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Defences against Nuisance in Tort Law

Defences against Nuisance in Tort Law
Defences against Nuisance in Tort Law


Defences Against Nuisance

A plethora of defences has been raised in actions for nuisance. Among them, some have gained acknowledgment from the courts as valid defences, while others have been dismissed. Both the efficacious and ineffective defences are elaborated upon below.


Efficacious Defences

The right to engage in an activity that would otherwise constitute a nuisance can be acquired through prescription. If an individual persists in an activity on another's land for a period exceeding 20 years, they acquire a legal entitlement through prescription to continue such activity in the future. 

Moreover, a right to commit a private nuisance may be established as an easement if it has been openly and peaceably enjoyed as such, without interruption and as of right, for a continuous period of 20 years.

Upon the completion of this 20-year period, the nuisance is retroactively legitimised as if it had been sanctioned by the owner of the servient land from its inception. However, the 20-year timeframe cannot commence until the complained-of activity begins to constitute a nuisance.

In the case of Sturges v. Bridgman, the defendant, a confectioner, maintained a kitchen at the rear of his property. For over two decades, confectionery ingredients were pounded in his kitchen using large pestles and mortars, without the resulting noise and vibrations being deemed a nuisance by the plaintiff, a physician residing in the adjacent house. 

Subsequently, the physician constructed a consulting room in the rear garden of his property, and only then did he perceive the noise and vibrations emanating from the confectioner's kitchen as a nuisance, substantially disrupting his practice.

The court granted an injunction against the confectioner, rejecting his claim of a prescriptive right to use mortars and pestles on the basis that the interference had not constituted an actionable nuisance during the preceding 20-year period. The nuisance arose only upon the construction of the physician's consulting room at the rear of his property.

An action performed under the auspices of a statute stands as a complete defence. When nuisance unavoidably accompanies activities authorised by statute, there exists no liability under the laws of torts. 

For instance, a railway company sanctioned to operate trains on its tracks bears no liability if, despite exercising due diligence, sparks from the locomotive ignite neighbouring properties or if the noise, vibrations, and smoke from the trains cause depreciation in the value of adjacent properties.

According to Lord Halsbury: "There remains no doubt that a railway company, established for the conveyance of passengers, goods, or livestock, is safeguarded in the exercise of the duties conferred upon them by Parliament, even if such exercise inherently results in the generation of what would otherwise constitute a legal nuisance at Common Law."

Ineffectual Defences

Occasionally, the combined actions of multiple individuals, acting independently, may result in a nuisance, whereas the action of any one of them alone would not. In such cases, legal action can be pursued against any one of the individuals involved.

It is not a valid defence for any defendant to claim that their individual action alone would not constitute a nuisance, especially if the nuisance arose due to the collective actions of others. 

For instance, if a hundred people leaving their wheelbarrows in a specific location collectively cause a nuisance, and a single wheelbarrow by itself would not, legal action can be taken against all hundred individuals, and none can claim immunity based on the premise that their individual action alone would not cause harm to the complainant.

Arguing that an activity deemed a nuisance to a specific plaintiff is beneficial to the public at large does not serve as a valid defence. Otherwise, no public utility enterprise could be held accountable for encroaching upon the rights of individuals. 

In Shelfer v. City of London Electric Lighting Co., during the construction of an electric power house, violent vibrations damaged the plaintiff's property. The defendants attempted to justify their actions by asserting that if the construction were halted, the entire city of London would suffer a loss of the anticipated benefits of illumination from the proposed power house. 

However, the court rejected this plea and granted an injunction against the defendants. Similarly, in Adams v. Ursell, an injunction was issued to cease the operation of a fried fish shop in a residential area, despite claims that this would cause significant hardship to the defendant and his clientele. 

Furthermore, in R v. Train, in a case of public nuisance arising from the installation of hazardous tram lines, it was deemed insufficient to argue that the operation of trams would bring convenience to the public in general.

The exercise of reasonable care to prevent a nuisance typically does not constitute a valid defence. In Rapier v. London Tramways Co., substantial nuisance, manifested by a considerable stench emanating from the defendants' stables housing 200 horses used for tram transport, was not excused by the defence's assertion of utmost care in prevention.

The defendants were held liable, as if an activity cannot be conducted without causing a nuisance, it should not be pursued except with the consent of those affected or through statutory authority.


It is not a defence for the defendant to argue that the plaintiff willingly subjected themselves to the nuisance by residing in the affected area. Individuals cannot reasonably be expected to refrain from acquiring property in areas where nuisances already exist.

Therefore, the plaintiff is entitled to relief even if the nuisance predates their occupancy. The maxim "volenti non fit injuria" does not apply in such circumstances. 

In Bills v. Hall, where the defendant's tallow-chandlery emitted offensive odours, it was deemed irrelevant that the business had been operating for three years before the plaintiff arrived at the location.

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