Fearn and ors v Tate Gallery [2020] EWCA Civ 104: A photo of Tate Modern, London. (Photo credits: Britannica)

CASE 1: The relevance of foreseeability in the tort of private nuisance

In Pex International Pte Ltd v Lim Seng Chye and another and another appeal [2019] SGCA 82, the Singapore Court of Appeal observed that while the relevance of foreseeability was firmly entrenched in the tort of negligence, its relevance “in the tort of private nuisance has been the subject of conflicting interpretations and applications.” Specifically, there was uncertainty on whether and to what extent the concept of foreseeability features in determining liability for nuisance. The court emphasised that it is vital to recognise that foreseeability of the type of harm (which is relevant for the purposes of remoteness of damage in respect of claims in nuisance) is quite different from foreseeability of the risk of harm (which is relevant to establishing liability for claims in negligence); the distinction must not be blurred or unwittingly confused. 

After conducting an extensive survey of the relevant legal precedents, in particular, the decisions in Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 and Cambridge Water Co. v Eastern Counties Leather Plc [1994] 2 AC 264 (“Cambridge Water”) where the UK House of Lords adopted differing positions, the court noted the 2 competing approaches (at [52] – [54]):  

(a) The first is that foreseeability of the risk of harm is generally relevant in determining whether liability in nuisance is established.  

(b) The second approach is that foreseeability of the risk of harm is not generally relevant in establishing liability. Instead, the relevant control mechanism is the principle that the use of land must be reasonable. Foreseeability of the type of harm, however, is relevant in determining whether a type of loss is too remote to be claimed.  

(c) What is common to both these approaches is that foreseeability of the risk of harm is relevant only where the nuisance was created by a third party that was not authorised by the owner or occupier of the land.

COURT’S DECISION

The court preferred the second approach (the Cambridge Water approach) summarising the relevance of foreseeability as follows (at [59]):  

(a) Foreseeability of the risk of harm is not generally necessary to mount a successful action in nuisance, even where the source of the nuisance is the independent contractor of the defendant. The relevant control mechanism is the principle that any use of land that interferes with the plaintiff’s use and enjoyment of his neighbouring land must be reasonable. 

(b) Foreseeability of the risk of harm is relevant only where the acts which created the nuisance were not authorised by the defendant, such as where the relevant acts originated from a trespasser. This exception is founded on the basis that the defendant needs to have “used” the land in an unreasonable manner in order to be liable in nuisance. Acts of a trespasser unknown to the owner of the land cannot possibly constitute “use” by the owner of the land. 

(c) Nevertheless, foreseeability of the type of harm is relevant in determining whether the claim satisfies the requirement of remoteness of damage. Causation and remoteness of damage are essential elements in supporting a claim in nuisance because the tort is only actionable on proof of damage. 

CASE 2: A room with a view into your neighbour’s unit ≠ nuisance

In Fearn and ors v Tate Gallery [2020] EWCA Civ 104, the claimants were the owners of certain residential flats which form part of a modern development located directly opposite a new extension of the Tate Modern Gallery. On the top floor of the extension is a viewing gallery. It is open to the public and offers a 360-degree panoramic view of central London and, unfortunately for the claimants, an unobscured view into their living accommodation. Some of the visitors would peer into the claimants’ flats using binoculars while others went a step further taking photographs and posting them on social media. The claimants sought an injunction requiring the Board of Trustees of the Tate Gallery to prevent members of the public, or any other licensees, from observing the claimants’ flats from the viewing gallery.  

COURT’S DECISION

The UK Court of Appeal dismissed the claimants’ claim. Its principal ground was that the common law cause of action for private nuisance does not apply to overlooking from one property to another despite the invasion of privacy of those occupying the overlooked property. Among the reasons the court gave were that:  

(i) There was not a single decided case where it was held that overlooking is capable of giving rise to a cause of action in private nuisance. In fact, the cases suggested to the contrary.   

(ii) Unlike such annoyances as noise, dirt, fumes, noxious smells and vibrations emanating from neighbouring land, it would be difficult, in the case of overlooking, to apply the objective test in nuisance for determining whether there has been a material interference with the amenity value of the affected land. 

(iii) In deciding whether to extend the tort of nuisance to include overlooking, one has to consider if there are other methods to protect owners of land from overlooking and the answer is yes, notably, the availability of planning laws and control.

(iv) The essence of a complaint concerning overlooking is invasion of privacy rather than damage to interests in property. Parliament had already seen fit to pass laws concerning the invasion of privacy, including the law relating to confidentiality, misuse of private information, data protection, harassment and stalking. Parliament is therefore better suited to decide whether it is necessary to formulate any further laws to deal with overlooking rather than for the courts to extend the law of private nuisance.

CONCLUDING REMARKS

Given that high-rise buildings are the norm in land-scarce Singapore, we suggest that it is likely that our courts will follow the decision. The appropriate control mechanisms are planning laws and/or legislative intervention.

To read the full judgment for Case 1, click here.
To read the full judgment for Case 2, click here.