Network Rail Infrastructure Ltd (formerly Railtrack Plc) v CJ Morris (trading as Soundstar Studio)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Thomas |
| Judgment Date | 20 February 2004 |
| Neutral Citation | [2004] EWCA Civ 172 |
| Docket Number | Case No: B2/2003/0923 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2004 |
[2004] EWCA Civ 172
Lord Phillips of Worth Matravers, Mr
Lord Justice Buxton and
Lord Justice Thomas
Case No: B2/2003/0923
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
W Norris QC & O Campbell (instructed by Kennedys) for the Appellant
P Havers QC & C Morris-Coole (instructed byASB Law) for the Defendants
Lord Phillips, MR:
Introduction
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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
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."
The authority cited in relation to 'abnormal sensitiveness' is Robinson v Kilvert (1889) 41 Ch.D. 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...
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