1 [1932] AC 562.

2 Ibid, at p 619: ‘The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed.’ See also per Lord Diplock in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1026 declining an invitation to return to the ‘halcyon days’ when the categories of negligence were closed.

3 ‘The pleading assumes that we are all neighbours now, Pharisees and Samaritans alike, that foreseeability is a reflection of hindsight and that for every mischance in an accident-prone world someone solvent must be liable in damages’: CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 2 All ER 484, 497.

4 Anns v Merton London Borough Council [1978] AC 728, overruled in Murphy v Brenrwood District Council [1991] I AC 398.

5 Stapleton ‘Duty of Care and Economic Loss: aWider Agenda’ (1991) 107 LQR 249.

6 Maitland Forms of Action, p 296. See also Salmond (1905) 21 LQR 43.

7 It has been said that it is not open to a judge to create new rights by granting a novel procedural remedy which is not available under the Rules of the Supreme Court, simply on the grounds of economy or convenience: Re Wykeham Terrace [1971] 1 Ch 204, 213 per Stamp J.

8 [1965] QB 232, 242–3.

9 [1964] AC 465, 536.

10 [1993] QB 727.

11 Ainsbuiy v Millington [1986] 1 All ER 73, CA; Pidduck v Molloy [1992] 2 FLR 202, 206 per Lord Donaldson MR.

12 The question remains as to whether the application of s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 should be extended. The Law Commission Report, No 207, Family Law: Domestic Violence and Occupation of the Family Home, 1992, paras 3.8–3.26, considers whether there should be any limitations at all. on the basis that legislation which aims to provide protection from violence or molestation for people who need it should not be restricted by the relationship between the parties or on the grounds of residence. However, the proposals made by the Law Commission are limited to those associated with the respondent by virtue of a family relationship or something closely akin to such a relationship. The list of those entitled to seek protection against molestation under their proposals is summarised in para 3.26 of the Report, extending to those who ‘have or have had a sexual relationship with each other (whether or not including sexual intercourse)’. As Peter Gibson J. noted in Khorasandjian, p 486, the plaintiff would not have had an action under these proposals. As for the conceptual uncertainty of this proposal and the distinction between a successful and unsuccessful suitor, sees: SM Cretney ‘Being a Nuisance’ (1993) 109 LQR 361.

13 The ‘Siskina’ [1979) AC 210.

14 Per Dillon L. J. at 48OG. This is possibly misleading since there is no tort of threatening to assault. An assault is ‘an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person’: Collins v Wilcock [1984] 3 All ER 374, 377. There is no assault where there is no immediate ability to cany out a threat: Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20.64. Thus, a threat to commit an assault or battery in the future cannot itself constitute an assault because the defendant's words themselves clearly negative the immediacy required for assault (see Tuberville v Savage (1669) 1 Mod 3). It is suggested that threats by the defendant to commit an assault in the future provide evidence justifying an injunction to restrain the commission of the assault, but that an injunction to restrain the defendant from making the threats is not appropriate, unless the threats are themselves regarded as part and parcel of the tort of intentional interference with the person. Alternatively, on appropriate facts, it is possible that threats could amount to the tort of intimidation: see Godwin v Uzoigwe [1993] Fam Law 65.

15 [1993] QB 727.

16 Read v. J. Lyons & Co Ltd [1945 1 KB 216, 236 per Scott L. J. approving the definition given by Winfield in Torts (3rd edn) p 426.

17 [1940] AC 880, 903.

18 Smith v. Giddy [1904] 2KB 448; Davey v Harrow Corporation [1958] 1 QB 60.

19 Sedleigh-Denfield v O'Callaghan [1940] AC 880.

20 Hoare & Co v. McAlpine [1923] 1 Ch 167.

21 St Helens Smelting Co v Tipping (1865) 11 HL Cas 642.

22 Bone v Seale [1975] 1 All ER 787.

23 Matania v National Provincial Bank Ltd [1936] 2 All ER 633.

24 Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145.

