LORD COOKE OF THORNDON

My Lords,

      Having had the privilege of reading in draft the opinions of the other four members of your Lordships' Committee in these cases, I begin my own contribution by respectfully acknowledging that they achieve a major advance in the symmetry of the law of nuisance. Being less persuaded that they strengthen the utility or the justice of this branch of the common law, I am constrained to offer an approach which, although derived from concepts to be found in those opinions, would lead to principles different in some respects. Naturally I am diffident about disagreeing in any respect with the majority of your Lordships, but such assistance as I may be able to give in your deliberations could not consist in mere conformity and deference; and, if the common law of England is to be directed into the restricted path which in this instance the majority prefer, there may be some advantage in bringing out that the choice is in the end a policy one between competing principles.

      My Lords, the lineaments of the law of nuisance were established before the age of television and radio, motor transport and aviation, town and country planning, a "crowded island", and a heightened public consciousness of the need to protect the environment. All these are now among the factors falling to be taken into account in evolving the law. It is possible for the courts to cater for such developments because the forms which nuisance may take are protean (Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, 903, per Lord Wright) and nuisance is a term used to cover a wide variety of tortious acts or omissions, and in many negligence in the narrow sense is not essential (The Wagon Mound (No. 2) [1967] 1 A.C. 617, 639, per Lord Reid delivering the judgment of the Privy Council). In similar vein Lord Wilberforce delivering the judgment of the Privy Council in Goldman v. Hargrave [1967] 1 A.C. 645, 657, said that "the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive."

      Further, as to impairment of the enjoyment of land, the governing principle is that of reasonable user--the principle of give and take as between neighbouring occupiers of land (Cambridge Water Co. Ltd v. Eastern Counties Leather plc. [1994] 2 A.C. 264, 299, per Lord Goff of Chieveley). The principle may not always conduce to tidiness, but tidiness has not had a high priority in the history of the common law. What has made the law of nuisance a potent instrument of justice throughout the common law world has been largely its flexibility and versatility. The judgment of Hardie Boys J. in the glare case, Bank of New Zealand v. Greenwood [1984] 1 N.Z.L.R. 525, appeals to me as an admirable example and I do not share the view that it may overlook that nuisance and negligence are different torts.

      In so far as a nuisance consists in material damage to property, it is no doubt generally true, as stated by Cotton L.J. in Rust v. Graving Dock Co. (1887) 36 Ch.D. 113, 130, that damages must not be increased by any subdivision of interests. That was a case of flood damage where as to some of the land affected the plaintiff was only a reversioner. But, at least since the speech of Lord Westbury L.C. in St. Helen's Smelting Co. v. Tipping (1865) 11 H.L.Cas. 642, 650, it has been seen that a different category of nuisance is in issue when, as the Lord Chancellor put it, the action is brought on the ground of sensible personal discomfort, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that injuriously affects the senses or the nerves. Lord Westbury was emphasising that in that category much must depend on the circumstances of the place, as has become familiar doctrine. But just as a distinction has been drawn, as to the conditions of liability, between material physical damage on the one hand and personal discomfort and the like on the other, so a distinction could perfectly logically be drawn between them as to the right to sue. It is striking in this context that, as my noble and learned friend Lord Goff of Chieveley has noted, among the various views put forward about private nuisance is one that it should not apply at all to physical damage to land.

      In Ruxley Electronics and Construction Ltd v. Forsyth [1996] A.C. 344 this House approved the award of damages in contract for partial failure to provide a promised amenity. In some of the speeches now being delivered the same concept is rendered as the amenity value of the land or other property. I venture to appreciate this way of looking at the matter as a valuable insight. In contract the lost benefit is normally recoverable by the promisee; the subject of the rights of third party beneficiaries in contract may arise but is outside the scope of the present discussion. In tort the question "Who may recover for disturbance of enjoyment of the amenity?" is, as I see it, a question to which no one answer, wide or narrow, is inevitably compelled.

