In relation to law of tort
i) Defence of volent non-fit injuria
This literally means no injury is done to a willing person. If the alleged negligence is as a result of the willingness of the plaintiff, the defendant is not liable.
ii) Three defences available for the tort of nuisance.
1)Statutory Authority and Planning Permission
It has long been the case that there is no liability for doing something which Parliament has permitted (provided is done without negligence).
In Allen v Gulf Oil refinery, the Defendant built a refinery under the Gulf Oil Refinery Act 1965 and the Claimant complained that it produced noise and vibrations. The House of Lords held that the Act gave implicit protection against actions in nuisance.
- Claimant coming to the Nuisance
This defence will apply but only in exceptional circumstances are explained hereunder.
In Miller v Jackson C purchased a house adjacent to a cricket ground where cricket had been played for 72 years. Balls frequently hit the walls of the house or went into the garden some causing damage to the property. The cricket club erected a fence which was insufficient and offered to place a net over the garden and install unbreakable glass.
These offers were rejected the plaintiff who sought an injunction and damages. The court agreed that the cricket activities amounted to a nuisance even though they had been going on long before the Claimant moved in but thought an injunction was inappropriate. The court held that there was no defence of coming to the nuisance as it would be against public policy to allow a nuisance to continue simply because it had been for a number of years.
However, it was said in Leakey that it may be a defence if the Claimant knows fully that the nuisance is taking place but still elects to go there and word or deed demonstrated their willingness to accept it. It is possible for a valenti non fit injuria defence to apply in nuisance. Thus the best view is that it cannot be said that the Claimant has consented to the activities unless it is absolutely clear. However, as was mentioned above, a Claimant can only have the right to expect the enjoyment of property which is consistent with the locality.
- Prescriptive rights
It is possible for a nuisance which has been a nuisance for 20 years to have a defence of prescription under the Prescription Act. This obviously would not be the case if the Claimant moved in less than 20 years ago and the nuisance has been ongoing for less than 20 years.