Defenses against Nuisance under Law of Torts

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Unlike the general defenses which may be taken against action for number of wrongs, there are some specific defences which are peculiar to some particular wrongs, for example in an action for Nuisance, the defences of, Effectual defences, and Ineffectual defences are available. Just like Nuisance, torts like Defamation, and Rules of strict and have some specific defences under it, which have been discussed below.

Defences available under Nuisance

In an action for nuisance a number of defences have been pleaded. While some of the defences(Effectual defences) are held to be valid by the courts others( Ineffectual defences) have been rejected. the defences have been discussed below.

Effectual defences

Prescriptive right to commit nuisance

By prescription, a right to do an act which would otherwise be a nuisance, may be acquired. A person can acquire a legal right by prescription, if he has continued with an activity on the land of another person for 20 years or more, he acquires the prescriptive right to continue the work in future also. The period of nuisance cannot commence to run until the act complained of begins to be a nuisance 1

1 CASE- In Sturges v. Birdman(1879),  In this case the plaintiff, a physician  had no problem with the defendant, a confectioner having a kitchen in the rear of his house adjacent to the house of the plaintiff . For over 20 years the sound from the kitchen didn’t seem to be a problem for the plaintiff but when the plaintiff made a consulting room in his garden, for the first time, he felt the noise and vibrations from the kitchen which were a nuisance and they materially interfered with his practice. The court granted an injunction against the confectioner, as his claim for prescriptive right failed because the interference had not been an actionable nuisance for the preceding period of 20 years.

Statutory Authority

An authority of statute has complete defence for the act done by it. If nuisance is necessarily incidental to what has been authorized by the statute, there is no liability for that under the law of torts. For example, a railway company authorized to run railway trains on a track is not liable, if in spite if due care, the sparks from the engine set fire to the adjoining property (Vaughan v. Taff Vail Rail Co. (1860)).

Ineffectual defences for Nuisance

Nuisance due to act of others

Sometimes, an act may cause nuisance, which is done by two or more persons acting independently of each other, although the act of any one of them alone would not be so.

For example, 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 be bought against those hundred persons and none of them can be allowed to take the defence that his act itself could not cause any damage to the complainant (Thorpe v. Burmfit, 1873).

Public good

To say that what is a nuisance to a particular plaintiff is beneficial to the public, is no defence, or else no public utility undertaking could be held liable for the unlawful interference with the rights of individuals.

CASE- In Adams v. Ursell (1913), an injunction was issued preventing the continuance of a fried fish shop in the residential part of the street although, as alleged, the injunction would mean a great hardship to the defendant and his customers.

Reasonable care

Use of reasonable care to prevent nuisance is generally no defense.

CASE- In Rapier v. London Tramways Co., considerable stench amounting to nuisance was caused from the defendants’ stables constructed  to accommodate 200  horses to draw their trams. The defense that maximum possible care was taken to prevent the nuisance failed and the defendants were held liable.

Plaintiff coming to nuisance

To say that the plaintiff himself came to the place of nuisance is no defense.

CASE– In Bills v. Hall, in an action for nuisance for “Diverse noisome, noxious, and offensive vapour, fumes, smell, and strenches” out of defendant’s tallow-chandlery, it was held to be no defense that the business had been continuing for three years before the plaintiff came to that place.

Defences available under Defamation

In a civil action for defamation, there are 3 defenses which exists. The defenses have been discussed below.

Justification of truth

In civil law, making a true statement is a good defense. The reason for such defense is, if a man doesn’t possess a character, he cannot be permitted to recover damages in respect to the inexistent character. The defense is available even if the statement was made with malicious intent and the defense also exists even if the statement was substantially correct.

CASE- In Alexander v. North Eastern Railway., There the plaintiff had been sentenced to a fine of Euro 1- or 14-days’ imprisonment in the alternative, for travelling on a train without appropriate ticket. The defendant published the same. Held, the defendants were not liable, the statement being substantially correct.

Fair comment

A fair comment made on matters of public interest is a defense to an action for defamation. There are certain ingredients which must exist for this defense to be available. Those ingredients have been discussed below.

It must be a comment

Comment is an expression of opinion on certain facts and it is not a statement of fact. A fair comment is a defense by itself whereas if it is a statement of fact that can be excused only if justification or privilege is proved regarding that. Whether a statement is a comment of certain facts or a statement of fact depends on the language used or the context in which it was made. For example, B says of a book published by A- A’s book is foolish; A must be a weak man. A’s book is indecent; A must be a man of impure mind”. These are only comments based on A’s book and B will be protected if he has said that in good faith. But if B says –“ I am not surprised that A’s book is foolish and indecent, for he is a weak man and a libertine”. It is not a comment on A’s book but is rather a statement of fact, and the defense of fair comment cannot be pleaded in such case.

