Traditional ‘hypersensitivity’ cases and the modern application of foreseeability.
The relationship between ‘hypersensitive’ land uses and foreseeability in private nuisance has become increasingly unclear. This article revisits the leading authorities, from Robinson v Kilvert to Fearn, to examine how the traditional cases sit alongside the modern emphasis on foreseeability.
For the purpose of the tort of private nuisance, a degree of uncertainty has arisen in respect of the relevance of ‘undue sensitivity’ when it comes to damage caused by the use of neighbouring land.
The question is whether a defendant can escape liability because the use of the claimant’s land should be classed as ‘hypersensitive’ or unusually vulnerable, or whether foreseeability is a more appropriate test. Some of the relevant issues have just been discussed recently in the Court of Appeal and judgment is now awaited (see below, together with some summary conclusions).
Uncertainty, then, has come about by a confusion between different aspects of the tort, in particular when actual physical damage has been caused by reason of some ‘intangible’ interference, such as noise, dust and so on. Another problem is attributable to the acknowledgment, since Cambridge Water (1993), that foreseeability of the type of damage is a relevant consideration, whereas this terminology was practically unused in earlier authorities. Finally, there are the special complications caused by the majority decision of the Supreme Court in Fearn (2019, the Tate Gallery viewing platform case).
First, how did we get to the ‘modern’ position that foreseeability must be proved in private nuisance?
The Wagon Mound (No.2) [1967] 1 AC 617 concerned a large quantity of fuel oil which seeped from the Wagon Mound round two other ships at a wharf (being a public nuisance because the danger was created in navigable waters). After a discussion between management who decided that there was very little risk, a piece of burning metal fell on to some inflammable material in the oil which burned long enough to cause a fire. The Privy Council considered that fault of some kind was a necessary ingredient and that fault was measured by foreseeability. Given that the risk of injury had been so easy to prevent, the damage was held to be foreseeable and the owner of the Wagon Mound was liable.
Cambridge Water v. Eastern Counties Leather [1994] 2 AC was about droplets of tanning chemical which, over a period of 16 years, eventually dripped into an aquifer, and then spent 18 months travelling underground from pools of water into a water treatment works, impairing the quality of the water. Lord Goff said of The Wagon Mound (No.2): “this conclusion … has … settled the law to the effect that foreseeability of harm is indeed a prerequisite of the damages in private nuisance, as in the case of public nuisance”.
What, then, of those earlier (and much-discussed) cases which discuss ‘hypersensitivity’ (rather than foreseeability) as a relevant principle in the law of private nuisance? Many of these cases concern the effect of intangible nuisances either on (i) the ability to use land in connection with particular chattels, or (ii) physical structures. It is easiest to discuss the consequence of the key cases first, by setting out the relevant facts.
Robinson v. Kilvert (1889) 41 Ch D 88 concerned the effects of modest degrees of heat in a basement on sensitive brown paper stored upstairs, which became dry, brittle and unsaleable. (The claim failed.)
Eastern South African Telegraph Co Ltd v. Cape Town Tramways Co Ltd [1902] AC 381 concerned electricity supplied to trams. The current made a complete circuit with the plaintiff’s submarine cables, and the stop/start pattern of the tramcars interfered with the effective working of the cables. (The claim failed.)
Hoare & Co v. McAlpine [1923] 1 Ch 167 was about the effect of vibrations from construction works on a 100 year-old building which had had numerous alterations. It complied with the building regulations of 1920, but after pile-driving in late 1920, two dangerous structure notices were served in 1921 and 1922 and it had to be demolished. (The claim succeeded.)
Andreae v. Selfridge & Co Ltd [1938] Ch 1 was about the effect of dust from construction works at Selfridges on a neighbouring hotelier. Her hotel business lost customers and suffered reputational damage. (The claim succeeded, but with the extent of the damages substantially reduced.)
Emms v. Polya 227 EG 8 July 1973 concerned a Dr Who author: “His work was creative work, requiring a high degree of concentration”. He complained that the noise from the restoration works done by the French hotelier next door interfered with the high degree of concentration he required. (The claim succeeded.)
Network Rail Infrastructure Ltd. v. Morris (t/a Soundstar Studio) [2004] Env LR 41 was a claim brought by the owner of a recording studio, the performance of which was interfered with, when Network Rail installed a new signalling system which gave rise to electromagnetic interference. (The claim failed.)
