PENNYCUICK V-C(reading the judgment)
By this motion, so far as is now material, the plaintiff, Cecil Edward Smith, seeks against the mayor and corporation of the London Borough of Lewisham an injunction restraining them 'from allowing or permitting any person licensed or permitted by them to occupy use or dwell in the said premises situate at and known as No 25 Walpole Road aforesaid from doing' certain acts, those acts being, as set out in the notice of motion, entering on the plaintiff's adjoining premises, 27 Walpole Road, doing damage there and creating disturbance by noise.
Mr Smith and his wife are the registered proprietors of the dwelling-house known as 27 Walpole Road, New Cross, formerly in the metropolitan borough of Deptford, now in the London Borough of Lewisham. Mr and Mrs Smith are an elderly couple, and until the events which I will recount, lived at 27 Walpole Road with their son, Mr John Smith. Walpole Road lies in an area scheduled for demolition and reconstruction as an open space.
The defendant corporation has acquired a number of other houses in Walpole Road, and intends to acquire the remaining house, including no 27 if necessary, by the exercise of compulsory powers. For the time being it is using certain of these houses as short-term accommodation for homeless families. It is the policy of the corporation to place homeless families in council accommodation on a short-term basis in order to ascertain what type of permanent accommodation is appropriate for them.
In 1969 the corporation placed a family called Bodian in no 25 which adjoins no 27. The Bodians caused trouble to the Smiths, and eventually the corporation moved them out. The corporation then placed a family called Marks in no 25. Their behaviour was unexceptionable. However, in the spring of 1971 the corporation moved the Marks family to other accommodation.
In July 1971, after effecting certain repairs to no 25 at the cost of something of the order of £170, the corporation moved the first and second defendants in this action, that is Mr and Mrs Scott, into no 25. The Scotts have a large and unruly family. I am satisfied beyond doubt, indeed it is not challenged, that the conduct of the Scott family as a whole was altogether intolerable both in respect of physical damage and of noise. The Smiths found it impossible to live next door to the Scotts and went to live elsewhere with relatives, where they still remain. The corporation, notwithstanding protests on the part of the Smiths, has taken no effective steps to control the Scotts, nor has it taken any step to evict them.
The writ in this action was issued on 3 December 1971. A few days later the plaintiff, Mr Smith, gave notice of the present motion; the motion is addressed to all three defendants and seeks first—
'(1) An Injunction until of this action or further Order restraining the First Defendant and the Second Defendant [i e Mr and Mrs Scott] and each of them by themselves their servants or agents or otherwise however from doing the following acts or any of them, that is to say:—(a) Entering upon or crossing the premises of the Plaintiff situate at and known as No. 27 Walpole Road, New Cross, London, S.E.14. (b) Breaking doors windows or walls or otherwise damaging the said premises or any part thereof. (c) Creating disturbance by noise in the vicinity of the said premises in such a way as to be a nuisance or injurious to the health of any persons in occupation of the said premises of the Plaintiff or any part thereof. (2) An Injunction until trial of this action or further Order restraining the Third Defendants from allowing or permitting any person licensed or permitted by them to occupy use or dwell in the said premises situate at and known as No. 25 Walpole Road aforesaid from doing the said acts or any of them.'
An appearance was duly entered by the corporation; the Scotts have not entered an appearance. On the motion affidavits were filed on behalf of Mr Smith and the corporation. On 8 January 1972 Goff J made injunctions against Mr and Mrs Scott in the terms of the notice of motion; the motion was then stood over as against the corporation. I am told that certain proceedings for attachment are pending as against the Scotts, but I have no information as to the precise position there, nor am I concerned with it.
The motion as against the corporation came on for hearing before me on affidavit evidence with cross-examination of the deponents, and also on certain additional oral evidence. It was agreed between counsel that the motion should be treated as the trial of the action.
The corporation let the Scotts into possession of no 25 on the terms of certain printed conditions of tenancy. These include cl 6:
'THE (TENANTS) SHALL: ... (h) Be responsible for the orderly conduct of all persons (including their children) who occupy the premises, their own and other occupants' visitors on any part of the estate ... '
Then cl 8:
'THE TENANT(S) SHALL NOT: ... (d) Overcrowd the premises or do or permit or suffer anything to be done on the premises which in the opinion of the Council may be or become a nuisance or annoyance to other persons ... '
Then cl 12:
'The tenant shall be responsible for ensuring that members of his family, his visitors and other persons who occupy the premises or any part thereof comply with conditions 7 and 8 hereof and accordingly any infringement of such conditions by such persons will be deemed to be and be treated as an infringement thereof by the tenant.'
A considerable volume of evidence was filed on both sides, and most of the deponents were cross-examined. I need not go into particulars of the conduct on the part of the Scott family which was flagrant and, as I have said, unchallenged.
A great part of the Mr Smith's evidence was concerned to establish by inference from the circumstances that the corporation must have been actuated by some improper motive in placing the Scotts in no 25, the collateral purpose advanced being to get the Smiths out of no 25 by agreement and at an under-value. There is no doubt that there was ill-feeling between the Smiths and certain of the corporation officials.
After hearing Mr Smith's witnesses it seemed to me that there was a case for the corporation to answer in this respect. Mr Davy, the assistant housing manger to the corporation, and the principal deponent on its behalf, did not himself adequately meet this case. He admitted that he knew before July 1971 that the Scotts were the sort of people who did not appear to be good tenants and were likely to be guilty of anti-social behaviour and was unable himself to explain why no 25 had been selected for the Scotts. However, at a later stage in the hearing counsel for the corporation, with the consent of counsel for Mr Smith, called a Mrs Hand, the allocation officer who actually made the allocation of no 25 to the Scotts on her own initiative. Mrs Hand had not been informed by Mr Davy that the Scotts had given trouble before. She gave a satisfactory account of the reasons which had led her to allocate no 25 to the Scotts.