25 Thompson-Schwab v Costaki [1956] 1 WLR 335.

26 Laws v Florinplace Ltd [1981] All ER 659.

27 [1958] QWN 5; noted at (1958) 32 ALJ 205: see also Alma v Nakir [1966] 2 NSWLR 396.

28 (1976) 73 DLR (3d) 62.

29 Ibid at 72. See also Robbins v Canadian Broadcasting Corporation (1957) 12 DLR (2d) 35 Quebec Superior Court, where damages were awarded to a man who was deluged with hostile telephone calls and letters after the host of a television show that he had criticised announced the plaintiff's name and address on air and suggested that viewers should ‘cheer him up’.

30 This has long been the position in nuisance: see Crump v. Lambert (1867) LR 3 Q 409. If it were otherwise it would not be possible to protect a plaintiff from mere annoyance and discomfort from, say, noise or smells.

31 (1976) 74 DLR (3d) 62. 74.

32 [1993] QB 727, 735.

33 Sedleigh-Denfield v O'Callughan [1940] AC 880, 903 per Lord Wright. Inconvenience is measured ‘not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people’: Walter v Selfe (1851) 4 De G & Sm 315, 322 per Knight Bruce V-C.

34 See Christie v. Davey [1893] 1 Ch 316; Hollywood Silver Fox Farm v Emmett [1936] 1 All ER 825.

35 In Stoakes v Bridges [1958] QWN 5, for example, there was an express finding of malicious intent by the defendant, and the judge relied upon Christie v. Davey [1893] 1 Ch 316. The fact that the defendant felt justified in his conduct because it was in retaliation for annoyance by noise that he had suffered was irrelevant.

36 Jones v. Llanrwst Urban District Council [1911] 1 Ch 393; RA Buckley The Law of Nuisance (1981) p 74.

37 Jones v. Chappell (1875) LR 20 Eq 539.

38 Burgess v City of Woodstock [1955] 4 DLR 615.

39 Normally the person in possession when the damage occurs can maintain an action in private nuisance: see Taylor v Auto Trade Supply Ltd [1972] NZLR 102, 108–9; although in the case of a continuing nuisance the owner or occupier can sue for damage inflicted prior to the acquisition of the property: Masters v Brent London Borough Council [1978] QB 841.

40 [1907] 2 KB 141; see also Nunn v Parkes & Co (1924) 158 LTJ 431; Oldham v Lawson (No 1) [1976] VR 654, 657.

41 [1939] 2 All ER 202, 205.

42 See also Cunard v. AntilCyre Ltd [1933] 1 KB 551, 557 where Talbot J. delivering the judgment of the Divisional Court, said that it followed from the nature of an action for private nuisance that a plaintiff must show some title to the property affected by the nuisance: ‘Private nuisances, at least in the vast majority of cases, are interferences for a substantial length of time by owners or occupiers of property with the use or enjoyment of neighbouring property; and it would manifestly be inconvenient and unreasonable if the right to complain of such interference extended beyond the occupier, or (in case of injury to the reversion) the owner, of such neighbouring property: see per Moulton W, Malone v Laskey [1907] 2 KB 141, 153.

43 [1983] 2 AC 509.

44 [1947] Ch 92.

45 This decision was reversed on appeal on the ground that the corporation's exclusive right of occupation was limited to the space in the soil taken up by the pipes, and did not apply to any part of the soil upon which the pipes rested: [1947] Ch 427. However, this does not affect Evershed J's reasoning as to the corporation's right to maintain an action in nuisance if they had acquired a licence for the use of the subjacent soil.

46 (1863) 2 H & C 121.

47 [1947] Ch 92, 108. Evershed J. pointed out that in Charing Cross Electricity Supply Co v Hydraulic Power Co [1913] 3 KB 442; [1914] 3 KB 772 both the court of first instance and the Court of Appeal proceeded, without any reservation or expression of doubt, upon the view that a plaintiff empowered or compelled by statute to lay cables in or under the public highway could invoke the principle of Rylunds v Fletcher (1868) LR 3 HL 330 ‘notwithstanding that they could not assert any right or interest in the land in which their cables were laid.’ Of course, the force of this observation rests upon an assumption, not necessarily valid, that a plaintiffs position in terms of standing to sue is the same in private nuisance as it is under the rule in Rylunds v Fletcher.