Of these private nuisance cases, only Network Rail was heard after Cambridge Water and its elevation of the principle of foreseeability.
Of the remaining five cases, Andreae and Emms can be separated off because they are in a category of case which concern building works (adopting the principles in Harrison v. Southwark & Vauxhall Water Co [1891] 2 Ch). These cases establish that building and construction works do not give rise to a claim in nuisance, which must accommodate new inventions and methods of working, since society benefits from the same. These are necessarily temporary interferences, but the defendant must prove that they have been carried out with reasonable consideration for neighbours: an application of the principle of reasonable user (‘give and take; live and let live’). If reasonable user can be proved, then a hotelier might lose all her clients without any cause of complaint: guests are very easily upset.
The French hotelier in Emms lost to the Dr Who script-writer because he did nothing to mitigate the effects of his operations. Whilst the issue of hypersensitivity was raised in Emms, it is important to note that it only became an issue because the allegation was intended to show that the defendant did not cross the threshold test applicable in all intangible interference cases, as still cited in Walter v. Selfe (1851) 4 De G & Sm 315: “ought this inconvenience to be considered … an inconvenience … according to plain and simple notions among the English people?” The judge had not believed the plaintiff author when he said that he was not hypersensitive, but the judge decided that the noise would have disturbed any reasonably-minded landowner: the threshold test was passed.
Of the remaining cases, Robinson and Telegraph Co were both concerned with intangible interferences which affected the use and enjoyment of land, given the special way in which the land was used, namely for the drying of paper and the transmission of signals via cables (respectively). Hoare & Co, on the other hand, was concerned with an intangible interference which caused actual physical damage to a building.
The judges in Robinson, having heard expert evidence, noted that ‘normal’ paper would not have been damaged by the degree of heat and that workers were not incommoded: “a man who carries on an exceptionally delicate trade cannot complain … [if a lawful activity next door] would not injure anything but an exceptionally delicate trade”. An identical submission succeeded in Telegraph Co, arguing that this was an extremely delicate apparatus, further that a party “cannot increase their common law rights … by applying their properties to special uses”, but a similar submission failed in Hoare & Co.
The discussion in all three of these early cases as to special sensitivity, is redolent of the delicate balance traditionally struck by judges between competing neighbouring and lawful land uses, given the principle of reasonable user. At the same time, however, the language used chimes equally with the contemporary language of reasonable foreseeability. Telegraph Co is the more explicit, it having been submitted that “the damages resulting from the defendants’ operations were too remote”.
Network Rail, as the only post-Cambridge Water case, is instructive. The Court of Appeal held that “the question of sensitive user was no longer apt”, since the question of reasonableness between neighbours was “best assessed in terms of foreseeability”. This suggestion, that sensitiveness is no longer relevant, earned something of a rebuke by the trial judge in Fearn, a sentiment approved by the majority decision of the Supreme Court. At the same time, the application of foreseeability in Network Rail was not disapproved.
In summary, (1) in private nuisance cases involving intangible interferences, an allegation of hypersensitivity is used as a shorthand means of arguing that the threshold test has not been met. If a person is unduly sensitive, then that person is fastidious, or the nuisance is trifling in character.
(2) Cases alleging an intangible interference in the context of building and demolition works are in a special category, the ultimate question being whether a defendant has taken reasonable precautions to avoid nuisance: neighbouring landowners must put up with what is done in such circumstances, even if new methods are employed. It is a normal, or ordinary, use of land to use new methods of construction or demolition. Hypersensitivity plays no true part here.
(3) In those intangible interferences cases concerning the use and enjoyment of land for some special purpose, ‘sensitivity’ might previously have played a part, but since Cambridge Water, it is more appropriate to frame questions of fault in terms of foreseeability of the type of damage: is the damage too remote? Likewise, (4) where some intangible interference leads to actual damage to land, then, again, the true issue is one of foreseeability, not sensitivity.
That leaves (5) intangible interferences apparently not involving some special use of land, such as in Fearn. Leggatt JSC decided that arguments as to the sensitivity of a claimant’s property do not give rise to a defence in such cases. The reasoning is not compelling, but having just heard the appeal of Nicholas v. Thomas [2025] EWHC 752 (Ch), the forthcoming judgments of the Court of Appeal may provide us with some further explanation.
Gordon Wignall
Wiglaw
17 March 2026