As to the North American cases, in Motherwell the relief granted to the plaintiffs, among them the wife of the owner of one of the houses telephoned, who was held entitled to sue in her own right, was nominal damages and an injunction. In Devon Lumber Co. Ltd v. MacNeill (1987) 45 D.L.R. (4th) 300 a majority of the New Brunswick Court of Appeal upheld awards of damages for annoyance and discomfort from dust to the infant children of the joint owners of the house, while reducing the amounts awarded in the court below--on the ground that abnormal sensitivity because of allergies was outside the scope of liability. Earlier Canadian provincial decisions, including Motherwell, were cited in support, as well as the textbooks of Dean Prosser, Mr Justice Linden and Professor Fleming. Stratton C.J.N.B. said at p. 303:

 "In the present case, it was established at trial that Mrs. MacNeill was a joint owner of the property with her husband and that they and their children lived together in the family home when the nuisance complained of occurred. Thus, at all relevant times, the MacNeills were sharing possession of the family home with their children and at the same time the children had a right to occupy the home with their parents. In these circumstances I would respectfully agree with Professor Fleming (The Law of Torts, 6th ed., pp. 393-394) that it would be 'senseless discrimination' against the MacNeill children to deprive them of a right of action in nuisance. I would accordingly conclude and hold that even though the children lacked any legal title to the property they had a right of occupation sufficient to support an action on their behalf for damages for any unreasonable and substantial interference with their lawful use or enjoyment of the family residence."

      As is only to be expected in the light of the practical importance of nuisance liability in developed society, there is a vast sea of United States case law into which a judgment cannot conveniently do more than dip. It will have to be enough to rely on the summary in the American Law Institute's Restatement which echoes Prosser and Keeton on Torts, 5th ed. (1984) 621-622, and to give two illustrative cases. The Restatement, Second, of Torts, section 821E, includes:

 "d. Members of the family.

  'Possession' is not limited to occupancy under a claim of some other interest in the land, but occupancy is a sufficient interest in itself to permit recovery for invasions of the interest in the use and enjoyment of the land. Thus members of the family of the possessor of a dwelling who occupy it along with him may properly be regarded as sharing occupancy with intent to control the land and hence as possessors, as defined in section 328E. When there is interference with their use and enjoyment of the dwelling they can therefore maintain an action for private nuisance. Although there are decisions to the contrary, the considerable majority of the cases dealing with the question have so held."

      An illustrative case often cited is Hosmer v. Republic Iron & Steel Co. 60 South. 801 (Al. 1913), where it was alleged that a child had died from the foul, unwholesome and noxious air issuing from a pond constructed by the defendant in the neighbourhood of the child's home. Sayre J. delivered a learned judgment from which, as the report is not readily available in England, it may be useful to quote quite a long passage:

 "The only factor of the case presented which it is conceived may possibly be effective in denial of the cause of action asserted is that plaintiff's intestate owned no legal interest or estate in the land upon which he lived. To sustain his contention that the complaint is defective in this respect, appellee quotes Blackstone's definition of nuisance as 'anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another' (Commentaries, 4th ed. (1876), vol. III, ch. XIII, p. 190). We have made approving use of that definition in several cases. On this occasion it is necessary to note that the hurt or annoyance of the definition is not necessarily a physical injury to the lands, tenements, or hereditaments, but may be an injury to the owner or possessor thereof in respect of his dealing with, possessing, or enjoying them. Cooley on Torts, 3rd ed., p. 1174. At the old common law, a declaration in a suit brought for the physical abatement of a nuisance by the writ of nuisance was required to allege a freehold estate in the premises affected, but that was because the action was a real action. One modern way of abating a nuisance is by an action on the case for damages merely, in which case the declaration need only show that the plaintiff was rightfully in possession of the premises affected. 14 Ency. Pl. & Pr. 1113. This remedy, however, is not permitted to those who suffer only in common with the public; for otherwise, in the language of Chief Justice Shaw in Quincy Canal Proprietors v. Newcomb (1843) 48 Mass. 276; 39 Am.Dec. 778, where he was speaking of a public nuisance which had not become a private nuisance by reason of special damage to the plaintiff, that 'would lead to such a multiplication of suits as to be itself an intolerable evil.' But that is as far as the best considered cases have gone in the policy of repressing litigation on account of wrongs done and suffered through nuisances, and, we apprehend, it is as far as the courts ought to go or will. This court, in common with all others, has held that the fact that a nuisance may have deleteriously affected the property or personal well-being of others in the neighbourhood does not alleviate any material and special injury done to the plaintiff, nor merge it in the public wrong for which the public may have a remedy in one way or another. Richards v. Daugherty (1902) 133 Ala. 569; 31 South. 934. It is obvious that to maintain an action for an injury affecting the value of the freehold the plaintiff must have a legal estate. But if noxious vapors and the like cause sickness and death to one who has a lawful habitation in the neighbourhood, no sufficient reason is to be found in the accepted definitions of nuisance, nor in that policy of the courts which would discourage vexatious litigation, nor in the inherent justice of the situation, as we see it, why the person injured, or his personal representative in case of death, should not have reparation in damages for any special injury he may have suffered, although he has no legal estate in the soil. Certainly a child has the right to live under his father's roof--is a lawful occupant of his father's home--and in our opinion he should be accorded the same measure of protection against the construction of nuisances in the neighbourhood which are so noxious and long-continued as to materially affect his physical well-being."

