Nuisance Appellant installing new track circuits on railway line — Magnetic energy from railway interfering with use of electronic equipment in respondent’s recording studio — Appellant having prior knowledge of examples of similar damage — Whether damage to respondent “reasonably foreseeable” — Appeal allowed
The appellant operated a railway line upon which it had installed new track circuits that generated a magnetic field. In 1991, it received a number of complaints that the magnetic field was causing interference to the tenants of music rehearsal studios that had been set up under the railway arches.
The respondent ran a recording studio that was located 80m from another stretch of the railway line operated by the appellant. In 1994, new track circuits were installed on that part of the line: the resulting magnetic field interfered with the use of electric guitars in the studio, causing the respondent loss and damage. The respondent complained to the appellant, which undertook various unsuccessful remedial measures.
The respondent commenced proceedings in private nuisance. The appellant contended that it owed the respondent no duty in nuisance because the system of track circuits in question posed a threat only to someone carrying on an unusual and extraordinarily sensitive activity. The recorder found that the playing of an electric guitar, with its attendant amplifier and other equipment, was a feature of modern-day life that could not amount to an unusual activity. He concluded that the appellant had been aware that someone in the respondent’s position could suffer interference because, in 1991, it had investigated complaints from, and paid damages to, the tenants of other recording studios. The recorder ruled in favour of the respondent and the appellant appealed. The issue for the court was whether the appellant should have foreseen that the installation of the track circuits might have caused interference of the type experienced by the respondent.
Held: The appeal was allowed.
The type of private nuisance complained of was actionable only if it related to interference with the actions of “the average man”; it would not be actionable if the interference related to an activity that was “abnormally sensitive”. In Hunter v Canary Wharf Ltd [1997] AC 655, two members of the House of Lords had recognised the possibility that the reception of an electronic signal might be protected under the law of nuisance. However, if the existing authorities remained good law, the court would have to find that the use of amplified guitars still fell within the category of extraordinarily sensitive equipment, and therefore did not attract the protection of the law of nuisance.
On the evidence, the recorder had erred in basing his conclusions entirely upon the facts of the 1991 complaints. Those complainants had inhabited recording studios situated in the arches directly beneath the railway line. Expert evidence had shown that, given the weakness of the periphery of the magnetic field, it was not foreseeable that damage would be caused at a distance of 80m from the track.
William Norris QC and Oliver Campbell (instructed by Kennedys) appeared for the appellant; Philip Havers QC and Christopher Morris-Coole (instructed by ASB Law, of Brighton) appeared for the respondent.
Vivienne Lane, barrister
