The burning of garbage, even though a common practice in some neighbourhoods, can amount to a civil wrong which is actionable by those suffering harm. However, whether or not a remedy is available will depend on the precise facts and circumstance of the particular case.

Let us assume, first, the worst case, where the fire burns out of control and spreads to adjoining property, destroying or damaging buildings or their contents.

The above facts can give rise to liability in several areas of the law of tort (that is, the law that deals with civil wrongs involving a breach of duty fixed by law). One such area of liability is referred to as the rule in the case of Rylands vs Fletcher. Under this rule a person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief, if it escapes, is liable for all the damage which is a natural consequence of its escape. The use of land must be a non-natural use. In this context "natural use of land" means use according to nature or retired by nature. Therefore, leaves falling on the ground and littering the land and placed in a heap would amount to a natural use of the land. However, to ignite those leaves by lighting a fire would amount to a non-natural or artificial use of the land. Since liability under the rule is strict (i.e. fault need not be proved) if the fire escapes to adjoining premises and causes damage, the person who lit the fire can be sued under Rylands vs Fletcher for the damage caused by the fire.

It is also possible on the facts to bring an action for negligence. To succeed in tort of negligence you would have to prove that the defendant failed to exercise reasonable care in all the circumstances of the case and as a result of this failure you suffered harm. Another possible cause of action is private nuisance. The tort is not synonymous with the popular use of the term. It has a more precise and restricted meaning. It occurs where a person unreasonably causes damage to the land of another or substantially interferes with his use and enjoyment of that land.

One very important fact to note is that only a person who is the owner or who has an interest (e.g. a tenant) can bring an action in tort of private nuisance. In the example above, a guest of the neighbour would not be able to bring an action in nuisance for damage caused to him by the spread of that fire. The owner or a person holding a lease from the owner would have a cause of action. What if there is no spread of the fire and no physical damage, but mere interference caused by smoke and the inhalation of fumes? If there is no escape of fire, liability would have to be grounded in nuisance or negligence. In nuisance, the law seeks to strike a balance between the right of the defendant to use his land as he pleases and the right of his neighbours to be protected from interference with his enjoyment of his land.

To strike the balance, the damage or interference complained of will not be actionable unless it causes material damage to land or substantially interferes with the enjoyment of land. The defendant will not be held liable unless his conduct was unreasonable in all the circumstances of the case. If it is considered that a nuisance has been committed,  then the court may award damages and/or impose an injunction to prevent a repetition of the conduct. The court should consider such factors as the locality. The neighbourhood where the acts complained of have occurred is an important consideration. Another fact which can be taken into account is malice. If the activity is engaged in to deliberately annoy the neighbour, then this will tend to make it unreasonable. Also of significance is the frequency of the activity. If it is isolated or infrequent it is less likely to be found unreasonable.

Yes, the law does provide remedies for the harm caused by activities such as the burning of garbage. However, the real problem is cost.  The cost of taking legal action, is very often beyond the means of those most affected.

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