Malone v Laskey [1907] 2 KB 141

The defendants, who were the owners of considerable house property, let a house to a tenant, who subsequently sub-let it to a company, whose manager resided on the premises with his wife (the plaintiff) and his family; the defendants were not liable to do any repairs to the house. In the lavatory of the house was a water tank, which became insecure, owing, as was alleged, to the vibration caused by an engine and machinery upon adjoining premises of the defendants, which were used by them for the purpose of generating electricity for the lighting of their property. Complaints of the insecurity of the water tank were made by the plaintiff and her husband to the tenant, who forwarded them to the defendants. Ultimately the defendants sent two workmen, who were their own servants, to do the necessary repairs, and an iron bracket was fixed underneath the tank to support it. Three months afterwards the bracket fell upon the plaintiff and seriously injured her. The jury found that the bracket fell by reason of the working of the defendants’ engine, that the working of the engine amounted to a nuisance, and that the work of repair in putting up the bracket was done in an improper and negligent manner and the apparatus left in a condition dangerous to persons properly using the lavatory.

Held, first, that the plaintiff had no cause of action against the defendants on the ground of nuisance, because she had no interest in the premises or right of occupation in the proper sense of the term; secondly, that she could not recover on the ground of negligence, for there was no contractual relation between the plaintiff and the defendants, and the doing of the repairs was a voluntary act on the part of the defendants not done in the discharge of a duty to the plaintiff; and that, as the defendants had no control of the premises, there was no invitation on their part to the plaintiff, but at the utmost an innocent representation as to the state of the premises, which, as they had employed apparently competent men to do the repairs, gave the plaintiff no cause of action.

APPEAL of the defendants from the verdict and judgment in an action tried before Darling J. and a jury.

The plaintiff was a married woman, and the defendants were the trustees of the Birkbeck Permanent Benefit Building Society, who were the owners of certain premises known as 44, Southampton Buildings, Holborn, and of other premises adjoining. The writ in the action was indorsed with a claim for damages for nuisance caused by (a) the defective state of 44, Southampton. Buildings, and (b) the vibration occasioned by certain machinery of the building society situate in the immediate rear of those premises; also with a claim for damages for negligence in insufficiently repairing a certain water tank in the lavatory of those premises, whereby the plaintiff was seriously injured.

The statement of claim alleged that the plaintiff was the wife of Thomas Stratford Malone, and had at all times material resided with him at 44, Southampton Buildings, of which and of certain adjoining property the building society were the owners; that the defendants erected and placed on their adjoining premises large engines and plant for the purpose of generating electricity to light their property, and that they worked the engines and machinery in such a manner as to constitute a nuisance to the occupiers of all adjoining property by reason of the great noise and vibration; that by reason of the vibration the premises in which the plaintiff resided were severely shaken and injured, and that in particular a water tank fixed in the lavatory was rendered unsafe and dangerous to persons using the same; that in consequence of complaints made by plaintiff’s husband and other occupiers of the premises the defendants from time to time sent workmen to repair the damage and make the premises safe for habitation; and that the defendants through their workmen or agents executed the repairs in a negligent and improper manner, and in such a way as to leave the tank in a dangerous and improper condition for those using the lavatory. There was an alternative allegation that, if the repairs were executed properly, the tank again became unsafe and dangerous by reason of the vibration arising from the defendants continuing the nuisance. The statement of claim went on to allege that on May 7, 1905,while the plaintiff was using the lavatory, the supports of the water tank gave way without warning and partly fell, and the bracket supporting the tank struck the plaintiff on the head and back and caused serious and permanent injuries. In particulars subsequently delivered under a Master’s order it was said that the negligence complained of consisted in the manner in which the tank was refixed by the defendants’ work­men; that the supports used for the tank were not strong enough for the purpose, nor were they sufficiently or securely attached to the main walls of the building; and that the main walls were in so old and defective a condition as to be unable to support the tank without special precautions which were not taken. By their defence the defendants pleaded that the premises had been let by them, and that they were under no liability to repair; they denied all the allegations of nuisance and negligence, and as to the latter they alleged in the alternative that, if they made the repairs (which they denied), they did so at the request of the tenants of the premises, and employed skilled and competent men to do them.

