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COURT OF APPEAL ANDREAE v SELFRIDGE [1938] 1 Ch 1 28 May 1937 Full text FACTS The case concerned demolition and

site preparation works carried out to enable Selfridges store in Oxford Street to be built. There were 4 operations - (1) demolition of 31-32 Wigmore Street between November and February 1934 (2) demolition of property in Somerset Road in Oxford Street between July and September 1935 (3) the installation of a lift in April 1936 in the Somerset Hotel, and (4) demolition of 125 Wigmore Street. The fourth operation led to no complaint. GREEN MR: ... But it was said that when one is dealing with temporary operations, such as demolition and rebuilding, everybody has to put up with a certain amount of discomfort, because operations of that kind cannot be carried on at all without a certain amount of noise and a certain amount of dust. Therefore, the rule with regard to interference must be read subject to this qualification and there can be no dispute about it, that in respect of operations of this kind, such as demolition and building, if they are reasonably carried out and all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to neighbours, whether by noise, dust, or other reasons, the neighbours must put up with it. The learned judge has in effect said that the qualification does not apply in the present case, because that qualification can apply only when the operations are operations that may be described as the usual and normal use of land by people in this country. I am unable to take the view that any of these operations was of such an abnormal character as to justify treating the disturbance created thereby, as constituting a nuisance. That applies to both the first and second operations But assuming that there was nothing wrong in the

defendant companys works, assuming the defendant company was carrying on the demolition and its building, productive of noise though it might be with all reasonable skill and taking all reasonable precautions not to cause annoyance to its neighbours, then the plaintiff might lose all her clients in the hotel because they had lost the amenities of an open and quiet place behind it, but she would have no cause of complaint. The first thing to be dealt with there is whether or not anything which the defendant company did in connection with the second operation was a breach of its obligations towards its neighbours. The crucial matter is the matter of dust. I have already indicated that, to my mind, the plaintiffs evidence establishes that the quantity of dust and grit let loose by this operation was quite insufferable. A substantial point that is made with regard to it by Mr Fergus Malton is: assuming that it was insufferable this, of course, he does not admit but I hold against him there - the plaintiff must put up with it, provided that all reasonable proper precautions were taken to save annoyance to the neighbours, Now, that is a matter of evidence. I have listened attentively to the evidence that was read on the side of the defendant company with regard to it, and I am not satisfied that it has discharged the burden of proof upon it. Full text GREENE MR: In this case we have had the advantage of a very full and detailed examination of the evidence. If, in the course of this judgment, I do not go into the details of the evidence, it must not be thought that, for that reason, they have not been understood and carefully considered; but the case is one in which I do not think it is desirable or necessary that the court should reserve judgment in order to enable it to go in detail through the various matters of evidence which are before it. The court is unanimous in the view which it takes in this case, and it is desirable that judgment should be delivered here and now. The appeal is an appeal by the defendant in the action, Selfridge & Co Ltd, against a judgment of Bennett J, in the Chancery Division, whereby he awarded to the plaintiff a sum of 4,500 as damages for nuisance. The nature of the nuisance, stated quite broadly, was this, that, in the course of developing a large