48 Ibid at 107.

49 [1906] 1 KB 648.

50 Ibid at 659–60.

51 [1974] 2 NZLR 185.

52 Todd, Burrows, Chambers, Mulgan and Vennell The Law of Torts in New Zealand (1991) p415.

53 [1974] 2 NZLR 185, 189. In Metropolitan Properties Ltd v Jones, above n 41, the defendant, who was claiming in nuisance by way of a counterclaim, had de facto possession of the premises, since he had assigned his tenancy to a third party who had disappeared and was no longer paying rent to the plaintiff landlords. He had re-entered the premises since he was liable to pay the rent, but there was no re-assignment of the tenancy from the third party. Goddard LJ clearly regarded the rule preventing the defendant from claiming in nuisance as unfair in these circumstances, but did not suggest that de facto occupation or possession were sufficient.

54 (1979) 98 DLR (3d) 504, 514.

55 Cf Vaughan v Halifax-Dartmouth Bridge Commission (1961) 29 DLR (2d) 523 where it was held that mere permission to park a car in a parking lot did not give the owner of the vehicle a sufficient interest in the enjoyment and use of land to entitle him to sue in private nuisance in respect of damage to the car from flecks of paint blown from the defendants' land.

56 In Hounslow London Borough Council v Twickenhum Garden Developments Ltd [1971] Ch 233, 257 Megarry J commented that: ‘… a person who has no more than a licence may yet have possession of the land. Though one of the badges of a tenancy or other interest in land, possession is not necessarily denied to a licensee.’

57 Kodilinye (1989) 9 LS 284, 285 comments that Malone v Laskey is unsatisfactory because there is no attempt to explain what is meant by a right of occupation ‘in the proper sense of the term’ nor to distinguish between the various categories of licence, some of which may confer a right to possession and others not. This criticism applies with equal force to the cases coming after Malone v Laskey. In Sedleigh-Denfeld v O'Callaghan [1940] AC 880,908, for example, Lord Wright said that‘… possession or occupation is still the test.’ It is clear from the context that this means possession or occupation of land or rights over or in connection with it, but his Lordship proffered no explanation of the term ‘occupation.’

58 The Law of Torts in Australia (1985) p 528.

59 Citing Foster v Warblington Urban District Council [1906] 1 KB 648 and Newcastle-under-Lyme Corporation v Wolstanton Ltd [1947] Ch 92 respectively. 9a. See Salmond and Heuston on the Law of Torts (20th edn, 1992) p 67.

60 [1993] QB 727, 745.

61 (1976) 73 DLR (3d) 62.

62 Ibid at 78. The position of the non-owning spouse has been the subject of considerable academic debate. Sulmond and Heuston, for example, suggest that a spouse's right of occupation under the Matrimonial Homes Act 1983 would confer a sufficient interest in land to entitle the spouse to sue in private nuisance: R. F. V. Heuston and R. A. Buckley Sulmnd and Heuston on the Law of Torts (20th edn. 1992) p 67; see also Kodilinye (1989) 9 L S 284, 288 supporting this view. Todd, Burrows, Chambers, Mulgan and Vennell The Law of Torts in New Zealand (1991) p 417 comment that:‘… the courts should and will adopt a liberal approach to a non-owner spouse's standing to sue. It would seem anomalous if a married person were held to have insufficient status while a person in illegal, but de facto, possession of land has a sufficient right.’Winfield and Jolowicz, on the other hand, considers that the spouse's statutory rights of occupation would not suffice: W. V. H. Rogers Winfield and Jolowicz on Tort (13th edn, 1989) p 395, n 55.

63 [1993] QB 727. 735.

64 (1987) 45 DLR (4th) 300.

65 See also O'Regun v Bresson (1977) 23 NSR (2d) 587 and Lewis v Town of St Stephen (1981) 34 NBR (2d) 508, in which it was accepted that resident children had a right to sue in private nuisance.

66 (1987) 45 DLR (4th) 300, 303.

