England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
(MR RECORDER PULMAN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 February 2004

Lord Phillips, MR:

Introduction

1. This is an appeal from the judgment of Mr Recorder Pulman QC, sitting in the Croydon County Court, dated 9 April 2003. He held that the appellants, Railtrack, were liable to pay damages in nuisance to the Respondent, Mr Morris. The nuisance in question consisted of electromagnetic interference caused by a section of Railtrack's signalling system to the music created by electric guitars played in Mr Morris' recording studio some 80 metres away.
2. We are not aware of any reported case in this country in which it has been held that electronic interference with the operation of equipment is capable of constituting a nuisance. In Hunter v Canary Wharf Limited [1997] AC 655 two members of the House of Lords recognised the possibility that the reception of television might in appropriate circumstances be protected against interference by the law of nuisance – see Lord Goff of Chievely at p. 685 and Lord Hoffman at p. 708. The Recorder held that the disturbance experienced by Mr Morris's business activities as a result of electromagnetic radiation from Railtrack's land was a type of damage that was capable of amounting in law to a private nuisance.
3. Mr William Norris QC, for Railtrack, has not challenged the proposition that electromagnetic interference of the use of equipment is capable of amounting to nuisance. His submission is, however, that it can only do so if the equipment is normal equipment in general use, so that the interference can be said to be of "ordinary enjoyment of property by neighbours using their property in an ordinary way". He contends that the use of electric guitars with amplifiers in Mr Morris's recording studio was an extraordinary commercial activity which had a particular sensitivity to the magnetic waves created by Railtrack. As such, he submits it was not protected by the law of nuisance. In the court below, the Recorder found against this submission on the facts.
4. Mr Norris further submits that Railtrack could not reasonably foresee, when setting up the signalling system that created the magnetic radiation, that it would be liable to have a detrimental effect on activities carried on as far away as Mr Morris' premises. In these circumstances there can be no liability in nuisance. Once again the Recorder found against this submission on the facts.
5. Finally Mr Norris submits that Railtrack are protected from this claim in nuisance by reason of the statutory regime under which they installed their signalling system and, in particular, the provisions of section 122 of the Railways Act 1993. The Recorder held that this submission was unsound in law.

The facts

6. There is no material dispute as to primary fact. Mr Morris began trading from 339 Whitehorse Road, Croydon in 1987. The distance between his studio at that address and the London to Brighton main line railway track was approximately 80 metres.
7. Railtrack was incorporated pursuant to the Railways Act 1993 for the purpose, among others, of taking over, from the British Railways Board, the provision of track access to train operations. Railtrack also took over the employment of most of the British Rail personnel concerned with this area of activity. Mr Norris accepts that any relevant knowledge acquired by British Rail personnel was inherited by and constitutes knowledge on the part of Railtrack. Part of Railtrack's functions consist of the provision, installation, testing and maintenance of signalling systems and track circuits on the railway lines.
8. A track circuit is the electrical circuit which operates the signalling system. The design of the track circuit has to accommodate the type of rail tracks along which the trains run. At or about the end of the 1970s British Rail started to install a type of track circuit known as TI 21 (TI stands for traction immune). This has technical advantages over the Reed track circuit that it replaces. The installation of TI 21 track circuits on the Kent line began in the early 1990's. This was one of the operations that Railtrack took over from British Rail.
9. In 1991 British Rail received complaints of magnetic interference from TI 21 circuits from tenants who had set up musical rehearsal studios under the railway arches between Loughborough Junction and the Elephant and Castle. A Mr Bradley investigated the matter and made a report dated 4 November 1991, to which we shall return.
10. The installation of TI 21 track circuits on the line in the vicinity of Mr Morris's studio was completed in October 1994. Very shortly thereafter Mr Morris noticed noise interference in his studio when playing electrical guitars with the aid of amplifiers. The cause of this interference was the periphery of a magnetic field generated by 'tuned zones' stretching some 20 metres along each of the four sets of tracks adjacent to Mr Morris' premises. Tuned zones are a product of the track circuit. They are resonance circuits producing relatively high currents at the track circuit operating frequency. The strength of the field diminishes with distance, and by the time that it reached Mr Morris' studio it was very modest. Nonetheless, because of its particular frequency, it was picked up by the electric guitars. The noise that resulted when most of Mr Morris' customers played their guitars for the purpose of making recordings was unsatisfactory. In the result, over a period of some two years, Mr Morris steadily lost his customers. He claims to have suffered financial loss in excess of £60,000.
11. Mr Morris first complained to Railtrack about this problem in April 1995. Railtrack attempted various remedial measures, without significant success. One measure that might have succeeded would have been to install an alternative type of track circuit on the stretch of line in question. This would have cost some £50,000 and would have had other disadvantages. This course was not adopted.

