“53. For the purposes of this judgment, I distil the following propositions from Lord Leggatt’s comprehensive analysis of the relevant principles (references are to paragraphs in his judgment in Fearn). (1) The law of nuisance is concerned with the wrongful interference with the claimant’s enjoyment of rights over his land. This extends to any buildings upon it and to rights appurtenant to his ownership interest. The focus is upon the diminution in the utility and amenity value of the land as opposed to harm to the person. Nuisance is therefore a property-based tort. The claimant must have a legal interest in the land in order to have standing to sue. ([9]-[11]). (2) There is in principle no limit upon the types of activity which may constitute an actionable nuisance. Nuisance can be caused by any means, distinct from acts of trespass, which materially interfere with the claimant’s enjoyment of such rights. The cause of the interference may be something physical and/or tangible (such as invasive plants spreading from the defendant’s property) or intangible (such as noise, fumes, vibration or excessive light emanating from it). In principle, the sight offered to the claimant by the use to which the defendant’s property is put may be so offensive as to constitute a nuisance. ([12]-[17]). (3) Not all causes of significant annoyance to the claimant in his enjoyment of his land will be actionable as a nuisance. The need to balance the (sometimes) conflicting rights of neighbouring landowners, or the principle of reciprocity often described in terms of “give and take”, means that the court must have grounds for concluding that the defendant’s activity is unlawful. Only if it is unlawful will it then be appropriate to label it, in what otherwise would be question-begging and legally vague terms, as an “undue” or “unreasonable” interference with the claimant’s enjoyment. ([18]-[20]). (4) Any decision that the defendant’s activity is unlawful (and, therefore, constitutes an undue or unreasonable interference with the claimant’s enjoyment of his land) must at the first stage rest upon the twin-limbed conclusion that there has been a substantial interference with the ordinary use of the claimant’s land. The test of whether or not the interference is substantial is an objective one and is applied by reference to the standards of an ordinary or average person in the claimant’s position. It is aimed at eliminating small or trifling inconveniences to leave those which may sensibly be categorised as actionable interferences. That the defendant’s activities must interfere with the ordinary use of the land is aimed at eliminating unjustified claims which are instead founded upon interferences with land use that is out of the ordinary. Lord Leggatt endorsed the observation in a decision of the Privy Council in 1902: “A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure.”
‘the locality principle’
“54. In addressing the point summarised in the fourth sub-paragraph above Lord Leggatt referred (at [25]) to two cases in saying the law of nuisance will not protect against injury to particularly delicate or sensitive operations: Robinson v Kilvert(1889) 41 Ch D 88 and Eastern and South African Telegraph Co Ltd v Cape Town Tramways Ltd[1902] AC 381 . Mr Auld [counsel for the defendants at trial] placed particular reliance upon that passage in Lord Leggatt’s judgment. In both of those cases the claim in nuisance failed. In Robinson v Kilvert the plaintiff’s brown paper (sold by weight) was affected, through drying out and becoming brittle, by a level of heat from the defendant’s basement premises which would not have affected paper generally. In Eastern and South African Telegraph Co the plaintiff’s submarine telegraph cable and receiving instruments were vulnerable to interference to even minute currents of electricity escaping from the conductor used in the defendant’s operations. The plaintiff’s later construction of a twin-core cable to overcome the problem showed that the defendant’s operations only affected instruments made in a certain way.”
“55. The eighth point above illustrates that a nuisance [can] be actionable even if it is temporary, provided the interference with the claimant’s use of his land is substantial: compare Barr v Biffa Waste Services Limited[2012] EWCA Civ 312 ;[2013] QB 455 , at [36(iv)] per Carnwath LJ. As a matter of principle, therefore, a neighbour’s building work in the otherwise unobjectionable development of his land is capable of creating a nuisance.”
“56. … As I read the decision in Fearn, a “special use” – which involves a claimant placing the principles of reciprocity and give and take under excessive strain – falls to be identified by reference to what is not the common or ordinary use of his land having regard to the locality. Whether land is being put by the claimant to special or unusual use, so that he has no actionable complaint about interference with that use if the neighbour is only using his land for ordinary purposes, cannot be answered in isolation from the locality. 57. Considering the position in relation to the defendant’s use of his land, in Sturges v Bridgman(1879) 11 Ch D 852 , at 865, Thesiger LJ reasoned: “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” 58. In my judgment, it is not open to the court simply to categorise the claimant’s use of the land as a special or sensitive one (interference with which will not support a claim in nuisance) without considering whether it is too sensitive for the surroundings where it is taking place. Only an assessment of the surrounding locality will determine whether the claimant is impermissibly seeking to “increase the liabilities of his neighbour” or, instead, claiming no more than an immunity from interference of a kind that might be reasonably expected in the locality. This is especially so when the potential liability of that neighbour arises out of temporary activity, such as particularly noisy building work carried out on otherwise generally peaceful agricultural land, which might be “conveniently done” at certain times to accommodate the sensitivity of the claimant’s use; as opposed to an exposure to liability which would fetter the defendant’s use of his land more permanently. 59. Otherwise, there would be certain uses of land, including business or trade use, which, regardless of the character of the surrounding neighbourhood in which that use took place, would be unprotected by the law of nuisance (save possibly in the case of malicious interference with that use). To take an extreme example, if the operation of two separately owned aviaries on adjoining land in the middle of nowhere each constitutes a special use, even if (as the presence of both indicates) the locality is an ideal place to breed falcons, the owner of each aviary would not benefit from any protection by the law of nuisance against other non-avian activity by his neighbour (however intrusive and heedless they might be) which substantially interferes with his breeding business. 60. Although I understood part of Mr Auld’s argument to be that ROP cannot maintain a claim in nuisance because its falcons are particularly sensitive, in my judgment, therefore, Fearn does not support that unqualified submission. It is important to bear in mind that, whereas most of the earlier authorities address this question in the context of a regular or continuing use of the defendant’s neighbouring land, ROP’s allegations of nuisance are based upon isolated acts of interference. They involve claims arising out of “temporary” activity on UCE’s land (in the sense addressed above) rather than its long-term use for growing grass or crops or grazing livestock. They also concern a particular sensitivity in ROP’s operations during the breeding season rather than all year round. 61. Further, in my judgment, it is important to note that the locality principle is just that. It requires the court to assess the immediate neighbourhood. I say this because Mr Auld made points about how the Aviary might have been built some metres further away from UCE’s land. The locality principle does not descend to that type of detail and that line of argument appears to run up against the sixth proposition in paragraph 53 above.”
