A number of defences have been pleaded in an action for nuisance. Some of the defences have been recognised by the courts as valid defences and some others have been rejected. There are many valid defences available to an action for tort.
Effectual Defences
1. Prescriptive right to commit nuisance
A right to do an act, which would otherwise be a nuisance, may be acquired by prescription.
Example- If a person has continued with an activity on the land of another person for 20 years or more, he acquires a legal right by prescription, to continue therewith in future also. On the expiration of this period of 20 years, the nuisance becomes legalised ab initio as if it has been authorized by a grant of the owner of servant land from the beginning.
In the case of, Sturges v/s. Bridgman,the defendant, a confectioner had a kitchen in the rear of his house. For over twenty years, confectionery materials were pounded in his kitchen by the use of large pestles and mortars, and the noise and vibrations of these were not felt to be a nuisance during that period by the plaintiff, a physician, living in the adjacent house. The physician made a consulting room in the garden in the rear in his house and then for the first time, he felt that the noise and vibrations caused in the confectioner’s kitchen were a nuisance and they materially interfered with this practice. The court granted an injunction against the confectioner, and his claim of prescriptive right to use mortars and pestles there, failed because the interference had not been an actionable nuisance for the preceding period of 20 years. Nuisance began only when the consulting room was built by the physician at the end of the house.
2. Statutory Authority
An act done under the authority of a statute is a complete defence. If nuisance is necessarily incident to what has been authorised by a statute, there is no liability for that under the law of toils. Thus, a railway company authorised to run railway trains on a track is not liable if, in spite of due care, the sparks from the engine set fire to the adjoining property or the value of the adjoining property is depreciated by the noise, vibrations and smoke by the running of trains.
Ineffectual defences
1. Nuisance due to acts of others
Sometimes, the act of two or more persons, acting independently of each other, may cause nuisance although the act of anyone of them alone would not be so. An action can be brought against anyone of them and it is no defence that the act of the defendant alone would not be a nuisance, and the nuisance was caused when other had also acted in the same way. If there is nuisance by a hundred people leaving their wheelbarrows in a place and a single wheelbarrow by itself could not have caused nuisance, an action can he brought against those hundred persons and none of them can be allowed to take the defence that his act by itself could not cause any damage to the complainant.
2. Public Good
It is no defence to say that what is a nuisance to a particular plaintiff is beneficial to the public in general, otherwise no public utility undertaking could be held liable for the unlawful interference with the rights of individuals.
In the case of, Shelfer v. City of London Electric Lighting Co., during the building of an electric power house by the defendants, there were violent vibrations resulting in damage to the plaintiff’s house. In an action for injunction by the plaintiff, the defence pleaded was that if the building was not constructed the whole of the city of London would suffer by losing the benefit of light to be Supplied through the proposed power house. The plea was rejected and the court issued an injunction against the defendants.
In the case of, R v/s Train, in an action for public nuisance caused by laying dangerous tram lines in the street, it was held to be no defence that the running of trams would mean convenience to the public generally.
3. Reasonable care
Use of reasonable care to prevent nuisance is generally no defence.
In the case of, Rapier v/s London Tramways Co.,3 considerable stench amounting to nuisance was caused from the defendants’ stables constructed to accommodate 200 horses to draw their trams. The defence that maximum possible care was taken to prevent the nuisance failed and the defendants were held liable. If an operation cannot, by any care and skill, be prevented from causing a nuisance, it cannot lawfully be undertaken at all, except with the consent of those injured by it or by the authority of a statute.
4. Plaintiff coming to nuisance
It is no defence that the plaintiff himself came to the place of nuisance. The maxim volenti non fit injuria cannot be applied in such a case.
In the case of, Bills v/s Hall, in an action for nuisance for "Diverse noisome, noxious and offensive vapour, fumes, smell and stenches" out of defendant’s tallow-chandlery, it was held to be no defence that business had been continuing for three years before the plaintiff came to that place.
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