The basis of the claim

12. Mr Morris has not based his claim upon the fact that Railtrack continued to operate the TI 21 system after April 1995 when they had been made aware of its effect on his studio. His complaint has been based fairly and squarely on their conduct in putting in place the TI 21 system in the period leading up to October 1994. Mr Philip Havers QC, and Mr Christopher Morris-Coole, who appeared alone before the Recorder, have accepted that, if Mr Morris' claim is to succeed, he must show that Railtrack should have foreseen that the installation of the TI 21 system might cause interference such as that experienced by Mr Morris. We have concluded that foreseeability is the critical issue in this appeal. Before turning to that issue, however, we propose to consider the submission that no duty in nuisance was owed because the TI 21 system only posed a threat to someone carrying on an unusual and extraordinarily sensitive activity on his premises.

Extraordinary user

13. The type of private nuisance with which this action is concerned is identified by Clerk & Lindsell 18^th ed. para.19-06 as "unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land". The authors go on to make the following commentary at para 19-11:

"A nuisance of this kind, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man. An interference which alone causes harm to something of abnormal sensitiveness does not of itself constitute a nuisance. A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or for pleasure."

14. The authority cited in relation to 'abnormal sensitiveness' is Robinson v Kilvert (1889) 41 ChD 88. The relevant issue in that case was whether a landlord, who remained in occupation of a cellar, was liable in nuisance to his tenant, who had leased the premises above for use as a paper warehouse. The landlord had heated the cellar to an extent that resulted in the transmission of heat to the premises above, to the detriment of the tenant's stocks of brown paper, which were particularly sensitive to heat. In the leading judgment at p. 94, Cotton LJ said:

"It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is heat such as to incommode the workpeople on the Plaintiff's premises. I am of the opinion, therefore, that the Plaintiff is not entitled to relief on the ground that what the Defendants are doing is a nuisance."

Lindley LJ gave a judgment to similar effect. Lopes LJ at p. 97 agreed. He said:

"I think the Plaintiff cannot complain of what is begin done as a nuisance. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade."

15. A similar statement was made by Lord Robertson, giving the advice of the Privy Council in Eastern and South African Telegraph Company Limited v Cape Town Tramways [1902] AC 381 in a context closer to that of this appeal. The case concerned a claim based on Rylands v Fletcher by the owners of a submarine cable in respect of interference caused to the transmission of messages by the escape of electricity from the defendants' tramway system. The majority of the claim was in respect of expensive remedial measures that had to be taken to prevent the interference. The material passage in the judgment is to be found at pp 392-3:

"Now, if the instrument be taken as it was when the injury occurred, its nature is such that to insure its immunity from disturbance is a somewhat serious liability to cast on neighbours. To describe this as a delicate instrument might be inaccurate, if the term were used in relation to other electrical instruments of extreme sensibility. But in the present discussion this is not the true comparison at all.

The true comparison is with things used in the ordinary enjoyment of property, and this instrument differs from such things in its peculiar liability to be affected by even minute currents of electricity. Now, having regard to the assumptions of the appellants' arguments, it seems necessary to point out that the appellants, as licensees to lay their cable in the sea and as owners of the premises in Cape Town where the signals are received, cannot claim higher privileges than other owners of land, and cannot create for themselves, by reason of the peculiarity of their trade apparatus, a higher right to limit the operations of their neighbours than belongs to ordinary owners of land who do not trade with telegraphic cables. If the apparatus of such concerns requires special protection against the operations of their neighbours, that must be found in legislation; the remedy at present invoked is an appeal to a common law principle which applies to much more usual and less special conditions. A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure."