“150. The reasoning in Grandel supports the conclusion that the facts of a particular case may mean that the principle – “so use your own property as not to injure your neighbour’s” – applies to the timing and manner of what otherwise would be the defendant’s unobjectionable common and ordinary use of his land. Also, and significantly for present purposes, a duty of care arising out of such facts may overcome a defence to a nuisance claim that (per Estey J at p. 465) “recovery should be denied because of the delicate and sensitive nature of the respondent’s business.”
“155. The duty in negligence is a duty not to inflict damage carelessly: see Clerk & Lindsell op. cit. at para. 7-08. In my judgment, the decision in Grandel is persuasive in the sense that it highlights that (in a situation broadly similar to those alleged by ROP in its negligence claim) there is potential for a liability in negligence where positive acts on a neighbour’s property have caused physical damage to the claimant’s property through the defendant acting carelessly. … 158. If ROP can establish by reference to proven facts both that Mr Thomas was made aware that the activity on UCE’s land during the breeding season was likely to harm the falcons on the Western Pens and that the harm might reasonably have been avoided then it would be open to the court to conclude that it is fair, just and reasonable that the person responsible for that activity (be that Mr Thomas, UCE or possibly both) should be held liable in negligence. … 161. … I consider my conclusion, for the purposes of this case, that a negligence claim may be triggered not just by a failure to undertake competently what is otherwise lawful activity on the land but also by the timing of such activity to be an incremental development of the law of negligence (if it is that) which does not fall foul of principles of land law. ”
“327. Any finding that Mr Thomas and/or UCE is liable in nuisance must begin with consideration of the potential impact of the locality principle. Consideration of the neighbourhood in which ROP carries on its business is also likely to feed into an assessment of whether it is fair just and reasonable that the defendants should owe the duty of care alleged by the claimants. 328. The Aviary is built on land acquired by Martin and Scott in 2017. It has been [built] very close to the location of Martin’s earlier aviaries (the structure of one of which still stands). 329. My visit to the site on17 January 2025 confirmed the rural setting of the Aviary. The Atlantic (Celtic Sea) can be seen from site where the coast dips at the mouth of the Cot Valley approximately a couple of miles distant. 330. Although there are buildings nearby (including the parties’ respective homes, other neighbours’ properties and a community farm on the other side of the B3306) the Aviary is surrounded by agricultural land. A public footpath runs between the Aviary and UCE’s land. UCE’s barn on the other side of the footpath is of course an agricultural building and work on it commenced after the Aviary was substantially completed. Building the barn (not yet completed) has not changed the agricultural character of the neighbouring land. 331. The Aviary is flanked to the north and west by substantial soil bunds which Martin explained was an aspect of the planning requirement that the Aviary should to some extent be screened from view, rather than created for the purpose of shielding the birds from noise or visual intrusion. Nevertheless, the bunds (created using soil from the levelling of the site for the Aviary) do shield them to some extent. The Aviary (which is closer to UCE’s land than the road partly for the reason explained by Martin) is shielded from the road by a roadside hedge. 332. A business operation such as ROP’s could of course be built in the middle of nowhere, such as the top of an isolated moor, but it does not follow that the Aviary is not suited to its own location. On my understanding, its location is no less rural and possibly more so than that of Mr Garland’s successful aviary (the defence of which from disturbances on neighbouring land Dr Forbes has himself supported). 333. There seemed to be no dispute between the parties that, given its proximity to Land’s End, the B3306 is busy with traffic during the summer months, and I think it can probably be assumed that the hum of traffic would be heard at least within the pens on the eastern side of the Aviary. During the site visit several small and quite noisy propeller-driven passenger planes were also coming in to land at Land’s End Airport a short distance away; and conversation had to pause briefly to await their passing overhead. These would be heard and seen overhead by the falcons through the netting of the hack pens and other openings in breeding pens giving a view above. However, the factual and expert evidence in this case demonstrates that regular noises and sights, to which the birds become accustomed, do not present a threat to their welfare. 334. The evidence about the location of Mr Garland’s own aviary, Mr Bryn Close’s aviary, the history of Martin’s breeding of falcons at the site (before the Aviary was built) and the overall success of ROP’s business in breeding birds all point to this being a suitable location for the sensitive operation of breeding falcons.”
“Mr Thomas: I won’t make any noise in March then Martin: You will be fine noise is fine its just stuff they can see that put them off. Unless there is a crane next to them then you are all good.”
