Private nuisance claim against furniture factory for noise and smell upheld with injunction and damages.

[*91] 1972 March.23

(STYLIANIDES, AG. P.D.C., CHRYSOSTOMIS, D.J.)

IN THE DISTRICT COURT OP LIMASSOL

Anthoulla Theofilou,

Plaintiff,

and

Costas Christodoulou and another,

Defendants.

(Action No. 1604/70).

Nuisance - Private nuisance - Noise, saw dust, obnoxious smell and fumes emanating from furniture factory abutting plaintiff's house - Law applicable - Sections 46, 47 and 48 of the Civil Wrongs Law, Cap. 148 - Existence of a nuisance a question of degree depending on the circumstances of each case - Character of the neighbourhood very relevant - No answer that best known means have been taken to reduce nuisance or that the cause of nuisance is the exercise of a business or trade in a reasonable and proper manner - In case of irreconcilable conflict between the peace and quiet of a man in his home and the business activities or pleasure of his neighbour – The home should be preferred - Defendants guilty of nuisance - Injunction and damages granted.

Nuisance - Private nuisance - Compensation - When payable - Need to prove loss of or detriment to any property, comfort, bodily welfare, or other similar detriment – Proviso to section 46 of the Civil Wrongs Law, Cap. 148.

Damages - Nuisance - Assessment.

Compensation - Nuisance - When payable - See, also, under "Nuisance".

Y. Potamitis, for the Plaintiff.

L. Tsikkinis, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by: -

STYLIANIDES, AG. P.P.C.: The Plaintiff is a housewife [*92] and a teacher of typewriting. She is the owner and occupier of a dwelling house in Limassol at Christodoulos Hj.Pavlou Street. The Plaintiff's family consist of herself, her husband and a son whose health and mental state is not enviable.

The Defendants run a carpenter and furniture maker business in Limassol which they house in premises situated at Crete Street.

The Plaintiff complains that noise, obnoxious and offensive smells and fumes, saw dust and loud voices emanating or coming from the Defendants’ aforesaid premises materially and habitually interfere with, the reasonable use and enjoyment of her house. The alleged noise comprises of noise from the machinery of the Defendants when in motion and noise created by junior members of the personnel in the service of the Defendants. The Plaintiff contends that the Defendants are guilty of nuisance.

The case off the Plaintiff rests mainly on her own evidence. The only other witness called by her is a Sanitary Inspector of the Municipality of Limassol. Both Defendants gave evidence and called two of their employees and three neighbours.

It is important that the nature of the neighbourhood should be borne in mind.

In Halsey v. Esso Petroleum Co. Ltd., (1961) 2 All E.R. 145 at p. 151 Veale, J., said: -

”On the other hand nuisance by smell or noise is something to which no absolute standard can [*93] be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The character of the neighbourhood is very relevant and all the relevant circumstances have to be taken into account. What might be a nuisance in one area is by no means necessarily so in another. In an urban area, everyone must put up with a certain amount of discomfort and annoyance from the activities of neighbours, and the law must strike a fair and reasonable balance between the right of the plaintiff on the one hand to the undisturbed enjoyment of his property, and the right of the defendant on the other hand to use his property for his own lawful enjoyment".

We also bear in mind the observations of Lord Loreburn, L.C. in Polsue & Alfieri. Ltd., v. Rushmer,

(1907) A.C. at p. 123: -

"The law of nuisance -undoubtedly is elastic, as was stated by Lord Halsbury in the case of Colls v. Home & Colonial Stores, Ltd. He said: ‘What may be called the uncertainty of the test may also be described as its elasticity. A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell and noise may give a cause of action, but in each of such cases [*94] it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action’. This is a question of fact”.

The oral evidence before us and our visit with the parties and their Counsel enabled us to describe the area. The neighbourhood is a residential one. Besides the Defendants' workshop and factory there is a small carpenter’s ‘shop and a garage. Christodoulos Hj.Pavlou Street is the main street along the sea front, Crete Street is a side road joining Christodoulos Hj.Pavlou Street and St. Andrew’s Street. The Plaintiff's dwelling is on the first floor and its main entrance faces the south. On the north-west the yard of the property in the occupation of the Defendants abuts the Plaintiff’s house. Windows open on the west over the Defendants property.

