Chapter 7. Nuisance

• Pages: 179-209

The word ‘nuisance’ is used in popular speech to mean a ny source of inconvenience

or annoyance, but the tort of nuisance has a more restricted scope and not every

inconvenience or annoyance is actionable. Nevertheless, this tort ‘has become a

catch-all for a multitude of ill-assorted sins’,1 such as the emission of noxious fumes

from a factory, the crowing of cocks in the early hours of the morning, the obst ruc-

tion of a public highway, the destruction of a building through vibrations and the

interference with a right of access to private property. The remedies available to one

who complains of a nuisance are:

(a) damages;

(b) an injunction to restrai n further nuisance; and

(c) abatement.

PUBLIC AND PRIVATE NUISANCE

Public nuisance

A public nuisance is committed where a person carries on some harmful activity

which affects the general public or a section of the public, for example, where the

owners of a factory cause fumes and smoke to pollute the atmosphere in the locality,

or where an obstruction is caused on the public highway. Public nuisance is basically

a crime, actionable by the Attorney General. It is a tort, actionable by an individual

claimant, only where the latter can show that the defendant’s conduct has caused

him ‘particular damage’ over and above that suffered by the general public.2 The

reason for this requirement of proof of particular damage is that where a wrong is

committed against the community at large, it is considered to be more appropriate

to leave the action in the hands of the Attorney General as the representative of the

public, rather than to allow the defendant to be harassed by an unl imited number of

suits by private individuals, all complaining of the same damage. As to the meani ng

of ‘particular damage’, one view is that the claimant must show that he has suffered

damage which is different in kind, and not merely in degree, from that suffered by

the general public;3 another view is that it is sufcient for the claimant to show that

he has suffered damage which is appreciably greater in degree t han any suffered by

the general public.4 Particular damage will include not only special damage in the

1 Fleming, The Law of Torts, 6th edn, 1983, Sydney: LBC Information Services, p 378. See, general ly,

Buckley, The Law of Nuisance, 2nd edn, 1996, London: Butterwort hs.

2 Ramsaran v Sandy (2004) Court of Appeal, Trinidad and Tobago, Civ App No 55 of 2003, per Sharma

CJ.

3 Stein v Gonzales (1985) 14 DLR (4th) 263, at 267; Hickey v Electric Reduction Co of Canada Ltd (1970) 21

DLR (3d) 368; Ricket v Metropolitan Rly Co (1867) LR 2 HL 175.

4 Southport Corp v Esso Petroleum Co Ltd [1954] 2 All ER 561, at 570, per Lord Denning; Metropolitan

Board of Works v McCarthy (1874) LR 7 HL 243, at 263, per Lord Penzance; Walsh v Ervin [1952] VLR

361, at 366, per Scholl J. See Kodilinye, G (1986) 6 LS 182, pp 189, 190.

CHAPTER 7

NUISANCE

DOI: 10.4324/9781 35106 5108 -7

10.4324/97813 5106 5108 -7

180 Commonwealth Caribbean Tort Law

sense of actual pecu niary loss,5 but also general damage, such as delay or inconven-

ience, provided that it is substantial.6

In Chandat v Re ynolds Guyana Mines Ltd,7 the claimant farmers adduced evi-

dence that their crops had been damaged by dust escaping from the defendants’

bauxite works, but they were unable to recover damages under public nuisance

individually because none could show ‘particular damage’. George J stated that

‘before a nuisance can be a public one, it must affect the reasonable comfort and

convenience of a class of the citizenry’, and he found that ‘whether one uses

the yardstick of a class of citizenry affected by the nuisance complained of or

its effect and widespread range, the only reasonable conclusion which can be

arrived at in this case is that the nuisance complained of must be a public nui-

sance’. He continued:

Despite the fact that the nuis ance which the [claima nts] complain of is a public nui-

sance, it is well settled th at if they or any of them suffer direct and substa ntial injury

or damage ‘other and greater’ than t hat which is common to all, they or those who so

suffer have a remedy both at law and in equ ity.

The expression used i n the case of Benjamin v Storr8 is ‘injury … other a nd greater than

that which is common to the Q ueen’s subjects’, that is, the body or group of persons

affected by the nuis ance. In the present case, the [claimant s], who are all farmers, com-

plain of the same ty pe of nuisance which affects them a ll to the same degree. And in

my opinion they are a sufcient ly large number of persons to constitute a class of the

citizenry. Indeed … the nui sance complained of is sufciently widespread in its ra nge

and indiscri minate in its effect as to warrant action by t he community at large rather

than individual s. None of them can claim to have suffered any damage, loss or inco n-

venience which can be sa id to be greater in quality than t he others.

Examples of where ‘particular damage’ was established are:

(a) where the defendant wrongfully obstructed a public navigable creek by moor-

ing his barge there, thus compelling t he claimant to unload his boats and trans-

port his cargo by land at great expense;9

(b) where the claimant intended to let rooms in her house to persons wishing to

watch a procession, and the defendants unlawfully created a structure in the

public street which obstructed the view from the rooms, thus reducing their

letting va lue;10

(c) where the claimant’s sleep was disturbed by the noise of the defendant’s vehi-

cles, and the paintwork of his car, which was parked in the street, was damaged

by acid smuts from the defendant’s factory;11

(d) where the claimant, a taxi driver, was struck and blinded in one eye by a golf

ball driven from the defendant’s golf course situated next to the highway;12

5 E.g. where a shopkeeper loses c ustomers.

6 Walsh v Ervin [1952] VLR 361.

7 (1973) High Court, Guyana, No 249 of 1969.

8 (1874) LR 9 CP 400.

9 Rose v Miles (1815) 105 ER 773.

10 Campbell v Paddington Corp [1911] 1 KB 869.

11 Halsey v Esso Petrole um Co Ltd [1961] 2 All ER 145.

12 Castle v St Augustine’s Links Ltd (1922) 38 TLR 615.