“368. My finding in relation to March and April is instead based on Martin’s evidence about the impact of the sound of scaffolding poles being dropped at the site. I have referred to his and Scott’s evidence about them seeing birds in distress via CCTV on27 March 2022 . Martin also referred to an egg being smashed and another damaged in the Western Pens in April 2022 following the loud noise of scaffolding poles being dropped. They referred to the loud clanging noise made by dropping metal on metal and I consider that judicial notice can be taken of the significant level of metal-on-metal noise which often accompanies scaffolders re-stacking poles. Mr James accepted that, if the poles were not dropped on mud but on one another or a hard surface, they would make a noise.”
“380. Those videos record a significant amount of noise from within the incubation room of the Aviary which he said is fully lined and insulated. The video recorded Mr McFadden [employed by the defendants] operating either a digger or a tractor (on one occasion with a steel trailer for loading and offloading blocks of granite). Martin said he took the videos because he knew the noise was excessive and could harm the birds. The video from2 May 2022 showed the noise upsetting the birds. Martin was cross-examined about the video from 29 April and said that day Mr McFadden was pecking out granite for the barn area. He said that as the Aviary stood on the same bedrock the whole building was vibrating. He said on that occasion the noise from approximately 6 metres away was “100 and something decibels” (referring to his own position on scaffolding industry technical committee) but accepted that, before the 2025 breeding season, no decibel meters were installed in the Aviary. 381. I accept the evidence of Karen Nicholas about Mr McFadden’s work on2 May 2022 . I prefer her evidence over his as to the reason why she asked him to stop work that day. She said it was not only because it was a bank holiday but because he was causing noise and vibration next to the Aviary and the birds were showing signs of distress. Karen Nicholas says she also referred to the stress it was causing Martin and the family but I do not accept Mr McFadden’s evidence that she only referred to her own mental wellbeing. I also accept her evidence that, although Mr McFadden said he would stop work, he carried on the work for another hour. 382. These activities, related to the building of the barn, cannot be said to be outside the ordinary and common use of agricultural land but they were carried out without proper consideration of ROP’s breeding season. Mr Thomas was aware this was the breeding season. Contrary to what he had said in his WhatsApp message of19 December 2020 , about not making noise in March 2021, he was responsible for Mr McFadden creating significant noise close to the Aviary on those days in March, April and May 2022. 383. The evidence does not support a case for saying the work had to be undertaken on those days to meet a defined schedule of building work. Mr McFadden explained that he was doing the groundworks for the barn around other jobs and I note 18 April (Easter Monday) and 2 May (early May Bank Holiday) were holidays. However convenient it may have been for Mr Thomas and UCE for some progress to be made on those days, they appear to have paid no thought to the interests of ROP. Those interests had been well in mind, for the previous breeding season, when relations between Mr Thomas and Martin and Scott were good. Despite their recent dialogue, before the 2021 breeding season, Mr Thomas did not think to first check with them whether this kind of activity during the period in question would result in a substantial interference with the 2022 breeding season.”
“385. The use of a JCB digger on agricultural land is part and parcel of the ordinary and common use of the land and it must follow that when such a machine breaks down during such use that is an incident of such use. However the JCB did not break down in the place to which it was then moved adjacent to the Aviary on7 April 2022 , the day after its breakdown some distance away on UCE’s land, with its bucket raised. The evidence of Mr Geoffrey Hoad, who had been operating the digger to clear out ditches on “the far side of the farm land”, is that it stayed there, with the bucket raised, until the digger was taken away on a low loader trailer (the bucket lowered after loading) because it could not be repaired on site. For the purpose of on-site inspection by an engineer the bucket was raised. With the bucket raised next to the Aviary for those 3 days the machine broke the line of sight of at least some birds in the Western Pens. Scott’s evidence was that the birds were “going mental” at the sight of this alien object. 386. Mr Hoad was a patently honest witness and I am persuaded that he acted entirely innocently in this matter. The JCB was moved to the position adjacent to the Aviary on the instructions of Adrian Thomas. Adrian Thomas is a farmer himself and explained that he helps out on his son’s farm. 387. My finding in relation to allegations (4), (5), (6), (7) and (8) – particularly allegation (8) relating [to] the noise and vibration caused by a functioning digger near the Aviary some 3 weeks later – is consistent with this conclusion on the present allegation based on the creation of a visual threat by a non-functioning one. The WhatsApp exchanges in December 2021 show that he knew not to create visual threat from the month of March (“A crane would put me off”). Placing the digger on the birds’ line of sight on7 April 2022 was entirely at odds with ensuring that no undue inconvenience was caused to ROP (to adopt Lord Legatt’s reformulation of the language of Bramwell B). 388. The evidence of Mr Hoad and Adrian Thomas was that the bucket was raised in order to provide access to the JCB’s engine and that, the vehicle having broken down and lost its hydraulics, this was not an easy operation to reverse and then repeat as necessary. They explained that an engineer had not been able to fix the problem after it had been moved to the access track near the Aviary and it had been moved there because the track provided a length of land sufficient for the two tractors required to put the JCB on a trailer to be put on a trailer and towed away. I was shown a photograph of the 3 vehicles in a line (the JCB on a trailer with its bucket down) before it was towed away. 389. However, having visited the Site, I am not persuaded that this was the only place where the JCB could have been towed (if necessary) for the purposes of an engineer’s visit and, if that was not successful, then being taken away on a trailer. Even if it had been the only place where the engineer could inspect it, it should not have been left there with its bucket raised once it was apparent he could not fix it on site. The evidence indicates that Adrian Thomas had no difficulty in towing the JCB from its place of breakdown a significant distance away so it could have been moved a shorter distance away from the Aviary. 390. In my judgment, therefore, there is no difference, in terms of either principle or relative ease of discontinuance, in avoiding a nuisance caused by the noisy operation of machinery near the Aviary and the breakdown of a machine which ends up in the same place and creates a visual disturbance.”
