Defences under private nuisance (Consent and contributory negligence) (Private Nuisance)- FS Flashcards
(10 cards)
What is the defence of consent (volenti) in private nuisance?
Consent is a complete defence where the claimant has explicitly or implicitly agreed to the nuisance or interference, thereby waiving their right to complain about it.
What must a defendant prove to successfully establish the defence of consent in private nuisance?
The defendant must prove that the claimant freely agreed to the specific activity or condition that gives rise to the nuisance, not merely to the presence or existence of the activity itself.
Can a claimant who benefits from or contributes to the source of the nuisance raise a valid claim
Generally, no. If the claimant’s own actions or agreements are involved in enabling the nuisance, they may be deemed to have consented to the consequences.
Does general awareness of a nuisance amount to legal consent?
No. Legal consent requires more than awareness; it requires positive acceptance of the risk of interference. Mere toleration is insufficient for the defence to apply.
What is the effect of a successful contributory negligence defence in nuisance?
It results in the claimant’s damages being reduced in proportion to their share of responsibility for the harm suffered, rather than acting as a complete bar to the claim.
What is the defence of contributory negligence in private nuisance?
Contributory negligence applies when the claimant has failed to take reasonable care for their own safety, and this failure contributed to their loss or damage resulting from the nuisance.
What must be shown for contributory negligence to succeed in a private nuisance case?
There must be evidence that the claimant’s own conduct contributed to the consequences of the nuisance, and that they failed to act prudently or reasonably in response to the risk.
Can a defendant rely on contributory negligence if the claimant was aware of the risk but still failed to act?
Yes. If the claimant was aware of the nuisance or hazard and still failed to take reasonable steps to avoid harm, contributory negligence may apply to reduce their recovery.
Can both consent and contributory negligence be raised in the same nuisance case?
Yes. If the facts support both, consent may operate as a complete defence, while contributory negligence could alternatively limit the extent of liability or damages.
Why would a claim in nuisance fail if the claimant agreed to deposit refuse or compost with the defendant
Because this act would show that the claimant consented to the risk of interference (e.g., from smoke or odor), giving the defendant a complete defence under the doctrine of consent.
