Clifford v Dove

[2006] NSWSC 314

CITATION:	Clifford v Dove [2006] NSWSC 314
HEARING DATE(S):	18 and 19 April 2006
JUDGMENT DATE :	20 July 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 37
DECISION:	Paragraph 37
CATCHWORDS:	Damages. Assessment of damages for a claim for private nuisance. Defendant removed cattle yards over which the plaintiff had the benefit of an easement. Whether there was any betterment when cattle yards were replaced. Claim for damages for stress and anxiety. Held such a claim not available in a claim for private nuisance.
CASES CITED:	Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Limited & Anor [2001] NSWCA 313 Harbutt’s ‘Plasticine’ Unlimited v Wayne Tank & Pump Co Limited (1971) QB 447 British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 Bellgrove v Eldridge (1954) 90 CLR 613 at 618 Broken Hill City Council v Piziani and Anor 93 LGERA 113 at page 119 Ashgar v Ahmed (1995) 17 HLR 25 Drane v Evangelou [1978] 1 WLR 455 Hunter v Canary Wharf Ltd [1997] AC 655
PARTIES:	Andrew Clifford and Maureen Clifford v Robyn Beverley Dove
FILE NUMBER(S):	SC 4944 of 1999
COUNSEL:	Mr AA Henskens for plaintiffs Mr R Horsley for defendant
SOLICITORS:	Colin Biggers & Paisley for plaintiffs Horowitz & Bilinsky for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 20 July 2006

4944/1999 Andrew Clifford and Maureen Clifford v Robyn Beverley Dove

JUDGMENT

1 His Honour: This is the hearing of a motion filed on 16 December 2004 in which they plaintiffs seek the certification of the amount of damages that they ought to recover against the defendant pursuant to the judgment of His Honour Justice Bryson given in these proceedings on 28 October 2003.

2 The order for account contained in order 5 of the orders made on 15 December 2003 was in the following terms:

“That after compliance by the defendant with order 1 or further order the matter be referred to the Master to inquire into assess and certify the amount of the damages which the plaintiffs ought to recover against the defendant.”

History of the proceedings

3 The plaintiffs and the defendant own adjoining properties situated in the southern tablelands of New South Wales. The properties are separated by a laneway which has an entrance to Meryla Road the main public access to the properties.

4 There are cattle yards at the point where the laneway meets the road and there is an easement giving both parties the right to use these cattle yards which are in fact situated on the defendant's property. The easement was created on the registration of the relevant deposited plan. The yards are not only useful for unloading and loading cattle from trucks on the access road but they also contain a cattle crush and other associated pieces of equipment which allowed cattle work to be carried out in the yards.

5 In 1999 the plaintiffs decided to establish a Charolais stud on their property while the defendant raised Angus cattle on her property.

6 On 24 September 1999 the defendant commenced to remove the cattle yards including the equipment such as the cattle crush. It was these activities which prompted the litigation before His Honour which was eventually heard in October 2003. In his judgement on 28 October 2003 His Honour made mandatory orders for the defendant to restore the cattle yards to their former state. He restrained the defendant from erecting certain fences and made the reference for the determination of damages to which I have referred.

7 In his judgment His Honour referred to the steps which the plaintiffs then took to erect new cattle yards on their own property at paragraph 49 in these terms

“49 According to the plaintiffs’ case and evidence the steps which Mr Clifford took to acquire a cattle crush and other equipment and to erect yards within Lot 6 were not steps which he planned in advance, but steps he embarked on with urgency when he saw the disruption of the cattle yards on Lot 5. He put forward the steps he had to take provide himself with other cattle yards as the basis for a claim for damages. He acted very promptly, within two or three days, to buy other equipment. This is not a suspicious circumstance; the nature of the event required immediate action if he was to be able to manage his cattle. Mr Clifford’s evidence shows that he had an urgent need to have new cattle yards available because he had recently purchased cattle and their management required facilities for vaccination, pregnancy testing, possible caesarean section births and many other uses, and the second vaccination of cattle was due in the time after the removal of the cattle yards.”

