also a further general principle, that, when one is removed from the world of pecuniary loss and is attempting to measure damages for non-pecuniary loss, an element in reasonableness is the fairness of the compensation to be awarded. There must be moderation; some attention must be paid to the rights of the offending defendant as well as to the rights of the injured plaintiff…’ (Scarman LJ in Bone v Scale [1975] 1 WLR 797, p 805). What amount should be awarded to a person who has to put up with unpleasant smells from a neighbour’s pig farm? (Cf Hunter v Canary Wharf, below.)
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Lord Hoffmann:… I cannot…agree with Stephenson LJ in Bone v Scale [1975] 1 WLR 797, pp 803-04, when he said that damages in an action for nuisance caused by smells from a pig farm should be fixed by analogy with damages for loss of amenity in an action for personal injury. In that case it was said that ‘efforts to prove diminution in the value of the property as a result of this persistent smell over the years failed’. I take this to mean that it had not been shown that the property would sell for less. But diminution in capital value is not the only measure of loss. It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not. In the case of a transitory nuisance, the capital value of the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted. To some extent this involves placing a value upon intangibles. But estate agents do this all the time. The law of damages is sufficiently flexible to be able to do justice in such a case: compare Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344.