Negligence step 1 Has There Been Damage?
Requires: A) Unnatural Use of Land
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- Navigate this page:
- Facts
- B) Escape: Rule
- C) Defences: Act of God Rule
- Consent Rule
- Contributory negligence Rule
- Deliberate Acts of Third Parties Rule
- Rule
- Legislative Authority Rule
- 2) Animals Rule
- 3) Fires Rule
- 4) Products Liability Rule
- Nusiance
- Exercise of Rights No Excuse
- Nature of Neighborhood Rule
- Nuisance without interest in property Rule
- Sensitivity Rule
- TV signals, rights of receipt Rule
- Public Nuisance: TEST: Interference with public convenience and welfare (things on road etc.) Actionable if special damage
- Failed to Prove Exceptional Damage
Requires: A) Unnatural Use of Land: Rule: D is protected from strict liability if the use is natural, either in the activity of use or its risks. If use is non-natural, he’s fucked. Test Cases: Tock v. St. John’s Metro Area Bd. [1989 SCR] Facts: D’s sewer overflows in heavy rain, floods P’s basement. Ratio and Analysis: like Rickards, plumbing (and sewers) are a normal modern use of land, but D loses because this is nuisance and has no statutory exemption. Rickards v. Lothian [1913 AC PC]: Facts: D has toilet and basin on fourth floor, and water leaks down into P’s stock. Ratio and Analysis: No evidence of negligence, and this looks like an Act of God as mentioned in Rylands; toilets are necessary for today’s society and are therefore an ordinary natural use of land. Sic utere suggests we all accept the risk inherent in modern plumbing. Conclusion: Rickards has to suck it up Read v. J. Lyons & Co Ltd. [1947 HL AC]: P working at D factory as ammo inspector; P hurt in explosion. Courts: ammo factories completely natural use of land in wartime Danku v. Town of Fort Frances (1976 OR): Private trailer park liable for broken sewer system; town is NOT. St. Anne’s Well Brewery Co. v. Roberts (1928) (UK CA) – building is natural use, ergo falling brick wall is natural Maron et al v. Baert & Siguaw Devs. Ltd. (1981 QB): garages used for welding, so fire in garage is natural Lyon v. Village of Shelburne (1981 ON CoCt): sewage pipes non-natural use of land Hudson v. Riverdale Colony (1980 MB CA): fire set to prevent another fire from spreading; this is not natural Cambridge Water Co Ltd. v. Eastern Counties Leather Plc. [1994 ER]: storage of many dangerous chemicals in industrial company town does not constitute natural use but damage “not foreseeable” b/c of knowledge of chemicals Mihalchuck v. Ratke (1966 SKQB): D liable for drift of herbicide because he used a crop dusting plane and not a tractor Non-natural uses of land include flag poles (Shiffman v. Order of St. John [1936 KB]), Christmas decorations (Saccardo v. Hamilton [1971 ONHCJ]), and an advertising balloon (Calgary (city) v. Yellow Submarine Deli Inc (1994 AB Prov. Ct.) Gertsen v. Toronto et al (1974 ONHCJ): D storing bio waste = methane gas, which caused an explosion which hurt P. The garbage fill was “self-serving” and therefore not natural Wei’s Western Wear Ltd. v. Yui Holdings Ltd (1984 AB QB): D’s water use non natural because dangerous and for commercial purposes B) Escape: Rule: Something dangerous needs to “escape” for its causation of harm to be actionable. Test Cases: Rigby v. Chief Constable of Northamptonshire [1985 QB]: cop fires gas canister into store, causes fire: “I see no difference between allowing a man-eating tiger to escape from your land … and … from the back of your wagon.” AND Hunter v. Canary Wharf [1997 AC HL]: P says D construction interferes with TV reception and creates dust. On TV reception, House of Lords tells P to suck it up, nuisance deals with things escaping from the building. Read v. J. Lyons & Co Ltd. [1947 HL AC]: P working at D factory as ammo inspector; P hurt in explosion. Courts: Rylands and Fletcher dealt with danger escaping from your land; nothing escaped here, ergo no strict liability Deyo v. Kingston Speedway Ltd [1955 SCC]: personal injury claim dismissed partly b/c nothing escaped D’s lands Ponting v. Nokes [1894 QB]: Horse eats from poisonous tree in D’s property and dies; P cannot recover b/c no escape Charring Cross Electricity Supply Co v. Hydraulic Power Co [1914 KB CA]: D’s hydraulic mains burst and damaged P’s lines. D liable because concept of “escape” is not limited to adjacent lands. Dokuchia v. Domansch [1945 ONCA]: D got P to lie on fender and pour gas into carburetor to keep truck going = D liable for resulting