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The latter part of the definition is essential, because there are numbers of things which actively injure health, such as conditions of the atmosphere, and others, for which, so far as we know, human ingenuity can find no remedy. On the other hand, the definition does not embrace all cases of nuisance, for example, under the Public Health (London) Act, the absence of certain specified water-fittings is made a nuisance, and a person might have effective water-fittings; fittings, that is, of such a nature that would prevent contamination of his water supply, but yet, under the statute, his good fittings, not being those prescribed, would be technically a nuisance.
The idea of nuisance, in a Public Health Act sense, which the author, in the definition given above, has attempted to formulate, has been elaborated in certain leading cases-cases in which the recurring phrase, a nuisance or injurious to health,' has received explanation by decisions in a Superior Court of law.
In the case of The Great Western Railway Com
pany v. Bishop. pany v. Bishop a complaint was made under the now
repealed Nuisance Removal Act, in which the same phrase occurred; it was then held that the word 'nuisance' must be read in the sense injurious to health.'
Had this settled the law, it might have been necessary, in each case properly defended, to prove to the satisfaction of the Court that the nuisance had actually caused injury to health. This is seldom possible.
consider- Bishop Auck
In a subsequent case this decision was ably modified. Complaint was made to Justices, Authority v. Bishop Auckunder Section 91, P.H., 1875, against the Bishop land Iron and Auckland Iron and Steel Company by the Sanitary Authority, that an accumulation of cinder refuse gave off smoke and gas so as to cause a nuisance.
The Justices found, as a fact, that the matter was a nuisance, but not injurious to health. On appeal, the Superior Court held that, nevertheless, the Justices ought to have convicted, as the nuisance was of a kind which might be injurious to health, and it was not necessary to prove in fact it was so.
In the course of the judgment Mr. Justice Stephen said
The words in the Section, "nuisance or injurious to health," cannot mean the same as "nuisance injurious to health;" and the proper way to interpret them is to interpret them in their natural sense, viz., something which interferes with comfort, or is injurious to health. A man might catch a deadly disease without having been exposed to a nuisance, or there might be a nuisance existing which did not injure his health or affect his comfort.'
There is the recent case of Banbury v. Page, which seems to fully bear out the view I take, where, under Section 47, P.H., 1875, the offence of keeping swine, so as to be a nuisance, was held to be complete without any evidence of there being injury to health caused thereby.' (Bishop Auckland Sanitary Authority v. Bishop Auckland Iron and Steel Company, 52 L.J., M.C. 38.)
Houldershaw v. Martin.
There is a danger that the word 'nuisance,' following this decision, should be considered as 'anything which interferes with comfort, or is injurious to health,' but this would, it is submitted, be going further than the judgment warrants.
The real effect of the judgment seems to be this, that the recurring phrase, a nuisance or injurious to health,' means that the word 'or' is to be taken disjunctively, and a thing may be a nuisance, that is, any one of the things enumerated specifically in the Act, or it may be positively injurious, or it may be dangerous to health.
The last great attempt at Sanitary Legislation, viz., the Public Health (London) Act, makes it clear that future as well as present health is to be taken into account, for the corresponding sentence reads, a nuisance or injurious, or dangerous to health.'
This view receives support from the case of Houldershaw v. Martin. An information had been laid against a fishmonger at Livesedge, near Dewsbury, Yorkshire, for causing a nuisance by the operation of frying fish. The certificate of a medical man, under Sect. 114, P.H., was put in to the effect that the fish-frying was a nuisance. The Magistrates rejected the certificate as insufficient, because the words or injurious to health' were not added, and they refused to entertain the complaint. Lord Coleridge said
'The case was too clear for argument. The medical certificate was clearly sufficient, for the
words of the Act were a nuisance or injurious to health," not "and," and there might be a nuisance not injurious to health, or there might be something injurious to health though not a nuisance, so that the certificate was quite sufficient, and, indeed, an indictment under this enactment (if it were an indictable offence) saying that the thing was a “nuisance and injurious to health" would be bad, as being double, and alleging two different offences.' The case was, therefore, remitted to the Magistrates.
In the Public Health Act, 1875, nuisance' is Nuisance in specifically mentioned, and therefore contemplated with to arise in connection with the following matters:
Section 18. In the destruction, cleansing, or dis- (a) Sewers. continuing of sewers.
Section 19. The cleansing, covering, or ventila
tion of sewers.
Section 27. Works connected with the disposal (6) Sewage.
Sections 40, 41. In the construction of drains, (c) Construction water-closets, earth-closets, privies, ash-pits, closets, ash
pits, and cesspools.
and cesspools. Section 44. In connection with snow, filth, dust, (d) Snow, filth, dust, ashes, and ashes, and rubbish. rubbish. Section 47. In connection with swine, pigsties, (e) Swine, pigwaste, and stagnant water in cellars and dwell- sive fluids. ings, and with respect to the overflow of the contents of water-closets, privies, and cesspools.
sties, and offen
Sections 112, 113, and 114. In connection with () Offensive certain offensive trades.
The 91st or Nuisance Section Public Health Act, 1875.
List of defects which may be dealt with under Subsection 1.
The main Section dealing with nuisance is, however, Section 91, which must be considered in detail. The Section declares that the following are to be deemed nuisances' :
Subsection 1. Any premises in such a state as to be a nuisance or injurious to health.'
Under this Subsection by far the majority of notices are issued. Examples of the kind of matters which be included in its scope aremay
The general state of repair of a building (possibly a house or building so ruinous as to be dangerous to passers-by).
Dampness of the walls or basement of a house.
Foundations saturated with filth.
Nuisances connected with the water supply—
(c) improper connection with the closet. Nuisances arising from defective fittings of sinks and closets.
In connected houses, the party walls are not unfrequently defective, and likewise the flues running up party walls are found from time to time to have defective linings. Various odours, and particularly