The Plaintiff testified that from 1969 onwards the Defendants’ factory started work between 6.30-7.00 a.m. continuously till night time, and noise and saw dust emanating from the electrically operated machinery of the Defendants caused to her and her family and her visitors annoyance and discomfort. Further, thinner - which is used for spraying furniture - was carried by the air from the Defendants' place to her house. Originally this work was done in an open yard and the Plaintiff said that she could not even breathe because of this thinner. She informed Dr. Vasos Papadopoullos and took some other steps including protest to the Defendants who then moved the sprayer into a small room. [*95]

On 22/1/70 the Plaintiff, by letter of her advocate (exhibit l), called upon the Defendants to take the necessary measures to abate the nuisance created by the obnoxious smells, the noise of the machinery and the shouts of their employees. The Defendants, by letter of their advocate dated 24/1/70 (exhibit 2), informed the Plaintiff’s Counsel that they intended to do everything possible for the abatement and diminution (periorismo) of the nuisance. They intended to move their sprayer to the front part of their premises and to restrict to the minimum the noise of their machines. They gave instructions to their personnel to stop shouting. The second paragraph reads as follows: -

”I hope that your client will be safisfied with the measures taken which, however, are temporary as my clients have already applied to the Government for a site in the industrial zone where they intend later within that year to move their machinery (tes enkatastases ton)."

They indeed moved the sprayer into a room and fitted an absorber and a chimney. Nevertheless, the fumes and the obnoxious smells continued but to a lesser degree. The matter was reported to the Municipality and P.W. 2, an employee of the Sanitary Department of the Municipality, in charge of that area at the time, visited the Plaintiff’s house on 23/4/70.

This witness saw both the Plaintiff’s house and the Defendants’ factory. Smell was coming from the thinner to the Plaintiff’s house. The smell did not annoy him because [*96] he had visited other places where thinner wasbeing used but this smell truthfully and really affected other persons. The fumes from the thinner were scattered in the atmosphere and caused a nuisance to the Plaintiff and to the residents in the neighbourhood. The chimney was higher than the Plaintiff’s house which is about

60 metres away. Pursuant to the report of this witness the Defendants were prosecuted by the Municipality for causing a nuisance and they pleaded guilty to the charge.

The thinner sprayer was housed in a small room 10' x 10’ covered by plywood. There was an absorber which absorbed the fumes and they were flown up the chimney out into the atmosphere. We have it from the Plaintiff that the wind in Limassol blows from the west and, therefore, it is only natural that the fumes from the chimney are blown to the direction of her house. One of the Plaintiff’s students vomited once because of this smell.

The machinery of the Defendants are electrically operated and create much noise. The machinery of the Defendants, including an electrical compressor, create noise which disturbs and annoys the Plaintiff, her family and her visitors. This machinery is even used during lunch and rest time. Through the Defendants let another shop in Crete Street, their machines can be moved about in the shops and in an open space. The Plaintiff stated that the noise since the end of 1970 has decreased because the Defendants moved their machinery to the of the shop front/ towards Crete Street, but they can always bring it back, obviously alluding to a time after the determination of this Action. [*97]

The noise created by the apprentices of the Defendants by shouting, exchange .of insults and/or imitation of animal and bird voices has ceased. The Defendants contend that an apprentice made such a noise only once and they counterattacked in their evidence by contending that the Plaintiff was repeatedly telephoning them because of an incident between her son and an apprentice.

The saw dust has decreased though it cannot disappear completely.

Defendant 2 (D.W.1) stated in his evidence that the Defendants, on receiving the letter of 24/1/70, covered up the open space in order to prevent dust and noise, emanating from their workshop, reaching the air and thereby the Plaintiff’s property. The air compressor for the spraying was placed in a room in order to prevent the smell and the noise reaching the Plaintiff’s house. This was done on the instructions of the Municipality and the labour Office, and they further gave instructions to their employees to keep quiet, and their servants complied with their masters’ instructions. He admitted that they had been prosecuted for the smell caused by the thinner and pleaded guilty, but, in the meantime, they had complied with the requirements and the directions of the Municipality. They increased the height of the chimney by two metres. They used the yard only for loading' and unloading furniture and thus the noise has decreased. He described the noise as similar to that of a passing vehicle. The saw dust escaping is now of very small quantity. He further stated with regard to the noise that there is “some noise but [*98] like that made by any normal factory”. He admitted, however, that he never visited the Plaintiff’s house but he contended that the noise audible in the Plaintiff's house must be very slight. He admitted that the Plaintiff repeatedly complained to them about the noise and the smell and that the Defendants kept on promising that they would take steps "to put it right”. He admitted that a nuisance was being caused but as they had covered the open space which leads to the Plaintiff’s house, they prevented thus the dust and the noise entering the Plaintiff’s house. He admitted that his employees might have spoken loudly to one another but this had stopped.

