Learning Outcomes
After studying this article, you will be able to identify and explain the main defences to private nuisance and the rule in Rylands v Fletcher, distinguish between strict and fault-based liability, and apply the correct remedies available in private nuisance claims. You will also be able to evaluate factual scenarios for the presence of valid defences and select appropriate remedies for clients in SQE1-style questions.
SQE1 Syllabus
For SQE1, you are required to understand the defences and remedies available in private nuisance and under the rule in Rylands v Fletcher. In your revision, focus on:
- the main defences to private nuisance (including consent, prescription, statutory authority, and act of God)
- the specific defences to claims under Rylands v Fletcher (such as act of a stranger and act of God)
- the distinction between strict liability and fault-based liability
- the range of remedies available in private nuisance, including injunctions, damages, and abatement
- how to apply these principles to practical scenarios and advise clients on the most suitable remedy.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is a valid defence to a claim in private nuisance?
- The claimant moved next door after the nuisance began
- The nuisance has continued openly for 20 years without interruption
- The defendant did not intend to cause a nuisance
- The claimant is unusually sensitive
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Under the rule in Rylands v Fletcher, which of the following is NOT a defence?
- Act of God
- Act of a stranger
- The escape was caused by the defendant’s employee
- Statutory authority
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What is the main remedy typically sought in a successful private nuisance claim?
- Damages only
- Injunction only
- Injunction and/or damages
- Abatement only
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True or false? A defendant can always avoid liability in nuisance by showing they took all reasonable care.
Introduction
Private nuisance and the rule in Rylands v Fletcher are torts that protect the use and enjoyment of land. Both can give rise to claims for interference with property, but they differ in their requirements, available defences, and remedies. For SQE1, you must know the main defences to these torts and the remedies a claimant can seek.
Defences in Private Nuisance
A defendant facing a claim in private nuisance may be able to rely on several defences. Not all arguments will succeed—some commonly raised points are not valid defences.
Consent (Volenti non fit injuria)
If the claimant has expressly or impliedly agreed to the interference, they cannot later claim it is a nuisance.
Key Term: Consent (volenti non fit injuria) A complete defence where the claimant has agreed to the interference, preventing them from claiming for nuisance.
Prescription
If a nuisance has continued openly and without interruption for at least 20 years, the defendant may acquire a legal right to continue the activity.
Key Term: Prescription A defence where a defendant acquires a right to continue a nuisance after 20 years of uninterrupted, open activity.
Statutory Authority
If the defendant’s activity is expressly or impliedly authorised by statute, and the nuisance is an inevitable result, this can be a defence.
Key Term: Statutory Authority A defence where the nuisance is the unavoidable result of an activity authorised by statute.
Act of God (Vis Major)
A rare defence, available where the nuisance is caused by a natural event so extraordinary that it could not have been foreseen or guarded against.
Key Term: Act of God A defence where an unforeseeable, extraordinary natural event causes the nuisance or escape.
Act of a Stranger
If the nuisance is caused by the unforeseeable act of a third party over whom the defendant has no control, the defendant may escape liability.
Key Term: Act of a Stranger A defence where a third party, outside the defendant’s control, causes the escape or nuisance.
Ineffective Defences
Some arguments do not succeed as defences in private nuisance:
- The claimant “came to the nuisance” (i.e., moved next door after the nuisance began)
- The defendant took all reasonable care (nuisance is not always about fault)
- The defendant did not intend to cause a nuisance
- The claimant is unusually sensitive (unless the nuisance would also affect a normal user)
Worked Example 1.1
A factory emits noise that disturbs a neighbour’s sleep. The factory has operated for 15 years, and the neighbour moved in 10 years ago. The factory claims the neighbour “came to the nuisance.” Is this a defence?
Answer: No. The fact that the neighbour moved in after the nuisance began is not a defence. The factory cannot rely on “coming to the nuisance” to avoid liability.
Defences under the Rule in Rylands v Fletcher
Claims under Rylands v Fletcher are subject to strict liability, but several defences are available.
Act of God
If the escape is caused by an unforeseeable, extraordinary natural event, the defendant is not liable.
Act of a Stranger (Rylands v Fletcher)
If the escape is caused by the unforeseeable act of a third party, the defendant is not liable.
Consent
If the claimant consented to the accumulation of the dangerous thing, the defendant may avoid liability.
Statutory Authority (Rylands v Fletcher)
If the defendant’s activity is authorised by statute and the escape is an inevitable result, this is a defence.
Contributory Negligence
If the claimant’s own carelessness contributed to the loss, damages may be reduced.
Worked Example 1.2
A landowner stores chemicals on their land. A lightning strike causes a fire, leading to chemicals escaping onto a neighbour’s property. Can the landowner rely on the act of God defence?
Answer: Yes, if the lightning strike was truly unforeseeable and extraordinary, and the landowner could not have guarded against it, the act of God defence may apply.
Remedies in Private Nuisance
A successful claimant in private nuisance may seek several remedies. The court will select the most appropriate remedy based on the facts.
Injunction
An injunction is a court order requiring the defendant to stop or limit the nuisance. It may be prohibitory (preventing an activity) or mandatory (requiring positive action).
Key Term: Injunction A court order requiring a party to do or refrain from doing something, commonly used to stop a nuisance.
Damages
Damages compensate the claimant for losses suffered, such as property damage or loss of enjoyment.
Key Term: Damages Monetary compensation awarded for loss or harm caused by a tort.
Abatement
In some cases, the claimant may take reasonable steps to stop the nuisance themselves (e.g., cutting overhanging branches) and recover the costs.
Key Term: Abatement The right of a claimant to take reasonable steps to remove or stop a nuisance, sometimes recovering costs from the defendant.
Worked Example 1.3
A neighbour’s tree branches overhang your property and block sunlight. You ask the neighbour to trim them, but they refuse. What remedy is available?
Answer: You may abate the nuisance by trimming the branches yourself (without trespassing beyond your boundary) and return the cut branches to your neighbour. Alternatively, you may seek an injunction or damages if harm has occurred.
Exam Warning
In private nuisance, the court will not always grant an injunction even if the claimant wins. If damages are an adequate remedy, or an injunction would be oppressive, the court may award damages instead.
Revision Tip
For SQE1, remember that strict liability under Rylands v Fletcher does not mean absolute liability. The defendant can escape liability if a valid defence applies.
Key Point Checklist
This article has covered the following key knowledge points:
- The main defences to private nuisance are consent, prescription, statutory authority, act of God, and act of a stranger.
- Under Rylands v Fletcher, strict liability applies but several defences are available, including act of God, act of a stranger, consent, and statutory authority.
- Not all arguments are valid defences—coming to the nuisance and lack of intention are not.
- Remedies in private nuisance include injunctions, damages, and abatement.
- The court may refuse an injunction if damages are adequate or an injunction would be oppressive.
Key Terms and Concepts
- Consent (volenti non fit injuria)
- Prescription
- Statutory Authority
- Act of God
- Act of a Stranger
- Injunction
- Damages
- Abatement