      Coming to more recent times, in Bowers v. Westvaco Corporation (1992) 419 S.E. 2d. 661 (Va. 1992) family members, including minors living at home, were awarded damages for dust and vibration nuisance caused by truck-staging operations on adjacent property. Hassell J., delivering a judgment of a court of seven of the Supreme Court of Virginia, emphasised that the court had "repeatedly held that an owner or occupant of land had a right to recover against the operator of a private nuisance." He spoke of liability to "occupants of neighbouring dwellings," holding that the children were entitled to recover as lawful occupants. The Restatement was among the supporting materials cited.

      The preponderance of academic opinion seems also to be against confining the right to sue in nuisance for interference with amenities to plaintiffs with proprietary interests in land. Professor John G. Fleming's condemnation of a "senseless discrimination"--see now his 8th ed. (1992) 426 - has already been mentioned. His view is that the wife and family residing with a tenant should be protected by the law of nuisance against forms of discomfort and also personal injuries, "by recognising that they have a 'right of occupation' just like the official tenant." Clerk and Lindsell, 17th ed. (1995) para. 18-39, is to the same effect, as is Linden 5th ed. (1993) 521-22; while Winfield and Jolowicz, 14th ed. (1994) 419-20, and Markesinis and Deakin, 3rd ed. (1994) 434-35 would extend the right to long-term lodgers. Salmond and Heuston on the Laws of Torts, 21st ed. (1996) 63, n.96, and the New Zealand work Todd on Torts, 2nd ed. (1997) p. 537 suggest that the status of spouses under modern legislation should at least be enough; and the preface to the same edition of Salmond and Heuston goes further, by welcoming the decision in Khorasandjian v. Bush as relieving plaintiffs in private nuisance cases of the need to show that they enjoyed a legal interest in the land affected.

      My Lords, there is a maxim communis error facit jus. I have collected the foregoing references not to invoke it, however, but to suggest respectfully that on this hitherto unsettled issue the general trend of leading scholarly opinion need not be condemned as erroneous. Although hitherto the law of England on the point has not been settled by your Lordships' House, it is agreed on all hands that some link with the land is necessary for standing to sue in private nuisance. The precise nature of that link remains to be defined, partly because of the ambiguity of "occupy" and its derivatives. In ordinary usage the verb can certainly include "reside in", which is indeed the first meaning given in the Concise Oxford Dictionary.

      In logic more than one answer can be given. Logically it is possible to say that the right to sue for interference with the amenities of a home should be confined to those with proprietary interests and licensees with exclusive possession. No less logically the right can be accorded to all who live in the home. Which test should be adopted, that is to say which should be the governing principle, is a question of the policy of the law. It is a question not capable of being answered by analysis alone. All that analysis can do is expose the alternatives. Decisions such as Malone v. Laskey do not attempt that kind of analysis, and in refraining from recognising that value judgments are involved they compare less than favourably with the approach of the present-day Court of Appeal in Khorasandjian and this case. The reason why I prefer the alternative advocated with unwonted vigour of expression by the doyen of living tort writers is that it gives better effect to widespread conceptions concerning the home and family.

      Of course in this field as in most others there will be borderline cases and anomalies wherever the lines are drawn. Thus there are, for instance, the lodger and, as some of your Lordships note, the au pair girl (although she may not figure among the present plaintiffs). It would seem weak, though, to refrain from laying down a just rule for spouses and children on the ground that it is not easy to know where to draw the lines regarding other persons. Without being wedded to this solution, I am not persuaded that there is sufficient justification for disturbing the conclusion adopted by Pill L.J. with the concurrence of Neill and Waite L.JJ. Occupation of the property as a home is, to me, an acceptable criterion, consistent with the traditional concern for the sanctity of family life and the Englishman's home--which need not in this context include his workplace. As already mentioned, it is consistent also with international standards.