explosion; irrelevant that damage from dangerous activity caused on or off premises Ekstrom v. Deagon and Montgomery [1946 ABSC]: D’s stalled truck towed to P garage; draining fuel tank dangerously caused garage to burn down = D liable because his dangerous substance (fuel) escaped. North York (Muncipality) v. Kert Chemical Industries (1985 ONSC): Rylands may not deal with intentional discharge C) Defences: Act of God Rule: Rare, but even Rylands basically lets this give you carte blanche Test Cases Nichols v. Marsland (1876 UK CA): Unprecedented rainstorm flooded D dams and swept away P bridges. P not liable because no way to anticipate Greenock Corp. v. Caledonian Ry. Co [1917 AC]: Severe rainfall; D not liable for the same reason. Carstairs v. Taylor (1871 UK): non-negligent water damage after rats chew on conduit pipe; rats can be Act of God Hargrave v. Goldman [1965] Austrl: lighting an act of God; Cushing v. Walker [1941 UK] only strong winds can be. Consent Rule: If P consents, even impliedly, by lack of protest or occupation or whatever, D is not liable. Test Cases: Peters v. Prince of Wales Theatre [1943 KBCA]; Pattison et al v. Prince Edward Region Conservation Authority (1984 ONCA): P impliedly consents to sprinkler systems via occupation = no liability for non-negligent sprinkler damage Carstairs v. Taylor (1871 UK): non-negligent water damage after rats chew on conduit pipe; D not liable b/c water was collected for P = implied consent; Western Engraving Co v. Film Laboratories Ltd. [1936 UK CA]: D liable for water damage because P does not benefit London Guar. & Acc. Co. Ltd. et al v. Northwestern Utilities Ltd. [1936] AC: D gas line serving neighborhood explodes; damages P’s building nearby = D liable because P did not consent to the installation Contributory negligence Rule: If P helps it happen, he can’t collect it all. Test Cases Dunn v. Birmingham Canal (1968 HL): P denied compensation for carelessly flooding his own mine under D canal Ponting v. Nokes [1894 QB]: Horse eats from poisonous tree in D’s property and dies; P cannot recover. Deliberate Acts of Third Parties Rule: Foreseeability applies, but 3rd party actions must intentionally cause damage and cannot just be “intentional” per se. Test Case Rickards v. Lothian [1913 AC PC]: Facts: D has toilet and basin on fourth floor, and water leaks down into P’s stock. Damage caused by 3rd party deliberately blocking pipe Rule: 3rd party actions must intentionally cause damage, not just be intentional; for D. Conclusion: Rickards must eat loss. Perry v. Kendricks Transport [1956 UK CA]: D not liable when kids throw matches into gas tanks of trucks Box v. Jubb (1879 UK): 3rd party empties his reservoir into D’s reservoir, causing a flood. D not liable b/c no control. BUT
Hale v. Jennings Brothers [1938 UK CA]: you should know that people fuck with carnival rides; 3rd party act not enough to absolve liability. Legislative Authority Rule: If the statute says you’re golden, you’re golden. Test Case Diversified Holdings Ltd. v. R in Right of British Columbia (1982 BCCA): D’s program to feed elk near P’s property caused increase in population; when program was cancelled, they damaged P’s crops and property. P fucked because this was an exercise of statutory discretion and D immune over animals in control. Vaughan v. Taff Vale Ry Co. (1860 ER): unless negligence, no liability from legislatively sanctioned act BUT Quebec Ry. Co. v. Vaundry [1920 AC PC]: authority not a license to commit torts; Ryan v. Victoria: narrow defence Jones v. Festiniog Ry Co (1868) QB: legis never meant to excuse D for D’s sparks setting fire to P’s haystack AG v. Colney Hatch Lunatic Asylum (1868 UK) and Burgess v. City of Woodstock [1955 OR]: ditto re sewer flooding AG v. Leeds Corp (1970 UK): ditto re smallpox hospital; Rapier v. London Tramways Co [1893 UK CA] horse stable 2) Animals Rule For ferae naturae (dangerous, like lions), strict liability; for mansuetae naturae (possibly dangerous individually, like dogs), depends on the animal. Animals must be in D’s control for D to be liable. Test Case: Diversified Holdings Ltd. v. R in Right of British Columbia (1982 BCCA): D’s program to feed elk near P’s property caused increase in population; when program was cancelled, they damaged P’s crops and property. P fucked because this was an exercise of statutory discretion and D immune over animals in control. Lewis v. Oeming (1983) (UK QB): animals must be in owner’s control to be strictly liable. Bacon v. Ryan (1995 