It must be a fair comment

The comment can only be fair when it is based on true fact. A comment based upon untrue facts is not fair. For example, if in a newspaper, there is a publication of a statement of facts making serious allegations of dishonesty and corruption against the plaintiff, and the defendant is unable to prove the truth of such facts, the plea of fair comment, which is based upon untrue facts, will also fail. (R.K Karanjia V. Thackersy, A.I.R 1970)

The matter commented upon must be of public interest

The things which are considered to be matters of public interest are, Public companies, administration of government departments, courts, conduct of public men like ministers or officers of state, public institutions, local authorities, public meetings, pictures, textbooks, novels etc.


Under certain occasions, the law recognizes that the right of free speech outweighs the plaintiff’s right to reputation. Such occasions, under law are treated as privileged hence, any statement of defamation made under it is non actionable. The two kinds of privilege recognized under law have been discussed below.

Absolute Privilege

Under absolute privilege, no action lies for the defamatory statement even though the statement is false or has been made maliciously. Emphasizing on freedom of speech the interest of public is given more weight than an individual’s reputation under certain situations. Following are examples of absolute privilege.

Parliamentary Proceedings

Under article 105(2) of our Constitution it says that: a) statements made by a member of either House of Parliament in Parliament, and b) the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings, cannot be questioned in a court of law. Article 194(2) also gives similar privilege in respect of state legislature.

Judicial Proceedings

There will be no action against judges, witnesses, counsels, or parties, for the words written or spoken during the course of any proceedings before the court of law, even if the statements were made maliciously or whether it was a statement of libel or slander.

CASE- In, Dawkins v. Lord Rokeby, it was held that, police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of proceedings were said or done falsely and maliciously and without reasonable and probable cause.

State communications

For reasons of public policy, statements made by one officer to another in the course of official duty is absolute privileged.

Qualified Privilege

Unlike Absolute Privilege, Under Qualified Privilege only those statements which were made without malice will get the defense. For such a defense to be available it is necessary that there must be an occasion for making the statements. So, two ingredients must exist to avail the defense of Qualified Privilege,

1) The statement was made on privileged occasion

A statement made under discharge of duty or protection of interest; or it is a fair report of parliamentary, judicial, or other public proceedings. CASE- In Adam v. Ward (1917), it was held that, a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has corresponding interest or duty to receive it. This reciprocity is essential.

2) The statement should be without malice

To invoke the defense of Qualified Privilege, it is also necessary for the statement made to be without malice as the presence of malice destroys defense. CASE- In Horrocks v. lowe, (1974), it was held that howsoever prejudiced the defendant may have been , or howsoever irrational in leaping to conclusions, unfavorable to the plaintiff, but if he believed in the truth of what he has said on Privileged occasion that entitled to succeed in his defense of privilege.

Defences available under the rule of Strict Liability

 The following Defenses have been recognized to the Rule of Strict Liability.

Plaintiff’s own default

If the damage was caused due to plaintiff’s own default, then it is considered a good defense. CASE- In Ponting v. Noakes(1849), the plaintiff’s horse intruded into the defendant’s land and died having nibbled the leaves of a poisonous tree there. The defendant was held not liable because damage would not have occurred but for the horse’s own intrusion to the defendant’s land.

Act of God

Act of God is also a defense under this rule. Justice Blackburn, who propounded the rule of Strict Liability himself explained Act of God as , “ Circumstances which no human  foresight can provide against, and of which no human prudence is not bound to recognize the possibility”.

Consent of the plaintiff

The liability under this rule does not arise if the plaintiff has consented to the accumulation of dangerous thing on defendant’s land.  Such a consent is implied where the source of danger is for the ‘common benefit’ of both the plaintiff and the defendant. CASE- In Carstairs v. Taylor (1871), the plaintiff hired ground floor of the building from the defendant. The upper floor of the building was occupied by the defendant himself. Water stored on the upper floor leaked without any negligence on the part of the defendant and injured the plaintiff’s goods on the ground floor. As the water had been stored for the benefit of both the plaintiff and the defendant, the defendant was held not liable.

Act of third party

The defendant will not be liable under this rule, if the harm has been caused due to the act of a stranger, who is neither the defendant’s servant nor the defendant has any control over him. CASE– In BOX v. Jubb, (1879), the overflow from the defendant’s reservoir was caused by the blocking of a drain by strangers, the defendant was not held liable for that.

 Statutory Authority

An act done under the authority of a statute is a defense to an action for Strict Liability. CASE- In Green v. Chelsea waterworks Co (1894)., the defendant co. had a statutory duty to maintain continuous supply of water. A main belonging to the company burst without any negligence on its part, as a consequence of which the plaintiff’s premises were flooded with water. It was held that the company was not liable as the company was engaged in performing a statutory duty.

Above mentioned are the specific defenses which are exclusive some torts.

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