Magnitude of Risk in Professional Negligence Q4

(a) Describe the term Magnitude of Risk in professional negligence. (10 marks)

(b) State two (2) differences between private nuisance and public nuisance. (10 marks)

(20 marks, 2016 Q4)

Similar question was asked in

2014 Q4a
Professional negligence and cases

Similar question was asked in

2013 Q6a
2015 Q4d


1. Number of people affected
A public nuisance is a disturbance that affects a large number of people.

A private nuisance is a disturbance that affects only one or a few adjoining occupants.
2. Civil or Criminal

A private nuisance is a civil wrong, meaning that damages are the appropriate remedy for those who have been harmed.
A public nuisance is sometimes classified as a criminal offense, and it may be remedied by civil or criminal penalties, but it usually takes a city attorney or another public official (as opposed to a private citizen) to initiate an action over a public nuisance.

Private and Public Nuisance

What is a public nuisance? A public nuisance is a disturbance that affects a large number of people. Examples include a smelly sewer works, a house of prostitution, a rat-infested city dump, a house or apartment building where illegal drugs are sold, a noisy airport, a factory emitting noxious fumes and a noisy late-night entertainment place such as a bar.

Because many people are affected by a public nuisance, abatement usually requires action by a public official, such as a city or county attorney. However, local politics often gets involved. Some public officials refuse to act if great numbers of people benefit from the public nuisance, such as an airport that employs hundreds of people.

Typical legal relief to abate a public nuisance includes

(1) a court injunction to stop the offensive activity,
(2) partial abatement,
(3) a negotiated settlement or mitigation and

(4) payment of monetary damages to the injured plaintiffs.

To illustrate, many noisy airports have reached settlements with nearby home and business owners to insulate their properties and install double-pane windows at no cost to the property owners in return for allowing the public nuisance to continue. The Los Angeles Airport Authority recently even installed air-conditioning in nearby homes to assure quiet enjoyment for homeowners. Of course, eminent domain condemnation is another legal remedy a public agency could use.

What is a private nuisance? A private nuisance is a disturbance that affects only one or a few adjoining occupants.

For example, my friend Elaine owns a condominium, and her “20 something” neighbor liked to listen to loud rap music, which made occupancy of her condominium extremely unpleasant. Elaine’s polite requests to keep the music’s volume down were ignored. The condo homeowners association refused to get involved, and her phone calls to the police produced only temporary results.

Finally, several letters from her attorney to the neighbor resulted in peace and quiet. Elaine’s next step would have been a lawsuit to abate the private nuisance, which only affected her adjoining condominium.

Other examples of private nuisances include a barking dog disturbing a few neighbors, a junk-filled vacant lot, a “drug house” that disturbs just a few neighbors, a neighbor playing noisy drums, a resident playing loud music late at night and neighbors disturbing your sleep with loud party noise.

Plaintiffs who want to abate private nuisances usually sue the defendant for

(1) abatement and/or
(2) damages for the offensive conduct.
Possible defenses to a private nuisance lawsuit include
(1) tolerating the nuisance for a long time and
(2) moving to the neighborhood while knowing about the private nuisance.

However, most courts now rule the statute of limitations is not a defense to a private nuisance lawsuit because each new occurrence is a separate offense.

Ineffective defenses to a private nuisance lawsuit include

(1) zoning and local ordinances that allow the offensive activity,
(2) lack of a law violation, and
(3) the neighborhood has other private and public nuisances.

A lawsuit to abate the private nuisance is usually the most effective legal remedy.