Fernando v Bilton

Liability in negligence or nuisance requires more than proof that an act caused injury. The injury must also have been reasonably foreseeable as a result of the act. Causation and foreseeability are distinct questions, so medical evidence establishing causation cannot by itself overcome the absence of foreseeable injury. Statutory noise limits may provide useful guidance on acceptable noise levels and foreseeability even where the relevant regulations do not directly apply to the claimant. A warning owed as a matter of courtesy, prudence or party-wall procedure does not itself make personal injury foreseeable.

The claimant alleged that noise from building works at adjoining premises caused tinnitus and post-traumatic stress disorder. The Central London County Court accepted that power tools had been used but dismissed claims in negligence, nuisance and breach of statutory duty. It found that the maximum possible noise, about 101 decibels, was substantially below the level identified in the Control of Noise at Work Regulations 2005 as unacceptable peak noise. Permission to appeal was refused on paper, and the claimant renewed her application before the Court of Appeal. The central issue was whether injury was reasonably foreseeable.

1. Renewed application dismissed. The claimant’s application for permission to appeal was refused. The small delay in renewing it would have been extended if the proposed appeal had merit.
2. For claims in negligence and nuisance, proof that the defendant’s act caused injury is insufficient. The claimant must also establish that injury was reasonably foreseeable as a result of that act. The judge below was therefore entitled to treat foreseeability as fundamental.
3. The court accepted the acoustic evidence that power tools could have produced a maximum noise level of 101 decibels, even if they encountered metal, concrete or another object embedded in the chimneybreast. That finding addressed the claimant’s argument that a foreign object might have increased the noise.
4. The peak-noise levels in the Control of Noise at Work Regulations 2005 did not apply directly to the claimant’s position. They nevertheless provided good guidance on acceptable noise levels, and the judge was entitled to use them as a guide when assessing foreseeability.
5. The Party Wall etc Act 1996 did not assist on foreseeability. Its notice requirement was not directed to personal injury, and the claimant accepted that failure to give notice created no remedy. A warning might have been courteous and prudent, but it could not make injury foreseeable if injury was otherwise unforeseeable.
6. Any fresh medical evidence showing that the noise caused tinnitus would address causation only. It would not cure the failure to establish foreseeability. The claim had principally failed on that issue.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed on 8 October 2015.
• Central London County Court: His Honour Judge Hand QC dismissed the claims in negligence, nuisance and breach of statutory duty and ordered costs against the claimant.
• Permission stage: Laws LJ refused permission to appeal on the papers.