island site, or portions of it, Selfridge & Co Ltd, had conducted its operations in such a way as by noise and dust to interfere with the reasonable and comfortable occupation by the plaintiff of her premises, whereby she suffered damage. The judge found that there was such interference, and that there was damage. The appeal is put in two ways. First of all, it is said that judgment ought to have been given in favour of the defendant company on the ground that no cause of action had been established at the date of the issue of the writ. The other ground on which it is put was this, that, assuming that view to be wrong, the judge misdirected himself in deciding that the acts of the defendant company were wrongful, and in attributing to the acts, which he held to be wrongful, matters of loss to the plaintiff, which, it was said, on the evidence, could not be shown to be attributable to anything done by the defendant company. The matter arises in this way. At the south of Wigmore Street, between Wigmore Street and Somerset Street, there lies an island site, bounded on the east by Duke Street and on the west by Orchard Street. That site is one which the defendant company is minded to acquire, and its intention is to place upon it buildings, which it will use for the purposes of its business. The way in which it is doing this may, for present purposes, be stated with sufficient accuracy thus: It is obtaining, as and when it can, possession of the various premises which occupy the site at present, and demolishing them and constructing, in their place, new buildings, the general scheme being that, under an agreement with the Portman Estate, it will receive a lease as and when it has succeeded in getting into its possession the whole of the site, and when it has constructed its buildings upon it. The plaintiff has for some time occupied two houses on the north of the site facing Wigmore Street, Nos 119 and 121, Wigmore Street. She occupied those houses as a tenant of the Portman Estate, and she, in connection with this scheme, agreed to sell her lease to Selfridge & Co Ltd. She had, as a matter of fact, a current lease, which had a few years to run, and she also obtained a reversionary lease of some further ten years, the whole expiring in 1951. She agreed on 21 October 1931, to sell those two leases, the current lease and the reversionary lease, to Selfridge & Co Ltd, for the sum of 14,750, completion to take place on 29 September 1936. Therefore, at that date, her business as a hotel proprietor in connection with these houses was to come to an end, as, in fact, it did

come to an end, when the purchase was completed. At those houses the plaintiff had for some years carried on with success the business of a hotel proprietor. The nature of her business can be seen from one or two figures. In the year ending 31 May 1927, she made a profit of 2,248, and her profits for the three years following were round about 2,000 a year. In the year 1931 a serious drop took place and her profits were 463 only. I should add that her year ended on 31 May. In the next years, the year ending 31 May 1932, she made a loss of 592, in the year ending 31 May 1933, a loss of 102, in the year ending 31 May 1934, a profit of 103, and in the year ending 31 May 1935, a loss of 186. One of the matters which falls to be dealt with in the action and this appeal is the question as to what extent, if at all, the decline in her business profits, and the failure of her business profits to recover, are to be attributed to wrongful acts by the defendant company. The nature of the defendant companys operations, so far as relevant to this appeal, is this. They fall into four operations. The first operation consisted of the demolition of the buildings occupying the south-east corner of the site, and the erection thereon of a new building. The buildings demolished were many in number. There were Nos 2-10, Somerset Street; there were Nos 22-38, even numbers, Duke Street, and buildings known as Grays Buildings at the back, Nos 1-22. That constituted a large block, and there was a further building, No 22, Duke Street. That was the first operation. The first operation began on 21 November 1931, when the demolition of the buildings occupying that portion of the site was begun, and continued until 13 February 1932. At about that time, although the date is not clearly ascertained, but somewhere about February or March 1932, a further demolition operation took place in the neighbourhood. That was the demolition of St Thomass Church, which was a little to the west of the middle of this site, and occupied part of the space which Selfridge & Co Ltd, was minded to acquire. That demolition was carried out by the Ecclesiastical Commissioners, and Selfridge & Co Ltd, is in no way responsible for anything that was done in connection with it, but it has to be mentioned because it plays a certain part in the history of this case. The second operation consisted of the demolition of Nos 16-20, Somerset Street, and Nos 10, 11, and 12, Orchard Street, and the construction on those sites of

