If the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment. It follows that the quantum of damages in private nuisance does not depend on the number of those enjoying the land in question. It also follows that the only persons entitled to sue for loss in amenity value of the land are the owner or the occupier with the right to exclusive possession.

      Damages for loss of amenity value cannot be assessed mathematically. But this does not mean that such damages cannot be awarded: see Ruxley Electronics Ltd. v. Forsyth [1996] A.C. 344 per Lord Mustill at 360-361 and Lord Lloyd of Berwick at 374.

      It was said that confining the right to sue would cause inconvenience. There might be a case, for example, where the owner was unwilling to bring proceedings because he was less sensitive to smoke than other members of his family. I find it difficult to visualise such a case in practice. In any event the inconvenience, such as it would be, does not justify a departure from principle.

      As for authority, one need look no further than the dictum of Lord Simonds in Read v. J. Lyons & Co. Ltd. [1947] A.C. 156 at 183:

 "For if a man commits a legal nuisance it is no answer to his injured neighbour that he took the utmost care not to commit it. There the liability is strict, and there he alone has a lawful claim who has suffered an invasion of some proprietary or other interest in land."

No doubt Lord Simonds will have had in mind the decision of the Court of Appeal in Malone v. Laskey [1907] 2 K.B. 141. There the plaintiff was injured by a falling bracket in the lavatory, caused by vibrations from the defendants' engine next door. The plaintiff occupied the house as her home, but neither she nor her husband had any proprietary interest in the house. They were mere licensees. The plaintiff sued in nuisance and negligence. As to nuisance, Sir Gorell Barnes P. said, at p. 151:

 "The main question, however, on this part of the case is whether the plaintiff can maintain this action on the ground of vibration causing the damage complained of, and in my opinion the plaintiff has no cause of action upon that ground. Many cases were cited in the course of the argument in which it had been held that actions for nuisance could be maintained where a person's rights of property had been affected by the nuisance, but no authority was cited, nor in my opinion can any principle of law be formulated, to the effect that a person who has no interest in property, no right of occupation in the proper sense of the term, can maintain an action for a nuisance arising from the vibration caused by the working of an engine in an adjoining house."

      If Malone v. Laskey was correctly decided, the decision below cannot stand.

      But the Court of Appeal evidently felt free to depart from Malone v. Laskey in the light of the intervening decision of the Court of Appeal in Khorasandjian v. Bush [1993] Q.B. 727. In the latter case, the daughter of the house was being pestered and threatened by unwanted telephone calls. Dillon L.J., giving the majority judgment, held that she had a cause of action in private nuisance. He regarded it as:

 "ridiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls."

As for Malone v. Laskey, Dillon L.J. added:

 "The court has at times to reconsider earlier decisions in the light of changed social conditions . . ."

Dillon L.J. was influenced by a decision of the Appellate Division of the Supreme Court of Alberta in Motherwell v. Motherwell (1976) 73 D.L.R. (3d) 62. In that case it was the wife who was being harassed by unwanted telephone calls. Clement J.A., at p. 78, said:

 "Here we have a wife harassed in the matrimonial home. She has a status, a right to live there with her husband and children. I find it absurd to say that her occupancy of the matrimonial home is insufficient to find an action in nuisance. In my opinion she is entitled to the same relief as is her husband, the brother."

Clement J.A. distinguished Malone v. Laskey on the ground that the plaintiff in that case and her husband were mere licensees. He relied on Foster v. Warblington Urban District Council [1906] 1 K.B. 648 for the proposition that "substantial occupation" is enough to found an action in private nuisance.

      I regret that I cannot agree with Clement J.A.'s reasoning. Foster v. Warblington Urban District Council was decided on the basis that the plaintiff's occupation was such that he had exclusive right to possession. As Judge Havery observed, there is no half-way house between Foster v. Warblington Urban District Council and Malone v. Laskey. Indeed, it would have been surprising if there were, since both cases were decided within a year of each other, and Fletcher Moulton L.J. was party to both decisions. It may be that Motherwell v. Motherwell could have been supported on the grounds that in Canadian law there is a cause of action for invasion of privacy. But in so far as the case was decided in private nuisance it does not represent the law of England.

      Judge Havery found himself in the awkward position of having to reconcile two irreconcilable decisions of the Court of Appeal in Malone v. Laskey and Khorasandjian v. Bush. He did so by suggesting that Khorasandjian v. Bush had extended the law of private nuisance to cover cases of harassment. Your Lordships are free to express a preference.

      I can well understand Dillon L.J.'s concern to find a remedy for the wife or daughter who suffers from harassment on the telephone, whether at home or elsewhere. But to allow them a remedy in private nuisance would not just be to extend the existing law. It would not just be to get rid of an unnecessary technicality. It would be to change the whole basis of the cause of action. For the reasons given by Peter Gibson L.J. in his dissenting judgment in Khorasandjian v. Bush, with which I agree, I would hold that that case was wrongly decided, and should be overruled. This removes an essential plank on which the reasoning of the Court of Appeal in the present case is based.