8 His Honour then went on to deal with the fact that it would have been imprudent for the plaintiffs to reinstate the yards within the easement. He indicated the way in which the matters occurred in paragraph 53 in these terms

“53 In my finding the defendant’s account, in which the equipment in the cattle yards was dismantled and the cattle yards lost most of their usefulness in a course of events which Mr Clifford had agreed to and had indeed initiated for purposes of his own, is entirely untrue. In my finding the events began when the defendant signalled her intention to remove equipment, not at all in a clear way, by her message of 24 September and went ahead immediately, without giving the plaintiffs any opportunity to respond to the message. In the message she suggested that a number of the posts in the cattle yard were rotten in the lower sections or close to the end of their life. Photographs taken by Mr Clifford within a few days of the damage, which are at pp34 to 46 of his affidavit, show that the defendant was quite wrong to assert that the posts were rotten in the lower sections or close to the end of their life. If any posts had been in that situation, that would not justify what was done. The photographs show that the yards and the equipment were in generally good and sound condition and that a number of sound posts were either dragged out of the ground with their surrounding concrete bases or chain-sawed off leaving stumps of posts which obviously would have been serviceable for years. The concrete pad on which the cattle crush formerly stood, and to which it was bolted, was torn up. The cattle crush and calf cradle lay unfixed at the yards for some weeks, and then they were removed and fixed in position for use elsewhere on the defendant’s land. There was no response to the demand that the defendant restore the area to its original condition. Some gates and fencing and some other equipment remained, but the utility of the cattle yards referred to in the easement was very greatly reduced. The working equipment which gave the yards their principal utility was vandalously destroyed so that the defendant could use the equipment elsewhere, in entire disregard of the easement and the rights over the cattle yards which it conferred on the plaintiffs.”

9 After referring to the defendant's evidence His Honour went on to refer to the plaintiffs’ response in paragraph 55 in the following terms:

“55 On behalf of the defendant it was contended to the effect that the fact that the plaintiffs purchased equipment and constructed cattle yards on their own property in some way bears out the defendant’s contention that the work was done with the consent of the plaintiffs. In my finding however it has no such tendency. It was also contended to the effect that the fact that the plaintiffs have now constructed cattle yards and purchased appropriate equipment has the effect that they have no real need for the cattle yards to which the easement relates. As the plaintiffs, as I have found, furnished themselves with other cattle yards as a response to the defendant’s destructive conduct, this is a travesty of their position. It also fails to acknowledge their rights; they are entitled to the easement, including the right to use the cattle yards located at the Meryla Road entrance in common with the owner of Lot 5, whether or not they own other cattle yards, or if they own a hundred others. The removal of equipment from the cattle yards unreasonably impeded the exercise of their right to use the cattle yards, was plainly a nuisance, and calls for a remedy which will be effectual in relation to the nature of their rights.”

10 His Honour then considered whether damages should be the sole remedy and referred to the defendant having acted in a highhanded way showing a disregard of the plaintiffs’ interests. He concluded as to what should be the remedy in paragraph 58 in these terms:

“58 In my judgment the just remedy is a mandatory order requiring the defendant to restore the cattle yards, including the equipment, to the condition in which they should be and an award of damages to be assessed after they have been restored. Otherwise the plaintiffs’ rights will not be protected effectively. The cost in money and the pains and trouble expended by the plaintiffs in providing themselves with other cattle yards are elements in the assessment of damages, although the assessment will be complex as the plaintiffs have the benefit of the enhanced value to Lot 6 produced by constructing their other cattle yards. Embarking on the assessment of damages will involve an exercise of some complexity and some obscurity, on facts which cannot be fully known until the yards have been put back in their proper order.”

11 The plaintiffs made the following three claims in respect of damages which they have suffered:

1. Cost of erecting temporary and permanent cattle yards. $24,848.46
2. A charge for labour by Mr Clifford to construct the yards $5,400
3. Damages for pain and trouble

Cost of installation of cattle yards

12 This claim was broken down as follows:

1. Forcing yard, circular race, crush and installation $13,140
2. Temporary cattle yards $1,836.70
3. Posts and rails for permanent yards $1,694
4. Gates for permanent yards $1,532.50
5. Concrete for permanent yards $342.26
6. Labour costs for the permanent yards $3,595
7. Installation of metal rails for permanent yards $2218.50
8. Welding on permanent yards $499.50
Total $24,848.46

13 It will be noted that in paragraph 58 of His Honour’s judgment which I have included above he commented on the possible questions of any improvement to the plaintiffs’ property as a result of the installation of his new yards. The new yards were erected in several stages. Initially there was a portable cattle yard system installed in September 1999 and the cost for this is item 1 above. It is not disputed that this amount is payable. To make those yards useable there was a need to construct some holding yards which were urgently needed. These were constructed and the cost was alleged to be the amount in item 2 of paragraph 12 above. Thereafter over the ensuing months permanent holding yards were installed to replace the temporary ones. The cost of the permanent yards are at items 3 to 8 in paragraph 12 above.

