Hall v The Jamaica Omnibus Services Ltd

• Jurisdiction: Jamaica
• Judge: Duffus, P.,Waddington, J.A.
• Judgment Date: 31 March 1996
• Neutral Citation: JM 1966 CA 53
• Docket Number: Civil Appeal No. 13 of 1965
• Court: Court of Appeal (Jamaica)
• Date: 31 March 1996

Court of Appeal

Duffus, P.; Waddington, J.; Shelley, J. (Acting)

Civil Appeal No. 13 of 1965

Hall

and

The Jamaica Omnibus Services Ltd

Appearances:

Mr. Hugh Small for the plaintiff/appellant

Mr. R. N. A. Henriques with Mr. Maurice Tenn for the defendant/respondent.

Tort - Damages — Nuisance

Duffus, P.

1 This is an appeal from the Judgment of His Honour Mr. H. Rowan Campbell, Resident Magistrate for Kingston, Civil Division, in favour of the defendant/respondent, on a claim for damages for nuisance brought by the plaintiff/appellant. The facts were as follows:

2 The plaintiff/appellant is the owner of land situated at 63 ¹/₂ Duke Street in the city of Kingston. Duke Street is a public highway. The appellant in his evidence stated that in the year 1958 he erected a wall along the boundary of his premises adjacent to the public sidewalk on Duke Street, and that he had erected this wall for the purpose of providing advertising spaces for such persons as were willing to rent the spaces. The cost of erecting the wall amounted to £75 or thereabouts and it was subdivided into three panels.

3 In the month of August 1959 the appellant observed workmen erecting a bus shelter on the sidewalk immediately in front of the central or principal advertising space and he thereupon objected to the workmen proceeding. They however, completed the erection whereupon the appellant wrote to the respondent company. The correspondence was tendered in evidence in the court below but unfortunately, it would seem that the letters were lost as they were not forwarded to the Court of Appeal nor were there any copies available.

4 The respondent Company did not remove the bus shelter. The plaintiff's evidence indicated that the bus shelter was constructed of metal and had panels of metal to the sides and rear and a metal roof and advertisements were displayed thereon. It did not obstruct the free passage of the public. The structure was placed some three inches away from the appellant's wall and was so close that it not only completely prevented the appellant from displaying any advertising material on his wall but deprived him of access thereto for the purposes of cleaning and painting it. As a result the particular panel of the plaintiff's wall became quite useless to him for the purpose of displaying advertisements and he claimed the sum of £100 by way of damages for loss of rental for the period May 1961 to December 1962.

5 At the trial before the learned Resident Magistrate the plaintiff's original claim which was for use and occupation of his advertising space was amended to read “in the alternative …… for damages for trespass and/or for rent …… “and was further amended to cover a claim for damages for nuisance.

6 Learned counsel for the respondent stated that the defence was a denial of nuisance “then or at all” and the case thereafter proceeded as a claim for damages for a private nuisance. The evidence negatived public nuisance. The appellant himself gave evidence and he called one witness, a Municipal Officer employed to the Kingston & St. Andrew Corporation, who stated that the Corporation had approved of the erection of the bus shelter by the respondent Company at the particular site. The respondent company called no witnesses and relied on a submission that the appellant had failed to make out a cause of action in nuisance.

7 The learned Resident Magistrate found for the respondent and in his reasons for judgment he stated that no evidence was given to substantiate a case of nuisance and he further stated that it appeared that the plaintiff merely had a wall erected on speculation but could show no financial loss.

8 On appeal there were two substantial grounds :–

• (i) That the learned Resident Magistrate had misdirected himself in holding that there was no evidence to substantiate a claim for nuisance ; and

• (ii) That he had also misdirected himself in finding that there was no financial or other loss proved.

9 Learned counsel for the appellant submitted that the appellant had a right of access to his wall at common law and that this right included a right to have the public view his wall. He relied on what Rowlatt, J. stated the law to be in Cobb v. Saxby [1914] 3 K.B, at p.825 and here I quote :–

“It is well settled law that the owner of land adjoining a highway has the private right of passing from his premises on to the highway, and if that right is obstructed and he brings an action against the person causing the obstruction, he……… is a person who has a cause of action by reason of the interference with or obstruction to his private right. Although no authority precisely in point has been cited I am of opinion that the owner of a house adjoining a public highway has precisely the same rights as regards the highway with respect to the wall of his house as he has in the case of a door or other entrance leading from his house on to the highway. He has the right to do anything he likes to the wall, for example, to display advertisements upon it, and if these rights are invaded or obstructed, he has, in my opinion, a good cause of action against the person causing the interference with his rights. Take the case of a wall of a house adjoining a highway which has a window in it which the owner of the house uses for the display of his goods, or suppose the owner of the house places on the wall pictures or advertisements of goods which he has for sale, it is to his interest that the members of the public using the highway should be able to look in at the window or to gaze at the advertisements on the wall, and if anyone prevents the public from so doing the rights of the owner of the wall are invaded. It is to my mind unthinkable that, if a man were to hold a screen in front of a shop window and thus prevent the public from looking in, he should be allowed to justify his so doing on the ground that, because he was not preventing egress from the shop to the highway he was not interfering with any right of the owner of the shop. In my opinion, the law does not in those circumstances leave the owner of the premises without a remedy.”

10 Learned counsel for the appellant further submitted, on the authority of Ashby v. White, 1 Salk. 19., 91 E.R. p.665, and Nicholls v. Fly Beet Sugar Factory Ltd. [1936] 1. Ch. 343, that once the invasion of a legal right had been established, it was not necessary to prove pecuniary loss, but the injury to the legal right itself carried with it the right to damages and he submitted that in any event, in the instant case, the appellant had established by his own evidence, which was uncontradicted, that he had suffered financial loss.

11 Learned counsel for the respondent on the other hand submitted that the owner of land had no right at common...