The other carpenter’s shop in Crete Street is much smaller than that of the Defendants and it is far away for noise to reach the Plaintiff’s house.

He admitted that smell of the thinner comes out of their chimney and the smell of the thinner goes into the atmosphere. They used to a large extent the thinner sprayer about three hours daily but it so happens that, depending on the volume of work, on occasions it is not used for weeks. He contended that the noise created by his machinery could not annoy a normal person,

D.W.1 stated that the appropriate authorities, that is, the Municipal Corporation of Limassol and the labour Office, issued to them the necessary permits for the functioning of the factory and that he has done everything possible to restrict the noise and the smell. [*99]

Aristarchos Andreou (D.W. 3) is the employee of the Defendants who operates the thinner sprayer. He stated that he never used a mask and he explained that a piece of furniture is placed on the aontanter and sprayed for 15-30 minutes, then it is left to dry and then another piece of furniture is sprayed. Thinner has a strong smell. It is a bad smell hut it evaporates. He himself, having done this work for 9 consecutive years, has got used to this bad smell.

D.W. 5 Andreas Lazanias spoke about an incident between the retarded son of the Plaintiff and some employees which occurred in October or November, 1969. He conceded, however, that the Plaintiff was complaining of the obnoxious smell of the thinner which was originally used in the yard and later in a chamber,

D.W.7, Defendant 1, Costas Christodoulides, stated that the Plaintiff originally complained about the noise coming from the factory but not about the saw dust and the smell. He contended that the Plaintiff never complained about the thinner before the Action but he is, in our view, contradicted by the contents of exhibit 1, the letter of Mr. Potamitis dated 24/1/70, and the evidence of Defendant 2 (D.W.l). When pressed in cross-examination, he found refuge in the explanation that the matter was being handled by his co-defendant.

Two neighbours, D.W.2 Anna Archontidou, D.W. 6 Andreas Kollias and the buffet keeper of a club, Christos Constantinou (D.W.4) were called to testify that they were not annoyed by noise or smell emanating from the Defendants’ premises. [*100]

Andreas Kollias impressed us as a person who was deliberately either concealing the truth or he was not testifying as to facts within his knowledge but he was giving a story to support the Defendants who had made his own furniture. We observed the demeanour of this witness and we heard his evidence very carefully and we regret to state that he was not a witness of truth. This young person is employed at a salary of ￡40 per month by Colocassides Firm. His office is in Makarios III Avenue, 11/2 miles away from his house which is situated at Crete Street facing the west. The doors and the window of his house open into Crete Street. He leaves his house in the morning at 7.57 a.m. (I) but, obviously, in order to have the opportunity to obtain knowledge and give his evidence in this case, he returns to his house four times before noon, sometimes in order to reflect as he has better thoughts at home than at the office, and sometimes in order to do clerical work or to prepare papers for the sale of a car to a customer who may reside at Omonia Quarter - and Omonia Quarter is must closer to Makarios III Avenue than his own house. This witness stated that he was never annoyed by smell or noise coming from the Defendants’ factory. He heard noise but it was similar to the noise of a passing car. He further stated that he even returned home from his office about 9-10 times and then he changed and stated that he did so almost every hour. Indeed, we wonder why he is paid by his employer if he wastes all his time before noon in going and coming to his own house. He leaves his house at 2.50 p.m. arid returns at

6.00 p.m. [*101]

Furthermore, we had occasion to observe the location of his house in relation to the Defendants’ factory. It is a flat in Crete Street facing the west and it is common sense that if the wind blows from the west he would be less affected by the smell and fumes coming from the chimney which is further to the east.

We reject his evidence without the slightest hesitation.

