Defences under private nuisance (Act of a third party and Acts of God and nature)- FS Flashcards
(10 cards)
What is the defence of act of a third party in private nuisance?
It is a defence where the nuisance was caused by someone other than the defendant, and the defendant has not adopted the nuisance nor failed to take reasonable steps to prevent it.
When does the act of a third party cease to be a valid defence in nuisance?
When the defendant knows or ought to know of the nuisance and fails to address or mitigate it, they may be said to have adopted or continued the nuisance, losing the defence.
What is the principle linking third-party acts and occupier liability in private nuisance?
An occupier can be held liable if a third party causes a nuisance on their land and they continue or fail to prevent it, especially if reasonable steps could have been taken.
What is meant by “adopting” a nuisance created by a third party?
Adopting a nuisance means the defendant uses, benefits from, or fails to remove the nuisance, thereby becoming responsible for it.
What is the act of God defence in private nuisance?
The act of God defence applies when the nuisance results from a rare, unforeseeable natural event (e.g., lightning, flooding) that the defendant could not have prevented.
When is the act of God defence not available to a defendant?
If the defendant could have foreseen the natural event or failed to prevent the continuation of the nuisance afterward, the defence does not apply.
What must a defendant show to rely successfully on the act of God defence?
The event must have been entirely unforeseeable and caused by a secret, unobservable natural process, with no reasonable opportunity to mitigate the consequences
Does continued interference after a natural event negate the act of God defence?
Yes. If the defendant fails to abate or stop the interference after the natural event, they may be deemed to have continued the nuisance, defeating the defence.
Why is foreseeability central to the act of God defence in private nuisance?
Because only unforeseeable natural events can trigger the defence. If the risk is known or should have been known, the defendant is expected to take preventative measures.
In what situation would lightning striking property not result in nuisance liability?
If the lightning strike is a rare and unforeseeable act of nature and the defendant did not continue the nuisance afterward, the court may find it qualifies as an act of God and thus a complete defence.