On the evidence of Mr Davy and Mrs Hand, I find, (1) that the corporation had knowledge when it placed the Scotts in no 25 that they were likely to cause a nuisance, but (2) that the corporation was not actuated by any improper motive in making the allocation. Having reached this conclusion it would not be useful to go further into the various circumstantial matters contained in the evidence adduced on behalf of Mr Smith.
I must then consider the law applicable to the foregoing conclusions of fact. Apart from the allegation of improper motive, counsel for Mr Smith based his case on three propositions of law, namely (1) the corporation in placing the Scotts in no 25 with knowledge that they were likely to cause a nuisance to their neighbours itself committed the wrongful act of nuisance; (2) the corporation brought on to its land a 'thing', namely the Scotts, likely to do mischief if it escaped; (3) the corporation had a duty of care to Mr Smith, as owner of no 27, and failed in that duty by placing the Scotts in no 25. I will consider those propositions in the same order.
(1) It is established beyond question that the person to be sued in nuisance is the occupier of the property from which the nuisance emanates. In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance: see Harris v. James. But this exception has, in the reported cases, been rigidly confined to circumstances in which the nuisance has either been expressly authorised or is certain to result from the purposes for which the property is let: see Rich v. Basterfield and Ayers v. Hanson, Stanley and Prince; and see generally clerk and Lindsell on Tortsa, Salmond on Tortsb, and Winfield and Jolowicz on Tortsc.
I have used the word 'certain', but 'certainty' is obviously a very difficult matter to establish. It may be that, as one of the textbooks suggests, the proper test in this connection is 'virtual certainty' which is another way of saying a very high degree of probability, but the authorities are not, I venture to think, altogether satisfactory in this respect.
Whatever the precise test may be, it would, I think, be impossible to apply the exception to the present case. The exception is squarely based in the reported cases on express or implied authority—see in particular the judgment of Blackburn J in Harris v. James. The exception is not based on cause and probable result, apart from express or implied authority. In the present case the corporation let no 25 to the Scotts as a dwelling-house on conditions of tenancy which expressly prohibited the committing of a nuisance and notwithstanding that the corporation knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the corporation impliedly authorised the nuisance.
(2) The rule in Rylands v. Fletcher was applied in Attorney General v. Corke, against a defendant who had brought caravan dwellers on to his land as licensees, but so far as counsel has been able to ascertain, the rule has never been sought to be applied against a landlord who lets his property to undesirable tenants and I do not think it can be properly applied in such a case. The person liable under the rule in Rylands v. Fletcher is the owner or controller of the dangerous 'thing', and this is normally the occupier and not the owner of the land: see Clerk and Lindsell on Tortsd. A landlord parts with possession of the demised property in favour of his tenant and could not in any sense known to the law be regarded as controlling the tenant on property still occupied by himself. I should respectfully have thought that Attorney General v. Corke could at least equally well have been decided on the basis that the landowner there was in possession of the property and was himself liable in nuisance for the acts of his licensees: see White v. Jameson.13th Edn (1969), p 846, para 148 (3) The principle of the duty of care has been evolved in a series of modern cases, commencing with Donoghue v. Stevenson. If this were virgin territory it might be argued that a landowner owes a duty of care to his neighbours when selecting the person to whom he will let as a tenant, but I do not think it is open to the court, certainly a court of first instance, to apply the principle in such circumstances.
I will quote a passage from the speech of Lord Reid in the recent case of Home Office v. Dorset Yacht Co Ltd ( 2 All ER 294 at 297,  AC 1004 at 1026):
'In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue v. Stevenson may be regarded as a milestone, and the well-known passage in Lord Atkin's speech [ AC at 580,  All ER Rep at 11] should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion. For example, causing economic loss is a different matter; for one thing it is often caused by deliberate action. Competition involves traders being entitled to damage their rivals' interests by promoting their own, and there is a long chapter of the law determining in what circumstances owners of land can, and in what circumstances they may not, use their proprietary rights so as to injure their neighbours.'
In the last words which I have cited from that passage, Lord Reid treats the rights and liabilities of landowners as determined by a long chapter of the law, and that passage seems to me strongly to support the view that the law cannot in this respect now be reshaped by a reference to the duty of care. I should add that the relationship of landowner, tenant and neighbour is, in its nature, of the most widespread possible occurrence and the introduction of the duty of care in this connection would have far-reaching implications in relation to business as well as to residential premises.
I come, therefore, to the conclusion that the corporation has not committed a wrong against Mr Smith which is actionable under the general law. If I had reached a different conclusion, it would be necessary to consider whether the corporation is excused by reason of its statutory duty to provide residential accommodation for the Scotts (cf the National Assistance Act 1948, s 21) from whatever liability would otherwise arise under the general law. But this question does not arise, and I think it better not to pursue it.
I should say that if I had reached a different conclusion on liability, I should have found very great, and I think insuperable, difficulty in making an injunction against the corporation of the kind sought in para 2 of the notice of motion.
I must therefore dismiss this action, but I cannot to do without expressing my profound sympathy for the Smith family who have been driven out of house and home by the activities of the Scott family. This is not, however, a case of a wrong without a remedy; the Smiths undoubtedly have a remedy against the Scotts, and indeed have already obtained an injunction against them by way of the exercise of that remedy.