999), Law of Tort 4th Ed, Financial Times Pitman Publishing 
Juma I.H. (2007), Learning materials: Law of Tort, DUP 
Lewthwaite, J. (2004), Tort Law, Oxford University Press, New York
Restatement (Second) of Torts (1979)
Salmond & Huston, Law of Tort 20th Ed, Sweet & Maxwell, Universal Law Publishing Co. Pvt. Ltd, London 
Journal Articles:
Anonymous: Nuisance: Public Nuisance - Suit by Private Citizen, in Columbia Law Review: Columbia Law Review Association, Inc. Vol. 24, No. 7 (Nov., 1924), p. 806 
Anonymous: Who May Recover for Injury from a Nuisance? In Columbia Law Review: Columbia Law Review Association, Inc. Vol. 13, No. 5 (May, 1913), pp. 433-434 
Elvin, J. The Law of Nuisance and the Human Rights Act, in Cambridge Law Journal: Cambridge University Press, Vol. 62, No. 3 (Nov., 2003), pp. 546-548
Friedmann, W., Incidence of Liability for Nuisance, in Modern Law Review: Blackwell, Vol. 4, No. 2 (Oct., 1940), pp. 139-144
Gevurtz, F., Obstruction of Sunlight as a Private Nuisance, in California Law Review: California Law Review, Inc., Vol. 65, No. 1 (Jan., 1977), pp. 94-119
Hodas, R.D., Private Actions for Public Nuisance: Common Law Citizen Suits for Relief from Environmental Harm, in Ecology Law Quarterly: Vol. 16:883, 1989, p. 883-908
Keeton, P., Trespass, Nuisance, and Strict Liability; in Columbia Law Review: Columbia Law Review Association, Inc. Vol. 59, No. 3 (Mar., 1959), pp. 457-475
Prosser, W.L., Private Action for Public Nuisance, Virginia Law Review: Vol. 52, No. 6 (Oct., 1966), pp. 997-1027
Spencer, J. R., Public Nuisance: A Critical Examination, in Cambridge Law Journal: Cambridge University Press, Vol. 48, No. 1 (Mar., 1989), pp. 55-84
Thayer, E.R., Public Wrong and Private Action, in Harvard Law Review: The Harvard Law Review Association, Vol. 27, No. 4 (Feb., 1914), pp. 317-343

Useful Web Links:
http://law.jrank.org/pages/8867/Nuisance-Public-Nuisance.html
http://www.jstor.org
http://www.lawhandbook.org.au/handbook/ch10s02s02.php