certain other buildings. That operation began on 1 July 1935, when the defendant company began to demolish Nos 10-12, Orchard Street. On 8 July 1935, it began to demolish Nos 16-20, Somerset Street, and the actual work of demolition of those buildings, and some further demolition, which formed part of the same operation, namely, the demolition of the back additions of Nos 131, 133, and 135, Wigmore Street, were completed by 28 September 1935. It is to be noted at this stage that the writ was issued on 16 July 1935, that is to say, just over a fortnight after the second operation began. The third operation consisted in the installation of a lift in buildings which had formerly been carried on as a hotel, known as the Somerset Hotel, occupying Nos 5-8, Orchard Street. That began on 25 April 1936, and it continued for a comparatively short time. There was a fourth operation, the demolition of No 125, Wigmore Street, with regard to which no complaint is made, and I need say no more about that. It will be noticed that the first operation was completed, so far as is relevant to this appeal, some two and a half years before the issue of the writ. The second operation had been running for about a fortnight when the writ was issued. It was incumbent upon the plaintiff, if she was to succeed in the action, to establish that, at the date of the issue of the writ, she had a cause of action. In order to do so, she relies on the first operation principally as showing that she had suffered actionable damage in respect of that, and she seeks (and it is not seriously contested that she would not be right in seeking, assuming that she establishes her cause of action at the date of the writ) to bring in the damage which she has suffered from the entirety of the operations down to the date of judgment, on the footing that the nuisance, if established, constitutes a continuing cause of action. To get rid of one minor point upon that, it was submitted by Mr Fergus Morton that, so far as the lift was concerned, as the whole of the operation took place after the issue of the writ, that ought to be treated as a separate matter, and not as part of a continuing nuisance. I myself do not accept that view. It seems to me, looking at this broadly and reasonably, that the operations of Selfridge & Co Ltd, in respect of this site may fairly be treated as one operation, although, owing to the exigencies of the development and the nature of the site, it does not all take place at once, nor, indeed, does it, take place absolutely continuously. In my judgment, it is legitimate to take into account, in

assessing damages, the third operation. With regard to the first operation, Mr Fergus Morton, on behalf of the defendant company, says, in the first place, that there was no cause of action in respect of that. It is, therefore, necessary to examine the facts with more particularity. The commencement of the demolition began, in the case of the first operation, as I have said, in December 1931. The work consisted of pulling down the existing houses, and excavating to the depth of some 60 ft into the ground, while the constructional part of the work consisted of erecting upon that site a steel-framed building, with three basements, a basement, a sub-basement and a sub-sub-basement, the framework of these subterranean parts of the building again consisting of a steel framework. The plaintiff first complained, in regard to what was being done in connection with that operation, on 14 March 1932, that is to say, after the actual demolition work there had been completed, and at a time when the work of excavation and erection was under way. It appears, from her solicitors letter of complaint of 14 March 1932, that the matters in respect of which she was complaining at that stage were the demolition of St Thomass Church and the use of cranes during the night time. The demolition of the church was one in respect of which, as I have said, the defendant company cannot be held liable, but the working of the cranes was work which was being carried out by its own contractors. It appears that there were several cranes upon the premises, although the actual period during which they were working does not appear very clearly from any evidence. The records, coupled with the evidence that was given, satisfy my mind that for some weeks, two, three, or four weeks, before the complaint was made, the defendant company was using cranes at night in connection with its work. The nature of the noise caused by the use of those cranes appears in the evidence, and when, on 14 March 1932, complaint was made, the defendant company agreed, in a letter dated 16 March, that the cranes should be stopped between the hours of 10 pm and 7 am. We are asked by Mr Morton to infer, from the fact that no complaint with regard to the night work of the cranes was made until 14 March, that there was nothing to complain about. I am unable to attach that weight to that circumstance. It seems to me, looking at the history of this case as a whole, and the way in which the plaintiff and her son gave