SKQB): possession and control, not ownership, create responsibility Fleming v. Atkinson [1959 SCR]: farmers now responsible for their herds on roads, overturning old UK common law. Rule “Every dog is entitled to one bite” – can only be liable for foreseeable damage from mansuetae naturae. Test Case: Sgro v. Verbeek (1980 OnHCJ): D’s German shepherd not used to children, bit P’s kid and had never bitten anyone. D not liable; dog’s only propensity was to bark and run at strangers, and this bite was not consequent to that. Draper v. Hotter [1972 QB]: D should have foreseen his dog would have bitten P’s child. Acheson v. Dory (1993 ABQB): D’s stallion tried to bite P’s horse but bit P. No “special propensity” = no liability, even in negligence 3) Fires Rule Generally strict liability; generally a non-natural use of land. Test Case Franks v. Sanderson (1986 BCCA): fire at D’s garage spread to P’s café and grocery store. P must prove D is liable for fire to collect from D. Musgrove v. Pandelis [1919 KB CA]; Goldman v. Hargrave [1967 AC PC]: can be liable for accidental fire if negligent about it Maron et al v. Baert & Siguaw Devs. Ltd. (1981 QB): garages used for welding, so fire in garage is reasonable Hudson v. Riverdale Colony (1980 MB CA): D liable for slough fire set to prevent another fire from spreading 4) Products Liability Rule strict liability if there are foreseeable dangers, duty, and reliance Test Case Escola v. Coca Cola (1944 Cali SC): Coke bottle explodes in P’s hand: res ipsa locquitur and basic Donoghue v. Stevenson reasons: no intermediary, implicitly safe by being on the market, non-negl use by P; need strict liability as blunt force solution to make sure manufacturers don’t fuck around. Rae v. T. Eaton Co. (1961 NSCA): test is not “whether product is sold” but all circumstances of manufacture & sale Greenman v. Yuba Power Products Inc (1963 Cali SC): D’s tool caused piece of wood to fly off and hit P in head. Same basic reasons as above, less res ipsa locquitur) Henningsen v. Bloomfield Motors Inc (1960 NJ): P injured when steering gear screwed up. D breached implied warranty of merchantability Shandloff v. City Dairy [1936 ONCA]: D liable for glass particles in chocolate milk for basic reasons in Escola Willis v. FMC Machinery and Chemicals (1976 PEI SC): herbicides inherently dangerous: must take all reasonable care Ives v. Clare Bros. Ltd. [1971 ONHCJ]: D liable for defective furnace b/c D installed it etc. BUT
Arendale et al v. Canada Bread Company Ltd. [1941 ONCA]: D not liable for glass in bread because he took all reasonably possible steps Heimler v. Calvert Caterers Ltd. (1975 ONCA) D liable for contaminated food; high duty of care. Nusiance: 1) land-related; 2) must prove special damages if you have no interest in the land being violated. Private Nuisance: TEST: 1) Significant interference with occupier’s use and enjoyment of property 2) Need not have been negligent; 3) interest in land must have been invaded; frequently results from lawful acts (Royal Anne Hotel v. Ashcroft (BCCA 1979) No defense if… P came to nuisance; nuisance beneficial to public; nuisance causes minimal harm; all possible care is taken D’s act must have predicate nuisances to consitute nuisance; D is reasonably using his own property (Russell Transport v. Ontario Malleable Iron [1952 ONHC]) BUT you can consider 1) Reasonableness of use; 2) Character of the locality, and 3) Special sensitivities of P Pugliese et al v. NCC (1979 SCC): D construction lowers P’s groundwater table, causing subsidence. Must consider balance between rights of property owners. No right to support from water, but right of action in nuisance. Tock v. St. John’s Metro Area Bd. [1989 SCR] Facts: D’s sewer overflows in heavy rain, floods P’s basement. Ratio and Analysis: D had authority to construct sewers, but duty to do so respecting private rights. D’s stupidity = nuisance Russell Transport Ltd. v. Ontario Malleable Iron Co. [1952 ONHC]: P using land as a marshalling yard, but D’s foundry causes particles to mar finish. Yes, you have reasonable expectations depending on where you reside, but regardless of reasonable use, this is about a material injury to property: it’s not like automobile finish is delicate stuff. Exercise of Rights No Excuse Hollywood Silver Fox Farm Ltd. v. Emmett [1936 KB]: D doesn’t like P, takes his shotgun and starts firing it off on his own land to disrupt fox breeding habits. Court says he has no absolute right to shoot and make noise on his own