“395. Even though malice has not been established, the proven acts of nuisance are in my judgment actionable because they were undertaken without proper consideration of the sensitivity of ROP’s birds during the breeding season. Mr Thomas was previously aware of the need to avoid disturbances during the breeding season, and appears to have accepted that could be done, and yet the activities were undertaken regardless. 396. The conclusion that they are actionable is consistent with the fifth and eighth propositions I have taken from Fearn, the decision in Barr v Biffa Waste, and with my assessment that ROP’[s] breeding of falcons (which includes their heightened sensitivity during the breeding season) does not fall foul of the locality principle.”
“397. […] By parallel reasoning from the established facts, the exchanges between Martin (primarily) and Mr Thomas in December 2020 establish the requisite proximity between the parties, the foreseeability of harm and that it was not unduly onerous (but instead fair, just and reasonable) that the building works on UCE’s land should not be carried out near the Aviary during the breeding season. Adopting the incremental, analogy-based approach under Robinson v Chief Constable of West Yorkshire, a duty of care not to create disturbances that would harm the falcons during their breeding season should be recognised. The otherwise tortious acts of nuisance also breached that duty. 398. A key element of this finding is Mr Thomas’s awareness, as explained above, that such activity on UCE’s land during the breeding season was likely to harm the falcons on the Western Pens and could reasonably have been avoided by working around that season. I have explained why, on ROP’s pleaded case, the focus is upon whether it is fair, just and reasonable that the defendants should be held to [a] duty of care covering the months of March, April and early May 2022 (and therefore before Mr Brady arrived to make representations on behalf of the claimants) rather than a later part of the breeding season. The uncertainty, which has emerged from the evidence, as to whether Mr Thomas (or Mr Brady for that matter) understood the breeding season to extend into June or beyond June, or was as long as the 6 month period suggested by Martin, would raise obvious questions about the foreseeability of harm and the fairness, justice and reasonableness of holding the defendants to a more enduring duty of care. Those questions do not apply to the activity undertaken between the beginning of March and the beginning of May.”
“1. By holding that [the defendants] are liable to [ROP] in nuisance/negligence due to an interference with [ROP’s] sensitive trade, the learned judge failed to apply the common law principle that: “A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business orpleasure” (Eastern and South African Telegraph Co Ltd v Cape Town Tramways Companies Ltd[1902] AC 381 , Lord Robertson, 393 - approved in Fearn v Board of Trustees of the Tate Gallery[2024] AC 1 , Lord Leggatt, [25]). 2. The learned judge was wrong to invent a principle (hitherto unknown to English law) that, if a claimant is carrying on a sensitive trade from its land at a “suitable location”, the test for whether an interference is sufficiently serious to constitute a nuisance is to be judged, not by whether the activity substantially interferes with the common and ordinary use of land, but, instead, whether the activity substantially interferes with that sensitive trade. 3. The learned judge was wrong to hold that, for the purposes of the immunity from nuisance for the “common and ordinary use of land” if all reasonable steps are taken to ensure that interference to neighbours is kept to a minimum, such reasonable steps can be affected by the fact that a neighbour is carrying on a sensitive trade - rather than being determined by the objective impact of the activity on the common and ordinary use of the neighbour’s land. Alternatively, if such reasonable steps can be affected by the fact that a neighbour is carrying on a sensitive trade, the learned judge was wrong to hold that [the defendants] were required to desist from carrying out building works, and permitting the scaffolding business to operate from the land, for a 5-month period lasting for most of the spring and summer. ” “A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business orpleasure”
“4. In circumstances in which [ROP’s] claim in nuisance should have been dismissed, the learned judge should have held that there could be no claim in negligence. Alternatively, the learned judge was wrong to hold, pursuant to a duty of care, that [the defendants] were required to desist from carrying out building works, and permitting the scaffolding business to operate from the land, for a 5-month period lasting for most of the spring and summer.”
“(5) The ordinary use of land 24. Fundamental to the common law of private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses. In Fleming v Hislop(1886) 11 App Cas 686 , 691, the Earl of Selborne encapsulated this well when he defined a nuisance as “what causes material discomfort and annoyance for the ordinary purposes of life to a man’s house or to his property”
“if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, shewing substantial injury, is entitled to protection. “ (Emphasis added.) The “unusual purpose” for which the defendant in Ball v Ray was using his house (in a residential street) was as a stable for keeping horses. Mellish LJ (at p 471) agreed with the Lord Chancellor that: “when in a street like Green Street the ground floor of a neighbouring house is turned into a stable, we are not to consider the noise of horses from that stable like the noise of a pianoforte from a neighbour’s house, or the noise of a neighbour's children in their nursery, which are noises we must reasonably expect, and must to a considerable extent put up with.”