67 The Law of Torts, (6th edn, 1983) p 393. See also McLaren (1972) 10 Osgoode Hall LJ 505, 517 suggesting that members of the occupier's family should be able to sue if they are resident on the land; Kodilinye (1989) 9 LS 284,289 arguing that it is justifiable to allow children to sue for private nuisance, because their occupation is as substantial and permanent as that of their parents, and the interference with their enjoyment is likely to be no different from that suffered by the parents: cf RFV Heuston and RA Buckley Salmond and Heuston on the Law of Torts (20th edn, 1992) p 67 commenting that the requirement that the plaintiff be able to show an entitlement to use and enjoyment of land is not an anomaly, but follows from the very nature of the action, which is to protect the right to use and enjoyment of land.

68 Applying Motherwell v Motherwell (1976) 73 DLR (3d) 62 and Foster v Warblington Urban District Council [1906] 1 KB 648 permitting an action where the plaintiff has substantial de facto occupation.

69 Seen 16, above.

70 The Law of Torts in Australia (1985), p 528.

71 The decision of the Court of Appeal in White v Jones [1993] 3 All ER 481 reflects precisely this concern. albeit in the very different context of a claim in negligence against a solicitor.

72 Janvier v Sweeney [1919] 2 KB 316.

73 [1897] 2 QB 57.

74 Ibid at 59. Mrs Wilkinson had no cause of action in trespass because the damage was indirectly inflicted, nor could she claim damages in negligence for at that time the courts did not permit recovery in negligence for nervous shock.

75 P.R. Handford ‘Wilkinson v Downtown and Acts Calculated to Cause Physical Harm’ (1985) 16 Univ Western Australia LR 31.

76 As Handford points out, Wright J. did not cite Pollock as authority for the general principle but he did refer to the fourth edition of the work at a later stage in the judgment, see (1985) 16 Univ Western Australia LR 31, 37.

77 (1904) 195 US 194, 204.

78 WVH Rogers (ed), Winfield and Jolowicz on Tort (13th edn Sweet and Maxwell, 1989) p 69, n 28.

79 [1992] 1 FLR 525 CA. This case was decided on 6 March 1986.

80 They had not married and were no longer living together, therefore the Domestic Violence and Matrimonial Proceedings Act 1976 did not apply.

81 [1992] 1 FLR 525, 526G. In Godwin v Uzoigwe [1993] Fam Law 65, acase of severe physical and emotional abuse of a domestic servant, the Court of Appeal held that unlawful threats to persuade a person to act to his detriment, where that person is coerced into acting or refraining from acting by the threats or unlawful conduct of the defendant amounted to the tort of intimidation.

82 [1919] 2 KB 316.

83 [1993] QB. 727,736; see McLoughlin v O'Brian [1983] 1 AC 410; Alcock v Chief Constable of south Yorkshire Police [1991] 4 All ER 907, HL.

84 The particulars of claim contained allegations of actual and threatened violence by the defendant against the plaintiff ‘causing her “great fear and distress;” she is said to be “very scared and feels very frightened by the [defendant's] abnormal and irrational obsession,” and his behaviour is said to have caused her “mental anguish”…’ per Gibson J. at [1993] QB 727, 740.

85 [1992] 2 FLR 202.

86 Ibid at 205G.

87 Lord Donaldson MR also queried whether the Domestic Violence and Matrimonial Proceedings Act 1976 should apply to parties who have lived together in the same household as husband and wife as well as those who are still so living ‘because the need for non-molestation injunctions in relation to the woman and the child is very often even greater in cases where such a relationship has existed but has then broken down.’ See the comments made above, n 12.

88 Peter Gibson J. considered that Pidduck could be taken as authority that it was proper to frame an injunction in terms which restrained conduct merely capable of amounting to a crime or a tort rather than limiting the restrained conduct to that which amounted to a crime or tort. In so far as this differed from the approach taken in Burnett v George, he preferred Burnett because in principle only conduct amounting to an actionable wrong should be restrained see [1993] QB 727,742.

