Defences

Summary of this section

Common law and legislative defences – Act of God and of the Queen’s enemies – malicious acts of a stranger – the defence of ‘statutory authority’ – the defence of ‘statutory compensation’ – the defence of ‘statutory inconsistency’ – limitation under the Limitation Act 1980

Introduction

Specific common law defences to claims in private nuisance are few and far between.  They are likely only to arise in rare circumstances and an account of them is given below (Act of God and of the Queen’s enemies, and the malicious acts of strangers).   Of course, early consideration also needs to be given to the position of the Claimant and of the Defendant.  If the common law rules governing who can sue, and who can be sued, are not satisfied, then a claim in private nuisance cannot be maintained.

A more complex and difficult area than the common law, is the impact which Parliament intends that legislation can have on what might otherwise be good claims.  Legislative schemes can either expressly, or by implication, make certain claims impossible.  There are also the provisions of the Limitation Act 1980 to consider, which normally bars the ability to take legal proceedings when six years have expired after the date of the nuisance.

First, there is the undoubted defence of statutory authority established by Parliament.  Where an Act of Parliament expressly grants duties or powers to an undertaking, then it may either expressly or impliedly exonerate a nuisance which arises from the exercise of those duties or powers.  Statutory authority is a complete defence unless the claimant can show that the defendant has exercised its duties or powers without reasonable consideration for the claimant.

Secondly, there is the defence of ‘statutory compensation’.  This applies where a legislative provision confers a wide discretion on a statutory authority to undertake works which will interfere with the legal rights of a landowner, together with a requirement on the part of the authority to pay compensation to the affected landowner.  In these circumstances a claimant may be limited to the statutory right of compensation and unable to pursue a claim in nuisance.

Thirdly, there is a defence which is specific to water and sewage flooding, namely the defence of inconsistency with statute.  Where the complaint is that such flooding arises only because the sewerage (i.e. the pipes and sewers) are inadequate, then the flooding is not deemed to be a nuisance.  Since this defence is specific to flooding cases, it is explained in the ‘Flooding and Water Damage’ section of this website, as well as being summarised below.

This section ends with some consideration of the effect of the Limitation Act 1980.  It is thought oppressive to have the possibility of court proceedings hanging over a defendant, so that the Limitation Act contains provisions which are intended to make it impossible, without good reason, for a claimant to bring a claim more than six years after the date on which the grounds for bringing a claim first arose.

Act of God or of the Queen’s Enemies

‘Act of God’ has traditionally been a defence in a case of private nuisance.  This has specifically been in the case of damage by flooding.  There is a question which will be asked more and more frequently as to the extent to which this defence can still be available in an era of climate change.  “Act of God” was designed to protect against extraordinary acts of nature, but it is getting clearer every day that these are events for which we must make provision.  It is no longer satisfactory to say that we should not have to take measures to protect our neighbours from unusual and even exceptional events.

 
Nichols (1876) is the case which has traditionally established the defence of “Act of God”.  It concerned a claim for damage downstream when extraordinary rainfall caused a series of ornamental pools to overflow and burst the dams which held them.  Four public bridges were destroyed.
 
The court decided that it would be “contrary to all reason and justice” if a defendant should be held liable, when an act of God or the Queen’s enemies was the real cause of an escape of water, without any fault on the part of the defendant. The court gave various examples, including a reservoir destroyed by an earthquake, or the Queen’s enemies “conducting some warlike operation”.
 
The court went on to decide that a defendant could rely on the defence of Act of God if it could show that the flood had been no greater either than any previous floods, or of any flood which might have been expected to occur again.  Because, in this case, the flooding in question was an “extraordinary act of nature, which the defendant could not anticipate”, she was held not to be liable.  The court also relied on a previous case in which it had been decided that damage in question “by no reasonable precaution could be prevented”.
 
The burden of proof is on the defendant.
 
It might be possible today to apply this defence by showing that circumstances were so unforeseeable that it would have been unreasonable to have expected the defendant to have taken steps to prevent the damage in question. In the writer’s experience in flooding cases, this is a defence which can succeed. However, evidence will be required to show just how exceptional the amount of rainfall was.  There must now be a question as to the expectations of the courts when this defence is raised, given that climate change may be expected more and more frequently to give rise to exceptional weather events.

Malicious act of a stranger

Another reservoir case (Box, 1879), also made use of a combination of foreseeability and causation when finding that a defendant was not liable for flood damage (cf. ‘Act of God’ above).

In Box, a stranger had mischievously plugged the pipe draining water from the defendant’s reservoir.  The stranger had also emptied an upstream reservoir into the watercourse which fed the defendant’s reservoir.  The defendant was held not liable for damage caused to lands further downstream when the reservoir flooded.  The action of the stranger was not foreseeable, and as a result, the defendant’s acts were held not to be the ‘proximate cause’ of the damage.

The decision in Box was approved in Rickards (1913).  In Rickards flooding was the result of the act of a mischievous stranger who had intentionally blocked the waste pipe from a wash basin, and who had then left on the tap.