land. And he’s a prick. Motherwell v. Motherwell: D kept calling P 50 times a day and says it’s lawful activity. Invasion of privacy claim established via nuisance: this is active interference with P’s enjoyment of normal necessities of life. AG of Manitoba et al v. Campbell (1983 MBCA): D owns a farm by the airport. P announces it’s expanding a runway. D gets pissed off and erects a useless steel tower to screw with aircraft. Court makes D take it down. Exception Bradford v. Pickles [1895 HL]: D keeps diverting water to piss off P and induce them to purchase his farm. P cannot get injunction because P has absolute water rights. Nature of Neighborhood Rule: Generally irrelevant (“fresh noise” is still actionable), but minor nuisance in bad area less actionable than minor nuisance in good area Test Case: Appleby v. Erie Tobacco Co (1910 ONSC): D’s tobacco processing stinks to high heaven. “Fresh noise” principle: just because you live in a dirty/stinky/noisy area doesn’t mean that one more feather on the camel’s back isn’t actionable. Oakley v. Webb (1916 ONCA): D stonecutting not actionable because P lives behind a railway yard. Thompson-Schwab v. Costaki [1956 CA] P lives in good neighborhood, ergo can have injunction against local brothel. Everett v. Paschall (1910 Wash.): TB sanitarium not allowed in residential area. Sturges v. Bridgman (1879 UK): P a doctor with a consulting room next door to D; D gets a noisy machine. Yes, there’s a nuisance, tough on D. “P coming to the nuisance is no defence” (Fleming v. Hilsop 1886 AC), but consider if P was aware of it, + time involved in complaining etc. Andreae v. Selfridge & Co Ltd [1938 CA]: Noise and dust of building being demolished not out of ordinary as far as the demolishing of buildings goes, ergo not actionable Muirhead v. Timber Bros Sand and Gravel (1977 ONHC): Dust and noise from quarry are nuisance. Segal v. Derrick Golf and Winter Club (1977 AB TD): Golf balls landing on P’s property are a nuisance. Jackson v. Drury Construction (1974 ONCA): Blasting causing cracks causing leaks causing water pollution IS actionable. Shuttleworth v. VGH [1927]: D not liable for infectious diseases ward lowering P’s property value (close to D). Damage to P and his property value is merely “sentimental”. BUT Everett v. Paschall (1910 Wash.): TB sanitarium not allowed in residential area. Nuisance without interest in property Rule: Ambiguous Cases Hunter v. Canary Wharf [1997 AC HL]: P says D construction interferes with TV reception and creates dust. Only those with interest in land can sue in nuisance. Sutherland v. Canada (AG) [2001 BCSC]: Children of homeowners cannot have cause of action re noise of airport. BUT Motherwell v. Motherwell (1976 ABCA) and Devon Lumber Co v. MacNeill (1987 NBCA): occupants, spouses, kids, etc. all have individual rights to enjoy premises. Public Interest Miller v. Jackson [1977 QB CA]: P is a bitch who doesn’t like cricket. Denning tells her to move or suck it up. Cricket rules. Also, public interest is a huge tiebreaker. BUT this is an aberration. Ward v. Magna International (1994 ON Gen. Div.): D liable for P’s noisy use of recreational park. D must modify activities. Boomer v. Atlantic Cement Co (1970 NY): Court orders “permanent damages” to P for noise and smoke etc from D’s plant. But no owner can ever sue D again. D too valuable a company to local owners. Spur Industries Inc v. Del E. Webb Development Co (1972 Ariz): P gets injunction only if P compensates D for costs in preventing nuisance. Tock v. St. John’s Metro Area Bd. [1989 SCR] Facts: D’s sewer overflows in heavy rain, floods P’s basement. Ratio: Plumbing and sewers are a normal modern use of land and flooding happens, but that’s no reason why random people like P should be fucked over. D has deeper pockets. D should prove they did all they could etc. Sensitivity Rule: Generally, abnormally sensitive plaintiffs cannot recover Cases O’Regan v. Bresson (1977 NSCCt); Devon Lumber Co v. MacNeill (1987 NBCA): abnormally sensitive plaintiffs (athsma etc.) cannot recover; also, Lewis v. Town of St. Stephen (1981 NBCA): 15 year-old girl terrified of airplanes thanks to D’s spray aircraft, but this is abnormal sensitivity. St. Pierre v. Ontario [1987 SCR] : D not liable for hwy built next to P retirement home. Did not significantly alter nature/enjoyment of property, and highways are a huge public good. Statutory Authority Mandrake Management Consultants v. TTC (1993 ONCA): D’s subways are useful and common to the