D.W. 2 Anna Archontidou, an English lady, lived in a flat for 14 months and was about to vacate it 10 days after she gave her evidence. Her flat is on the corner of Crete Street and Christodoulos Hji.Pavlou Street. It is one of a block of flats having no windows facing the Defendants’ workshop and the only windows and doors of this flat face the sea, i.e. the south. Her bedroom faces the sea. The only aperture opening into Crete Street is the window and door of her kitchen. Between her flat and the Defendants workshop there is another flat. She did not even notice that there was a chimney in the area though the first thing one notices on walking along Crete Street is the chimney emerging from the factory of the Defendants.

We place no reliance on her evidence. She was leaving her own flat in 10 days. The location of her own flat is such that it might not be affected by the noise and the smells emanating from the Defendants’ factory though there is uncontested evidence that a certain Pieri, who lives in Crete Street opposite the flat of this lady, [*102] not only Was annoyed but filed an Action against the present Defendants which is pending before this Court.

D.W.4, a 59 year old buffet keeper of "Limassol Club", stated that he hears noise emanating from the Defendants' machinery but he is not annoyed and no smells reach his club. The club faces the sea. The hall opens on to a balcony on the south. He stated that he goes to his club in the morning between 8.00-8.30 a.m. to clean the club and stays there until 12 noon. The members of the club arrive any time after 3.00 p.m. until 9.00 p.m. when the club closes down. The only apertures facing the north - and the Defendants' property is on the north of the club - are only that of the W.C. and a window of a second room. The members of the club frequent the big hall which has three windows opening to the east and a door on the south; but during spring and summer time they use mostly the balcony facing the sea. He did not refer to the Plaintiff’s house.

The only evidence is that of the Plaintiff herself and her witness, corroborated in some respect by exhibit 2, the letter of Defendants’ Counsel, and the evidence of Defendant 2 himself. We prefer their evidence and reject any evidence not in accord with it.

We find that; -

(a) The Plaintiff is the owner and occupier of a dwelling house in Christodoulos Hj.Pavlou Street in Limassol consisting of four main rooms. [*103]

(b) The Defendants run jointly a furniture factory, and for this purpose they occupy as tenants immovable property facing Crete Street and abutting the Plaintiff's house,

(c) They use electrically operated compressors, planes and other machinery which create noise. Further they use an electrically operated thinner sprayer and a material commonly called "thinner” for polishing the furniture.

(d) They employ a number of persons including apprentices.

(e) Noise, saw dust, smell and fumes which are obnoxious emanated from the factory of the Defendants and entered the Plaintiff’s dwelling house to such a degree as to cause inconvenience and discomfort to the inhabitants of the house and their visitors.

(f) The Plaintiff complained to the Defendants orally, reported the matter to the Local Authorities, including the Municipality of Limassol. D.W.2 visited the house of the Plaintiff and, on ascertaining that the obnoxious smell caused a nuisance, the Defendants were prosecuted for causing a nuisance. They pleaded guilty to the charge.

(g) The Defendants took some steps and went to some length to diminish the noise and the obnoxious smell but, nevertheless, the noise and obnoxious smell from their factory continued to reach the [*104] plaintiff’s house to such a degree as to constitute nuisance in law by causing discomfort and inconvenience and damage, thereby interfering habitually with the reasonable use and enjoyment of the Plaintiff’s house.

(h) The nature of the neighbourhood is that of a residential one and the Plaintiff was occupying her house before the Defendants moved to the locality in 1969.

(i) The Defendants admitted in January, 1970 that they were causing real nuisance to the Plaintiff and promised orally and by letter of their Advocate dated 24/1 /70 (exhibit 2) to take the necessary steps to diminish the ill effects of the nuisance caused by the use of their property, and went even further to inform the Plaintiff that in about a year’s time they would move their factory to the industrial zone of this town. True, they have spent a considerable amount of money in the installations, machinery etc., for their factory, they obtained the necessary licences and permits from the appropriated authorities under the Factories Law and the Municipal Corporation of Limassol but these permits or licences do not absolve than from their liability ex delicto towards the Plaintiff.

