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  Judgments - Hunter and Others v. Canary Wharf Ltd.
Hunter and Others v. London Docklands Corporation   continued 		 
 
 
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34.           For private nuisances of this kind, the primary remedy is in most cases an injunction, which is sought to bring the nuisance to an end, and in most cases should swiftly achieve that objective. The right to bring such proceedings is, as the law stands, ordinarily vested in the person who has exclusive possession of the land. He or she is the person who will sue, if it is necessary to do so. Moreover he or she can, if thought appropriate, reach an agreement with the person creating the nuisance, either that it may continue for a certain period of time, possibly on the payment of a sum of money, or that it shall cease, again perhaps on certain terms including the time within which the cessation will take place. The former may well occur when an agreement is reached between neighbours about the circumstances in which one of them may carry out major repairs to his house which may affect the other's enjoyment of his property. An agreement of this kind was expressly contemplated by Fletcher Moulton L.J. in his judgment in Malone v. Laskey [1907] 2 K.B. 141, 153. But the efficacy of arrangements such as these depends upon the existence of an identifiable person with whom the creator of the nuisance can deal for this purpose. If anybody who lived in the relevant property as a home had the right to sue, sensible arrangements such as these might in some cases no longer be practicable.
 
35.           Moreover, any such departure from the established law on this subject, such as that adopted by the Court of Appeal in the present case, faces the problem of defining the category of persons who would have the right to sue. The Court of Appeal adopted the not easily identifiable category of those who have a "substantial link" with the land, regarding a person who occupied the premises "as a home" as having a sufficient link for this purpose. But who is to be included in this category? It was plainly intended to include husbands and wives, or partners, and their children, and even other relatives living with them. But is the category also to include the lodger upstairs, or the au pair girl or resident nurse caring for an invalid who makes her home in the house while she works there? If the latter, it seems strange that the category should not extend to include places where people work as well as places where they live, where nuisances such as noise can be just as unpleasant or distracting. In any event, the extension of the tort in this way would transform it from a tort to land into a tort to the person, in which damages could be recovered in respect of something less serious than personal injury and the criteria for liability were founded not upon negligence but upon striking a balance between the interests of neighbours in the use of their land. This is, in my opinion, not an acceptable way in which to develop the law.
 
36.           It was suggested in the course of argument that at least the spouse of a husband or wife who, for example as freeholder or tenant, had exclusive possession of the matrimonial home should be entitled to sue in private nuisance. For the purposes of this submission, your Lordships were referred to the relevant legislation, notably the Matrimonial Homes Act 1983 and the Family Law Act 1996. I do not however consider it necessary to go through the statutory provisions. As I understand the position, it is as follows. If under the relevant legislation a spouse becomes entitled to possession of the matrimonial home or part of it, there is no reason why he or she should not be able to sue in private nuisance in the ordinary way. But I do not see how a spouse who has no interest in the matrimonial home has, simply by virtue of his or her cohabiting in the matrimonial home with his or her wife or husband whose freehold or leasehold property it is, a right to sue. No distinction can sensibly be drawn between such spouses and other co-habitees in the home, such as children, or grandparents. Nor do I see any great disadvantage flowing from this state of affairs. If a nuisance should occur, then the spouse who has an interest in the property can bring the necessary proceedings to bring the nuisance to an end, and can recover any damages in respect of the discomfort or inconvenience caused by the nuisance. Even if he or she is away from home, nowadays the necessary authority to commence proceedings for an injunction can usually be obtained by telephone. Moreover, if the other spouse suffers personal injury, including injury to health, he or she may, like anybody else, be able to recover damages in negligence. The only disadvantage is that the other spouse cannot bring an independent action in private nuisance for damages for discomfort or inconvenience. It follows that, with all respect, I do not feel able to follow the decision on this point by the majority of the Court of Appeal of New Brunswick in Devon Lumber Co. Ltd. v. MacNeill (1987) 45 D.L.R. (4th) 300, preferring as I do the dissenting judgment of Rice J.A. in that case.
 
37.           I should record that your Lordships' attention was drawn to certain American cases cited in the supplement (1988) to the 5th ed. (1984) of Prosser and Keeton on Torts , at pp. 621-622, which reveal a division of opinion on this point. I intend no disrespect if I say that I did not derive any assistance from this slender and inconclusive line of authority.
 