16. The Recorder held that the principle in Robinson v Kilvert did not apply to the facts of this case. He held that whether the interference complained of by Mr Morris was capable of constituting a nuisance depended upon whether "playing the guitar with an amplifier is an important incident of ordinary enjoyment of property". In this context he had already observed that "the use of sensitive electric and electronic equipment is so much a feature of modern life that such use cannot be disregarded". He went on to hold:

"I accept that it may not be thought especially important, but it is certainly an ordinary incident of the enjoyment of property. It is the stuff of many young people's pleasure, and is a major part of modern music making".

Accordingly, he concluded that the electromagnetic interference emitted onto Mr Morris' premises was capable of being a nuisance.

17. An attempt to apply the law of nuisance to electric or electronic interference encounters practical problems. The Recorder was right to observe that the use of electric and electronic equipment is a feature of modern life. Such equipment can both be susceptible to interference and capable of giving rise to interference. It is no easy matter to apply principles of the law of nuisance to the competing claims of those who wish to use equipment capable of giving rise to interference and those wishing to use equipment susceptible to interference. The position is rendered more complex by the fact that this area is, it seems, subject to regulation.
18. Expert evidence was given by a joint expert, Dr Kadhim. He told the court that 'European laws and directives' were introduced in the middle of the 1990's with which any electronic equipment has to comply. He explained:

"if you build now any piece of electronic kit, music or whatever, there are two requirements, one is how much interference you export to your neighbours and how much interference your equipment can tolerate."

He went on to say that prior to these regulations the equipment was very sensitive to electro-magnetic interference. Nowadays it has to comply with specific standards that make it more immune to this sort of interference. Later he commented that the problem experienced by Mr Morris would not be encountered with guitars produced according to these regulations.

19. This evidence reflects the fact that it may be more satisfactory that the potential problem of one neighbour causing electronic interference to another should be addressed by regulation than that it should be left to be resolved by the law of private nuisance. We express no concluded view on this. If the authorities to which we have referred in paragraphs 13 to 15 above remain good law, they would lead us to the conclusion that the amplified guitars which were affected by the magnetic field created by Railtrack's installations fell into the category of extraordinarily sensitive equipment which did not attract the protection of the law of nuisance. The evidence to which we are about to turn indicates that the interference suffered by Mr Morris as a result of the use of the TI 21 track circuits was a very rare occurrence indeed. As Buxton LJ's judgment demonstrates, however, the law of nuisance has moved on. If resort must be had to it in order to resolve the competing claims of users of electrical or electronic equipment, the balance may fall to be struck by considering what is reasonable. One thing seems clear, however. Foreseeability is a vital ingredient in the tort of negligence – see Cambridge Water Co. v Eastern Counties Leather PLC [1994] 2 AC 264. It was, in this case, common ground that Railtrack could only be liable in nuisance if they should reasonably have foreseen that, by installing the TI 21 track circuits they would cause damage to someone in the position of Mr Morris.

Foreseeability

20. Dr Kadhim addressed the issue of foreseeability directly. AEA Technology's expert report, to which he was party, stated:

"In our opinion Railtrack could not reasonably have foreseen that these track circuits could have caused problems of this nature at a distance of 60 to 70 metres."

Those acting for Mr Morris challenged this conclusion on the ground that it "is unsupported by evidence, or scientific reasoning and lacks the imprimatur of an expert". AEA Technology responded:

"The question of foresight is always going to be to some extent subjective. In our opinion we would not normally expect a magnetic field resulting from a relatively low current source to be causing adverse affects at such a distance. This is borne by the fact that the field is very small and is only a problem because of the sensitivity of the recording equipment. For houses adjoining the railway, an engineer in 1994 might reasonably have been expected to consider the effect of electromagnetic interference. However, we believe most engineers would have discounted adverse effects from audio frequency magnetic fields at a distance of 60 to 70 metres."