89 [1897] 2 QB 57,59: ‘It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person and therefore an intention to produce such an effect must be imputed …’Janvier v Sweeney was a much stronger case than Wilkinson v Downtown because there was a specific intention to terrify the plaintiff for the purpose of attaining an unlawful object: see [1919] 2 KB 316,326 per Duke LJ.

90 [1993] QB 727,736.

91 McLoughlin v O'Brian [1983] 1 AC 410; Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907.

92 [1964] AC 465, 536.

93 This view is supported by FA Trindade ‘The Intentional Infliction of Purely Mental Distress’ (1986) 6 OJLS 219, who points out that damages for purely mental distress can be awarded in the torts of assault, defamation and nuisance, as well as in actions for breach of contract (Jarvis v Swan Tours [1973] QB 233; Jackson v Horizon Holidays [1975] 1 WLR 1468) and the courts have had no difficulty quantifying the damages to be awarded in such a claim. See also the Law Commission Consultation Paper, No 132, Aggravated, Exemplary and Restitutionary Damages (1993) which, although concerned with the assessment of damages rather than the existence of causes of action, proceeds on the basis that personality interests which give rise to certain forms of intangible harm, such as feelings of outrage, humiliation, degradation, insult and so on, are worthy of protection by the law, and that given the nature of these ‘harms’ it is the fact of infringement rather than the precise effects on the plaintiff which should be recognised by an award of damages. See paragraphs 2.19, 2.27, 5.22, 5.26.

94 It may be worth remembering that in trespass to the person the defendant must intend to commit the act that constitutes the tort, but need not have any intention to harm the plaintiff: Wilson v Pringle [1986] 2 All ER 440,445; FA Trindade, ‘Intentional Torts: Some Thoughts on Assault and Battery’ (1982) 2 OJLS 211, 219–225.

95 Fitzgibbons v Westpress Publications Ltd (1983) 3 DLR (4th) 366; Addis v Gramophone Co Ltd [1909] AC 488; Bliss v South East Thames Regional Health Authority [1987] ICR 700.

96 Bradley v Wingnut Films Ltd [1993] I NZLR 415.

97 Graham v Saville [1945] 2 DLR 489.

98 Radovskis v Tomm (1957) 9 DLR 751.

99 D v National Society for Prevention of Cruelty to Children [1976] 3 WLR 124.

100 Frame v Smirh (1988) 42 DLR (4th) 81.

101 Mitran v Williamson 21 Misc 2d 106; 197 NYS 2d 689.

102 Webber v Gray 228 Ark 289; 307 SW 2d 80.

103 For example, this is presently the case in New Zealand, Australia and Canada: see, Linden Canadian Tort Law (4th edn 1988) p 50.

104 Restatement 2nd. Torts, s 46 provides that: ‘One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm results from it, for such bodily harm.’

105 Ibid.

106 W.P. Keeton, Prosser and Keeton on the Law of Torts (5th edn, 1984) pp 54–66. See McGrath v Fahey (1988) 533 NE 2d 806, 809.

107 Taft v Taft(1867) 40 Vt 229.

108 [1990] IRLR 3.

109 See Gay (1990) 19 ILJ 35.

110 See A.E. Morris and S.M. Nott Working Women and the Law, (Routledge, 1991) p 91. For a feminist analysis of Khorasandjian, highlighting the potential for the principle in Wilkinson v Downton to be used in sexual harassment litigation, see: J. Conaghan ‘Harassment and the Law of Torts: Khorasdjian v Bush’ (1993) 1 Feminist Legal Studies 189.

111 [1992] 1 FLR 525.

112 Brazier ‘Personal Injury By Molestation — An Emergent or Established Tort’ [1992] Fam Law 346, responding to the review by Judge Fricker QC in ‘Personal Molestation or Harassment: Injunctions in Actions based on the Law of Torts’ [1992] Fam Law 158.

113 Ibid at 348.

114 Ministry of Defence v Jeremiah [1979] IRLR 436.

115 [1986] ICR 514. This case was concerned with the equivalent provisions of the Race Relations Act 1976, s 4(2)(c).