evidence, that they were people who were anxious to show forbearance in the matter, and that, at any rate, on their side, there was not in the history of this case any tendency to rush into making complaints before they felt themselves driven to do so. The first complaint takes place at a time when they felt themselves constrained to consult their solicitors on the matter, and the inference I draw is that, before that date, they were suffering something which constituted an unwarrantable interference with the comfortable occupation of their hotel, and the mere fact that they did not start to complain until 14 March does not mean that before that date there was nothing about which to complain. The defendant companys undertaking was somewhat reluctantly acquiesced in, because the plaintiff, with what I cannot help thinking was some reason, took the view that 10 pm was too late for those cranes to go on working. However that may be, they were not successful in getting the hours limited, and I am not disposed to take the view, on the facts of this case, that, if that working as late as 10 pm stood by itself, it would be a matter which ought to be treated as a nuisance to the plaintiff, in view of the history of the case. I do not wish anything that I should say in that regard to be read as being in any way an indication that the working of cranes of that kind up to 10 pm is a thing which, in many circumstances, cannot be an actionable nuisance. It seems to me that if persons, for their own convenience, choose to work machines of that kind overtime, and create a disturbance which is going on for 15 hours out of the 24, namely, from 7 am to 10 pm, that is a matter which may, in some cases, be very seriously regarded. However, in this case I do not think that it is more than a makeweight, and I do not think it necessary to say more about it, because I am satisfied that, so far as the previous night-operations of the cranes were concerned, there was sufficient interference with the reasonable comfort of the plaintiff in carrying on her establishment to constitute an actionable nuisance. The defendant company apparently adhered to that undertaking with regard to the cranes, except, I think, on one occasion. But there were other occasions on which it conducted noisy operations at night. I do not propose to go through them. There are a number of letters of complaint, and those complaints were either attempted to be explained away or they were remedied. But that the complaints were substantial complaints I, for one, am satisfied, and I certainly protest against the idea that, if persons, for their own profit and convenience, choose to destroy even one nights rest of their neighbours, they are doing something which is excusable. To

say that the loss of one or two nights rest is one of those trivial matters in respect of which the law will take no notice appears to me to be quite a misconception, and, if it be a misconception existing in the minds of those who conduct these operations, the sooner it is removed the better. In substance, those are the specific matters which were complained of in connection with the first operation, what I may describe as the nightoperations. Complaint was also made by the plaintiffs witnesses with regard to other matters in connection with those operations, which were, so far as the evidence goes, and as I understand it, not matters in any way out of the ordinary in the conduct of building operations in London. I say that for this reason. The judge, in his judgment, in dealing with this first operation, has approached the matter from this point of view. He has found that the entire operation of excavating to the depth of 60 ft, and building in that site and on that site a steel framed building, was of an unusual nature, and, therefore, being of an unusual nature, and not a thing which can be justified as a normal user of land, the defendant company is responsible for any noise ensuing from that operation, which constitutes a substantial interference with the plaintiffs occupation. For reasons which I will develop later, I am unable to take that view of the matter, and I think the judge has misdirected himself on that point, but I will reserve what I have to say about that until I have completed the history of the other operations. The second operation consisted, so far as relevant to the present matters, of demolition work. The substantial complaint with regard to it, as matters now stand, is that it was so conducted as to cause a very large quantity of dust and grit to be thrown into the air and carried into the plaintiffs premises. I am satisfied, from that evidence, that the dust produced by this operation was something which is not to be endured unless some proper explanation is given of why it came. The burden of establishing that is upon the defendant company. Again, I will reserve till a later stage what I have to say with regard to the legal principles involved there, and their application to the facts. At this stage, I merely wish to say this, that I would accept, as the judge who saw the witnesses appears to have accepted, the evidence that the quantity of dust and grit produced by this operation was something very serious indeed.

