Nuisance is a common law tort. Nuisance focuses on the effects of certain activities on neighbouring property owners, the nature of the interest invaded and the extent of the invasion, rather than on the conduct of the tortfeasor.A tortfeasor is a person who commits a tort, which is a civil wrong, either intentionally or through an act of negligence.For example, the essence of the tort of private nuisance is that the tortfeasor has unreasonablyand substantially interfered with another’s reasonable use and enjoyment of his or her land. The interference by the tortfeasor must normally be a continuing one to constitute a nuisance, but an isolated interference can ground an action if it is due to the continuing condition of the tortfeasor’s land. An example of a nuisance may be flooding or the discharge of a dangerous element. The commission of an unlawful act is not a condition precedent for liability.
Actions based on nuisance and actions based on the rule in Rylands v. Fletcher are distinct from one another, but either action may arise from the same fact situation, and the two causes of action are frequently pleaded together.Under the rule in Rylands v. Fletcher, a person who allows a dangerous element on his land that, if it escapes and damages a neighbour’s property, is liable on a strict liability basis. That is, it is not necessary to prove negligence on the part of the landowner from where the dangerous substance has escaped. The two actions have a number of similarities and many courts have taken the view that Rylands v. Fletcher is, in effect, a specialized type of nuisance. Notwithstanding these views, nuisance has a different historical origin and its legal character and application is not necessarily the same as that in the rule in Rylands v. Fletcher.
Strict liability under the rule in Rylands v. Fletcher extends only to those damages resulting from the escape as were reasonably foreseeable by the defendant. Whether conceived of as an ordinary action in nuisance or as strict liability, liability must attach to the party who controlled the property from which the interference, invasion, or annoyance emanated. In the absence of special exemptions, exercising the modest standards of care exacted by negligence law is no defence. Only if the defendant did all that he reasonably and practicably could to prevent harm to his neighbour is he to be absolved from strict liability.
The torts of nuisance and negligence differ in that nuisance focuses on the interest invaded rather than on the tortfeasor’s conduct causing the invasion.It follows that a person may be held liable in nuisance even though that person would not necessarily be found negligent.Accordingly, it is not necessarily a defence to nuisance to show that all possible care has been taken in carrying on the activity that causes the invasion. Conversely, a person may be liable in negligence for causing damage to a neighbour whose unusual sensitivity rules out an actionable nuisance. On the other hand, a determination that the tortfeasor is negligent in the conduct of his activity would be very relevant for a finding of liability with respect to nuisance. It is also relevant that the tortfeasor’s activity could be carried out by less offensive means.