法律英语词汇“nuisance”的翻译、意思、用法、释义-法律词典

单词

nuisance

释义

nuisance

nuisance the TORT or DELICT of wrongful interference in another's use of the defendant's land, usually by the plaintiff's use of his land. It also protects the interests of the individual, even temporarily, in the neighbourhood of the property in his life and health (although this is less clear in Scotland).

It is largely a matter of fact and degree, depending upon the cir- cumstances of the case, whether or not a nuisance has been or is being committed: 'Things which are forbidden in a crowded urban community may be permitted in the country. What is prohibited in an enclosed land may be tolerated in the open': Inglis v. Shotts Iron Co. (1881) 8 R 802 at 810. Injunction or interdict in Scotland will be granted to prevent a nuisance being continued or repeated and dam- ages will be granted in respect of loss caused by it. Here the laws of England and Scotland diverge.

The law of England distinguishes between public and private nui- sance. A public nuisance is one that affects a particular class or group of citizens. The conduct must be such as materially affects the com- plainer. No one can complain of a public nuisance if he is not him- self able to allege and prove some special or particular damage. Thus, a hole in the road would not be actionable under this head but it would become so if someone fell into it and broke a leg. Private nuisance, in its pure form, happens when someone interferes with

275

nuisance

another's use or enjoyment of land. This is a simple matter of bal- ance, depending on the locality. In modern times, planning legisla- tion has had a tremendous impact on such cases, preventing as it does certain excesses. In English law, nuisance provides the remedy for infringement of a land law servitude. A plaintiff must own or have an interest in the land in question, thus depriving the visitor of a right in private nuisance for personal injury. Generally, in England, it is thought that the standard of care is strict. However, it may well be the case that different considerations apply where the remedy is for injunction as opposed to when it is for damages. When restraining conduct, the court is more likely to take the view that if a plaintiff is suffering more than it is reasonable that he should suffer, that he be entitled to injunction. When seeking dam- ages the courts may want to look for some blameworthy conduct, but the English law has not made this distinction firm, and it is probably still the case that liability is strict. The significance of this is that a plaintiff in England is better served by trying to make out a claim in nuisance instead of negligence, assuming the conduct is of a kind that constitutes a nuisance. In particular, the harm must usu- ally be a continuing one.

In Scotland there is no distinction between public and private nui-

sance. The case RHM Bakeries v. SRC 1985 SLT 214 has confirmed that in Scotland there can be no liability without fault, or, to put it in its positive and Latin form, there is liability only for culpa. In that case, however, it was accepted that in most cases that we could call nui- sance there will be an almost irresistible inference of fault. Scots law remains very similar to the English law where the remedy sought is interdict (the Scots equivalent of injunction). The courts will restrain any use of land that results in unreasonable inconvenience to anoth- er, going as far as to contemplate stopping the erection of the grand- stand needed for the Edinburgh Military Tattoo at the instance of a young woman who found the noise more than reasonably tolerable: Webster v. L. Adv. 1984 SLT 13; 1985 SLT 361.

The Latin maxim encountered in this area does not assist in decid- ing cases but offers a rhetorical focus for the evaluation of the vari- ous factors: thus, sic utere tuum ut alienum non laedas ('use your own property in such a way that it does not harm another') raises ques- tions about use and harm.

276

noncupative will

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