There was, in connection with that second operation, another matter of complaint, to which the judge attached great importance, namely, the use of pneumatic hammers for the purpose of breaking up reinforced concrete at the back of the Somerset Hotel. It appears that, at the back of the Somerset Hotel, there was a flat roof, with a dome in it, over the old dining room, and that flat roof had to be broken up, consisting, as it did, of reinforced concrete. For that purpose, the defendant companys contractors used two pneumatic hammers. As the result of objection by a professional man, who had business premises close by, the defendant company limited the use of those pneumatic hammers to certain hours in the day, which fitted in with his professional convenience. That was, from his point of view, and from the defendant companys point of view, a reasonable and proper step to take. The actual use of those hammers extended over six days only; there is no suggestion that they were used by night, and Mr Vaisey did not feel himself able to say that the use of the hammers, in those circumstances, constituted an actionable nuisance. The complaint, therefore, with regard to the second operation consists of a complaint in respect of dust and grit. With regard to the third operation, Mr Fergus Morton did not attempt to maintain that the noise caused was anything but a nuisance. His points with regard to that were, first, as to damages, and, secondly, the point I have already dealt with, as to its being a new cause of action, damage from which could not be taken into account in the present proceedings. There is one matter, before I come to examine the foundation of the judges judgment, which I ought to mention, in order to get it out of the way. It relates to the first operation, and the plaintiffs cause of complaint, if any, in respect of it. I have said that she had an agreement with Selfridge & Co Ltd, under which she was to sell her lease, completion to take place at Michaelmas, 1936. She was anxious to have part payment in advance in respect of that, and she obtained from Selfridge & Co Ltd, a prepayment of, I think,3,000. In connection with that, two letters passed, to which reference must shortly be made. In July 1932, that is to say, at a time when the complaints in the matter of the first operation were, so to speak, current, and, indeed, while that operation was continuing, the solicitors of Selfridge & Co Ltd, in agreeing to that proposal for a prepayment, said this:

You will understand, however, that this arrangement of repayment [that, I think, should be prepayment] will be agreed to by Mr. Selfridge without any admission of liability on his part, but is made simply as an endeavour to make up to you to some extent for the inconvenience which you say in your letter has taken place and is likely to occur in the future. On that footing it is accepted. I cannot read that correspondence as amounting to any binding agreement by the plaintiff, as was suggested, prohibiting her from complaining, in a court of law, of any infraction of her rights which she had suffered by the first operation. It is, I think, legitimate to bear it in mind when one is considering the question of what damage is to be attributed to it, and what quantum of inconvenience the plaintiff has suffered by it. I think it is relevant to consider that, having received that, she did not issue a writ in respect of the first transaction. All those matters are, I think, relevant; but I am unable to accept those letters as in any way getting rid of what I have already said existed, in my view, a cause of action in respect of the first operation. Having got that out of the way, I will now see what was the ground of the judges judgment. That is to be found in one or two sentences. The judge says this (p 1424): I cannot regard what the defendants did on the site of the first operation as having been commonly done in the ordinary use and occupation of land or houses. It is neither usual nor common, in this country, for people to excavate a site to a depth of 60 ft. and then to erect upon that site a steel framework and fasten the steel frames together with rivets. That is a finding in regard to the first operation. Now comes what he finds with regard to the second operation: Nor is it, I think, a common or ordinary use of land, in this country, to act as the defendants did when they were dealing with the site of their second operation namely, to demolish all the houses that they had to demolish, five or six of them I think, if not more, and to use for the purpose of demolishing them pneumatic hammers.

The judges views on those matters come into the reasoning of his judgment in this way. He found that, by reason of all three operations, there was a substantial interference with the comfort of the plaintiff in the reasonable occupation and use of her houses, such that, assuming damage to be established, an actionable nuisance would be constituted. But it was said that, when one is dealing with temporary operations, such as demolition and building, everybody has to put up with a certain amount of discomfort, because operations of that kind cannot be carried on at all without a certain amount of noise and a certain amount of dust. Therefore, the rule with regard to interference must be read subject to this qualification, and there can be no dispute about it, that, in respect of operations of this character, suck as demolition and building, if they are reasonably carried on, and all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to neighbours, whether from noise, dust, or other reasons, the neighbours must put up with it. The judge has in effect said that that qualification does not apply in the present case, because that qualification can apply only where the operations are operations that may be described as the usual and normal use of land by people in this country. He has found that these operations which he has described in the passages I have read are not usual operations, and, therefore, the whole of the operations in question, not merely matters in respect of which some precautions were carelessly or negligently omitted, but the entirety of the operations, were operations which, if they produced discomfort and interference, would be actionable, and the entirety of the damage suffered would be recoverable. With great respect to the judge, I take the view that he has not approached this matter from the correct angle. It seems to me that it is not possible to say, nor do I think that there is any evidence in this case which would warrant its being said, that the type of demolition, excavation and construction in which the defendant company was engaged in the course of these operations was of such an abnormal and unusual nature as to prevent the qualification to which I have referred coming into operation. It seems to me that, when the rule, as indeed it is a rule, speaks of the common or ordinary use of land, it does not mean that the methods of using land and building on it are in some way to be stabilised for ever. As time goes on, new inventions and new methods enable land to be more profitably used, either by digging down into the earth or by mounting up into the skies. Whether, from other points of view, that is a matter which is desirable for

