Nuisance, Estoppels & Volenti non fit injuria | Business Laws for CA Foundation PDF Download

Nuisance:

Nuisance is derived from the french word ‘nuire’ meaning to hurt or to annoy.

In legal terms, Nuisance refers to the unlawful interference of a person’s use of his land, it can be committed by any activity or condition that interferes with the plaintiff’s right of the enjoyment of his land.

Difference between Nuisance and Trespass
Trespass is a direct interference with a person’s possession of the land and it takes place through material objects. It is prima facie actionable.

• Eg: Planting a tree on another man’s land will amount to trespass.

Nuisance is a more indirect form of a tort which deals with the interference with a person’s enjoyment of land. it does not specifically take pace through a tangible medium and special damage has to be proved to make a case of nuisance.

• Eg: A cuts the grass in his garden with the grass cutter machine when B took tuition classes in an adjacent building. The noise caused disturbance to B. A is liable for committing a nuisance.  

Question for Nuisance, Estoppels & Volenti non fit injuria

Try yourself:

What is the main difference between nuisance and trespass?

• A.

  Nuisance involves direct interference with a person's possession of land, while trespass involves indirect interference.
• B.

  Nuisance requires the use of material objects, while trespass does not.
• C.

  Nuisance is a more indirect form of tort, while trespass is a direct form.
• D.

  Nuisance requires special damage to be proved, while trespass is prima facie actionable.

Explanation

- Nuisance is a more indirect form of tort that deals with the interference with a person's enjoyment of land.
- It does not specifically take place through a tangible medium.
- On the other hand, trespass is a direct form of interference with a person's possession of land.
- It involves the use of material objects to directly encroach upon someone else's land.
- Unlike nuisance, trespass is prima facie actionable, meaning it can be claimed without the need to prove special damage.
- Therefore, the main difference between nuisance and trespass is that nuisance is a more indirect form of tort, while trespass is a direct form.

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Types of Nuisance
Nuisance is of three types:

• Public Nuisance: It is a crime and it implies the interference with the right of the general public. It is an offence punishable under section 268 of the Indian Penal Code.
  Eg: DIgging of trenches on a public road causing inconvenience to the people will constitute Public Nuisance.
• Private Nuisance: It is also called tort of Nuisance. It involves using one’s property or anything under one’s control to harm the property of someone else. It is directed at individuals rather than on the public. The interference with the use of land, in this case, is unreasonable and causes special damage to the owner.
  Eg: The smoke from the factive X damaged Y’s plants located on afield close by. X is liable for committing a private nuisance.
• Statutory Nuisance: When the statute is directly prejudicial to the health and well-being of a person, it is known as a statutory nuisance. The government tries to curb such type of nuisance by enacting legislation for clean air, noise, etc. f the damage is caused due to the sensitiveness of the plaintiff, then the act will not deem fit to qualify for nuisance.
  Eg: If noise from a factory creates disturbance for only one person and the other people living in the premises do not complain about the noises or do not have any problem whatsoever, then this action will not qualify for an action for nuisance.

Defences
The following are the defences to the act of nuisance

• If a person continues activity on a piece of land for 20 years, he acquires a prescription to continue the activity in the future. After a span of 20 years, such an activity will not be actionable for the tort of nuisance.

• If an act is authorized by the statutory authority, then it will be a complete defence and the act would not qualify for nuisance.

The below defences are not acceptable by law

• Where there are two or more defendants and action is brought against any one of them it is no defence that his act alone would not be a nuisance.
• It will not qualify as a defence that a nuisance to a person is beneficial in public interest,
• If a defendant says that he took reasonable care to prevent nuisance, it will not act as a defence in his favour.
• It will not be a defence for the defendant that the plaintiff came to the place where nuisance already existed.

Estoppels:

Section 115 of the Indian Evidence Act, 1872 provides with the meaning of estoppel as when one person either by his act or omission, or by declaration, has made another person believe something to be true and persuaded that person to act upon it, then in no case can he or his representative deny the truth of that thing later in the suit or in the proceedings.