Statutory authority

The defence of ‘statutory authority’ applies where Parliament has passed legislation which expressly or impliedly allows a person to carry out works, even though those works might cause a nuisance to other people.

It has been said that where the legislature has authorised the execution of works but that there is no clause expressly providing for the payment of compensation (as to which see below under ‘statutory compensation’), the court will be vigilant to see that an injured party is not deprived of a remedy.  The language of the statute and the nature of the works which are authorised are the considerations for the court (Marriage, 1950).

 
The relevant principles of this defence can be summarised as follows (using the language of the trial judge in DoT (1982):
 

‘1.  In the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a duty imposed upon it by statute.

2.  It is not liable in those circumstances even if by statute it is expressly made liable, or not exempted from liability, for nuisance.

3.  In the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a power conferred by statute if, by statute, it is not expressly either made liable, or not exempted from liability, for nuisance.

4.  A body is liable for a nuisance attributable by it to the exercise of a power conferred by statute, even without negligence, if by statute it is expressly either made liable, or not exempted from liability, for nuisance.’

In these rules, references to negligence are references to the word being used in a ‘special’ sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation ‘with all reasonable regard and care for the interests of other persons’.

Statutory compensation

A closely related defence to the defence of statutory authority is that which applies in the case of statutes which make provision for compensation by those affected by public works.  Where there is a right of compensation by reference to a specific process laid out by the statute, then it is not possible to recover compensation at common law.

The extent to which a statute has this effect this depends on the construction of the statute.  It is a principle which applies where the statute to be construed confers a wide discretion on a statutory authority which will necessarily involve an interference with the legal rights of a landowner, at the same time expressly providing a remedy by way of compensation for such interference.  (See Marriage, 1950.)

Relevant questions are: (i) was the act which caused the damage one authorised by the statute, (ii) did the statute contemplate that the powers exercised might cause damage, (iii) was the damage the type of damage which might have been contemplated by the statute and (iv) did the statute provide for compensation in respect of the type of damage under consideration.  If the answer is ‘yes’ to all of these questions, then a claimant will be limited to the statutory entitlement to compensation.

If, on the other hand, the damage was the result of some negligence, in the sense that it was taken outside the ambit of the relevant statutory powers, for instance by reason of the negligence of those carrying out the works, or because the works which were authorised were not reasonably authorised because they were likely to result in damage, then it might still be possible to obtain compensation via the courts.

The court should be slow to allow an administrative decision to extinguish private rights without compensation (Blackburn 1997).

Statutory inconsistency

Where a claim of nuisance by flooding arises only because the sewerage (i.e. the pipes and sewers) is inadequate, then the flooding is not deemed to be a nuisance at all.  The courts interpret such a claim as an attempt to obtain an order for mandamus to force compliance with a statutory duty, which is the preserve of the administrative law courts.  Such cases involve competing policy considerations and demands on an undertaker’s budget, matters which the courts consider should be contested as public law claims (by way of judicial review) and not by way of the ordinary civil courts.

In Dobson (2007) (a case of odour nuisance), the judge distinguished between policy questions requiring the wider allocation of financial resources (which are not justiciable, as in Marcic (2003)), and specific operational deficiencies, which are justiciable.

Since the defence of statutory inconsistency is specific to flooding cases, it is explained in detail in the ‘Flooding and Water Damage’ section of this website.

Limitation

A defendant can rely on the provisions of the Limitation Act 1980 to ensure that a claimant cannot proceed with its claim.  The main provision is section 2, the effect of which is that no action founded on nuisance can be brought after the expiration of six years from the date when the cause of action accrued.  Sections 14A and 14B provide for special and overriding time limits in respect of latent damage.  Further, there are additional statutory provisions which will apply in rare circumstances, which are capable of extending or excluding the ordinary time limits.

The application of the limitation provisions is complex and requires separate consideration.  It is a good starting-point to remember that ordinarily a claimant has six years to commence proceedings from the date when the nuisance arose.

One specific complexity which is relevant in private nuisance claims concerns ‘continuing damage’.  Where a defendant has brought about a state of affairs which brings about damage from time to time, then time begins to run on each occasion when damage occurs.  For example, where insufficient support has been provided during mining operations, on each occasion when there is subsidence of the ground above as a result, a new cause of action arises. The six year limitation period begins again. So too, when a tree causes subsidence but it is not checked, then on each further occasion of subsidence damage, time begins to run again.

Where the effect of a limitation period, in the case of continuing damage, is such as to bar some claims but not others, then this may not make much difference overall when it comes to the amount of compensation which is recoverable.  For instance, suppose that some crack damage caused by subsidence is time-barred because a claim was not made within six years, but the crack then grew larger by reason of some fresh damage and a claim for this fresh damage is made in time.  It is possible that a judge will order the defendant to pay the full extent of the necessary repairs.  This is the case even though some of those repairs would have been needed in respect of the earlier cracking which was out of time.  In the case of nuisance, however, the authorities are unclear whether there should be some ‘deduction’ from the total costs required to repair the subsequent damage.

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