At the trial it appeared that in 1899 the defendants, as trustees of the Birkbeck Building Society, let the premises 44, Southampton Buildings, under an oral agreement to a firm of Witherby & Co., who were law stationers, as yearly tenants, and that the tenancy of Witherby & Co. was still in existence at the date of the accident. Under the agreement the defendants were under no liability to repair the premises. In 1901 Witherby & Co. sub-let a portion of No. 44 to the Script Shorthand Company, of which company the plaintiff’s husband was the manager and secretary. In that capacity the plaintiff’s husband resided with his wife and family upon the portion so sub-let, his occupation of the premises being apparently part of his remuneration for his services to the Script Shorthand Company. In 1902 the electric light engine and machinery referred to in the statement of claim were first erected on adjoining premises of the defendants, and they had been worked continuously since that date. There was evidence that in 1904 the plaintiff and her husband had complained to Witherby & Co. of the vibration caused by the working of the engine and of the condition of the water tank in the lavatory, which they alleged to be unsafe, and that these complaints had been forwarded by Witherby & Co. to the defendants. In January, 1905, the defendants sent two plumbers, who were servants of the defendants and members of the permanent staff kept for attending to house property belonging to the building society, to repair the water tank. The plumbers put up a bracket to support the tank, and it was this bracket which on May 7 following fell and injured the plaintiff.

The following were the questions left to the jury, with their answers:
(1.) “Did the bracket fall by reason of the working of the boilers and engines of the defendants?” Answer: “Yes.”
(2.) “Did such workings cause a vibration amounting to a nuisance?” Answer: “Yes.”
(3.) “If so, was the injury to the plaintiff the consequence of that?” Answer: “Yes.”
(4.) “Did the defendants, when they put up the bracket and placed the tank upon it, do this work in an improper or negligent manner, and leave the apparatus in a condition dangerous to anyone properly using the lavatory?” Answer: “Yes.”
(5.) “If so, was the plaintiff injured in consequence of such action on the part of the defendants?” Answer: “Yes.”

The jury assessed the damages at 400l., and the learned judge gave judgment for the plaintiff. The defendants appealed.

Montague Lush, K.C., and Ricardo (C. Bray with them), for the defendants. There was, in fact, no evidence of a nuisance by vibration; but, assuming that there was such evidence, it amounted to a private nuisance only. There was no evidence of a public nuisance, in respect of which an individual may sue if he suffers special damage, as was the case in Tarry v. Ashton. (1) There can be no right of action in respect of a private nuisance except in respect of a proprietary right in premises affeeted by it. The present case being, at the highest, one of discontinuous nuisance, the only person who could have a right of action in respect of it would be the occupier of the premises affected: Jones v. Chappell (2); Bullen & Leake, tit. Nuisance; Addison on Torts, 7th ed. pp. 362, 408. The plaintiff was not the occupier of, and had no interest in, the premises. The findings of the jury are really inconsistent with one another, for if (as they have found) the damage was occasioned by the negligence of the defendants’ servants in not properly fixing the bracket, it cannot be regarded as the result of the nuisance. On the other hand, the vibration could not for the present purpose be looked upon as a nuisance merely because it brought down a bracket which was not properly fixed. With regard to the cause of action based upon the alleged negligence in the fixing of the bracket, the plaintiff can have no right of action, for the defendants owed no duty in the matter to her, there being no contract on their part with her to repair the premises: Cavalier v. Pope. (3) There being no contractual obligation on the defendants to repair the premises, their doing so was a gratuitous act. The doctrine upon which the so-called “trap” cases, of which Indermaur v. Dames (4) is a well-known instance, proceeded is inapplicable to the present case; they are cases in which persons in the possession or control of premises invited the plaintiff to come upon them, there being at the time some trap or defect thereon, as in Miller v. Hancock (5), where the landlord retained possession and control over a staircase which proved defective. The present defendants were not in possession or control of the premises where the accident happened. [They also cited Nelson v. Liverpool Brewery Co. (6); Earl v. Lubbock. (7)]

