a. Private nuisance

a. Private nuisance 

Private nuisance is one of the most common legal claims in water seepage disputes between neighbours. In simple terms, it occurs when a person unreasonably uses or manages his premises in a way that results in a substantial and real interference with another person’s use and enjoyment of his own premises. 

In seepage litigation, liability typically arises through one of two ways: 

1. Physical damage: The requirement for “substantial” discomfort or real interference is typically satisfied where there is actual physical damage to the building fabric or its fixtures. 
2. Interference with comfort: Conduct that unduly interferes with a neighbour’s comfortable and convenient enjoyment of his premises, even without physical damage, can be actionable if it exceeds the standard of what an average person should tolerate. 

Continuance and adoption of nuisance 

A fundamental principle is that liability for nuisance is not strict or absolute. While a person who personally creates a nuisance is strictly liable for its foreseeable consequences, an occupier who did not create the nuisance can only be held responsible if he is found to have “continued or adopted” it. 

The defendant “continues” a nuisance if, once he has actual or constructive knowledge of its existence, he fails to take reasonable steps to bring the interference to an end despite having ample time to do so. 

The defendant "adopts" a nuisance if he makes active use of the building, structure, or artificial contrivance (such as a pipe) that is causing the nuisance for his own purposes. 

Requirements of knowledge 

If the plaintiff alleges the defendant to have allowed water seepage to continue, the plaintiff must prove that the defendant had actual or constructive knowledge that the seepage originated from his premises. Knowledge of the existence of seepage (knowledge of seepage) is insufficient to attract liability if the defendant has no actual or constructive knowledge that his premises are the source (knowledge of source). 

1. Actual knowledge 

Actual knowledge means the defendant was directly aware that the seepage came from his premises. This may happen when he receives inspection results, expert reports, photographs, or clear complaints identifying his premises as the likely source. 

2. Constructive knowledge 

Constructive knowledge means the defendant may not have actually known but would have known if he had exercised normal and reasonable diligence. 

The defendant cannot simply ignore obvious signs or refuse to investigate. If a reasonable person in his position would have made enquiries, arranged an inspection, or discovered the source of the leak, the law may treat them as having knowledge. 

For example, if a neighbour complains about seepage and the likely source is a bathroom, kitchen, pipe, or drainage system in the defendant’s flat, the defendant may be expected to arrange a proper inspection. If such an inspection would have revealed the problem, the defendant may be fixed with constructive knowledge. 

The duty to abate 

Once the defendant possesses the requisite knowledge, he is under a legal duty to take remedial action to “nullify or abate” the nuisance without unreasonable delay. In other words, once the defendant is made aware of a leak whose source could reasonably be identified as his premises, he has a duty to investigate, locate, and repair the seepage in a prompt and reasonable manner. If he fails to act within a reasonable time, he becomes liable for the resulting damage. 

The standard for abatement is not perfection but reasonableness. Courts consider whether the defendant took reasonable steps once the problem was identified. The defendant who takes active, proactive steps to investigate and repair may be found to have acted reasonably even if initial repairs were ineffective. Conversely, a “laid-back and could-not-care-less” attitude can lead to a finding of liability. 

The duty to nullify or abate a nuisance is non-delegable. This means an owner may remain liable to his neighbour even if he hires an “apparently competent independent contractor” to fix a leak. 

If a contractor fails to properly identify or repair the leak, and the nuisance continues, the owner or occupier may still be responsible to the affected neighbour.