14 After the completion of the work Mr Cole, a valuer, inspected the property on 31 August 2004 and valued it. As part of his valuation he considered whether the new cattle yards added any value to the property. His opinion was in these terms:

“I am further of the opinion that the new set of cattle yards constructed adjacent to the main residence add no significant value to the property provided the cattle yards, and loading ramp constructed within the right of carriage way at the road front of the property are maintained in good working order and access to usage by the owners of the subject property is maintained.”

15 Evidence was called by the defendant from Mr Ryan, a valuer, who gave evidence that he regarded the new yards which were constructed by the plaintiffs as being of high quality in contrast to the yards on the easement which he described as being “basic”. In the upshot he gave no evidence as to any increase in value. Accordingly, there is no valuation evidence which would suggest that the value of the plaintiffs’ property has been improved by the addition of the yards.

16 The defendant sought to suggest that the construction of the permanent yards was indeed a betterment and I will return to this shortly.

17 As I have mentioned item 1 in paragraph 12 was admitted. In respect of item 2 the defendant concedes that an amount of $1,156.70 being the cost of materials in respect of that item are properly payable. The balance of the claim is said to be labour costs paid to Ben Goodman in the sum of $680 for the erection of the temporary guards. In his first affidavit Mr Clifford attached some invoices from Mr Goodman in support of this claim. Mr Clifford conceded that the invoices were plainly ex post facto creations in order to support the claim. However, further evidence showed that Mr Clifford’s cheque butts contained two payments of $340 to Mr Goodman, one payment being made on 2 December and the second on 10 December. Both these payments were entered into the books of the company without any description other than that they were payments to Mr Goodman on the relevant days. Having regard to the supply of materials in November it is likely that the payments would have been for the work involved in erecting the yards. Accordingly, and notwithstanding the fabrication of invoices, I am prepared to accept labour costs of $680 were incurred in the construction of the yards.

18 I should mention that it was submitted by the defendant that the identity of who the work was done for was an issue. This arose because there appeared to be stock partnership operating for the Charolais stud on the basis that Mr and Mrs Clifford had a 50 percent interest and Mr Goodman a 50 percent interest. The evidence suggested that the partnership occupied the property on a handshake agreement for no payment. In these circumstances it would seem to me that the work, being work on the fencing which is attached to the land, would be something which would accrue to the owners and be to their account. There is no evidence to suggest that the stock partnership agreed to pay this cost and, accordingly, the whole amount should be allowed rather than the amount being reduced to reflect Mr Goodman’s interest in the partnership. He certainly had no interest in the land.

19 With regard to the costs referred in items 3 to 8 of paragraph 12 above the evidence before me clearly shows that the plaintiffs paid the items for materials in the amounts now claimed by them. There is no doubt that the items were used for the permanent fencing. In respect of labour in item 6 there were two charges. One of the charges of $2,000 was from Ben Goodman and the other sum of $1,595 was from Mr Peter Reicher. Mr Reicher appears to be a local builder who supplied all the pipe necessary for the new yards and erected the new yards. He has given his invoice for the labour which has been paid and I would accept that his charge is appropriate as part of these charges for the permanent yards. With regard to the charges for Mr Goodman in the sum of $2,000 once again these are supported by invoices prepared many years later to rationalise the claim. The cheque records show payments to Mr Goodman of $450 and $560 early in January 2001. As the work, the subject of this claim, was done at the end of 2000 they could relate to the work. The other charge of $1,000 is said to be an agreement for the reduction of a loan made by the plaintiffs to Mr Goodman. Apart from the loan having been documented in the records of the company there is nothing other than the claim to set off the extra $1,000 by the plaintiffs. No details of substantive conversations were given and Mr Goodman gave no evidence. In the circumstances I am only satisfied that $1,000 can be identified as labour in respect of the permanent cattle yards.

20 The next question is whether the charge for making the yards permanent is appropriate. The temporary holding yards were constructed in December 1999 and the permanent improvements were constructed over a period of a month commencing December 2000.

21 There were tendered in evidence photographs of the temporary holding yards which were constructed to feed into the new yards. They are of timber post and rail type of construction having one top rail and four wires below the top rail. The height is about the height of a standard country gate. The permanent yards were made of steel with three inch steel uprights and two-inch rails with the posts set in concrete. The height of the permanent yards is substantially higher than that of the temporary yards and there are five horizontal rails. The area covered by the permanent yards is obviously greater than that which was covered by the temporary holding yards erected in 1999.

