You can imagine the amount of burning that took place around Barbados just before the holidays. You would also think that with another Christmas gone, they would have stopped by now.
I have no idea what some people can continually find to set fire to in this day and age. All the public awareness about asthma and pollution and global warming et cetera seems to have fallen on deaf ears.
There is actually a legal term for this type of unneighbourly behaviour: nuisance. Nuisance is defined in Hunter v Canary Wharf Ltd  A.C. 655 as an interference with rights over land arising from unreasonable use. It falls into two categories: private and public.
The tort of nuisance may be constituted in one of three ways: (1) encroachment on the claimant’s land; (2) physical damage to the land and/or (3) interference with the quiet enjoyment of property. The person claiming damages for nuisance should have a proprietary right or interest in the property such as an owner or tenant.
The defendant, on the other hand, is the person creating, authorising or maintaining the nuisance or an occupier who knew or ought to have known about it. Some examples of acts or omissions which the courts have found to constitute the tort of nuisance include the encroachment of tree roots or overhanging branches onto neighbouring property, the constant barking of dogs and causing damage by allowing water to overflow onto adjoining property.
There must be a direct link between the actions of a defendant and the resulting nuisance with the only defence to such an action being that the user of the property was reasonable. The question of reasonableness is one of degree so that a perfectly normal activity may become a nuisance in the event that it becomes excessive.
One isolated act on the part of a defendant will not in most cases ground an action for nuisance. The test for reasonableness is whether or not what the user complained of would affect or cause distress or discomfort to the ordinary man as opposed to a hypersensitive individual.
It should be noted that the action for nuisance is sustained whether or not the defendant has done everything that he reasonably can to avoid it. The type of damage which occurs must, however, be foreseeable by a reasonable person in the same position as the defendant.
Where the nuisance alleged is either an encroachment on property or damage to the property itself, then the nature or character of the neighbourhood is of no moment but, in considering interference with quiet enjoyment, the courts have historically considered the location and prevailing customs of the neighbourhood. The damages recoverable (money compensation) is the diminution in the value of the property as a result of the nuisance.
By way of explanation, where encroaching tree roots have caused damage to the foundation of a neighbouring guard wall, the defendant is liable for the cost of restoring the wall or the land to its prior state. The claimant is not entitled to claim for damages which will put him in a better position than he would have been in prior to the occurrence of the nuisance and its consequential damage.
In the case of smoke or other noxious substances, there has been difficulty in assessing damages where there is no corresponding personal injury. In most cases, persons simply seek an injunction to restrain the commission of further similar acts of nuisance and the costs of the action. An injunction will not normally be granted, however, where the nuisance is an isolated or temporary event or where there is no real injury as stated in Harper v Haden  1 Ch. 298.
In the case of a public nuisance, the court in Wandsworth LBC v Railtrack Plc 2 WLR 512 found that the liability of an owner of property stemmed from his awareness of the existence of the nuisance, the opportunity to ameliorate the situation given his means and his consequent failure to so ameliorate. A public nuisance does not require proof of a duty of care on the part of an owner or occupier. There must simply be an interference with the enjoyment of the general public of an amenity.
It is for the defendant to show that there are no reasonable means of fixing the situation. A claim in respect of a public nuisance can be brought by any individual who has suffered actual damage. In all other cases, the claim must be brought by the Attorney General on behalf of the public or someone to whom the Attorney General has given consent to bring such a claim.
(Alicia Archer is an attorney-at-law in private practice)