humanity, is neither here nor there; but it is part of the normal use of land to make use, upon your land, in the matter of construction, of what particular type and what particular depth of foundations and particular height of building, may be reasonable, in the circumstances, and in the development of the day. I am unable to take the view that any of these operations was of such an abnormal character as to justify treating the disturbance created by it, and the whole of the disturbance created by it, as constituting a nuisance. That applies both to the first and to the second operations. The judge moreover says, with regard to the second operation, as I read it, that it is the demolition of all the houses which he finds to be unusual, and the demolition of them by means of pneumatic hammers. In point of fact, as I have said, it was only for a short period and over a very limited space that the pneumatic hammers were used. It seems to me, therefore, that the judges view is open to objection, on the grounds which I have stated. The judge, when coming to deal with the matter of damage, has apparently attributed to the defendant companys operations, if not the whole of the loss of custom which the plaintiff has suffered, at any rate a very substantial part of it. That was a much easier thing for him to do once he had come to the conclusion that the entirety of the defendant companys operations was unjustified, because it is a matter, I should have thought, of common knowledge, and, indeed, common sense, that the ordinary building operations on this scale going on at the back of a hotel cannot be a good thing for its custom. That, however, does not in the least mean that the plaintiff, as owner of the hotel, has for that reason some right of complaint which another person would not have. Guests at hotels are very easily upset. People coming to this hotel, who were accustomed to a quiet outlook at the back, coming back and finding demolition and building going on, may very well have taken the view that the particular merit of this hotel no longer existed. That would be a misfortune for the plaintiff; but, assuming that there was nothing wrong in the defendant companys works, assuming the defendant company was carrying on the demolition and its building, productive of noise though it might be, with all reasonable skill, and taking all reasonable precautions not to cause annoyance to its neighbours, then the plaintiff might lose all her clients in the hotel because they had lost the amenities of an open and quiet place behind, but she would have no cause of complaint. The judge, having found that the entirety of the operations was objectionable, had less difficulty in dealing with the question of damages, because he did not

have to discount any loss of clientele by striking out of the computation any loss which might have been due to matters which were not in themselves objectionable, namely, the clearing of the site, the general bustle and activity, and the noise inseparable from building operations throughout the day. He had not to make that dissection, nor did he attempt to do it. The result is that he has attributed the entirety or, at any rate, the greater part, of the loss to the defendant companys operations. That brings me to the question of damage, and the way the judge has approached it. For that, I must return for a moment to the figures to which I referred earlier. It is true, and I think it need not even be established by evidence, that, in the years 1930 and 1931, especially in 1931, there was a financial crisis and stringency in this country which did operate to curtail the expenditure of a vast number of its inhabitants, and it may very well be that the large drop in profits which took place in the year ending 31 May 1931, and the year ending 31 May 1932, is to be attributed to that matter; but the judge has found this, and I ought to read a passage from his judgment, which is really the key to his judgment on this matter. He says (p 1424): It is quite plain that the financial stringency which was prevailing in the years 1931 and 1932 did affect the plaintiffs trade, and may to some extent have been affecting it in the year 1933 and in the year 1934, in which last year I think probably the result of what the defendants did in 1933 would be most felt by the plaintiff. One has more or less to make a guess at the loss that the plaintiff has sustained, but I take the view that she was struck such a blow in the year 1933 by what the defendants did, and her goodwill was so injured by what the defendants did, that it had not, in 1935, recovered from the blow. The blow consisted of the loss of her clientele caused by the entirety of the first operation. The real problem, to my mind, is this. I will take the first operation first. There was unquestionably an interference with the plaintiffs rights by noise, noise which took place at unreasonable hours, noise which, according to the evidence, affected the guests in the hotel, caused them to complain, and generally interfered with their comfort. That is the first matter. The second matter is this, that the profits of the hotel did not recover in the way in which, having regard to the history of