21. The Recorder held, rightly, that he was not bound by this evidence and rejected it. He did so on the ground that Railtrack had actual knowledge that someone in the position of Mr Morris could suffer interference. This conclusion was based, and based exclusively, on the report of Mr Bradley, to which we have referred in paragraph 9 above. Mr Bradley and a number of British Rail technical staff had investigated complaints made by tenants of British Rail, who had musical rehearsal studios in the railway arches underneath the track. The passage from Mr Bradley's report on which the Recorder particularly relied was the following:

"Although the exact frequency and track of equipment were not determined, the circumstantial evidence leaves no doubt that the interference was induced from the Tuned Zone. The Electric Guitar has a "pick up", which consists of coils feeding an Amplifier. The Loudspeakers probably have unscreened cables feeding them. Tenants of other premises state that they have similar problems. In most cases it can be identified that they are underneath a Tuned Zone. One tenant, who is not near a Tuned Zone, states that he sustains a small amount of interference. Other premises were not visited. It is evident that the high (20-30 amp) currents in the Transmitter Tuned Zone (20m section of track) were producing electromagnetic fields which were interfering with the amplification equipment underneath. Apparently, the current in the rails, (probably near the Transmitter end when shunted by an approaching train), can also produce a degree of interference."

22. From this passage the Recorder drew the following conclusions:

"It follows from Mr Bradley's report that the Defendants knew that interference was going to be suffered by the occupiers of premises which are not near a tuned zone when those premises are used as a recording studio. It is not open to the Defendants to say that it was not reasonably to be foreseen. It had actually been foreseen by them because several of their tenants had suffered as a direct result of having a T1 21 tuned zone nearby; and more importantly for this case, a further occupier some distance away had also suffered.

In layman's terms, the Defendants cannot say "We had no idea this could happen" because they in fact knew it had happened. It had occurred elsewhere, and it was apparent that although they were concerned about it, and I am told they paid compensation to those premises, they did not take up Dr Apperley's suggestion of advising further on this."

23. So far as the tenants under the tuned zone are concerned, the Recorder could not properly deduce from the interference that they experienced that premises as far from the track as those of Mr Morris would be susceptible to the same phenomenon. Dealing with those tenants, in a supplementary report, AEA Technology said this:

"As stated we do not have definitive information regarding the "Arches" problem. On the assumption that the studio in question was located directly below a tuned zone then the field within that studio would have been many times greater than that measured in the Soundstar studio. The reason being that the tuned zone formed by the rails and the bonds acts like a large coil placed flat on the ground. The lines of flux surround the conductors of the coil and are concentrated in the centre of the coil. Normal building constructional material does not attenuate or impede the magnetic flux. Therefore if tuned zone is directly above the studio in the arch, and the distance between the studio and the rails no more than a few metres then the field is likely to have been orders of magnitude greater than the field present in the Soundstar studio."