Powell, K.C. (C. Herbert Smith and Ralph Thomas with him), for the plaintiff. The jury in effect found that the bracket was negligently and improperly put up by the defendants’ servants, and that by their action the defendants shook it down. Upon the facts and the findings of the jury the plaintiff is entitled to recover, either on the ground of negligence, or of trespass to the person, or of nuisance. As to negligence, a heavy article like a bracket, placed at a considerable height above the floor, is a dangerous thing if insecurely fixed, and persons who, like the defendants, place such an article in such a position and neglect to make it secure are responsible for any injury occasioned in consequence to persons whose coming in the ordinary course of things into proximity to the article so placed they ought to have contemplated: Heaven v. Pender (1); Le Lievre v. Gould. (2) In Rylands v. Fletcher (3) water collected in a reservoir was held to be a dangerous thing, and a heavy article raised some distance above the surface of the ground is at least equally dangerous. [On this point he also cited Midwood v. Manchester Corporation (4); Parry v. Smith. (5)] Cases such as Cavalier v. Pope (6) and Lane v. Cox (7) have no bearing on the present case; they were cases of mere non-repair on the part of the landlord, and acts of nonfeasance stand on a very different footing from acts of misfeasance. If the defendants, on complaints being made, had merely refused to do anything, on the ground that they were under no contractual liability to repair, the case would no doubt have been very different. But as they elected to come upon the premises and do the repairs, those concerned were entitled to suppose that they had done the work properly and made all safe; and to leave the bracket insecurely and insufficiently fastened was laying a trap for persons who might come into proximity to it and upon whom it might fall. Having assumed to undertake the repairs, the defendants subjected themselves to the obligation of using due care in carrying them out, so as not to create a dangerous trap for inmates who might make use of the lavatory. In Skelton v. London and North Western Ry. Co. (8) Willes J. pointed out the difference in this connection between acts of omission and commission, and said: “If a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it. Such is the result of the decision in the case of Coggs v. Bernard.” (1) The defendants were not, it is true, in occupation or control of the premises when the accident happened, and therefore the case is not, so far, on the same footing as the cases in which persons in occupation or control of premises on which there was a trap invited the plaintiff to come on the premises. But the same principle really applies. The defendants assumed control of the premises for the purpose of doing the repairs, and, having undertaken and affected to do such repairs as were necessary, they in effect invited those whom they must know in the ordinary course of things would use the lavatory to do so, and impliedly represented that they might safely use it; they thereby incurred a duty to those persons of not negligently leaving the place in a latently dangerous state. Collis v. Selden (2) is not an authority against the plaintiff’s contention; that case was decided on demurrer at a time when the rules of pleading were much stricter and more technical than they now are, and turned on a point of pleading, the declaration being held to be bad because it did not state any facts from which a duty towards the plaintiff could be implied. The reasons for the decision were thus stated by Willes J.: “The declaration is not founded upon any duty of the occupier of the house to protect persons lawfully coming there against any hidden danger of which the defendant knew or ought to have known; but it is founded on alleged carelessness in doing an act, namely, hanging a chandelier. The chandelier is to be regarded as movable property, and the declaration should have shewn either that it was a thing dangerous in itself and likely to do damage, or that it was so hung as to be dangerous to persons frequenting the house. If that averment had been made and proved, the case might fall within the class to which Sullivan v. Waters (3) belongs—as a trap to persons using or likely to use the way, whether public or not.” These observations seem to indicate that, on proper averments, there would be a cause of action in such a case as the present. The bracket, being a heavy article, was, in the situation in which it was, a thing dangerous in itself, and it was so put up as to be dangerous to persons using the lavatory, and whom the defendants must have contemplated as likely to use it. [They also cited on this point Corby v. Hill (1); Gallagher v. Humphery. (2)]

Apart from negligence, the plaintiff is entitled to recover in respect of trespass to the person. The jury have found that by the vibration of their engines the defendants shook down the bracket, the legal result of which is the same as if they had dropped it out of their own hands upon the plaintiff.

As regards the liability founded upon nuisance, it is not necessary that the person aggrieved should be the tenant of the premises or should have an interest in the property, and the action is maintainable without shewing that any injury has been caused to the property itself: Benjamin v. Storr. (3)

[FLETCHER MOULTON L.J. That was a case of a public nuisance, which involves very different considerations.]