the hotel, one might reasonably have expected them to recover; but it is not legitimate, to my mind, and it is indeed impossible, to draw the inference that the failure of the profits to recover was due, to the extent to which the judge thought it was due, to the defendant companys operations, and it is still more illegitimate to say that it was due to that part of the defendant companys operations which constituted a nuisance. Therefore, the court is necessarily compelled to take some broad common sense view of the situation, having regard to the evidence. One has to remember various things. People who go to hotels do not like having their nights disturbed. One has to remember that hotel custom is obtained, and, indeed, very largely kept, by recommendation. Those are matters of common knowledge. One also must not assume that, when a guest goes away from a hotel, he is satisfied only because he has not made a complaint at the office. Various matters of that kind must be remembered. On the other hand, there are in this case other circumstances, such as the lack of action taken. If there was a real outflow of guests, one would have expected action to be taken at the time. I take this view, that there was an injury done to the business at that time, an injury which did have a deleterious effect on its recovery; but, having regard to the fact that I approach the matter on a different principle from that on which the judge approached it, the actual injury in that respect is, in my view, very much smaller than he found. The next matter is the question of the second operation. The first thing to be dealt with there is whether or not anything which the defendant company did in connection with the second operation was a breach of its obligations towards its neighbours. The crucial matter is the matter of dust. I have already indicated that, to my mind, the plaintiffs evidence establishes that the quantity of dust and grit let loose by this operation was something quite insufferable. The substantial point that is made with regard to it by Mr Fergus Morton is: Assuming that it was - this, of course, he does not admit, but I hold against him there - the plaintiff must put up with it, provided that all reasonable and proper precautions were taken to save annoyance to the neighbours. With regard to that, that is a matter of evidence. I have listened attentively to the evidence that was read on the side of the defendant company with regard to that, and I am not satisfied that it has discharged the burden of proof upon it. In the first place, it was pulling down at one and the same time eight houses, with

what was, I think, admittedly a large number of men, and doing that quite obviously for reasons of its own, because it was in a hurry to get on with the work. Certainly water was used. It is said that water should be used, and it was used, although it was not used, in my judgment, on the evidence, to a proper extent, nor were any steps taken to board up the windows of the houses. It is said that, if they had been boarded up, having regard to the fact that the windows on the street had to be boarded up to safeguard passers-by, the only result of boarding them up on both sides would have been to let the dust go out at the top like smoke out of a chimney. I am not satisfied that a certain amount of boarding would not have been possible; and, indeed, the evidence of the witnesses does not seem to me at all satisfactory with regard to that matter. Accepting, as I do, the evidence of the plaintiff with regard to the quantum of the nuisance, and the extent of it, I find it impossible to believe that, if due care and attention had been given, and due regard had been had to the neighbours, that operation could not have been carried out in such a way as not to cause the nuisance that it did. That might have involved slower work, it might have involved more careful work, but that it could have been done, albeit possibly at some little expense and some little delay, I have no doubt. I desire here to make one or two general observations on this class of case. Those who say that their interference with the comfort of their neighbours is justified because their operations are normal and usual, and conducted with proper and reasonable care and skill, are under a specific duty, if they wish to make good that defence, to use that reasonable and proper care and skill. It is not a correct attitude to take to say: We will go on and do what we like until somebody complains. That is not their duty to their neighbours under the rule of law. Their duty is to take proper precautions, and to see that the nuisance is reduced to a minimum. It is no answer for them to say: But this would mean that we should have to do the work more slowly than we would like to do it, or it would involve putting us to some extra expense. All those questions are matters of common sense and degree, and quite clearly it would be unreasonable to expect people to conduct their work so slowly or so expensively, for the purpose of preventing a transient inconvenience, that it would make it a prohibitive operation. It is all a question of fact and degree, and must necessarily be so. In this case, the defendant companys attitude seems to