city, and even so, they have statutory authority. P has to suck up the noise and vibrations. Ryan v. Victoria [1999 SCR]: “statutory authority is, at best, a narrow defence” but must be “inevitable” or “practically impossible” to avoid Tock v. St. John’s Metro Area Bd. [1989 SCR]: Authority is usually permissive, not mandative. D should prove they did all they could etc. Sutherland v. AG Canada (2002 BCCA): Whoso asserts statutory defence must prove it and that nuisance is inevitable and that the statute permits it. Allen v. Gulf Oil Refining [1981 AC]: P mad at D’s construction of refinery works; Denning strictly looks at legis and decides it wasn’t the explicit intent of Parliament to permit damage without redress Schneck et al v. R. in Right of Ontario (1981 ONHC): P’s fruit crops damaged by road salt. Statutory duty not enough. TV signals, rights of receipt Rule: Ambiguous. Cases Nor-Video Services Ltd. v. Ontario Hydro (1978 ONSC): D liable for knowingly putting hydro tower in a place that would interfere with P’s TV signals, despite better alternatives. TV is critical to normal enjoyment of modern property. BUT Hunter v. Canary Wharf [1997 AC HL]: P says D construction interferes with TV reception and creates dust. House of Lords tells them to suck it up, nuisance deals with things escaping from the building. Reception interference is like light interference, just a fact of life with buildings. AND only those with interest in land can sue in nuisance: explicitly frowned upon Canadian cases: Public Nuisance: TEST: Interference with public convenience and welfare (things on road etc.) Actionable if special damage to an individual or falls under another tort Proved Exceptional Damage Cormier et al v. Blanchard (1980 NBCA) : D fish processing plant interferes with P land by discolouring water, attracting seagulls, leaving slime, preventing maritime recreation. Both public AND private nuisance. P wins. Newell v. Smith (1971 NSTD): D blocked roadway, prevented P’s access to property = P suffered particular damage Mint v. Good [1951 KB CA] P injured by collapse of wall beside highway. D held liable because wall in unreasonable disrepair is a risk to anyone who passes by on public highway. Harrold v. Watney [1898 QBCA]: ditto if P on private land, but Hardcastle v. South Yorkshire Ry (1859) not if too far away BUT Ross et al v. Wall et al (1980 BCCA): owner only liable for defective wall if he was negligent Burgess v. M/V Tamano (USDC Maine 1973): D spills oil. Fishers, clam diggers have a claim because of a special interest, but town’s businesses cannot (plus loss of business is indirect) Esso v. Southport [1955 HL]: Esso discharges oil which washes on S’s shore. Anyone who suffers greater damage than normal can claim. King’s lands naturally offended by this. R. v. The Ship Sun Diamond et al [1984 FCTD]: Crown can recover for oil damage after two ships collide off Vancouver, but only for public (not private) cleanup. Bon pere de famille principle = Crown duty to clean up = special damage. Failed to Prove Exceptional Damage Hickey v. Electric Reduction Co of Canada (NF SC 1970): also McRae v. British Norwegian Whaling Co [1927-31 NFSC]; also Fillion v. New Brunswick International Paper Co [1934 NBSC] : D discharged poisonous material into waters, polluting fish. All other fishermen (and public) suffered equally, esp since everyone has a right to fish, ergo P fails. P can only sue for particular and special damages, not damage particular to a class. Manitoba (AG) v. Adventure Flight Centres Ltd (1983 MBQB): residents complained about D’s ultra-light flight training. No cause of action because they had not proved “particular, direct, substantial” damage beyond what public suffers. Stein and Tessler v. Gonzales: Crown pushes prostitutes downtown; business owners fail in nuisance because they cannot prove specific damage. See also NS AG v. Beaver (1984 NSCA). ON (AG) v. Dieleman (1994 On Gen Div): anti-abortion nuts can picket public hospitals, not private homes and clinics Chessie v. JD Irving Ltd. (1982 NBCA): P injured when collided snowmobile with D’s wharf. D not liable because wharf did not unreasonably interfere with right of passage over ice. Directory: wordpress -> wp-content -> uploads -> 2011 uploads -> Professor rona s beattie and dr david bamaung glasgow caledonian university email for corresponding author uploads -> Best Offensive Players: qb #19 keenan reynolds, N, ’16. Lg #57 E. K. 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