“A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure.” … 27. The other aspect of this core principle is that, even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not usually give rise to liability if the activity itself is no more than an ordinary use of the defendant’s own land. In the leading case of Bamford v Turnley (1862) 3 B&S 66, 83, Bramwell B formulated a test which has since been regularly cited, approved and applied, including at the highest level. He gave what were then contemporary examples of acts such as “burning weeds, emptying cess-pools” and “making noises during repairs” which (unless done maliciously and without cause) would not be treated as nuisances, even when they caused material inconvenience or discomfort to neighbouring owners. He then said at pp 83-84. “There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” (Emphasis added.)
“There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbour’s land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.” 28. Subsequent cases have shown that this justification is not limited, as Bramwell B suggested, to situations where the reciprocal nuisances “are of a comparatively trifling character”
“The tenants can hear not only the neighbours’ televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.”
“… I do not think that the normal use of a residential flat can possibly be a nuisance to the neighbours. If it were, we would have the absurd position that each, behaving normally and reasonably, was a nuisance to the other.”” “if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, shewing substantial injury, is entitled to protection. “ (Emphasis added.) “when in a street like Green Street the ground floor of a neighbouring house is turned into a stable, we are not to consider the noise of horses from that stable like the noise of a pianoforte from a neighbour’s house, or the noise of a neighbour's children in their nursery, which are noises we must reasonably expect, and must to a considerable extent put up with.” “There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.” (Emphasis added.)
“… I do not regard the use of land for the breeding of silver foxes as a non-natural use of land. The use of the land for the breeding of stock is one of the most natural uses. It is true that the silver fox is not indigenous to this country, but that, in my opinion, cannot make the use of land for breeding it an unnatural use. Neither Frisian cattle nor Jersey cattle are indigenous to this country, yet I do not think it would occur to anyone that the use of land in Scotland for the breeding of these animals is a non-natural use of property. It is also true that silver foxes in the breeding season are more nervous than our domestic animals, and may more readily abort or eat their young when subjected to unusual disturbance, such as blasting in the neighbourhood. This, however, does not alter the quality of the risk to which he who blasts subjects their neighbour, but only the quantity of the damage the neighbour may suffer. Thus, upon the uncontradicted evidence of the witness Dallas, who has been connected with the breeding of animals all his life, some of the sows in a pig-breeding farm would have been affected by the blasting in this case, just as the silver fox vixens were, and with similar results. In my opinion the damage which occurred in this case was the natural consequence of the defenders’ acts, as defined in Rylands v. Fletcher, and was not occasioned by a non-natural use of their land by the pursuers.”
“If the defendants’ contentions of law were really apposite, I should find it difficult to answer the query: ‘When does an old building lose its ordinary right of protection against destruction?’ ”
“67. I think this question [from Hoare v McAlpine] is apt because it highlights the hopeless uncertainty and endless scope for argument that would arise if the sensitivity of the claimant’s property were in general regarded as itself giving rise to a defence to a claim for nuisance. The law of nuisance would be unworkable, and the protection which it provides to homeowners seriously enfeebled, if it were treated as an answer to a claim for nuisance – as the judge treated it in this case – that the claimant would not have had a complaint in nuisance if, instead of her actual property, she had lived in a “differently built, but perfectly acceptable, property” (see para 211)”
“72. … the general relevance of sensitivity in the design and construction of buildings is that it makes neighbouring owners more vulnerable to interference from one another’s activities. But such sensitivity does not alter the principles by which their reciprocal rights and obligations are determined. If an occupier is merely using her premises in a common and ordinary way and acting with as much consideration for neighbouring occupiers as can reasonably be expected, then she will not be liable in nuisance. The design of the building may in that way result in an occupier having to put up with greater interference with the ordinary use and enjoyment of her property than she would otherwise have to put up with – but only to the extent required to enable her neighbour to use his own property for the ordinary purposes of life.”
“Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is heat such as to incommode the workpeople on the Plaintiff’s premises. I am of opinion, therefore, that the Plaintiff is not entitled to relief on the ground that what the Defendants are doing is a nuisance.”
“I am of the same opinion. I think the Plaintiff cannot complain of what is being done as a nuisance. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade. … In the present case the Defendants are not shewn to have done anything which would injure an ordinary trade, and cannot, in my opinion, be held liable on the ground of nuisance.”
“… the appellants, as licensees to lay their cable in the sea and as owners of the premises in Cape Town where the signals are received, cannot claim higher privileges than other owners of land, and cannot create for themselves, by reason of the peculiarity of their trade apparatus, a higher right to limit the operations of their neighbours than belongs to ordinary owners of land who do not trade with telegraphic cables. If the apparatus of such concerns requires special protection against the operations of their neighbours, that must be found in legislation; the remedy at present invoked is an appeal to a common law principle which applies to much more usual and less special conditions. A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure. The principle of Rylands v. Fletcher (1), which subjects to a high liability the owner who uses his property for purposes other than those which are natural, would become doubly penal if it implied a liability created and measured by the non-natural uses of his neighbour’s property. Nor need the law be regarded as shewing any want of adaptability to modern circumstances if this be the true view, for the liability thus limited is of insurance and not for negligence, and all the remedies for negligence remain.”
“whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”
“From the perspective of a plaintiff, it has been established since Walter v Selfe that a claim for interference with the plaintiff’s right to land can only be brought for private nuisance if there is “material discomfort and annoyance for the ordinary purposes of life to a [person’s] house or… property”
“59. The assessment of the character of the locality for the purpose of assessing whether a defendant’s activities constitute a nuisance is a classic issue of fact and judgment for the judge trying the case. Sometimes, it may be difficult to identify the precise extent of the locality for the purpose of the assessment, or the precise words to describe the character or the locality, but any attempt to give general guidance on such issues risks being unhelpful or worse.”
