Network Rail Infrastructure v Morris

‘The onward spirit of the age must, to a reasonable extent, have its way. The law is made for the times, and will be made or modified by them’.¹

Strumming Through Static

In 1987, Mr Morris opened a recording studio in Croydon, London. The studio was situated approximately 80 metres from the London to Brighton railway line. In 1994, Railtrack (now Network Rail), installed new track circuits which operated the signalling system on the line. This circuit system generated an electromagnetic field which Mr Morris claimed interfered with electric guitars in his recording studio. He alleged that electromagnetic disturbances resulted in unsatisfactory recordings from guitars that were aided by amplifiers. This caused Mr Morris’ business to lose several clients over a period of two years. Mr Morris sued Railtrack in nuisance, claiming economic loss damages in excess of £60,000. Railtrack contended that the interference with Mr Morris’ recording equipment was not foreseeable. At first instance, the Croydon County Court held that Railtrack was liable to pay damages to Mr Morris. Railtrack appealed.

The Law of Nuisance

The tort of nuisance seeks to strike a balance between the competing rights and interests of neighbours. A nuisance is any unreasonable interference with another person’s ability to use or enjoy their land.² This includes tangible and intangible interferences such as noises, smells, fumes, offensive sights, and vibrations. Nuisance has been described as the realm of the ‘stinking privy, the urban hog-sty, the fouled or diverted stream, the polluting chimney.’³ In determining if an interference with the plaintiff’s land is unreasonable, the court balances the plaintiff’s desire to use and enjoy their property without interference, against the defendant’s desire to undertake the activity that causes the interference. This is the rule of ‘give and take, live and let live’.⁴ Importantly, the standard of tolerance is that of the ‘normal’ or ‘ordinary’ neighbour. The unreasonableness of the defendant’s interference must be judged objectively. ⁵ This means that a nuisance claim will usually not succeed where the plaintiff, or of the use to which they put their property, is unduly or abnormally sensitive.⁶

The Plight of the Sensitive Plaintiff

The leading case on sensitive plaintiffs is Robinson v Kilvert (1889).⁷ The defendants manufactured paper boxes in the cellar of their Manchester warehouse. This process required the cellar to be heated to a temperature of 27 degrees Celsius. Unfortunately, this heat impacted the plaintiff who occupied the floor above. The plaintiff used their premises as a storage space for paper and twine, and the heat rising from the defendant’s cellar damaged the plaintiff’s stock of special brown paper. The plaintiff’s nuisance action failed on the basis the plaintiff was carrying on an unduly sensitive activity and the heat would not have damaged ordinary paper. According to Cotton LJ:⁸

‘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.’

In the United States, the abnormal sensitivity principle was considered in the case of Rogers v Elliott (1888).⁹ The plaintiff claimed that he suffered from seizures whenever the bells of the neighbouring church were rung. The Supreme Judicial Court of Massachusetts refused to grant an injunction to stop the bells. According to Knowlton J, as unreasonableness must be judged objectively, the question is not the degree to which the particular plaintiff is affected by the bells, but the degree to which an ordinary reasonable person in the plaintiff’s position would be affected. Knowlton J also explained the policy reasons behind this rule: if one person’s right to use their property depended upon the effect of the use upon a person of peculiar temperament or disposition, ‘the standard for measuring it would be so uncertain and fluctuating as to paralyze industrial enterprise’.¹⁰

What these cases demonstrate is that an abnormally sensitive plaintiff will ordinarily only succeed in a nuisance action if a person of ordinary sensitivity would have succeeded.

The issue of the sensitive plaintiff also arose in Mr Morris’ nuisance action against Railtrack. According to Railtrack, the use of electric guitars with amplifiers was an extraordinary commercial activity which was particularly sensitive to the electromagnetic interference. It was further submitted by Railtrack that it could not reasonably foresee, when setting up the signalling system that created the electromagnetic field, that it might have a detrimental effect on premises as far away as Mr Morris’ recording studio.

The Court of Appeal Decides

The England and Wales Court of Appeal commenced its judgment by observing that this was a novel case.¹¹ Never before had a case considered whether electronic interference with the operation of equipment was capable of constituting a nuisance.¹² While it was accepted by the Court that electromagnetic interference could form the basis of a nuisance action, it was ultimately held that the defendant was not liable due to a lack of foreseeability.

The Court considered the submission that Mr Morris was an abnormally sensitive plaintiff. Conscious of the widespread use of electronic equipment in modern society, the Court was of the view that asking whether Mr Morris was unduly sensitive was the wrong question. Instead, the focus was on whether the defendant should have foreseen, when they were carrying out their signalling work, that it might impact the plaintiff’s recording studio. In focussing on the concept of reasonable foreseeability, the Court blurred the boundaries between the law of nuisance and the law of negligence, where reasonable foreseeability is a central concept. Buxton LJ was clearest in his rejection of the abnormal sensitivity principle:

‘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 … The unreasonable results that could flow from that approach were mitigated by a number of rules of thumb; for instance … that an activity that could only injure an exceptionally delicate trade could not be a nuisance at all’.¹³

Buxton LJ continued that it would be difficult to conclude, in the modern era, that Mr Morris’ recording studio was so unusual as to disqualify him from the protection of the law of nuisance.¹⁴ However, as it was not necessary to decide this issue, Buxton LJ concluded that the defendant was not liable. Having regard to the weakness of the periphery of the magnetic field, it was not foreseeable that the defendant’s track circuits would interfere with Mr Morris’ use and enjoyment of his property.