• In simple words, estoppel means one cannot contradict, deny or declare to be false the previous statement made by him in the Court. 
• For example A, an agent of C, mortgaged his property to B which he was in the possession of but was not the owner. 
• B, the mortgagee, in good faith, believing the representation to be true took the mortgage. Thereafter, he obtained a decree and the property was sold. 
• The real owner of the property, C, claimed that it was his property and that A had no power to mortgage them. The court would stop A from making such a claim under the doctrine of estoppel.

Section 115 of Indian Evidence Act, 1872 defines estoppel. According to it-

“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true by his act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” 

Essential Elements of Estoppels:

From the above definition of estoppels, the following essential elements of it reflect-

• A person misrepresents by his act, omission or declaration,
• Such misrepresentation is regarding the existence of any fact;
• Such misrepresentation is intentionally caused to make a person believe a thing;
• The other person believes such misrepresentation to be true;
• The other person does some act believing such misrepresentation;
• Such act causes injury to the other person; and
• Such a person is unaware of the actual situation.
  
  

Conditions for application of Doctrine of Estoppel

The following conditions are to be satisfied in order to apply the doctrine of estoppel:

• The representation must be made by one person to another person.
• The representation made must be as to facts and not as to the law.
• The representation must be made as to an existing fact.
• The representation must be made in a manner which makes the other person believe that it is true.
• The person to whom the representation is being made must act upon that belief.
• The person to whom the representation would be made should suffer a loss by such representation.
   

Types of Estoppel

• Estoppel, by record- It is created by the decision of any competent court. When any court decides finally over a subject then it becomes conclusive and the parties, their representative, executor, administrator, etc. become bound to that decision. They can neither bring another suit on the same subject nor can make the same subject disputed. They are stopped from doing so. It is alike res judicata.
• Estoppel by deed- When any person becomes bound to another person on the basis of a record regarding few facts, the neither that person nor any person claiming through him shall be allowed to deny it.
• Estoppel by conduct- It is such estoppel which arises due to act, conduct or misrepresentation by any party. When any person causes another person to believe by his word or conductor encourages them to believe and the other person acts upon that belief and causes a change in their situation, then the first person is stopped from denying truthfulness of his statements made earlier. Actually, this is an estoppel of general nature.
• Equitable Estoppel- Such estoppels which have not been provided by any statute is called equitable estoppel. The best examples of equitable estoppels are there in Section 41 and 43 of Transfer of Property Act, 1882.

• Promissory Estoppel- It has originated as an exception to consideration in the field of contract law. When ant person promises another to lend him certain relief or profit and the other changes his position on the basis of such promise, then the person making promise shall be stopped from stating that his promise was without any consideration.

Volenti non fit injuria:

It is a Latin expression meaning "to a willing person, injury is not done".

It operates when the claimant either expressly or implicitly consents to the risk of loss or damage.

Conditions for Volenti non fit injuria

For example, if a regular spectator at a cricket match is injured when a batsman hits a six and in the ordinary course of play, and the ball comes out of field and hits him or her, this is a foreseeable event and regular spectators are assumed to accept that risk of injury when buying a ticket. 

• A slightly more limited defense may arise where the defendant has been given a warning, whether expressly to the plain/claimant or by a public notice, sign or otherwise, that there is a danger of injury. 
• The extent to which defendants can rely on notices to exclude or limit liability varies from country to country. 
• This is an issue of policy as to whether the defendants should not only warn of a known danger but also take active steps to fence the site and take other reasonable precautions to prevent the known danger from befalling those foreseen to be at risk.

Ex turpi causa non oritur actio

It is a Latin expression meaning " from a dishonorable cause an action does not arise".

It is a legal doctrine which states that a plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act. If the claimant is involved in wrong-doing at the time the alleged negligence occurred, this may extinguish or reduce the defends liability. 

For example, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained but for the property owners; intervention.