“Courts have adopted varying phraseology to express the point that the interference with the use of the claimant’s land must exceed a minimum level of seriousness to justify the law’s intervention. The terms “real”, “substantial”, “material” and “significant” have all been used. Put the other way round, the courts will not entertain claims for minor annoyances. As Lord Wensleydale said in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642, 653-654: “the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.” ”
“… it may be reasonable to have appliances such as a television or washing machine in one’s flat but unreasonable to put them hard up against a party wall so that noise and vibrations are unnecessarily transmitted to the neighbour’s premises. But I do not understand how the fact that the appellants’ neighbours are living in their flats can in itself be said to be unreasonable.”
“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 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 say: “We will go on and do what we like until somebody complains.”
“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.”
“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.”
“As I read the judgment in Fearn, a “special use” … falls to be identified by reference to what is not the common or ordinary use of his land having regard to the locality. Whether land is being put by the claimant to special or unusual use … cannot be answered in isolation from the locality.”
“all point to this being a suitable location for the sensitive operation of breeding falcons.”
“because they were undertaken without proper consideration of the sensitivity of ROP’s birds during the breeding season” and said that that was consistent with: “my assessment that ROP’[s] breeding of falcons (which includes their heightened sensitivity during the breeding season) does not fall foul of the locality principle.”
“the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.”
“The test is objective. What amounts to a material or substantial interference is not judged by what the claimant finds annoying or inconvenient but by the standards of an ordinary or average person in the claimant’s position. As famously expressed by Knight Bruce V-C in Walter v Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr v Biffa Waste Services Ltd[2013] QB 455 , para 36(ii). The objective nature of the test reflects the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it: see para 11 above.”
“First there was the question whether the noise was such as materially to interfere with the ordinary comfort, physically, of human existence in the plaintiff’s premises according to plain, simple and sober notions among English people, or whether it affected the plaintiff only because he was hypersensitive to noise, if indeed he was.”
“Although he said he was not unduly sensitive to noise, he (Plowman J.) took rather a different view about that. He thought that the plaintiff expected and felt entitled to a higher degree of quiet tha[n] an ordinary man who had a flat in a residential part of Hampstead would expect.”
“But making every allowance for that, he (the judge) was nevertheless satisfied on the evidence as a whole that the degree of noise occasioned by the defendant’s operations was such as to constitute a nuisance within the definition. … The cumulative effect of all the evidence was to convince him (his Lordship) that a nuisance was created.”
“(5) The ordinary use of land 24 Fundamental to the common law of private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses. In Fleming v Hislop(1886) 11App Cas 686 , 691, the Earl of Selborne encapsulated this well when he defined a nuisance as “what causes material discomfort and annoyance for the ordinary purposes of life to a man’s house or to his property”
“if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, shewing substantial injury, is entitled to protection.” (Emphasis added.)
“when in a street like Green Street the ground floor of a neighbouring house is turned into a stable, we are not to consider the noise of horses from that stable like the noise of a pianoforte from a neighbour’s house, or the noise of a neighbour’s children in their nursery, which are noises we must reasonably expect, and must to a considerable extent put up with.”
“A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure.” 26 The trial judge in the present case in an appendix to his judgment (at paras 228—233) was in my view quite right to recognise the continuing validity of this principle and to reject contrary dicta of Buxton LJ in Network Rail Infrastructure Ltd (formerly Railtrack plc) v Morris (trading as Soundstar Studio) [2004] Env LR 41, paras 32 and 35—36, suggesting that it is no longer apt. 27 The other aspect of this core principle is that, even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land…” “if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, shewing substantial injury, is entitled to protection.” (Emphasis added.)
“Cotton LJ: Is injury to a very delicate trade a nuisance if it would not injure an ordinary one? [Counsel]: Yes, if the delicate trade is a reasonable use of the property: Cooke v Forbes.”
“Now the heat itself is not excessive, it does not rise above 80o at the floor, and in the room itself it is not nearly so great. If a person does what is in itself noxious, or which interferes with the ordinary use and enjoyment of a neighbour’s property, it is a nuisance. But no case has been cited where the doing something not in itself noxious has been held a nuisance, unless it interferes with the ordinary enjoyment of life, or the ordinary use of property for the purposes of residence or business. It would in my opinion be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is such heat as to incommode the workpeople on the Plaintiff’s premises. I am of opinion therefore that the Plaintiff is not entitled to relief on the ground that what the Plaintiffs are doing is a nuisance.”
“As regards the question of nuisance, the lessors heat the air of their cellar so as to raise the temperature of the Plaintiff’s room. There is no evidence to shew that the heat is such as to interfere with the comfort of the Plaintiff’s workpeople, but there is evidence to shew that it damages one sort of paper sold by the Plaintiff, and so to some extent interferes with his use of the demised property. The Plaintiff contends that this establishes a case of nuisance, and he relies upon Cooke v. Forbes, in the head-note to which it is laid down that “It is no answer to a complaint by a manufacturer of a nuisance to his trade, to say that the nuisance is felt only by reason of the delicate nature of the manufacture.”
“I think the Plaintiff cannot complain of what is being done as a nuisance. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property if it is something which would not injure anything but an exceptionally delicate trade. Cooke v. Forbes has been disposed of by Lord Justice Lindley. In the present case the Defendants are not shewn to have done anything which would injure an ordinary trade, and cannot, in my opinion, be held liable on the ground of nuisance.”