22 Mr Clifford identified the problems which led to the change as being that the temporary yards apparently allowed cows to jump out of them because were not high enough. The plaintiffs used the property to breed Charolais stud cattle. They are a large breed significantly larger than, for instance, Angus cattle and a cow can weigh between 700 and 800 kilos and a bull can weigh up to 1,200 kilos.

23 It seems that when the temporary holding yards were constructed they were inadequate for the purpose and probably in hindsight should not have been constructed in that way. It seems clear that there was a need for a substantially higher rail. The permanent yards occupied a greater area than the temporary yards and there is no evidence to suggest that this was not necessary for the purpose of the yards. It would seem to me inappropriate that the defendant should be charged for the mistake by the plaintiffs and, accordingly, I propose to disallow the charge of $1,836.70 for the temporary cattle yards and instead allow the charges for the permanent yards reduced by the sum of $1,000 in respect of labour.

24 With regard to betterment reference was made to the fact that the new permanent yards were better than the yards that existed on the easement. True it is they were slightly higher but it is to be observed that the fencing for most of the easement yards was a solid wooden fencing having four wooden rails between each post. Being slightly higher, the new permanent yards on the plaintiffs’ property would seem to have slightly better practical advantages than the yards on the easement. The evidence of the valuers suggested the new permanent yards were superior to the yards on the easement which were described as basic.

25 Similar considerations apply where the property other than personal property is destroyed or injured. The principles were discussed by the Court of Appeal in Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Limited & Anor [2001] NSWCA 313. When discussing Harbutt’s ‘Plasticine’ Unlimited v Wayne Tank & Pump Co Limited (1971) QB 447 His Honour Mr Justice Sheller referred to a number of statements in that case with approval in these terms:
34. In the case of a chattel, such as a car, destroyed or damaged by the defendant’s fault, but of which the plaintiff has had the benefit of some use, a choice of the type referred to in Badham v Williams is more likely to be available than in the case of a building so destroyed or damaged. In Harbutt’s the defendant, while installing equipment under contract in an old mill which the plaintiff used as its factory, destroyed the building by its negligence. The plaintiff was not permitted to rebuild the old mill which was five storeys high. It had to put up a new factory two storeys high though with no more accommodation. The question as posed by Lord Denning MR at 467 was whether the plaintiff was entitled to the actual cost of replacement or was limited to the difference in value of the old mill before and after the fire. At 468 his Lordship said:

“The destruction of a building is different from the destruction of a chattel. If a second-hand car is destroyed, the owner only gets its value; because he can go into the market and get another second-hand car to replace it. He cannot charge the other party with the cost of replacing it with a new car. But when this mill was destroyed, the plasticine company had no choice. They were bound to replace it as soon as they could, not only to keep their business going, but also to mitigate the loss of profit (for which they would be able to charge the defendants). They replaced it in the only possible way, without adding any extras. I think they should be allowed the cost of replacement. True it is that they got new for old; but I do not think the wrongdoer can diminish the claim on that account. If they had added extra accommodation or made extra improvements, they would have to give credit. But that is not this case.”

35 At 472-3 Widgery LJ said:

“The distinction between those cases in which the measure of damage is the cost of repair of the damaged article, and those in which it is the diminution in value of the article, is not clearly defined. In my opinion each case depends on its own facts, it being remembered, first, that the purpose of the award of damages is to restore the plaintiff to his position before the loss occurred, and secondly, that the plaintiff must act reasonably to mitigate his loss. If the article damaged is a motor car of popular make, the plaintiff cannot charge the defendant with the cost of repair when it is cheaper to buy a similar car on the market. On the other hand, if no substitute for the damaged article is available and no reasonable alternative can be provided, the plaintiff should be entitled to the cost of repair. It was clear in the present case that it was reasonable for the plaintiffs to rebuild their factory, because there was no other way in which they could carry on their business and retain their labour force. The plaintiffs rebuilt their factory to a substantially different design, and if this had involved expenditure beyond the cost of replacing the old, the difference might not have been recoverable, but there is no suggestion of this here. Nor do I accept that the plaintiffs must give credit under the heading of ‘betterment’ for the fact that their new factory is modern in design and materials. To do so would be the equivalent of forcing the plaintiffs to invest their money in the modernising of their plant which might be highly inconvenient for them.”

