Pig-farmer liable for ‘intolerable nuisance’ by smells, but judge’s figure of £6,000 for 12 years’ intermittent nuisance too high–Award of £1,000 appropriate–Analogy of sorts drawn with awards in personal injury cases for loss of sense of smell
This was an
appeal by Mr David Seale, pig-farmer, of Holmes Farm, Betchworth, Surrey, from
a decision of Walton J in the Chancery Division on October 19 1973 granting the
respondents, Mr Stanley Arthur Bone and Mr Alan Watson White, of Betchworth, an
injunction to restrain the appellant from farming in future in such a manner as
to cause a nuisance by the discharge of noxious or offensive vapours or smells,
and awarding each plaintiff damages of £6,000 in respect of nuisance suffered
between February 24 1961 and October 19 1973.
Mr R N
Titheridge QC and Mr M Mark (instructed by V H Baker & Co) appeared for the
appellant, and Mr J A R Finlay QC and Mr A Boyle (instructed by Atkins, Walter
& Locke, of Dorking) represented the respondents.
Giving
judgment, STEPHENSON LJ said that complaints had been made of smells from
manure and the boiling of swill for the 700 pigs kept by Mr Seale. The judge
had found that there had been an intolerable nuisance caused by the smell over the
years, and the appellant submitted first that this finding was against the
weight of the evidence. But the judge had heard a considerable number of
witnesses. He heard not only the plaintiffs but other neighbours as well in
support of their case. Making all allowances for hypersensitivity and
exaggeration, there was a considerable weight of evidence that the two sources
of smells complained of were so offensive as to constitute an intolerable
nuisance over the years. Although there was evidence which was difficult to
reconcile with that given by and for the plaintiffs, he (his Lordship) thought
that the judge was entitled to say that on the balance of probabilities a
nuisance had been proved, and that the defendant had (as Walton J put it)
really gone on his way untroubled, taking the line that if he did what the
local authority required him to do, and provided he used a deodorant process in
boiling his swill, then he had done all he could and if the smell went on after
that he could not help it, he had to run his pig farm. The first ground of
appeal accordingly failed. The alternative ground was that the damages awarded
by Walton J were far too high. That required the court to undertake the
difficult task of determining the measure of damages for a nuisance of the
kind. The figure of more than £6,000 did seem at first blush a very high one.
The test laid down in Flint v Lovell [1935] 1 KB 354 was that
damages must be so extremely high or low as to make them, in the judgment of
the Court of Appeal, an entirely erroneous estimate of the amount to which the
plaintiff was entitled. The nearest analogy to the present case seemed to be
those damages which were awarded almost daily for loss of amenity in personal
injury cases. Was it possible to equate loss of the sense of smell through a
defendant motor-driver’s negligence with having to put up with positive smells
as a result of a nuisance created by a negligent neighbour? There did seem to him (Stephenson LJ) to be
some parallel between the two losses, a parallel which at once confirmed that
Walton J’s figure was much too high. In personal injury cases such an amount
would only be awarded for a permanent loss of amenity as a result of a very
serious injury, perhaps in the case of a young person. He (his Lordship)
thought that in this case a proper figure would be £1,000 for each plaintiff.
Agreeing,
SCARMAN LJ said that as to damages, there was no pecuniary loss, no physical
damage to property and no injury to health, but it was recognised that a
nuisance such as smells might cause annoyance, inconvenience and discomfort to
the occupier of property in his enjoyment of it. Nevertheless an award of
£6,000 for a 12-year period was out of proportion. There must be moderation.
Some attention must be paid to the rights of the offending defendant as well as
to those of the injured plaintiffs. The judge’s figure was an entirely
erroneous estimate. There was an intolerable nuisance, but it was only a
nuisance. It was sustained, admittedly, over 12 years, but it was only intermittent.
He (his Lordship) agreed that £1,000 for each plaintiff was an appropriate
award in the circumstances.
ORMROD LJ
delivered a short concurring judgment, and the appeal was allowed to the extent
indicated. No order was made as to costs.