have been to go on until somebody complained, and, further, that its desire to hurry its work and conduct it according to its own ideas and its own convenience was to prevail if there was a real conflict between it and the comfort of its neighbours. That, to my mind, is not carrying out the obligation of using reasonable care and skill. Linking that up with what I have said about dust in the second operation, it seems to me that the defendant company has not carried out that obligation. The use of reasonable care and skill in connection with matters of this kind may take various forms. It may take the form of restricting the hours during which work is to be done; it may take the form of limiting the amount of a particular type of work which is being done simultaneously within a particular area; it may take the form of using proper scientific means of avoiding inconvenience. Whatever form it takes it has to be done, and those who do not do it must not be surprised if they have to pay the penalty for disregarding their neighbours rights. The nuisance from dust is, to my mind, established, and it is further established quite clearly by the evidence that, in the case of the second operation, the plaintiffs clients were seriously inconvenienced, that clients left, and that other clients declined to come. That seems to me to be the general effect of what took place. When the clients came to see the hotel, and were shown the rooms, in July, and found all the windows shut because of the dust, it does not require very much imagination to suppose that a thing of that kind would deter anyone from going to the hotel. I think that, on the evidence, there is proof of a substantial loss of actual customers, with, in the background, the inevitable repercussion that has on the reputation of a hotel. On the other hand, in this case, as in the other case, one must be careful not to penalise the defendant company by throwing into the scales against it the effect of the loss of clients caused by operations which it was legitimately entitled to carry out. It can be made liable only in respect of matters on which it has crossed the permissible line. The third operation is a minor matter, and I need say no more about it. I have intentionally not gone into the details of the evidence; I have merely endeavoured, on the relevant points, to summarise what appears to me to be the effect of it. The effect comes to this, putting it all together, that, in respect of the first operation, the plaintiff suffered an actionable nuisance; she suffered damage both by personal inconvenience (which is not such an important matter) and by the unfortunate result upon her guests and the

reputation of her hotel. That damage, or similar damage, she also suffered in respect of the second operation I think that she is entitled, not to a nominal sum, but to a substantial sum, based upon those principles. What that sum is to be is a matter as to which the individual mind can only satisfy itself as to what is fair; but, in arriving at the sum which I consider to be the proper one, and which the other members of the court consider to be the proper one, I have discounted any loss of custom, or endeavoured to discount, so far as I can, any loss of custom, which might be due to the general loss of amenities owing to what was going on at the back, and I have tried to give what, in my opinion, would be a fair measure of the loss which, on the evidence, I infer that the plaintiff has suffered from that part of the defendant companys operations of which she has legitimate cause for complaint over the period in question. I would say that, in a case of this kind, where the defendant company has, at any rate at certain stages, and in certain respects, shown, in my judgment, a reprehensible lack of regard for the duty which it owes to its neighbours, I should not be disposed, in drawing inferences, to draw inferences with regard to loss of custom in the defendant companys favour. It is a very difficult thing to attribute loss of custom to a particular cause in a case of this kind. Guests are scattered; it is quite impossible to collect all the guests who left and find out why they left. This is eminently a case where a jury, or a judge sitting alone, should use common sense and their knowledge of affairs in relation to the evidence which is given. I think the evidence in this case does establish a substantial injury, and the sum at which I think, on that basis, the damages should be fixed is 1,000. The judgment of the judge must, therefore, be varied to that extent, and the damages reduced to 1,000. ROMER LJ: I agree, and have nothing to add. SCOTT LJ: I also agree, and have nothing to add.