Sheppard v Griffith
| Jurisdiction | Guyana |
| Judge | Massiah, J. |
| Judgment Date | 20 December 1973 |
| Neutral Citation | GY 1973 HC 39 |
| Docket Number | 320 of 1971 |
| Court | High Court (Guyana) |
| Date | 20 December 1973 |
High Court
Massiah, J.
320 of 1971
Mr. M. Poonai for the plaintiff.
Mr. J. Haniff for the defendant.
Tort - Damages — Nuisance
In this matter the plaintiff sued the defendant for $10,000 (ten thousand dollars) as damages for nuisance by noise caused by electrical and other instruments operated by the defendant on his business premises. He also prayed for an injunction restraining the defendant from making the noise.
The defendant runs a hotel called “The Fountain” in Charles Place, New Amsterdam, Berbice, and the plaintiff lives in Harkman's Lane which lies immediately south of and runs parallel to Charles Place. Both streets run from east to west. The defendant's hotel is situated on the southern side of Charles Place while the plaintiff lives on the northern side of Harkman's Lane. “The Fountain” is about eight feet north of the plaintiff's house and a drain and fences separate the two buildings.
Originally, the defendant used his premises only as a dwelling house but sometime about May, 1970, he began to run a hotel on the premises. Guests occupy the upper storey and there is a bar on the lower storey. When the defendant began to run the hotel he extended the lower storey of the building southwards. From time to time dances were held in this extended portion which the plaintiff described as “an open air shed”. I accepted and believed the plaintiffs evidence that string bands performed at those dances on a stage in the shed which is quite near to the plaintiff's northern window and runs right up to the fence that separates the plaintiff's land from the defendant's.
In particular there was evidence that music was provided by string bands and juke boxes at dances held every Saturday night at the hotel from 9 p.m. to 4.45 a.m. and that there was much noise on those occasions.
But there has been a cessation of those activities, and according to the plaintiff there has not been a Saturday night dance at the hotel since sometime about December, 1972. The issues were therefore narrowed to a consideration of the playing of a coin-operated jukebox in the lower storey of the hotel proper, as distinct from the shed. To operate this jukebox one has to insert a coin and press a button and the selected record is then played automatically, a process known colloquially as “punching” the records.
The plaintiff's evidence, which I accepted, is that the coin-operated jukebox is played every day and at all hours, but mostly after the cinema shows from about midnight to 4 a.m.; and during that time there are “drinking, dancing, clapping and noisy talking.” Sometimes fights begin and, perhaps as tempers rise, drinking glasses and bottles land in the plaintiff's yard, presumably having missed their mark.
When this is going on the plaintiff and members of his family can speak to one another only by shouting. Besides, the noise compelled the plaintiff to give up the comfort of his northern bedroom and sleep on the floor of a southern gallery, where he appears to be less tormented, if uncomfortable.
In an effort to alleviate his suffering the plaintiff protested to the defendant, tried to get the defendant's friends to help and even complained to the Police. His protests, however, came to nothing and the noise continued.
I had no hesitation at all in accepting the plaintiff's evidence. He testified without bitterness and impressed me as an honest and truthful witness. His demeanour revealed much of that old world courtesy and form which are almost anachronistic today.
Fitz Simon who lives in Charles Place opposite “The Fountain” supported the plaintiff's testimony. Simon said that the coin-operated jukebox is played very loudly “almost every night until about 4 a.m.” He too spoke to the defendant about the noise without avail. I accepted and believed his evidence as well.
I found the factual position to be, therefore, that almost every night the coin-operated jukebox is played very loudly in “The Fountain” until about 4 o'clock in the morning, and that during that time there are dancing, clapping and loud talking, and that sometimes fights break out during which bottles and drinking glasses are often thrown about.
The issue for determination was whether or not that situation constitutes a nuisance to the plaintiff. In my judgment it does. Generally speaking a nuisance is an interference with a person's use or enjoyment of land or of some right connected with it (see Titus v. Duke [1963] 6 W.I.R. 135 (p.136) but such interference must, of course, be substantial if the plaintiff is to succeed – see Torquay Hotel Co. Ltd. v. Cousins [1968] 3 All E.R. 43 (p. 61–62)
One cannot define what degree of noise in teams of decibels constitutes a nuisance. The circumstances of each case must be closely examined and the position determined thereby and not by an abstract consideration of the particular, offending act, per se. I had to weigh up and consider, therefore, all the circumstances of this matter, including the respective interests of the parties, bearing in mind the fact that the defendant runs a hotel and that music must obviously be good for his business. It may well be that many of the hotel's patrons who are devotees of music and with whom this nightly playing seems to have become almost a cult would not go there if there were not a coin-operated jukebox on the premises. The defendant said that he requires a jukebox for his business, and I believe him.
But this does not give the defendant the right to make as much noise as he cares. The juke box has to be played with due consideration for the peace and quiet to which the defendant's neighbours are entitled. That is not to say that the plaintiff must expect to enjoy absolute and permanent stillness as if living in a classic void; he would have to bear a reasonable degree of noise from “The Fountain”, occasioned by the juke box and the patrons for whom the hotel caters, but he must not be made to suffer the nightly torment of loud noise which persists until almost dawn.
It appears to me that it is in this civilized balancing of the competing and divergent interests of the respective parties that the tort of nuisance has its jurisprudential roots. For though it is true that one has freedom to make some noise one does not have an absolute right to make as much noise as one pleases. The restraint which the law in its wisdom accordingly imposes was explained with admirable felicity by Lord Watson in Allen v Flood (1898) A.C. 1. He said as follows at page 101:
“No proprietor has an absolute right to create noises upon his own land, because any right which the law gives him is qualified by the condition that it must not be exercised to the nuisance of his neighbours or of the public. If he violates that condition he commits a legal wrong.”
I regard that as a correct statement of the law and I would adopt it.
This question is discussed at page 136 of Halsbury's Laws (Third Edition) (Volume 2A) under the heading “General principles”. The passage reads thus:
“Apart from any limit to the enjoyment of his property which may have been acquired against him by contract, grant, or prescription, every person is entitled, as against his neighbour, to the comfortable and healthful enjoyment of the premises owned or occupied by him whether for pleasure or business. In deciding whether in any particular case this right has been invaded and a nuisance thereby caused, it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and...
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