“To describe this as a delicate instrument might be inaccurate, if the term were used in relation to other electrical instruments of extreme sensibility. But in the present discussion this is not the true comparison at all. The true comparison is with things used in the ordinary enjoyment of property, and this instrument differs from such things in its peculiar liability to be affected by even minute currents of electricity. Now, having regard to the assumptions of the appellants' argument, it seems necessary to point out that the appellants, as licensees to lay their cable in the sea and as owners of the premises in Cape Town where the signals are received, cannot claim higher privileges than other owners of land, and cannot create for themselves, by reason of the peculiarity of their trade apparatus, a higher right to limit the operations of their neighbours than belongs to ordinary owners of land who do not trade with telegraphic cables. If the apparatus of such concerns requires special protection against the operations of their neighbours, that must be found in legislation; the remedy at present invoked is an appeal to a common law principle which applies to much more usual and less special conditions. A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure… Nor need the law be regarded as shewing any want of adaptability to modern circumstances if this be the true view, for the liability thus limited is of insurance and not for negligence, and all the remedies for negligence remain.”
“That may be a nuisance in Grosvenor Square which may be none in Smithfield Market”
“It is said that if this principle is applied in cases like the present, and were carried out to its logical consequences, it would result in the most serious practical inconveniences, for a man might go—say into the midst of the tanneries of Bermondsey, or into any other locality devoted to a particular trade or manufacture of a noisy or unsavoury character, and, by building a private residence upon a vacant piece of land, put a stop to such trade or manufacture altogether. … We do not think that either of these hypothetical cases presents any real difficulty. As regards the first, it may be answered that whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.”
“Accordingly, from at least December 2020 the Defendants were on actual notice of the risk posed to the falcons by excessive noise and visual disturbances during the Breeding Season.”
“On31st March 2022 operating diggers and dumper trucks and loading and off-loading lorries which generated excessive noise in the aviaries.”
“397. I also find that those same tortious acts under the law of nuisance support a finding of negligence. By parallel reasoning from the established facts, the exchanges between Martin (primarily) and Mr Thomas in December 2020 establish the requisite proximity between the parties, the foreseeability of harm and that it was not unduly onerous (but instead fair, just and reasonable) that the building works on UCE’s land should not be carried out near the Aviary during the breeding season. Adopting the incremental, analogy-based approach under Robinson v Chief Constable of West Yorkshire, a duty of care not to create disturbances that would harm the falcons during their breeding season should be recognised. The otherwise tortious acts of nuisance also breached that duty. 398. A key element of this finding is Mr Thomas’s awareness, as explained above, that such activity on UCE’s land during the breeding season was likely to harm the falcons on the Western Pens and could reasonably have been avoided by working around that season. I have explained why, on ROP’s pleaded case, the focus is upon whether it is fair, just and reasonable that the defendants should be held to [a] duty of care covering the months of March, April and early May 2022 (and therefore before Mr Brady arrived to make representations on behalf of the claimants) rather than a later part of the breeding season. The uncertainty, which has emerged from the evidence, as to whether Mr Thomas (or Mr Brady for that matter) understood the breeding season to extend into June or beyond June, or was as long as the 6 month period suggested by Martin, would raise obvious questions about the foreseeability of harm and the fairness, justice and reasonableness of holding the defendants to a more enduring duty of care. Those questions do not apply to the activity undertaken between the beginning of March and the beginning of May.”
“29 Properly understood, the Caparo case thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.”
“I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.”
“A duty of care is owed to all those who are so closely and directly affected by my act that I ought reasonably to have them in contemplation. These persons may include the owners or occupiers of property which lies beside the property of which I am the owner or occupier.”
“A duty of care should fit coherently into an overall scheme of rights and responsibilities or, in other words, it should be consistent with other legal rules and principles.”
“I do not dissent from the general proposition, as a general proposition, that anyone executing lawful operations—of course I am only dealing with such— upon his own property is bound to have a reasonable regard to the interests of his neighbour. He is not entitled to perform the operations in a particular way when he has ascertained that that will be hurtful to his neighbour, if there be another way equally available for his purposes which would not be injurious to his neighbour. He is not entitled to do his neighbour harm and then defend himself from liability by saying that his purpose was effected by carrying on his business in a particular way, when that particular way was not necessary for carrying on his business.”
“At a general level, the law of private nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners – “between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with”: Sedleigh-Denfield v O’Callaghan[1940] AC 880 , 903 (Lord Wright). It is evident that, if such a balance is to be maintained, not every interference with a person’s use and enjoyment of their land can be actionable as a nuisance.”
“This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him. Nor can such a person complain on that basis about substantial interference with his special use of his land caused by the ordinary use of neighbouring land. By contrast, a person who is using her land in a common and ordinary way is not seeking any unequal treatment or asking of her neighbours more than they ask of her.”
“The other aspect of this core principle is that, even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land. In the leading case of Bamford v Turnley (1862) 3 B & S 66, 83, Bramwell B formulated a test which has since been regularly cited, approved and applied, including at the highest level. He gave what were then contemporary examples of acts such as “burning weeds, emptying cess-pools” and “making noises during repairs” which (unless done maliciously and without cause) would not be treated as nuisances, even when they caused material inconvenience or discomfort to neighbouring owners. He then said at pp 83—84:” “There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action. (Emphasis added.)”
