Network Rail Infrastructure Ltd v Morris (t/a Soundstar Studio)

In modern private nuisance, reasonable foreseeability of the relevant damage is essential to a claim for damages. The damage must be foreseeable to the defendant as affecting the claimant or a category of persons into which the claimant falls. Liability does not arise merely because conduct foreseeably causes some harm to someone.

Where electromagnetic interference is alleged, foreseeability must be assessed in the particular relationship between the parties, including the distance and circumstances of the interference. A concurring judgment indicated that abnormal sensitiveness is not an independent modern bar; the issue is subsumed within reasonableness and foreseeability.

Railtrack installed TI 21 signalling circuits on railway lines near a recording studio operated by CJ Morris. Electromagnetic interference affected electric guitars and amplifiers at premises approximately 80 metres from the track, causing loss of business. Mr Morris succeeded in nuisance before Mr Recorder Pulman QC in the Croydon County Court on 9 April 2003.

Railtrack appealed, arguing that the use was extraordinary, that the damage was not reasonably foreseeable, and that section 122 of the Railways Act 1993 provided protection. The central issue was whether interference at the studio was reasonably foreseeable when the signalling system was installed.

1. Disposition. The appeal was allowed. The order of Mr Recorder Pulman QC was set aside and the respondent’s claim was dismissed.
2. Foreseeability. The claim was based on the installation of the TI 21 system before October 1994, rather than its continued operation after Railtrack learned of the interference. It was accepted that Railtrack could be liable in nuisance only if it should reasonably have foreseen damage to someone in Mr Morris’s position. Reasonable foreseeability was therefore an essential issue.
3. Evidence. The Recorder had wrongly inferred foreseeability from Mr Bradley’s report concerning musical studios under railway arches. The tenant who was not near a tuned zone was still under the arches, where interference from power in the rails was much stronger than at the respondent’s premises. Evidence that approximately 3,200 circuits had been installed, with no comparable complaint apart from one later complaint, supported the conclusion that interference at a distance of 80 metres was not reasonably foreseeable. The Recorder’s finding was contrary to the evidence and unsound.
4. Modern nuisance. Buxton LJ, concurring, explained that modern nuisance is governed by reasonableness between neighbours and reasonable foreseeability, rather than foreseeability considered in isolation. The defendant is not liable merely because some harm to some person is foreseeable. The relevant damage must be foreseeable to the claimant or an appropriate category of persons. He referred to Cambridge Water Co v Eastern Counties Leather PLC [1994] 2 AC 264, Delaware Mansions v Westminster CC [2002] 1 AC 332 and related authorities.
5. Abnormal sensitiveness and regulation. The Court did not need finally to resolve whether the use of unusually sensitive equipment was protected by nuisance, or whether regulation was a preferable means of resolving competing electronic interference. Buxton LJ expressed the view that the former separate rule concerning abnormal sensitiveness had no independent continuing role and was subsumed within the modern reasonableness inquiry.
6. Statutory issue and costs. Since foreseeability was not established, it was unnecessary to decide the effect of section 122 of the Railways Act 1993. The respondent was ordered to pay the appellant’s costs of the action and appeal, subject to detailed assessment, with costs incurred while legally funded dealt with under regulation 10 of the Community Legal regulations (Costs) regulations 2000.

• Court of Appeal (Civil Division) allowed the appeal, set aside the County Court order and dismissed the claim: [2004] EWCA Civ 172.
• Croydon County Court, before Mr Recorder Pulman QC, held on 9 April 2003 that Railtrack was liable in nuisance for electromagnetic interference affecting the respondent’s recording studio.