How should general damages be assessed in cases of ‘sensible personal discomfort’? Irish authorities in respect of noise nuisance from windfarms have become extremely sophisticated and raise the question whether revision is needed to the approach in England & Wales, especially following Fearn v. Tate Gallery Trustees.
A recent prompt has come from the Irish High Court case of Byrne v. ABO Energy [2025] IEHC 330, a case which makes very extensive reference to recent Supreme Court cases in the UK, especially that of Fearn.
Byrne is about noise from the Gibbet Hill wind farm. The claimant was a former Law Commissioner. The case is worth reading for those involved in such cases if only for the specification of seven forms of wind turbine noise. It was a bad and protracted case in which the defendant operator buried its head in the sand.
As to damages for amenity interference, the Courts in England & Wales have long been troubled by the appropriate method of assessment. In legal terms it is not that long ago that the Court of Appeal held that damages should be assessed by analogy with awards in person injury cases (Bone v. Seal [1975] 1 WLR 797).
A line of cases from Hunter v. Canary Wharf [1997] AC 655 has held that since these are property cases there is one cause of action, in which damages, even for a transitory nuisance, should be assessed by reference to the value of the property and divided between the occupants. This principle follows the reasoning of the Court of Appeal in Rust v. Victoria Graving Dock (1887) 36 Ch D 113: “Where there are divided interests in land the amount of damages to be paid by the Defendants must not be increased in consequence of that subdivision of interests”.
The most significant cases on this form of assessment are those which derive from the test cases in the claims of Dobson & Ors v. Thames Water Utilities Ltd, in particular the Court of Appeal at [2009] EWCA Civ 28 and then the trial judge’s ruling at [2011] EWHC 3252 (TCC) (Ramsey J.).
The outcome of this test case has been reliance on expert evidence as to monthly rental values, described by Ramsey J. as “a sound basis on which to assess damages for loss of amenity”, resulting in a measure of loss “measured by reference to the size, commodiousness and value of the property not the number of occupiers”. The judge decided on the facts that the relevant percentage reductions which should be applied were between 1.25% and 5%, to be cross-checked against precedent cases (of which there are hardly any).
Inevitably, claimants affected by these type of cases tend to live in the least affluent areas, the consequence being that general damages based on valuations are more likely to be disproportionately low when compared with awards to more affluent owners who may also find it easier to escape the effects (even when remaining on their own land).
The Irish Courts do not agree with the approach in England & Wales. As the judge said in in Byrne (para.312), “It places too much weight on the capital value … The approach could lead to drastically different awards of general damages in cases where neighbours might have experienced very similar interferences”.
It is of some interest that Byrne J. concluded that an assessment of damages “must take account of the principles of equality”. In Fearn, Lord Leggatt JSC, the author of the majority judgment, made frequent reference to the principle of “equal justice” (albeit without further elaboration).
If a reader goes back to the reasoning of the Court of Appeal in Dobson and even to the speech of Lord Hoffmann in Hunter, the conclusion can be drawn that the higher Courts were not intending to set up quite such a rigid principle as that which is now generally applied. The expectation was that “the actual impact upon the occupiers of the land … will in practice be relevant to the assessment of damages in such cases” (para.35).
If the Courts are now to be committed to principles of “equal justice” (as per Fearn), then why should adherence to capital value hold such a primary place in awards of damages? The Irish cases show us that the approach of judges in England & Wales may need a gentle nudge in a more equitable direction.
Gordon Wignall
wiglaw.co.uk
30 June 2025