36 At 475-6 Cross LJ said:


“….but in my judgment the value of the building and of the plant and machinery before the fire throws no light on the true measure of damage in a case like this where it was obviously right for the plaintiffs to rebuild and re-equip their factory and start business again as soon as possible. Further, I do not think that the defendants are entitled to claim any deduction from the actual cost of rebuilding and re-equipping simply on the ground that the plaintiffs have got new for old. It is not in practice possible to rebuild and re-equip a factory with old and worn materials and plant corresponding to what was there before, and such benefit as the plaintiffs may get by having a new building and new plant in place of an old building and old plant is something in respect of which the defendants are not, as I see it, entitled to any allowance. I can well understand that if the plaintiffs in rebuilding the factory with a different and more convenient lay-out had spent more money than they would have spent had they rebuilt it according to the old plan, the defendants would have been entitled to claim that the excess should be deducted in calculating the damages. But the defendants did not call any evidence to make out a case of betterment on these lines and we were told that in fact the planning authorities would not have allowed the factory to be rebuilt on the old lines.”

37 The approach is no different whether the destruction of or damage to property results from breach of contract or negligence. In Harbutt’s the plaintiff sued for both breach of contract and negligence.

26 His Honour went on to discuss British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 and concluded in these terms:

54 In a sense the British Westinghouse case may represent the middle ground. However, the context was that the railway company had replaced the defective turbines with superior turbines. In my opinion, if a defendant negligently damages or destroys the plaintiff’s property and there is no evidence that the plaintiff had any reasonable choice other than to replace or repair what had been damaged or destroyed, the cost of replacement or repair, provided it is not extravagant, is recoverable as damages. In each case it is a question of fact.

55 The facts in Hoad and British Westinghouse are distinguishable from the facts in this case. The plaintiff had no choice but to replace the defective pavement with new pavement. It could not do so by paying less for a four year old pavement. There was no evidence of any advantage to the plaintiff beyond the speculative proposition that the new pavement might last longer than the old one would have, if it had been properly laid. Moreover as Giles JA has remarked in his reasons for judgment, it is not appropriate to use a “crude percentage discount” to reduce the amount awarded. Ordinarily if such a reduction is to be made the formula mentioned in Waddams and referred to with approval by the Court of Appeal of Ontario should be applied. On the evidence in this case, no allowance should have been made for betterment and this ground of cross-appeal fails.

27 His Honour’s comment about the cost being not extravagant is somewhat similar to the restriction which applies in the case of breaches of building contract. See Bellgrove v Eldridge (1954) 90 CLR 613 at 618. In my view the plaintiffs had to carry out the works urgently in order to carry on their future business. At the time they erected the permanent yards they were still two years away from a hearing and did not know the ultimate outcome. Having regard to the nature of the business they were conducting I do not see there is anything unreasonable or extravagant in erecting the permanent yards and, accordingly, there should be no allowance for betterment based upon “new for old” which was achieved and which was a slightly better form of yard. I have already noted the valuation evidence showed that the construction of the yards did not increase the value of the property.

The charge for labour by Mr Clifford to construct the yards

28 This claim is for the time spent by Mr Clifford working with Mr Goodman and other contractors to build the temporary yards and the permanent yards. He estimated that he spent the same amount of time as Mr Goodman on the constructions of both yards. The work involved digging about a dozen postholes, attaching hardwood rails and running wires between the various posts. The permanent yards took about a month to build and the work done by Mr Clifford included digging holes for between 30 and 50 posts, concreting posts in the ground, securing rails and other work. He estimated that he spent approximately 180 hours constructing the new and temporary cattle yards and valued his time at $30 an hour. This was somewhat more than he would have paid for a labouring rate of $20 an hour which he paid Mr Goodman.

29 So far as the estimates of time are concerned it was pointed out that these estimates were made some years after the event. However, for the time spent on the temporary yards there was a reference point for Mr Clifford, namely, the number of hours which Mr Goodman had been paid for the work. These were 34 hours. It was noted for the second set of work, that between the time Mr Clifford swore his two affidavits, he increased his estimate from 100 hours to 140 hours. The reason appears to have been because on the second estimate he took a period of a month working five days a week. This is probably a good estimate given the amount of time involved. So far as the rate is concerned it seems to me that the work Mr Clifford was doing was the same type of work as Mr Goodman and accordingly I think an appropriate hourly rate would be $20. I these circumstances I allow $20 an hour for 174 hours being a sum of $3,480.

