Scottish Court of Session Decisions

THE LORD PRESIDENT'S OPINION.—[After the narrative quoted supra]—The principal contention for the defender was that the pursuer's averments were irrelevant and lacking in specification, and that the action should be dismissed. No argument was addressed to me on the sufficiency of the specification, and I can see no ground for criticism on this score. The attack on the relevancy was rested on the major premise that an action for nuisance will not lie in Scotland where the type of user complained of involves only a normal, natural and familiar use of the property; and upon the minor premise that the user complained of in this case only involved a normal, natural and familiar use of dwelling-house property in a burgh.

I may say at once that I could not accept the minor premise of the argument at this stage, for it does not appear to me that the use of a vent extending from basement to chimney-head in the mutual gable of property of this type as a conduit for sulphur-impregnated water vapour or wet steam instead of for the normal products of combustion for which such vents were obviously intended can without much more information as to the facts be described as a normal, natural and familiar method of user. What a proof may disclose I cannot foresee; but at the stage of relevancy the minor premise fails, and the defender was constrained in the end to admit that inquiry would be necessary under this head.

This view would suffice to justify the allowance of a proof before answer; but, as the argument was mainly directed to a motion for dismissal under the major premise, it is right that I should deal briefly with that matter, lest it should be supposed that I am committed to acceptance of the wider general proposition for which the defender contended. That proposition was rested on Lamont v. Cumming, (1875) 2 R. 784; Mackintosh v. Mackintosh, (1864) 2 Macph. 1357; Campbell v. Kennedy, (1864) 3 Macph. 121; Rickards v. Lothian, [1913] A C 263; Miller v. Robert Addie & Sons' Collieries, 1934 S. C. 150; Ball v. Ray, (1873) L. R., 8 Ch. 467; and Andreae v. Selfridge & Co., [1938] Ch. 1. I cannot accept these authorities as sufficiently vouching the defender's proposition. It appeared to me that the defender's argument failed to give due weight to the fact that nuisance as a cause of action is a comparatively modern development, at least in Scots law, and the argument, especially when founded upon the older authorities, tended to confuse nuisance as a cause of action with culpa and the special aspect of culpa which is generally described as the rule in Rylands v. Fletcher, (1868) L. R., 3 H. L. 330. The modern view of nuisance is, I think, more accurately founded upon such cases as Broder v. Saillard, (1876) 2 Ch. D. 692, Fleming v. Hislop, (1886) 13 R. (H. L.) 43, and Sedleigh-Denfield v. O'Callaghan, [1940] A C 880, and this modern view is formulated in such textbooks as Salmond on Torts, (11th ed.) p. 259, and Burn-Murdoch on Interdict, p. 228. From these and other pronouncements I deduce that the proper angle of approach to a case of alleged nuisance is rather from the standpoint of the victim of the loss or inconvenience than from the standpoint of the alleged offender; and that, if any person so uses his property as to occasion serious disturbance or substantial inconvenience to his neighbour or material damage to his neighbour's property, it is in the general case irrelevant as a defence for the defender to plead merely that he was making a normal and familiar use of his own property. The balance in all such cases has to be held between the freedom of a proprietor to use his property as he pleases and the duty on a proprietor not to inflict material loss or inconvenience on adjoining proprietors or adjoining property; and in every case the answer depends on considerations of fact and of degree. I cannot accept the extreme view that in order to make a relevant case of nuisance it is always necessary for the pursuer to aver that the type of user complained of was in itself non-natural, unreasonable and unusual. Especially when (as in this case) the so-called "locality" principle applies, it must be accepted that a certain amount of inconvenience, annoyance, disturbance and even damage must just be accepted as the price the pursuer pays for staying where he does in a city tenement. The critical question is whether what he was exposed to was plus quam tolerabile when due weight has been given to all the surrounding circumstances of the offensive conduct and its effects. If that test is satisfied, I do not consider that our law accepts as a defence that the nature of the user complained of was usual, familiar and normal. Any type of use which in the sense indicated above subjects adjoining proprietors to substantial annoyance, or causes material damage to their property, is prima facie not a "reasonable" use.

Further than this I cannot go at the present stage. It is possible that matters may emerge at the proof which may require that relevancy in some other form should be further considered. I shall therefore leave the defender's first plea standing and allow a proof before answer.