38.           Since preparing this opinion, I have had the opportunity of reading in draft the speech of my noble and learned friend Lord Cooke of Thorndon, and I have noticed his citation of academic authority which supports the view that the right to sue in private nuisance in respect of interference with amenities should no longer be restricted to those who have an interest in the affected land. I would not wish it to be thought that I myself have not consulted the relevant academic writings. I have, of course, done so, as is my usual practice; and it is my practice to refer to those which I have found to be of assistance, but not to refer, critically or otherwise, to those which are not. In the present circumstances, however, I feel driven to say that I found in the academic works which I consulted little more than an assertion of the desirability of extending the right of recovery in the manner favoured by the Court of Appeal in the present case. I have to say (though I say it in no spirit of criticism, because I know full well the limits within which writers of textbooks on major subjects must work) that I have found no analysis of the problem; and, in circumstances such as this, a crumb of analysis is worth a loaf of opinion. Some writers have uncritically commended the decision of the Court of Appeal in Khorasandjian v. Bush [1993] Q.B. 727, without reference to the misunderstanding in Motherwell v. Motherwell 73 D.L.R. (3d) 62, on which the Court of Appeal relied, or consideration of the undesirability of making a fundamental change to the tort of private nuisance to provide a partial remedy in cases of individual harassment. For these and other reasons, I did not, with all respect, find the stream of academic authority referred to by my noble and learned friend to be of assistance in the present case.
 
39.           For all these reasons, I can see no good reason to depart from the law on this topic as established in the authorities. I would therefore hold that Khorasandjian v. Bush must be overruled in so far as it holds that a mere licensee can sue in private nuisance, and I would allow the appeal or cross-appeal of the defendants in both actions and restore the order of Judge Havery on this issue.



LORD LLOYD OF BERWICK,


My Lords,

 
40.           Since your Lordships are differing from the unanimous decision of the Court of Appeal on one of the two important points for decision in this case, I add a short speech of my own. I find it convenient to begin with the question of locus standi, on which I agree with the valuable judgment of his Honour Judge Richard Havery Q.C.
 
41.           Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour's land; (2) nuisance by direct physical injury to a neighbour's land; and (3) nuisance by interference with a neighbour's quiet enjoyment of his land. In cases (1) and (2) it is the owner, or the occupier with the right to exclusive possession, who is entitled to sue. It has never, so far as I know, been suggested that anyone else can sue, for example, a visitor or a lodger; and the reason is not far to seek. For the basis of the cause of action in cases (1) and (2) is damage to the land itself, whether by encroachment or by direct physical injury.
 
42.           In the case of encroachment the plaintiff may have a remedy by way of abatement. In other cases he may be entitled to an injunction. But where he claims damages, the measure of damages in cases (1) and (2) will be the diminution in the value of the land. This will usually (though not always) be equal to the cost of reinstatement. The loss resulting from diminution in the value of the land is a loss suffered by the owner or occupier with the exclusive right to possession (as the case may be) or both, since it is they alone who have a proprietary interest, or stake, in the land. So it is they alone who can bring an action to recover the loss.
 
43.           Mr. Brennan argues that the position is quite different when one comes to the third category of private nuisance, namely, interference with a neighbour's quiet enjoyment of his land. He submits that here the right to bring an action for nuisance is not confined to those with a proprietary interest, but extends to all those who occupy the property as their home. This would include not only the wife and children of the owner, as has been held by the Court of Appeal, but also, as Mr. Brennan argues, a lodger with a contractual right to remain in the house as licensee, or a living-in servant or an au pair girl.
 
44.           One can see the attraction in this approach. The wife at least, if not the children, should surely be regarded nowadays as sharing the exclusive possession of the home which she occupies, so as to give her an independent right of action. There is also a superficial logic in the approach. Suppose there are two adjoining properties, affected by smoke from a neighbouring factory. One of the properties is occupied by a bachelor, the other is occupied by a married man with two children. If they are all equally affected by the smoke, it would seem to follow that the damages recoverable by the married man and his family should be four times the damages recovered by the bachelor. Many of the textbooks favour this approach. In the current edition of Clerk & Lindsell On Torts , para. 18.39, it is said that such a conclusion would affect "a degree of modernisation" in the law, "while freeing it from undue reliance upon the technicalities of land law."
 
45.           Like, I imagine, all your Lordships, I would be in favour of modernising the law wherever this can be done. But it is one thing to modernise the law by ridding it of unnecessary technicalities; it is another thing to bring about a fundamental change in the nature and scope of a cause of action. It has been said that an actionable nuisance is incapable of exact definition. But the essence of private nuisance is easy enough to identify, and it is the same in all three classes of private nuisance, namely, interference with land or the enjoyment of land. In the case of nuisances within class (1) or (2) the measure of damages is, as I have said, the diminution in the value of the land. Exactly the same should be true of nuisances within class (3). There is no difference of principle. The effect of smoke from a neighbouring factory is to reduce the value of the land. There may be no diminution in the market value. But there will certainly be loss of amenity value so long as the nuisance lasts. If that be the right approach, then the reduction in amenity value is the same whether the land is occupied by the family man or the bachelor.