24. The Recorder's conclusion that interference at Mr Morris' premises was foreseeable appears, however, to have been based largely on his statement that "a further occupier some distance away had also suffered". This was the "one tenant, who is not near a Tuned Zone", who was stated to have experienced "a small amount of interference". When Mr Bradley's Report is read as a whole, it is reasonably clear that this tenant was also underneath the arches, albeit further along the track and outside the tuned zone. The reason why this tenant experienced interference was explored with Mr Page, Railtrack's Southern Zone Signal Engineer, who gave evidence. He explained that, if you are underneath the arch, there is a lot of electro-magnetic interference coming from the power in the rails, even if you are not underneath a tuned zone. The tuned zone merely accentuates the interference. The reference to this tenant experiencing a small amount of interference could not validly lead to the conclusion that a tenant in a house 80 metres away from the track would also be liable to do so. The Recorder's finding on this point was not supported by the evidence.
25. Mr Bradley's 1991 Report focussed exclusively on what should be done about British Rail's under-archway tenants. Mr Havers contends that the knowledge of this problem, inherited by Railtrack, put them on notice that the installation of TI 21 circuits carried with it the risk of causing interference to someone in the position of Mr Morris. Mr Havers argues that British Rail should have investigated the nature of the problem more closely. They might then have discovered that houses as far away as Mr Morris' premises were subject to interference. As it was, Railtrack was left in ignorance of the extent of the problem when they took over from British Rail. This should have led Railtrack to set about installing along their tracks an alternative circuit to the TI 21. The evidence was that this would have been technically feasible, though expensive and with a lesser margin of safety.
26. We regard Mr Havers' submission as totally unrealistic. Mr Page gave evidence that some 3,200 TI 21 circuits had been installed on the Southern Region and that, apart from those under the arches, Mr Morris was the only person to experience a problem with electro-magnetic interference. In fact the evidence shows that there was one other complaint of interference, in 1995. It remains the fact that, when Railtrack took over from British Rail, the only complaint of interference from the TI 21 circuits that there had been was the one from British Rail's under-archway tenants several years before. Mr Kadhim gave evidence that, having regard to the weakness of the periphery of the magnetic field, it was not reasonable to foresee interference as far away as 80 metres from the track. Practical experience could only have led Railtrack to the same conclusion.
27. For these reasons we find that the Recorder's conclusion that the risk of interference to Mr Morris' premises was foreseeable was contrary to the evidence and unsound.
28. It follows that, having failed to establish this essential element of the tort of nuisance, Mr Morris cannot make good his claim. In the circumstances it is not necessary to consider the difficult issues that arise in respect of the effect of section 122 of the Railways Act 1993. For the reasons that we have given, we would allow this appeal.

Lord Justice Buxton:

29. I agree with the Master of the Rolls that this appeal must be allowed. Since the case has touched on some important aspects of the modern law of nuisance I venture to add some few words of my own.
30. In Cambridge Water Co v Eastern Counties [1994] 2 AC at p 301D the House of Lords held that Lord Reid's opinion in The Wagon Mound (No 2) [1967] 1 AC 617 had

"settled the law to the effect that foreseeability of harm is indeed a prerequisite of the recovery of damages in private nuisance…..It is unnecessary in the present case to consider the precise nature of this principle; but it appears from Lord Reid's statement of the law that he regarded it essentially as one relating to remoteness of damage"

31. That principle was further explored by the House in Delaware Mansions v Westminster CC [2002] 1 AC 332 [29] and [31] where, under the heading of "Reasonableness as a criterion" Lord Cooke of Thorndon said that:

"the answer to the issue falls to be found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underlie much modern tort law and, more particularly, the law of nuisance. The great cases in nuisance decided in our time have these concepts at their heart…..In both the second Wagon Mound case and Goldman v Hargrave [[1967] 1 AC 645] the judgments….are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of neighbour's duty rather than affixing a label and inferring the extent of the duty from it."

