The extraordinarily sensitive problem of liability in nuisance
In February 1887 the Kilvert family let the ground floor of their Manchester warehouse to paper and twine manufacturer Robinson & Co. Robinson used the premises to store heat-sensitive brown paper that required conditions that were not too dry.
In September that year the Kilverts, who had retained the basement, decided to manufacture paper boxes, a process that required heat and dry air.
The hot, dry cellar affected the paper stocks in the warehouse above and reduced their value. Robinson claimed damages in nuisance. Ordinary paper would not have been damaged by what the Kilverts were doing and the court found that it would be wrong to hold the Kilverts liable in nuisance when their activities would not have affected an ordinary trade, or interfered with the ordinary enjoyment of life. A nuisance, to be actionable, must interfere with the living convenience of the average man. Harm to something of 'abnormal sensitivity' did not itself amount to a nuisance. So far, so Victorian.
A century later, a Mr Morris opened a recording studio in Croydon, about 80 metres away from the London to Brighton mainline railway. In 1994, Railtrack installed an electrical track circuit known as TI (traction immune) 21 to operate the signalling system. Shortly afterwards, Morris found that magnetic fields, generated by 'tuned zones' produced by the TI 21 track circuit, caused noise interference in his studio and particularly affected amplified electric guitars.
As the court observed, 'the noise that resulted when most of Mr Morris' customers played their guitars for the purpose of making recordings was unsatisfactory'. As a result he lost customers and suffered losses of more than £60,000. Morris brought a claim against Railtrack for damages in nuisance.Railtrack argued it owed no duty in nuisance because Morris, much like the paper merchant, was carrying out an unusual and extraordinarily sensitive activity on his premises.
You may think that there are few parallels between paper storage in the 19th century and the effects of electromagnetic interference in the 21st. The court recognised the practical problems of applying the law of nuisance to electronic interference. The use of electronic equipment is a feature of modern life. It is no easy matter to regulate the competing claims of those who use equipment that causes interference and those who use equipment susceptible to it. Furthermore, the standards of equipment are increasingly regulated. Guitars produced in accordance with current regulations would not have been affected.Those that were could, therefore, with some justification, be described as 'extraordinarily sensitive equipment', which fell outside the protection of the law of nuisance.
Faced with these dilemmas, the court took something of a legal shortcut and identified forseeability as the key issue.
Could Railtrack have foreseen that by installing the TI 21 track circuits it would cause damage to someone in Morris'position?
Railtrack was disadvantaged by the fact that it had previously received complaints from various tenants who used their railway arches between Loughborough Junction and Elephant and Castle in south London as musical rehearsal studios. Their complaints of electromagnetic interference were investigated at the time and, while Railtrack took no action to alleviate the problem, it did compensate the tenants.
Railtrack could not say, with hand on heart, that it had no idea it could happen.
The Court of Appeal was able, however, to distinguish between electromagnetic interference affecting those in the railway arches, directly beneath a tuned zone where the magnetic flux would be concentrated and unimpeded by normal building materials, and interference affecting someone 80 metres away.
Morris was the only person to have experienced this problem and, having regard to the weakness of the periphery of the magnetic field, it was not reasonable to foresee that it would cause interference that far from the track.
In rejecting Morris' claim, the Court of Appeal tidied up the law of nuisance and jettisoned some of the rules for which it found it 'difficult to see any further life'.These included the concept of 'abnormal sensitiveness' used to describe Robinson & Co's brown paper 100 years ago.