Defences available to a person who is being sued for nuisance

Explain two defences available to a person who is being sued for nuisance

Defences available to a person who is being sued for nuisance

(i)        De Minimis Non Curat Lex (or Triviality);

A person aggrieved by a nuisance can only maintain an action where the damage suffered is so trivial, minor or negligible that no reasonable person would have cause to complain, no such action may be maintained; and if sued the defendant may plead ‘de minimis no curat Lex’

(ii)       Reasonable Use of Property:

If the defendant can prove that the nuisance complained of resulted from a reasonable use of his property, as in Robinson V. Kilvert discussed above, this will to some extent afford him a defence.

But this defence is not available where, as in Hollywood Silver Foxes V. Emmett (see above) the defendant’s act is proved to have been motivated by malice.

Note: whether the use to which the property was reasonable in the circumstances is determined from the standpoint of the victim of the nuisance, because the essence of this tort is that no person ought to be wrongfully disturbed in the use and enjoyment of his land.

(iii)     Prescription:

A prescription right to continue a nuisance is acquired after twenty years. Thus, where a nuisance has been committed on the plaintiffs land form a continuous period of twenty years, the plaintiff cannot thereafter maintain an action in respect of the nuisance; and if he does, the defendant may plead prescription in defence.

(iv)      Public Benefit:

Public benefit, as a defence to an action brought to remedy a nuisance, has only a limited application. Private rights must generally be respected. The only exception is where there is statutory authority to derogate from such rights. But even then there is need to act reasonably and within the statutory limit’ otherwise the person acting will be liable in nuisance, notwithstanding that his act was intended to benefit the public. Thus, where an authority had general powers to provide hospitals and it set up a fever hospital in a heavily populated area, it was held liable to people in the neighborhood (the hospital could have conveniently been set up elsewhere):

Metropolitan Asylum District V. Hill (1891).



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