Damages for pain and trouble

30 It appears that in respect of nuisance, damages can be awarded for loss of amenity as well as physical damage. Before dealing with the authorities I note the basis of the claim put forward by the plaintiffs. The plaintiffs purchased the property with the intention of having a pleasant working retirement in the area they had chosen. However, from the beginning they found they had a difficult neighbour who interfered with their use of the right of way and was confrontational. Apart from the incidents, the subject of His Honour’s orders which concerned the yards, there were incidents where the defendant took an unjustified stance in the use of the right of way and any improvements to it. These matters caused considerable stress and anxiety to the plaintiffs. Mrs Clifford suffers from a respiratory condition and she has noticed that every time there is an incident with the defendant the condition worsens and her cough is aggravated.

31 Although there were the other incidents, such as the blocking of the right of way, the main concern to the plaintiffs was the destruction of the cattle yards. However, they managed to overcome the problem in a practical sense by the construction of yards on their own property and, after the construction of the yards, they do not seem to have had any problems managing their cattle. In other words their prompt actions enabled them to avoid any loss in the sense of being unable to carry on the business of a Charolais stud. Therefore their claim is solely for stress and anxiety resulting from the actions of the defendant.

32 There is no doubt that in a claim for negligence a Court can award damages for mental distress. See Broken Hill City Council v Piziani and Anor 93 LGERA 113 at page 119. The plaintiffs’ claim however is not in negligence but is based on nuisance. If one is concerned with a claim for aggravated or exemplary damages there does not seem any doubt that in a case of trespass damages can be recovered for mental distress. See Ashgar v Ahmed (1995) 17 HLR 25. However, in this case because of the lack of notice of a claim for aggravated damages at the commencement of hearing I refused to allow the plaintiffs to proceed with that claim. Accordingly it is necessary to see whether based on ordinary damages’ principles the plaintiffs are entitled to damages for mental anxiety and stress.

33 Prior to 1997 a number of wrongful eviction decisions such as Ashgar to which I have referred and Drane v Evangelou [1978] 1 WLR 455 allowed recovery of damages for mental distress in nuisance claims. However, this has changed as a result of a decision of the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655. In that case the House of Lords reaffirmed that nuisance was a tort directed at the use and enjoyment of land and held that actions in private nuisance could only be brought by persons with an interest in the affected land. The issues in Hunter were the question of who had standing in action in private nuisance and whether interference with television reception was an actionable nuisance. However comments were made beyond those two issues in respect of the law of nuisance. Lord Lloyd and Lord Hoffmann referred to the fact private nuisance covered cases of encroachment on land, direct physical injury to the land and interference with the quiet enjoyment of the land. Both Lords agreed that in respect of the first two items the correct measure of damages would be diminution in the value of the land. With regard to the third Lord Lloyd said at 696:

“Exactly the same should be true of nuisances with class (3). There is no difference of principle. The effect of smoke from a neighbouring factory is to reduce the value of the land. There may be no diminution in the market value. But there will certainly be loss of amenity value so long as the nuisance lasts. If that be the right approach, then the reduction in amenity value is the same whether the land is occupied by the family man or the bachelor.
If the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment”

34 Lord Hoffmann had the following to say at page 706:

“But inconvenience, annoyance or even illness suffered by persons on land as a result of smells or dust are not damage consequential upon the injury to the land. It is rather the other way about: the injury to the amenity of the land consists in the fact that the persons upon it are liable to suffer inconvenience, annoyance or illness.”

35 Lord Hope concurred with the approach of Lord Goff and Lord Hoffmann with Lord Cooke dissenting. His approach would have included claims for mental distress caused by acts of harassment.

36 The point which was addressed in detail by Lord Lloyd and Lord Hoffmann was not an issue that had to be decided in the proceedings. However, it was a strongly expressed view from the majority of the House of Lords. In the circumstances I should follow it and disallow any claim for mental anxiety and stress advanced by the plaintiffs. In case a different view is taken in the matter elsewhere, I would have thought that stress and anxiety suffered by the plaintiffs relating solely to the destruction of the cattle yards would be adequately compensated by an award of $5,000.

37 Accordingly, I assess the damages payable by the defendant to the plaintiffs at $25,491 and I give judgment against the defendant in the sum of $25,491. I order the defendant to pay the plaintiffs’ costs.

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