Lush, K.C., in reply. [He was directed to confine his argument to the point whether the defendants, by doing the repairs, represented that the place was safe.] There are only three classes of case in which the Courts have laid down that, apart from any contractual obligation, such an action will lie, and they all turn upon the existence of a duty on the part of the person sought to be made liable. The first is where the act committed amounts to a public nuisance, which is a breach of duty alike to the public and to the person who sustains a particular injury from it. The second is where something that has been called a “noxious thing” is left in a position in which an unknown person may come in contact with it; the thing so left must, however, fall within the class of noxious things. The third class is where a person, having the control of premises, invites another to come upon the premises, in which case he will be liable to the person invited if the latter is injured by reason of a trap upon the premises, the existence of which was known, or ought to have been known, to the person inviting. In the last class control of the premises is an essential condition of liability, and it was the retention by the owner of the control of the staircase in Miller v. Hancock (1) which made him liable. There being no initial duty on the part of the defendants, the fact that they interfered by doing the repairs did not create a duty on their part. There was no invitation by the defendants to the plaintiff, and in the absence of control, there was no representation by them as to the state of the premises. Even if doing the repairs amounted to a representation, it was an innocent representation, and in the absence of deceit gave no right of action. Assuming that it could possibly be held that both control and invitation existed here, the proper test under the circumstances is not whether the defendants knew or ought to have known that the bracket was unsafe, but whether they exercised reasonable care in doing the work of repair. [He also cited Scholes v. Brook. (2)]

Srn GoRELL BARNES, PRESIDENT. In this case the plaintiff sues the defendants for damages for injuries sustained by her under circumstances which I will state sufficiently fully to indicate the point that we have to decide. The premises on which the accident happened belong to the Birkbeck Building Society, and the defendants are the trustees for that society. A house which belonged to them was let by the defendants in 1899 to Witherby & Co., who in 1901 sub-let a portion to the Script Shorthand Company. Malone, the plaintiff’s husband, was in that company’s employ and occupied a part of the premises, apparently as part of the consideration for his services to his employers. There was a lavatory in the house, of which Malone and his family had the use and apparently the exclusive use; and in the lavatory there was a flush cistern, which was fixed against the wall. About the end of 1904 the cistern was said to be in an unsafe condition, and a communication was made by the plaintiff or her husband to Witherby & Co. on the subject. On December 26 Witherby & Co. wrote to Priest, who was one of the staff employed by the defendants, saying that the cistern required to be replaced and was then in a dangerrous condition. On January 6, 1905, the plaintiff wrote another let;ter of complaint to the representative of Witherby & Co., in wh:ich vibration was alluded to as a cause of the dangerous state of tthe cistern. The vibration to which that letter referred arose frper and negligent manner, and left the apparatus in a dangerous condition, and that the plaintiff was injured in consequence ; and they assessed the damages at 400Z. We are now asked. to set aside the judgment for the plaintiff and enter judgment, for the defendants, or to send the case back for a new trial, but the substantial point argued has been whether judgment should be entered for the defendants. There is one further fact which I ought perhaps to mention. The plaintiff said in cross-examina­tion that she remembered that when the new bracket was put up she did not think it was safe, and that she wrote again about it. There is also some evidence given by the husband and daughter that the tank shook after the bracket was put up. No question, indeed, was put to the jury as to the knowledge of the plaintiff that the cistern was still unsafe, possibly because the plaintiff had been considerably injured by the accident, and her evidence was: therefore kept as short as possible. Therefore any discussion of the question whether the plaintiff knew the risk, and accepted the position of acting as though the cistern were safe, must be conducted independently of any finding of the jury on the point. The two main questions argued before us were (1.) whether the plaintiff had a cause of action arising from the nuisance alleged, which question involves the consideration of the first three questions left to the jury; and (2.) wp.ether there was a cause of action based on the negligence of the defendants in undertaking to do the work and doing it in such an improper manner that injury resulted to the plaintiff. As to the first question, I must confess to feeling some doubt whether there was any substantial evidence