8) Remedies

The remedy of choice in private nuisance for a continuing interference with the plaintiff's land is an injunction. Damages are also available and are most suitable where there has been a single damaging event such as a fire or damage by water. There is also a limited self-help remedy permitting the plaintiff to abate a nuisance.

a) Injunction

An injunction is the usual remedy in private nuisance actions. The continuing nature of most nuisances and the contemplation of prospective damage makes damages an inadequate remedy. The courts have a broad discretion not only in deciding if an injunction should be issued but also in deciding its terms. Consideration is given to all the surrounding circumstances, including the social utility of the defendant's activities, the conduct of the parties, the nature of the continuing loss, and the overall public interest. An injunction may be prohibitory, requiring the complete cessation of the defendant's activity, or it may be mandatory, requiring positive steps to be taken to adjust the defendant's activity so as to abate the nuisance. The implementation of an injunction may be postponed to allow the defendant to make changes to his activities. Interlocutory (interim) injunctions may be issued after the filing of a statement of claim and before a trial on the merits, when intervention is needed quickly because of the damage that is being caused to the plaintiff. The plaintiff is normally required to show that his claim raises a serious question to be tried, that he will suffer irreparable harm in the absence of injunctive relief, and that the balance of convenience between the litigants favours the plaintiff. A quia timet injunction may be given to prevent anticipated damage so long as that damage is imminent and the damage, if suffered, would be substantial and irreparable.

b) Damages

In some cases a plaintiff may not seek injunctive relief. If, for example, the nuisance has terminated, an award of damages for past losses will provide a complete remedy. In other cases, damages may be awarded in addition to, or in lieu of, an injunction. Damages in addition to an injunction are awarded for past losses. Damages in lieu of an injunction are given for both past and future losses. Courts are reluctant to give damages in lieu of an injunction because it amounts to a compulsory purchase by the defendant of a privilege to continue the wrongful interference with the plaintiff's interests. Generally speaking, they are available only where the harm is small, where adequate damages are easily estimated, and where an injunction would create intolerable hardship for the defendant.

Damages are available for a broad range of losses, including physical damage to property, interference with enjoyment and amenities of the land, damage to chattels on the land, economic loss, and, probably, diminution in the value of land and personal injuries. The gradual acceptance of the view that nuisance is not solely a tort to land supports its extension to personal injuries. Liability is restricted to the reasonably foreseeable consequences of the nuisance. This is another example of the gradual intrusion of negligence principles into the ancient tort of private nuisance.

c) Abatement

Abatement is a self-help remedy that has fallen into some judicial disfavour. There is less need to exercise self-help today. The machinery of the modern civil justice system provides sufficient and timely remedies to deal with most eventualities. Caution is also dictated by the risk that self- help may prompt a violent response from the creator of the nuisance.

It is most appropriate where a trivial nuisance may be abated by an act outside the wrongdoer's land. It has long been recognized, for example, that a neighbour may trim back branches or roots of trees that intrude across the boundary. [Note 43: The right to cut back roots and branches arises even though no damage sufficient to support an action for damages has been suffered. The reason for this anomaly is probably that the intrusion is closely analogous to a trespass to land, though not technically actionable as such because the entry is indirect.] The abator is not required to give notice to the landowner before action is taken outside the wrongdoer's land. There is also a privilege to enter the wrongdoer's property. Self- help in this manner is most appropriate where the nuisance can be quickly and easily abated without undue disruption of the wrongdoer's activities. Unblocking a drain to prevent imminent flooding, extinguishing an uncontrolled fire, or preventing the spread of sewage onto the plaintiff's land may fall into this category. Notice of entry is normally required unless there is an emergency where the life or property of the abator is threatened. The abatement must always be reasonable and there must be no unnecessary damage caused to the land.

CHAPTER 6, NUISANCE

C. PUBLIC NUISANCE

Public nuisance is not primarily a tort concept. A public nuisance is a crime for which public remedies including injunctive relief at the behest of the attorney general are available. A public nuisance may, however, also have tortious consequences if it causes special damage to an individual person. In those situations, a private action for damages or an injunction may be available to the injured person. The central issues in public nuisance are its definition and the various public and private remedies that are available. Both have generated difficulty.