32. This very broad approach is thus firmly established as the essential content of liability in the modern law of nuisance, at least where the existence of a "nuisance" is established. It takes the place of some detailed and particular rules that are to be found in earlier authority. A number of consequences flow from that fact.
33. First, Lord Cooke was clear that the test was not that of foreseeability alone, but of foreseeability as an aspect of reasonableness. That reminder is particularly necessary in the case of a claim founded in nuisance, because there the action will often be to restrain further activity of an objectionable sort, when the defendant will be aware of and thus necessarily "foresee" the damage complained of; rather than, as usually in negligence, to seek to recover damages for a single past incident: see in this connexion the remarks of Lord Goff in Cambridge Water at p 300C. That might at first sight have seemed to be an issue in our case, but as my Lord explains in § 12 above no complaint was in fact made of interference after Railtrack became aware of Mr Morris's complaint.
34. Second, no more in nuisance than in negligence is it possible to base a claim on liability in the air, in the sense that the defendant is liable for conduct, or for a state of affairs, just because it will foreseeably cause some harm to some person. What must be foreseen is relevant damage to this plaintiff or to a category of persons into which he falls, a requirement that subsumes the tests both of duty in fact and of remoteness of damage: see for instance Lord Hobhouse in Platform Homes v Oyston Shipping [2000] 2 AC at p 209A, citing the headnote in The Wagon Mound (No 1) [1961] AC 388; and the further observations of Lord Steyn and Lord Hoffmann in Jolley v Sutton LBC [2000] 1 WLR 1082.
35. Third, relevantly to our case, it is difficult to see any further life in some particular rules of the law of nuisance, such as for instance the concept of "abnormal sensitiveness" drawn from Robinson v Kilvert (1889) 41 Ch D 88. That rule was developed at a time when liability in nuisance, for damaging a neighbour by use of one's own land, was thought to be strict: for that view of the nineteenth century law see Lord Goff in Cambridgeshire Water at p 299D, and in that century itself the judgment of Blackburn J in Fletcher v Rylands (1866) LR 1 Ex 265 in particular at p 285, quoted in this sense by Professor Newark 65 LQR at p 487, a passage cited with approval by Lord Goff in Cambridgeshire Water at p 298D. The unreasonable results that could flow from that approach were mitigated by a number of rules of thumb; for instance, as shown by the passages from Robinson v Kilvert cited by my Lord at § 14 above, that an activity that could only injure an exceptionally delicate trade could not be a nuisance at all; or that the occupier could not be responsible for a "nuisance" on his premises that was not created by him (e.g. Barker v Herbert [1911] 2 KB 633, a case that specifically disclaimed analysis in terms of negligence). It is very difficult not to think that such particular rules are now subsumed under the general view of the law of nuisance expressed in Delaware Mansions: not dissimilarly to the way in which the generalisation of the law of negligence initiated by Donoghue v Stevenson has rendered obsolete the previous categories of dangerous chattels; duties of occupiers of land; duties attaching to specific trades; and the like.
36. This all affects our present case in the following ways. First, if it were any longer appropriate to address as a separate question whether Mr Morris's studio was a special or abnormal sensitive use of his premises, I would be minded to answer that question as did the Recorder, as set out by my Lord in §16 above. It seems to me that it is difficult to say that, in the modern era, the type of studio involved is so unusual as necessarily to disqualify Mr Morris from the protection of the law of nuisance. But the problem about that reply is that it is in wholly generalised terms, that do not address the relationship between this claimant and this defendant. And that demonstrates that the question is no longer apt. As my Lord says, what is required is an analysis of the demands of reasonableness in this particular case: which the court can now assess, as the court in Robinson v Kilvert could not, in terms of foreseeability.
37. Second, what must be demonstrated is foreseeability of this damage to this claimant, both of those requirements being understood with the degree of generality that is now adopted in the law of negligence. I have nothing to add to my Lord's analysis in §§ 24-28 above, which with respect demonstrates conclusively that the damage in suit was not in law foreseeable.
38. It does not appear that those implications of the foreseeability test, and in particular the relevance of limitations now adopted in the law of negligence, were stressed before the Recorder. Once the case is approached from that viewpoint the outcome is very clear. It has to be noted that in less clear cases the very broad approach now mandated by Delaware Mansions may be a good deal less easy to apply, and that it may appear less obvious that previous authority on the law of nuisance should not now be followed; but those problems are for the future.

Lord Justice Thomas:

39. For the reasons given by the Master of the Rolls, I agree that this appeal should be allowed.

Order:

40. Appeal allowed.
41. Order of Mr Recorder Pulman QC dated 9 April 2003 be set aside.
42. Respondent's claim is dismissed.
43. Respondent do pay the appellant's costs of appeal and of the action, such costs to be subject to detailed assessment in default of agreement.
44. The amount of the Respondent's liability for so much of the costs as were incurred whilst the Respondent was legally funded person is to be determined in accordance with regulation 10 of the Community Legal regulations (Costs) regulations 2000.
45. There be detailed assessment of the Respondent's costs for public funding purposes.
(Order does not form part of the approved judgment)