that the fall of the bracket was due to the alleged vibration, but that would only affect the question of whether there should be a new trial. I doubt whether the findings of the jury can be correct; the plaintiff contended that the use of oil in the engine had made a change, but the defendants reverted from January to May to the use of coal ; and further, as the engine had been working for years, it is not likely to have done this damage in three months. The main question, however, on this part of the case is whether the plaintiff can maintain this action on the ground of vibration causing the damage complained of, and in my opinion the plaintiff has no cause of action upon that ground. Many cases were cited in the course of the argument in which it had been held that actions for nuisance could be maintained where a person’s rights of property had been affected by the nuisance, but no authority was cited, nor in my opinion can any principle of law be formulated, to the effect that a person who has no interest in property, no right of occupation in the proper sense of the term, can maintain an action for a nuisance arising from the vibration caused by the working of an engine in an adjoining house. On that point, therefore, I think that the plaintiff fails, and that she has no cause of action in respect of the alleged nuisance. But the main difficulty of the case arises on the question whether the plaintiff can maintain an action on the ground of negligence. It is said that the defendants, by doing the repairs to the cistern, undertook a duty towards the plaintiff to do them properly and leave the cistern safe, and that by doing them improperly and leaving the apparatus in such a condition that the bracket fell they committed a breach of that duty. It is unnecessary for me to wade through the mass of authorities which have been cited to us; many of them turned upon facts which are not germane to the present case and upon principles which are not applicable; I propose to deal only with the facts of the present case, and with the grounds upon which I think that a cause of action arising from negligence is not maintain­able. In the first place, it has not been suggested that there was any contractual relationship between the plaintiff and the defendants. Secondly, there is no ground for saying that the defendants undertook any duty towards the plaintiff. She had complained to Witherby & Co., who communicated her com­plaints to the defendants; whereupon the defendants, although under no obligation to do so, as a matter of grace sent their plumbers to remedy the defect; that was an entirely voluntary act on their part, and was not done in the discharge of any duty which they owed to the plaintiff. The argument on behalf of the plaintiff, as I understand it, is that the case is analogous to the class of cases in which the control and the possession of premises rests with the owner, who gives a permission or invitation to persons to come on the premises in order to do work or for other purposes, in which case the law holds that a duty is imposed upon the owner to take reasonable care that his premises are not in a state likely to cause injury to persons so coming on to them. In my opinion the present case is very far removed from that class of case. In the first place, the defendants were not in possession nor in occupation of these premises, nor did they exercise control over them; they had let the premises to Witherby & Co., who had in turn sub-let a part to the Script Shorthand Company, who were the employers of the plaintiff’s husband and allowed him to live there with his family. Under these circumstances it cannot be successfully contended that there was any invitation by the defendants to the plaintiff to occupy or use the premises; the utmost that it is possible to extract from the facts is that there was an innocent representation on the part of the defendants that by reason of what was done by their men the premises were in a safe condition for use. As to that, the defendants, though they must be taken to have known at the outset that the cistern had become dangerous, employed apparently competent workmen (who were their own servants) to rectify the defect, and it has not been suggested that the defendants had any reason to doubt that the work was done in a proper manner. That being so, there was at the time of the accident no knowledge on the part of the defendants that the cistern was a source of danger to persons using the lavatory. The utmost that can be said is that what was done amounted to a representation by the defendants that the plaintiff might safely use the lavatory, and, even if it did amount to such a representation, it was an innocent representation and gave the plaintiff no cause of action. In my judgment the case is not brought within any class of cases in which a plaintiff has been held entitled to recover damages from a defendant on the ground of negligence. It certainly does not come within the class where the owner of property, having the possession and control of his property, invites persons to come on to his premises, nor do I think that it comes within any class of case in which negligence gives a cause of action. There must, therefore, be judgment for the defendants.