      Private nuisance is commonly said to be an interference with the enjoyment of land and to be actionable by an occupier. But "occupier" is an expression of varying meanings, as a perusal of legal dictionaries shows. Compare, for instance, Paterson v. Gas Light and Coke Co. [1896] 2 Ch. 476, 482; Regina v. Tao [1977] Q.B. 141; Street v. Mountford [1985] A.C. 809. In the latter case the expression was used as a neutral one covering either a tenancy or a licence but it was held that, generally speaking, exclusive possession for a fixed or periodic term at a stated rent carries a tenancy. Your Lordships' House does not appear to have been called on hitherto to lay down precisely the meaning to be given to the expression in relation to interference with the amenities of land. There is a dictum by Lord Simonds in Read v. J. Lyons & Co. Ltd [1947] A.C. 156, 183, restricting a lawful claim in nuisance to he who has suffered an invasion of some proprietary or other interest in land; but it was obiter and not focused on interference with amenities. Where interference with an amenity of a home is in issue there is no a priori reason why the expression should not include, and it appears natural that it should include, anyone living there who has been exercising a continuing right to enjoyment of that amenity. Even this would not be exhaustive, as a defendant may not be able to set up the jus tertii against a de facto possessor: see two passages to that effect in Foster v. Warblington Urban Council [1906] 1 K.B. 648 quoted respectively by Clement J.A. in Motherwell v. Motherwell (1976) 73 D.L.R. (3d) 62, 77-78, and by Lord Goff of Chieveley in the present case. A temporary visitor, however, someone who is "merely present in the house" (a phrase used by Fletcher Moulton L.J. in Malone v. Laskey [1907] 2 K.B. 141, 154), would not enjoy occupancy of sufficiently substantial nature.

      I cannot avoid adding that it seems to me less than probable that Clement J.A. misunderstood the plain meaning of the passage which he quoted from Foster. As I read his judgment, he mentioned Foster only as authority for the proposition that substantial de facto occupation may be enough--and the case is indeed authority for that--but his reason for holding that a resident wife had standing was not based on Foster but on altogether different and wider considerations relating to the family home.

      Malone v. Laskey, a case of personal injury from a falling bracket rather than an interference with amenities, is not directly in point, but it is to be noted that the wife of the subtenant's manager, who had been permitted by the subtenant to live in the premises with her husband, was dismissed by Sir Gorell Barnes P. as a person who had "no right of occupation in the proper sense of the term" and by Fletcher Moulton L.J. as being "merely present." My Lords, whatever the acceptability of those descriptions ninety years ago, I can only agree with the Appellate Division of the Alberta Supreme Court in Motherwell at p. 77 that they are "rather light treatment of a wife, at least in today's society where she is no longer considered subservient to her husband." Current statutes give effect to current perceptions by according spouses a special status in respect of the matrimonial home, as by enabling the court to make orders regarding occupation (see in England the Family Law Act 1996, sections 30 and 31). Although such provisions and orders thereunder do not of themselves confer proprietary rights, they support in relation to amenities the force and common sense of the words of Clement J.A. in Motherwell at p. 78:

 "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 found an action in nuisance."

As between spouses and de facto partners the question whether contributions in money or services give a proprietary equitable interest in a matrimonial home is a notoriously difficult one today, wrestled with throughout the common law world. Nuisance actions would seem better left free of the complication of this side issue.

      The status of children living at home is different and perhaps more problematical but, on consideration, I am persuaded by the majority of the Court of Appeal in Khorasandjian v. Bush [1993] Q.B. 727 and the weight of North American jurisprudence to the view that they, too, should be entitled to relief for substantial and unlawful interference with the amenities of their home. Internationally the distinct interests of children are increasingly recognised. The United Nations Convention on the Rights of the Child, ratified by the United Kingdom in 1991 and the most widely ratified human rights treaty in history, acknowledges children as fully-fledged beneficiaries of human rights. Article 16 declares inter alia that no child shall be subjected to unlawful interference with his or her home and that the child has the right to the protection of law against such interference. International standards such as this may be taken into account in shaping the common law.

      The point just mentioned can be taken further. Article 16 of the Convention on the Rights of the Child adopts some of the language of Article 12 of the Universal Declaration of Human Rights and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). These provisions are aimed, in part, at protecting the home and are construed to give protection against nuisances: see Arrondelle v. United Kingdom, Application No. 7889/77 (1982) 26 D.R.5 F. Sett. (aircraft noise) and Lopez Ostra v. Spain (1994) 20 E.H.R.R. 277 (fumes and smells from a waste treatment plant). The protection is regarded as going beyond possession or property rights: see Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights (1995), p. 319. Again I think that this is a legitimate consideration in support of treating residence as an acceptable basis of standing at common law in the present class of case.

      In Khorasandjian Dillon and Rose L.JJ. thought that, if the wife of the owner is entitled to sue in respect of harassing telephone calls, the same should apply to a child living at home with her parents. I agree. The persistent ringing of the telephone may be a nuisance in fact to all occupants of the home, not any primary target only, and all members of the family living there should be entitled to redress in law for substantial disturbance of their amenity. It has been recognised in jurisdictions other than England and Canada that continual telephoning to a house may be a nuisance: see for instance Stoakes v. Brydges [1958] Q.W.N. 9; Wiggins v. Moskins Credit Clothing Store 137 F.Supp. 764 (Car. 1956). I share the disposition to think that harassment by telephone calls or otherwise should also be actionable when it occurs outside the home; but that is surely no reason for denying relief in nuisance when it or any other form of serious disturbance of amenity occurs within the home.