The Court’s approach to dealing with the abnormally sensitive plaintiff issue in terms of reasonable foreseeability has subsequently been criticised in the academic literature.¹⁵ It has been argued that the law of nuisance—concerned as it is with striking a balance between the interests of neighbours—is not meant to focus on the defendant’s behaviour (through an examination of foreseeability) in isolation.¹⁶ Rather, it has been recognised that the abnormal sensitivity principle still has a role to play, with the law’s response to what were once regarded as abnormally sensitive activities capable of changing over time.¹⁷ Subsequent cases have also departed from the approach taken in Mr Morris’ case. In Fearn v Board of Trustees of the Tate Gallery,¹⁸ Mann J in the High Court of England and Wales held that the Morris case should not be interpreted as overruling the sensitive plaintiff principle established in cases such as Robinson v Kilvert. On appeal, a majority of the Supreme Court of the United Kingdom observed that Mann J was ‘quite right to recognise the continuing validity of this principle’ and to reject the contrary dicta of Buxton LJ which suggested it is no longer apt.¹⁹

Nuisance on the Tracks

Mr Morris’ case was not the first to consider the tort of nuisance in relation to the railways. During the Industrial Revolution, nuisance law was widely regarded as a threat to emerging industries. Over time, a defence of ‘statutory authority’ arose, based on the idea that ‘private rights must yield to the public interest’.²⁰ The defence applies where the defendant’s activity that creates the interference is authorised by legislation. A very early case involving nuisance, the railways, and the statutory authority defence was Lexington & Ohio Rail Road Company v Applegate (1839).²¹ The case concerned a railroad that had recently been built through the centre of downtown Louisville, Kentucky. A group of 43 home and shop owners who occupied adjacent properties sought an injunction to halt the operation of the railroad on the basis it obstructed access to the street and endangered pedestrians. The Kentucky Supreme Court held that the operation of the railroad was not a nuisance. As the railroad had been built pursuant to authority in a charter granted by the state legislature, the Lexington & Ohio Rail Road Company were able to rely on the defence of statutory authority. However, the Kentucky Supreme Court also sought to justify its conclusion on the basis that an injunction would hamper industrial growth. After noting that the railroad carried about 550 passengers per day at a low cost, the Court explained that:

‘The onward spirit of the age must, to a reasonable extent, have its way. The law is made for the times, and will be made or modified by them …. Railroads and locomotive steam cars… should not, in themselves, be considered as nuisances, although in ages that are gone they might have been’.²²

An even earlier case involving the railways, likely the first ever to consider the defence of statutory authority, was a nuisance action brought against the Stockton and Darlington Railway.²³ As discussed in our previous post, the Stockton and Darlington Railway was the world’s first steam-powered public railway. The plaintiffs complained that the use of locomotives frightened the horses of persons travelling along the parallel highway. The Court held that an Act of Parliament empowered the railway company to use locomotive engines upon the railway, meaning some interference with the rights of the public must have been contemplated by the legislature. Importantly, the interference caused by the locomotive engines was no more than was necessary; the defendants had exercised due care and diligence in the management and operation of their engines. Writing about the case in 1875, one researcher noted that although the opening of the Stockton and Darlington line had clearly established ‘the superiority of the locomotive’, ‘there are always those who look upon an innovation with dislike, and seek to stop the chariot-wheels of progress’.²⁴

A modern case involving nuisance and the railways was a claim against Network Rail by two home owners who lived in the town of Maesteg in South Wales.²⁵ Network Rail owned the land immediately behind the plaintiffs’ homes. This land consisted of an embankment which dropped down to an active train line. The embankment was infested with Japanese knotweed (an invasive plant known for being fast-growing and intrusive, and extremely difficult to eradicate). The knotweed was found to have encroached onto the plaintiffs’ adjoining properties. The plaintiffs succeeded in their nuisance action against Network Rail. It did not matter that the knotweed had not yet caused any actual physical damage to the plaintiffs’ properties.

In Australia, a 2023 decision by the Supreme Court of New South Wales (NSW) upheld a claim for private nuisance brought by two businesses in relation to the construction of light rail in Sydney.²⁶ The proceedings were commenced as a class action on behalf of all persons who suffered loss due to the construction project. The two lead plaintiffs were a luxury handbag store and a restaurant. It was claimed that the nuisance was constituted, inter alia, by heavy machinery, vibrations, noise, dust, and the restriction of pedestrian and vehicular movement. The defendant, Transport for NSW, argued that there was no nuisance because the construction of the light rail was for the public benefit. However, the Supreme Court held that while this is a factor to be considered in assessing the issue of reasonableness, the public benefit cannot operate as a defence, as this ‘would allow the State to override the rights and interests of ordinary members of the community, such as business owners’.²⁷ The defendant’s attempt to rely upon the defence of statutory authorisation was also unsuccessful. Although legislation permitted the construction of the light rail, the Supreme Court found that the nuisance created by the defendant was not the inevitable consequence of the exercise of its statutory authority.²⁸

Conclusion

The law of nuisance developed alongside the establishment of the railways. In Mr Morris’ case, the court was astute to the practical problems associated with applying the law of nuisance in modern society. For the tort to remain functional, it must continue to evolve in response to changing norms and practices relating to common land use.