Network Rail Infrastructure Ltd v Morris (t/a Soundstar Studio) [2004] EWCA Civ 172

A recording studio experienced electromagnetic interference in its electric guitars from new railway signalling. The studio owner sued in nuisance. The Court of Appeal held that this specific type of harm was not foreseeable, shifting the legal test from 'abnormal sensitivity' to foreseeability.

Facts

The claimant, Mr Morris, ran a commercial recording studio, Soundstar Studio, in Croydon. The studio was located approximately 80 metres from the main railway line between London and Brighton. In 1994, Railtrack plc (the predecessor to Network Rail Infrastructure Ltd, the appellant) installed new track circuits as part of a major re-signalling project. These circuits generated an electromagnetic field. This electromagnetic field caused interference with the sound of electric guitars used in the recording studio, particularly those with single-coil pickups, rendering them unusable for professional recording purposes. The interference did not affect other electronic equipment in the studio or any ordinary domestic equipment. Mr Morris brought an action against Railtrack for damages in nuisance.

At first instance, the judge found that the interference constituted a legal nuisance and awarded damages. He rejected the argument that the claimant’s use of the premises was abnormally sensitive. Railtrack appealed this decision.

Issues

The central issue on appeal was whether the interference caused by the operation of the railway signalling system constituted an actionable nuisance. This involved consideration of several key legal questions:

The Role of ‘Abnormal Sensitivity’

Was the claimant’s activity (professional music recording with amplified electric guitars) an ‘abnormally sensitive’ use of land, which traditionally would preclude a successful claim in nuisance?

The Role of Foreseeability

What is the correct test for nuisance following the House of Lords’ decision in Cambridge Water Co v Eastern Counties Leather plc? Specifically, is foreseeability of the type of harm suffered by the claimant a prerequisite for liability in nuisance?

Reasonableness and ‘Give and Take’

Was the interference a reasonable and acceptable consequence of the defendant’s legitimate use of its land, applying the principle of ‘give and take’ between neighbours?

Judgment

The Court of Appeal unanimously allowed the appeal, overturning the trial judge’s decision. Lord Justice Buxton gave the leading judgment.

The court held that the traditional concept of ‘abnormal sensitivity’ was outdated and should be reformulated as part of the broader question of foreseeability. The key test, following Cambridge Water, is whether the defendant could reasonably foresee the specific type of damage that their activities caused to the claimant. Lord Justice Buxton stated:

The wheel has now turned, and in the nearly 40 years since The Wagon Mound (No 2) it is now clear that foreseeability of the type of damage is a prerequisite of liability in nuisance as it is of liability in negligence.

The court reasoned that while some form of electrical interference might have been foreseeable, the specific interference with high-gain electric guitars was not. Railtrack could not be expected to know about the particular sensitivity of this specialised equipment. The claimant’s use of the premises was described as ‘exceptionally sensitive’.

Applying this test of foreseeability to the facts, Buxton LJ concluded:

That is so even if, as I am prepared to accept, the concept of “abnormal sensitivity” as a suitable rubric is now outmoded. The underlying issue is one of foreseeability by the defendant of the risk of damage of the relevant type to the claimant. I do not think that it can be said to be fair and reasonable to require a railway operator, in the position of Railtrack, to foresee that a particular and unusual form of electrical interference, that did not affect ordinary equipment, would affect the specialised business of the claimant.

Furthermore, the court emphasised the principle of ‘give and take’ between neighbours. Since the interference only affected the claimant’s specialised and sensitive equipment and not ordinary equipment, it was not fair or reasonable to impose liability on the defendant for carrying out its normal operations. The interference did not represent an unreasonable user of land on the part of the railway operator.

Implications

The case is significant for clarifying the modern law of private nuisance. It confirms that foreseeability of the kind of harm suffered is a fundamental element of the cause of action, aligning nuisance more closely with negligence. The decision effectively subsumes the old, rigid doctrine of ‘abnormal sensitivity’ into the broader and more flexible foreseeability analysis. It demonstrates that where a claimant engages in a particularly sensitive activity, the harm they suffer may not be foreseeable, and therefore not actionable, even if it is substantial. The judgment reaffirms that liability in nuisance is kept within reasonable bounds by a consideration of what is fair and reasonable between the parties, based on the foreseeability of harm.

Verdict: The appeal was allowed. The original judgment in favour of the claimant was overturned.

Source: Network Rail Infrastructure Ltd v Morris (t/a Soundstar Studio) [2004] EWCA Civ 172