Veale, J., in Halsey v. Esso 'Petroleum Co. Ltd. (supra) said that negligence is not an ingredient of nuisance. [*105]

In Vanderoant v. Mayfair Hotel Co. Ltd., (1929) AllE.R. (Rep.). 296 at p. 308 Luxmoore, J., said: -

"The making or causing of such a noise as materially interferes with the comfort of a neighbour, when judged by the standard to which I have just referred, constitutes an actionable nuisance, and it is no answer to say that the best known means have been taken to reduce or prevent the noise complained of, or that the cause of the nuisance is the exercise of a business or trade in a reasonable and proper manner. Again, the question of the existence of a nuisance is one of degree and depends on the circumstances of the case".

The statutory provision in Cyprus for private nuisance which purports to codify the English Common Law is set out in Sections 46, 47 and 48 of the Civil Wrongs Law, Cap. 148.

Private nuisance is defined in Section 46 as follows: -

"A private nuisance consists of any person so conducting himself or his business or so using any immovable property of which he is the owner or occupier as habitually to interfere with the reasonable use and enjoyment, having regard to the situation and nature thereof, of the immovable property of any other person”. [*106]

I need not go into the English authorities as a very elaborate summary is set out in the decision of our Supreme Court in Chrysothemis Palantzi v. Nicolas Agrotis, (1968) 11 J.S.C. p. 1300.

The Defendants are guilty off nuisance and the Plaintiff is entitled to the remedies provided by law. The remedies prayed for by the Plaintiff are (a) injunctionand (b) damages.

The first proviso to section 46 of Cap. 148 reads

“Provided that no plaintiff shall recover compensation in respect of any private nuisance unless he shall have suffered damage thereby"

In Vine Industries Ltd. v. Spyros

G. Pavlides and Another. 19 C.L.R. p. 1, Jackson C.J., at p. 4 said:

"They would be entitled to compensation if they proved damage in the sense in which that word is defined in section 2 of the Civil Wrongs Law; that is to say if they proved that they had suffered 'loss of or detriment to any property, comfort, bodily welfare, or other similar detriment”

Though in paragraph 4 of the Statement of Claim the Plaintiff alleges that she and her family suffered discomfort and damage, and there is some evidence in support of this allegation, we face a difficult task in assessing her damages. [*107]

In 1950 in Vine Industries Ltd. v„ Spyros G. Pavlides and Another, (supra) a doctor suffered great discomfort and some temporary loss of health as a result of smell and had to keep the house shut up during hot weather and could only work with difficulty at the practice of his profession and ceased to sleep in the house though his wife and children remained in the house, hut he took them away at week-ends. These conditions lasted for approximately four months. The District Court of Limassol assessed the diminution of comfort and bodily welfare of the Plaintiff and his family at ￡50 and the Supreme Court had this to say:-

"It is impossible for us to say that they were wrong”.

In the case in hand the situation is not as bad as in Pavlides case hut the period is longer and the value of the pound has decreased considerably.

We assess the Plaintiff's damage, taking into consideration all the evidence before us, at ￡50.

Stress was laid by Mr.Tsikkinis that the Defendants had incurred considerable expense to found their factory and that they employ a number of persons.

In Palantzi v. Agrotis (supra), Josephides, J., after citing a passage from the judgment of Megarry, J., in Hampstead and Suburban Properties Ltd. v. Diomedous.

(1968) 3All E.R.P. 545 said: -

"In a case of irreconcilable conflict between the peace and quiet of a man in his home and the [*108] business activities of his neighbour, we think that it is the home that should he preferred”.

As we have already found, noise from the machinery and obnoxious smell of the thinner emanating from the Defendants’ factory permeate the Plaintiff’s dwelling house. This noise and smell materially interfere with the reasonable use and enjoyment of the Plaintiff’s house, according to the standards of the average man.

The Plaintiff is entitled to an injunction.

We will give an injunction restraining the Defendants by themselves, their servants or agents from so operating their workshop or furniture factory, or so using the property under their occupation at Crete Street, or so conducting their said plant as by reason of noise or smell to cause a nuisance to the Plaintiff.

This injunction is suspended until 16th May, 1972 to give time to the Defendants to make appropriate arrangements.

As the shouts of the Defendants’ staff ceased and the saw dust is very negligible or minimal we do not include them in our judgment. It is open to the Plaintiff in the future to pursue a claim for these if the situation changes.

In the result judgment is given for the Plaintiff against the Defendants for (a) Injunction as per above terms and

(b) £50 damages, with costs to be assessed by the Registrar

Judgment and order as to costs

as above