FLETCHER MOULTON L.J. I am of the same opinion. So far as the plaintiff’s case is based upon nuisance, the contention on her behalf appears to me to be supported by no authority. Witherby & Co. were the tenants and occupiers of these premises, and if the premises had been injured or the enjoyment of them interfered with by the vibration it was open to them to take any one of three courses—they might come to the Courts for an injunction to stop the vibration, or they might simply have tolerated it, or they might have authorized its continuance either gratuitously or for a valuable consideration. A person in the position of the plaintiff, who was in the premises as a mere licensee, had no right to dictate to Witherby & Co. which course they should take, and they seem to have voluntarily permitted the vibration to continue. Indeed, if it is permissible to conjecture, I have very little doubt that the proximity of the engine was by no means an unmixed evil to them, for it may well have affected the amount of rent paid by them for the premises. But, whether that be so or not, it was a matter entirely for the tenant, and a person who is merely present in the house cannot complain of a nuisance which has in it no element of a public nuisance.

Upon the ground of negligence, too, I am clearly of opinion that the action is not sustainable. There was no obligation upon the defendants to do any repairs to the premises, nor was any suggestion to that effect made at the trial. The repairs to the cistern which they in fact did were done by them gratuitously. However, in order to test the plaintiff’s case, I will suppose that the defendants did the repairs for reward to them from Witherby & Co. There would then be a contractual relationship between Witherby & Co. and the defendants, and the latter would be bound to exercise reasonable care to see that the work was properly done. If the work was done negligently, the defendants would be liable to Witherby & Co. for the damage done to them by the negligence or done to others under circumstances which involved a liability on the part of Witherby & Co. But that would be purely a liability on the part of the defendants to Witherby & Co., for no rights can be acquired under a contract except by parties to the contract, except in certain special cases having no bearing on the matters before us. I do not wish to express any opinion upon the question whether Witherby & Co. were under any liability to the plaintiff; if there were any such liability, it would be because it was their duty to have the premises in a fit condition for safe occupation, and they failed to do so. But in either alternative there would arise no duty on the part of the defendants towards the plaintiff. If their having given permission to the plaintiff to occupy the premises in the state in which they chose to have them created no liability on the part of Witherby & Co. towards the plaintiff, it is plain that there is no liability on the part of the defendants to the plaintiff. If, on the other hand, Witherby & Co. were under a liability towards the plaintiff, it is they who must be sued by her. The argument for the plaintiff is based on a misapprehension of the effect of negligence in the performance of a contract; it is contended that in a contract there is a representation made to the whole world that the contract will be performed without negligence. I know of no such doctrine. If representation is a word which is properly applicable to such a case, it is confined to the other contracting party; the supposed doctrine of a warranty to the whole world is supported by no authority, and is contrary to the accepted idea of the nature of contractual rights. I can find no trace in the evidence of a representation by the defendants to the plaintiff that the work was properly done, and, even if such a representation was made, it is impossible to hold that they are under any obligation to the plaintiff, for there is no evidence that they knew that the bracket was in an unsafe state when the repairs had been done, and therefore it was an innocent representation which gave no right of action. I think therefore that the case based on negligence fails equally with that based on nuisance.

KENNEDY L.J. I am of the same opinion. On the question of vibration there is no more to be said. No question was asked of the jury whether what was done by the defendants amounted to a public nuisance, and I agree that the mere existence of vibration amounting only to a private nuisance to the occupiers of the premises gave no cause of action to the plaintiff in respect of the alleged consequences of the vibration.

On the question of negligence I confess that I feel more doubt than my brother Moulton. Where a person, upon premises where he assumes or undertakes to do work, does the work badly, if the result is to cause injury to a person who is lawfully there, there are certainly some cases in which an action on the case will lie. Attempts have been made to formulate the classes of cases, apparently anomalous, in which an action for negligence has been held to lie where there is no contractual obligation. I agree that the cases in which it has been held that there is a cause of action because a person has proprietary rights over premises on to which another person has been invited to come present difficulties of principle. My difficulty in the present case may be put thus. Persons were lawfully on premises which were the property of the defendants, and the defendants, instead of employing independent contractors, sent their own servants to do certain necessary repairs; we are asked to set aside the judgment, not merely to grant a new trial, and we must therefore accept the finding of the jury that the work was improperly done by the defendants’ servants: ought not knowledge that the cistern was left in an unsafe condition to be imputed as continuing knowledge on the part of the defendants? Their servants did the work and left the place dangerous; may it not be argued that, if a scienter is necessary, the defendants had an interest in the premises, though not the control over them, and that if they chose to send in their servants to do the work, they are responsible not merely for any direct action of their servants causing injury to persons lawfully upon the premises, but also for the remoter consequences of their action, because the knowledge of their servants is their own knowledge? I accept the finding that the result of the acts of the defendants’ servants was to leave the premises in a dangerous condition, and I feel some doubt upon what certainly appears to me to be a difficult point upon that finding. Upon the whole, however, I am unable to dissent from the argument presented to us by Mr. Lush that, assuming the findings of fact to be correct, the case cannot be brought within the class of cases where the defendant’s liability depends upon his continuing control of the premises, for here the defendants had none in fact; if the plaintiff had written a letter of complaint to the defendants, Witherby & Co. might well have refused to allow the defendants to come in to do the repairs in premises to which they (the defendants) had no right of entry. Neither does the case come within the class of case where there is something noxious or dangerous forming part of a building, which amounts to a public nuisance. I feel compelled to hold that no cause of action has been in point of law established, though no doubt the case is one of apparent hardship, and that the plaintiff’s right of redress (if any) must be against the immediate superior in occupation, with whom there is a real relationship.
Judgment for defendants.

Solicitors for plaintiff: Wrentmore & Son.
Solicitors for defendants: Rubinstein, Myers & Co.