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Nuisance , Malicious Prosecution |
vi) Nuisance
The word nuisance is derived from the French word ‘nuire’ which means to annoy.
Nuisance as a tort, according to Winfield, is an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.
Such interference can be in the form of heat, smoke, noise, vibration, smell, water, electricity, gas, excavations or disease producing germs
According to Blackstone, “anything that worketh hurt, inconvenience or damage.” can be termed as nuisance.
Nuisance is of two kinds:
- Public Nuisance: A public nuisance is an interference with the publics right to property and involves conducts that hamper public health, safety, peace or tranquility. It may affect an entire community or neighborhood, or any number of persons, although the extent of the annoyance or damage inflicted upon individuals may not be equal.
- Private Nuisance: A private nuisance is an unreasonable interference and invasion of a person's right to the use and enjoyment of his land.
Public nuisance is a crime while private nuisance is a civil wrong. Damages can be obtained in case of a public nuisance only if special damage sustained by the plaintiff can be proved.
Though there exist some characteristic similarities between nuisance and trespass, however they can be distinguished in many respects.
A wrong committed by a direct interference may amount to trespass, whereas its consequence will amount to a nuisance. Further, trespass involves interference through some tangible objects while nuisance is caused by noise, smoke, water, gas etc.
The remedy for a nuisance lies in an action for damages; however, in certain cases an injunction may be obtained to restrain the defendant from committing the act which caused such nuisance.
vii) Malicious Prosecution
Malicious prosecution consists in instituting an unjustified lawsuit filed with the malafide intention to create problems for the defendant without any substantial basis. Such problem may be in the form of cost of the legal proceeding including, the attorney’s fees, damage to his reputation, person and property as well. If the defendant wins the lawsuit and can prove that it was filed out of malice and without any legal and factual basis, he may, sue for damages against the person who filed the initial suit. An action for malicious prosecution can be brought against the case's plaintiff, plaintiff's counsel and other advisors as well. An attorney who intentionally assisted a client in filing a malicious suit may also be liable for damages
To succeed in an action for malicious prosecution, the plaintiff must satisfy the following conditions:
- he was prosecuted by the defendant
- such prosecution was without any reasonable or realistic cause
- such prosecution was instituted with a malicious intention
In an action for malicious prosecution it must be proved that the plaintiff was actually prosecuted. Courts in India have held that a suit for damages for malicious prosecution will not lie in an event where no process has been issued to the plaintiff to appear before a court of law. However, the most important element to constitute the tort of malicious prosecution is the presence of malice. The proceeding instituted by the plaintiff must be initiated by a malicious intention and not in furtherance of justice.
Damages in an action for malicious prosecution can be claimed under the following events:
- Damage to reputation
- Damage to person
- Damage to property
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