116 Wileman v Minilec Engineering Ltd [1988] IRLR 144.

117 See Pavilon v Kaferly (1990) 561 NE2d 1245, where the Appellate Court of Illinois emphasised that conduct which might not ordinarily be actionable may be considered outrageous if the defendant knows that the plaintiff is particularly susceptible to emotional distress. The defendant's knowledge was relevant both to the question of whether his acts were outrageous and whether they were committed with the intention of causing the plaintiff severe mental distress.

118 Swentek v USAIR Inc (1987) 830 F 2d 552 (US Court of Appeals).

119 For an example of this view see J. Murphy ‘The emergence of harassment as a recognised tort’ (1993) 143 NLJ 926.

120 [1986] Ch 20.

121 Ibid at 64.

122 It is not clear why his Lordship thought that this might be a form of private nuisance. Although the owner of land adjoining the highway has a right of access to the highway from the premises (Marshall v Blackpool Corporation [1935] AC 16.22), this private right of access ceases at the highway. Interference with access to the plaintiff's premises which occurs on the highway itself can give rise to an action in nuisance, but this is usually thought of in terms of public nuisance: see Chaplin v Westminster Corporation [1901] 2 Ch 329; Lyons v Gulliver [1914] I Ch 631; Harper v Haden & Sons Ltd [1933] Ch 298.

123 [1987] ICR 181.

124 [1988] 2 FLR 179, 182G.

125 S 1(1)(a) gives the power to grant an injunction ‘restraining the other party to the marriage from molesting the applicant.’

126 In Homer v Horner [1983] 4 FLR 50 at 51G Ormrod LJ said that the term ‘does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court.

127 Johnson v Walton [1990] 1 FLR 350 per Lord Donaldson MR.

128 This is the logic of Ormrod LJ's definition of the word molest in Horner v Horner, above n 126, as including ‘such a degree of harassment as to call for the intervention of the court.’

129 [1993] QB 727, 744.

130 In the light of Khorasandjian v Bush, the conclusion reached by Mullany and Handford that ‘the likelihood of extension [of the principle in Wilkinson v Downton] to cases where there is no resultant psychiatric illness appears remote’ may require reassessment. See N.J. Mullany and PR Handford Tort Liability, for Psychiatric Damage (Law Book Co, 1993) p 307.

131 [1988] 2 FLR 179.

132 Note on Patel v Patel (1988) 18 Fam Law 213; K Vaughan (1988) 85 LSG. 22.

133 In cases of ‘domestic’ or family violence, the law has been much criticised for failing to provide adequate rights or protections in an area perceived by legislators to be ‘private’. It is important, but beyond the powers of the courts to address issues such as the attitudes towards women which perpetuate ‘domestic violence’ or, perhaps more generally, tensions within the family which lead to such disputes. The role which the law can play is expressed in the Law Commission Report No 207, op cit n 12 above, at para. 2.8: ‘Domestic Violence is not simply a legal problem which can be eradicated by the appropriate legal remedies. It is also a social and psychological problem which can be eliminated only by fundamental changes in society and in attitudes to women and children. While legal remedies are an attempt to alleviate the symptoms of domestic violence, they can do little to tackle the causes.’

134 See Kuye v Robertson [1991] FSR 62. In Motherwell v Motherwell (1976) 73 DLR (3d) 62.75 it was held that the defendant's conduct also involved an invasion of privacy, although it may be that the court regarded this as simply a species of nuisance. See also Bernstein v Skyviews & General Ltd [1978] QB 479, 489 where Griffiths J. suggested that a plaintiff subjected to ‘the harassment of constant surveillance from the air’ might have an action in nuisance for such a ‘monstrous invasion of his privacy.’

135 Infringement of Privacy (The Lord Chancellor's Department and the Scottish Office, July 1993).

136 Ibid at para 3.4. See, para 5.22: ‘A natural person's privacy shall be taken to include … a right to be free from harassment and molestation.’

137 Ibid at para 4.20. Evidenced by the Law Commission's proposed extension of the categories of people who should be able to claim the protection of domestic violence legislation (Report No 207, above n 12). and the judgment of Dillon LJ in Khorasundjian v Bush.

138 Ibid at para 4.24.

139 Ibid at para 4.20.

140 Ibid at para 5.22.