Who Must Stay, Who Must Go?
Sturges v Bridgman, a judgment of the Court of Chancery (in England and Wales), reported in 1879, dealt with the law of nuisance; in particular sonde met die bure (loosely translated as “trouble with the neighbours”) in Wigmore Street, London.
Wigmore Street had predominantly been a commercial locality, but over time its nature changed to that of being mainly residential and professional offices, with many doctors’ rooms.
Mr Bridgman took over his father’s business as a confectioner (a baker and seller of cakes, sweet pastries, and similar baked goods) baking products in the kitchen of a house in Wigmore Street. At the relevant time, the business had been trading for more than sixty years. For purposes of the business, and in the kitchen, Bridgman used two large mortars and pestles to crush and grind ingredients for his products.
Dr Sturges, a physician, moved into the house next door, and built a consulting-room right next to Bridgman’s kitchen. Unfortunately, the noise and vibration of Bridgman’s mortars and pestles reverberated into the consulting-room.
Sturges sued Bridgman, averring that such noise and vibration seriously annoyed and disturbed him, and materially interfered with him in the practice of his profession, and claimed an injunction (interdict) to restrain Bridgman from using the pestles and mortars in such manner as to cause him (Sturges) annoyance (nuisance).
Sturges gave evidence that the noise:
– prevented him from examining his patients by auscultation (using a stethoscope – cutting edge technology at the time) for diseases of the chest; and
– made it impossible for him to engage with effect in any occupation which required thought and attention.
Bridgman gave evidence that the pestles and mortars had been in use in the same place and to the same extent for more than sixty years, and claimed that he had acquired the right to continue doing so.
The court of first instance held that no one can acquire a right to create a nuisance, and granted Sturges’ the injunction. Bridgman appealed to the Court of Chancery.
The Court of Chancery dismissed the appeal, and found in favour of Sturges:
The Court stated Bridgman could not acquire a right to create a nuisance in perpetuity, and that, whether anything is a nuisance or not, is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances.
If, in theory, a locality is devoted to a particular trade or manufacture of a noisy character, and a person was to build a private residence upon a vacant piece of land in that locality, that person will have to accept the noise. But, if over time that locality becomes residential, the situation will change:
“Individual cases of hardship may occur in the strict carrying out of the principle upon which we found our judgment, but the negation of the principle would lead even more to individual hardship, and would at the same time produce a prejudicial effect upon the development of land for residential purposes.”
Ronald Coase (refer to the Introduction in this issue) used Sturges v Bridgman in his seminal work. He regarded it as inadequate merely to consider whether Bridgman’s activities were harming Sturges, with the implication that it is Bridgman who must be restrained. As a decision either way will impose economic costs on the loser, the real question is: who should be allowed to harm whom? Simplified, if causing the nuisance is worth 100 to Bridgman, and not suffering the nuisance is worth only 40 to Sturges, it is inefficient to restrain Bridgman’s business, and Bridgman ought not to be restrained, but to pay compensation of 40 to Sturges.
In South Africa:
Sturges v Bridgman was cited as authority in a 2006 case in the High Court, Cape Town, in which occupants of an apartment block took issue with the noise levels emanating from a theatre-restaurant in Shortmarket Street.
The Coase Theorem has been considered in the Competition Tribunal, and perhaps misunderstood in a 2017 Constitutional Court judgment.