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August 30, 2011

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Court rejects “hazardous to health” odour appeal

An electrical-components manufacturer has lost an appeal against a decision that the health of its workers was not adversely affected by strong smells generated by a neighbouring business.

Hirose Electrical UK Ltd originally lodged a nuisance claim for an injunction and damages based on the escape of noxious odours from commercial premises occupied by the defendant, Peak Ingredients Ltd, into Hirose’s adjacent premises, at an industrial estate in Milton Keynes.

Peak Ingredients manufactures a substance smelling of curry and/or garlic. Hirose complained that the spicy smell badly affected the comfort and health and well-being of some of its employees. Conditions reported by workers included breathing difficulties by asthmatics, sinus problems, severe headaches, sickness and nausea, and dry throats.

The company also claimed that the smell resulted in financial losses, including the cost of leasing alternative premises, which it moved into in May 2008 – six years after Peak had moved into its unit and the smells had started.

The units in question are part of the same block and are separated by a porous breeze-block wall, which, during the time of the smells, was insufficiently sealed. Owing to a lack of cooperation between the two parties, nothing was done to improve insulation in the wall.

The deputy judge who tried the case, heard in October last year, ruled against Hirose, stating that the odour, taking account of the evidence as to its frequency, intensity and effect, did not amount to a nuisance. The deputy judge also ruled that an occupier of a unit on a light industrial estate – as it was characterised – must expect the possibility of disagreeable smells, and decided there was nothing unreasonable in Peak’s use of its unit.

Evidence from Hirose employees regarding the physical effects they had suffered during their work on the estate went unchallenged, but the deputy judge held that the evidence was tainted, in some cases, by exaggeration of the symptoms, or hypersensitivity.

Earlier this month, the Court of Appeal confirmed the original verdict. Lord Justice Mummery said the deputy judge was entitled to attach significance to the location of the premises and the character of the industrial estate, and pointed out that Peak’s activities were carried out without any intervention on environmental, or health and safety grounds by the local council, or the HSE.

LJ Mummery also affirmed that the deputy judge was entitled to form his assessment of the effects on the health and well-being of particular employees to reach his conclusions on the causes and seriousness of the physical symptoms described.

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