“A further rule, also illustrated by Sturges v Bridgman, is that “coming to a nuisance” is not a defence. In other words, it is not in itself a defence to a claim for nuisance that the defendant was already using his land in the way now complained of before the claimant acquired or began to occupy the neighbouring land. Nor is it a defence that the defendant’s activity did not amount to a nuisance until the claimant’s land was built on or its use was changed.”
“[44] A second theoretical possibility would be to allow a person to acquire a right to continue a use of land through long uninterrupted use during a period when the neighbouring landowner has no right to prevent such use because the neighbour is not at that time using her own land in such a way that the activity is a nuisance. However, such a regime would be equally objectionable. It is wrong in principle that a person should be able to acquire rights over neighbouring land and diminish his neighbour’s rights over her own land without the neighbour’s consent or acquiescence, simply by his unilateral action in carrying on an activity at a time when the owner or occupier of the neighbouring land has no power to prevent it.”
“During the site visit several small and quite noisy propeller-driven passenger planes were also coming into land at Land’s End Airport a short distance away; and conversation had to pause briefly to await their passing overhead. These would be heard and seen overhead by the falcons through the netting of the hack pens and other openings in breeding pens giving a view above. However, the factual and expert evidence in this case demonstrates that regular noises and sights, to which the birds become accustomed, do not present a threat to their welfare. ”
“what is fair, just and reasonable informs the court’s judgment as to whether a duty of care should be recognised in a situation where established principles do not provide the answer. It is part of the incremental, analogy-based approach required in a decision as to whether or not a duty of care should apply in a situation where one has not previously been recognised.”
“in novel situations lying outside established categories of liability, the law proceeds incrementally and all three factors identified in Caparo [Caparo Industries Plc v Dickman[1990] AC 605 ] remain relevant. It is the facts of any novel case, particularly so far as an assessment of the parties’ relationship for the purpose of deciding whether it is fair, just and reasonable, that will determine whether the law of negligence does extend to cover their consequences.”
“[158] If [the claimants] can establish by reference to proven facts both that [the first defendant] was made aware that the activity on UCE’s land during the breeding season was likely to harm the falcons on the Western Pens and that the harm might reasonably have been avoided then it would be open to the court to conclude that it is fair, just and reasonable that the person responsible for that activity (be that [the first defendant], UCE or possibly both) should be held liable in negligence. [159] However, such a finding of liability would rest upon conventional analysis of foreseeability, proximity and fairness, justice and reasonableness. That finding would be in accordance with the approach in Robinson v Chief Constable of West Yorkshire and not simply because the outcome in a Canadian case decided 65 years before the Supreme Court’s decision is consistent with it.”
“those same tortious acts under the law of nuisance support a finding of negligence. By parallel reasoning from the established facts, the exchanges between [the first claimant] (primarily) and [the first defendant] in December 2020 establish the requisite proximity between the parties, the foreseeability of harm and that it was not unduly onerous (but instead fair, just and reasonable) that the building works on UCE’s land should not be carried out near the Aviary during the breeding season. Adopting the incremental analogy-based approach under Robinson v Chief Constable of West Yorkshire, a duty of care not to create disturbances that would harm falcons during their breeding season should be recognised. The otherwise tortious acts of nuisance also breached that duty.”
“A duty of care should fit coherently into an overall scheme of rights and responsibilities or, in other words, it should be consistent with other legal rules and principles. Imposing liability for negligence has the potential to undermine other principles of law imposing conflicting or inconsistent responsibilities on persons said to be under a duty to take care. Liability in negligence should not be imposed without a clear understanding of the implications. By admitting or excluding it in areas already governed by some legal regime the court seeks to strike an appropriate policy balance in the particular social context.”
“The grade foremen Neilson and Appenheimer and the operators of the machines were not only acting contrary to instructions given to avoid damage to the mink but were in a place where, as hereinafter described, reasonable men would have foreseen damage would probably result and taken those precautions which, under the circumstances were possible to avoid it. It was their failure to take this reasonable care that created the noise from which the damage resulted. A defendant who seeks to avoid liability for nuisance on the basis that he has pursued but the ordinary and normal course of conduct incident to that locality must establish that he acted with reasonable care.” (463/464); “It would therefore appear that the appellants were negligent in creating the noise within the gap and in such proximity to the mink and therefore cannot avail themselves of the defence based upon the delicate and sensitive nature of respondent’s business of raising mink. (emphasis added) Moreover quite apart from any question of nuisance it would appear that the appellants are liable on the basis of their own negligence. The maxim sic utere tuo ut alienum non laedas is applicable to both nuisance and negligence. Brooms Legal Maxims 10th Ed 238, 248, 252.” (466); and “A reasonable man in the position of the grade foremen and the operators of these large machines would have known of the presence of the respondent’s mink, foreseen the possibility of damage and taken reasonable care to avoid it. Their failure to do so constituted a breach of duty owing by them to the respondent” (467). It can be seen from these passages that, as referred to above, the elements which founded the claim in nuisance and in negligence were the same. This case does not, therefore, support the judge’s conclusion, at paragraph 154, that “liability in negligence, including to a claimant whose operations are particularly sensitive to such activity, would exist alongside and (resting on carelessness) would obviously be wider than the liability of the neighbour whose liability in nuisance is dependent upon him having acted maliciously and so as to cause harm”
“In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.”
“The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it.”
“If the defendant knew or ought to have known that in consequence of his conduct harm to his neighbour was reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable. In such case the defendant is liable because he is considered negligent in relation to his neighbour, and here nuisance and negligence coincide. Whether his liability is described as falling under one legal rubric or the other would seem to be only a difference of words.”