      The only other authority I would mention is Bone v. Seale [1975] 1 W.L.R. 797. I refer to it because it illustrates and confirms that the right to sue in private nuisance is linked to the correct measure of damages. The facts of Bone v. Seale were that the defendant was a pig farmer. The plaintiffs were the owners and occupiers of two adjoining properties. They claimed damages for nuisance by smell. The judge awarded over £6,000. to each of the plaintiffs. The Court of Appeal reduced the sum to £1,000. The case is interesting because damages were awarded on a lump sum basis for loss of amenity over twelve years, there being no evidence of any diminution in market value of either of the two adjoining properties. Stephenson and Scarman L.JJ. suggested, very tentatively, that there might be an analogy with loss of amenity in personal injuries cases. But this was only for the purpose of showing that the sum awarded by the judge was much too high. There was no hint that the damages should vary with the number of those occupying the houses as their home. The damages were assessed, so to speak, per stirpes and not per capita.

      At the end of his judgment on this part of the present case Pill L.J. at p. 365, said:

 "I regard satisfying the test of occupation of property as a home provides a sufficient link with the property to enable the occupier to sue in private nuisance. It is an application in present-day conditions of the essential character of the test as contemplated by Lord Wright. It appears to me, as it did to Dillon L.J., to be right in principle and to avoid inconsistencies, for example between members of a family, which in this context cannot now be justified."

For the reasons given above, I do not agree with this conclusion. Each member of a family does not have a separate cause of action. There is no more than one potential cause of action for each home. Over a hundred years ago Cotton L.J. said in Rust v. Victoria Graving Dock Co. and London and St. Katharine Dock Co. (1887) 36 Ch. D. 113, that at pp. 129-130, damages in nuisance are not to be increased by any subdivision of interests. By the same token damages are not to be increased by any multiplication of plaintiffs. It follows that the proceedings in the instant case were never properly constituted. Instead of the 690 plaintiffs named in the Schedule to the Statement of Claim, there should have been only one plaintiff for each address.

      On the first point I would allow the appeal, and answer the question in the same manner as Judge Havery.

      I need add very little on the second point, since I agree with the unanimous decision of the Court of Appeal that interference with television reception is not capable of constituting an actionable private nuisance. I lay stress on the word "actionable." For I would not want it to be thought for one moment that I regard television reception as being of little or no moment. The annoyance caused by the erection of Canary Wharf and the consequential interference with television reception must have been very considerable. But unfortunately the law does not always afford a remedy for every annoyance, however great. The house-owner who has a fine view of the South Downs may find that his neighbour has built so as to obscure his view. But there is no redress, unless, perchance, the neighbour's land was subject to a restrictive covenant in the house-owner's favour. It would be a good example of what in law is called "damnum absque injuria": a loss which the house-owner has undoubtedly suffered, but which gives rise to no infringement of his legal rights. In the absence of a restrictive covenant, there is no legal right to a view. The analogy between a building which interferes with a view and a building which interferes with television reception seems to me, as it did to the Court of Appeal, to be very close.

      If one asks the more fundamental question as to why there should be no legal remedy in either case, one is taken back to the observation of Lord Hardwicke L.C. in Attorney-General v. Doughty (1752) 2 Ves. Sen. 453:

 "I know no general rule of common law, which warrants that, or says, that building so as to stop another's prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . ."

In Dalton v. Angus (1881) 6 App.Cas. 740 at 824, Lord Blackburn put it fairly and squarely on grounds of policy:

 "I think this decision, that a right of prospect is not acquired by prescription, shows that, whilst on the balance of convenience and inconvenience, it was held expedient that the right to light, which could only impose a burthen upon land very near the house, should be protected when it had been long enjoyed, on the same ground it was held expedient that the right of prospect, which would impose a burthen on a very large and indefinite area, should not be allowed to be created, except by actual agreement."

      Another argument which Lord Irvine put forward, but did not press, is that the interference with television reception was not due to any activity on the part of the defendants on their land. It was due solely to the existence of the building itself. However, as Hardie Boys J. pointed out in Bank of New Zealand v. Greenwood [1984] 1 N.Z.L.R. 525, nuisance does not depend in every case on an activity, although it usually does. It may arise from a mere state of affairs on a man's land which he allows to continue. Leakey v. National Trust [1980] Q.B. 485 is a good example. So I would not decide the case on the ground that interference with the plaintiffs' television reception did not involve any activity on the defendants' part.

      If further precision is needed in answering the question why the plaintiffs have no legal redress in nuisance, it could be, as my noble and learned friend Lord Goff has suggested, because there is nothing emanating from the defendants' land in the present case. The eminently sensible conclusion reached in Bank of New Zealand v. Greenwood might not be easy to reconcile with this approach. So that case may go to the limit of the law of nuisance. But the facts were most unusual, as Hardie Boys J. pointed out at p. 535, and every case depends on its own particular facts. This is especially true in the field of nuisance.