Date: Tue, 25 Jul 2006 10:52:26 -0600

From: Lewis Klar

Subject: The Rule in Rylands v Fletcher

Canadian tort law does not have a principle of strict liability for ultra hazardous or abnormally dangerous activities. The principle of Rylands v Fletcher could have created one, had courts chosen to interpret non-natural use as meaning abnormally dangerous. But, as I indicated in my earlier e-mail, for the most part non-natural use has been defined in terms of how ordinary the activity is, without regard to its level of abnormal danger. Thus socially beneficial and common activities have frequently been excluded from the Rylands principle, notwithstanding their level of risk. (Also the "escape" requirement would pose another obstacle to using R v F as a strict liability principle for ultrahazardous activities.)

The real interesting point is how nuisance law has been mis-used in Canada. It is a type of strict liability tort since reasonable care is not a factor where a nuisance has been established. I concede that "unreasonable" use must be established, but I agree with the views of others on the list who have argued that unreasonable use is not a question of fault (unless fault is defined broadly and without regard to the moral quality of the act, which seems to me to rob it of any useful meaning). In Canadian law, any interference with another person's use and enjoyment of land which is substantial is by definition a nuisance and the fact that reasonable care was exercised by the defendant is not a defence. Property damage or personal injury caused by a neighbour's activity is substantial, by definition. Where there is only "intangible" discomfort or damage, reasonable care would be a factor in determining whether the use was unreasonable.

Canadian law continues to apply nuisance law to one time interferences (eg the overflowing of a drainage system). It also continues to apply nuisance law to personal injury cases. This is where the real problem lies, and where strict liability is introduced into Canadian tort law, without a clear logic. Thus if you have an accidental, one time, discharge of water into your neighbour's basement which damages property, it will be declared to be a nuisance and reasonable care will not be relevant. Or, if your tractor accidentally rolls down your hill, crashes through your neighbour’s fence, and kills your neighbour as he stands on his field, this would seem to qualify under distorted Canadian nuisance law principles as a nuisance. Fault will not be required. This makes no sense at all, and as others have eloquently written, the boundaries of nuisance law must certainly be looked at, especially I would suggest, in Canadian law.

Lewis Klar

>>> Stephen Sugarman 7/24/2006 5:27 PM >>>

I don't mean to dispute what Richard Wright wrote about the US law. But I want to raise a simple point.

We seem to have reasonably wide agreement in the US that there are a few situations when a defendant may be held liable without any proof of fault on his part.

Relevant here are cases of "abnormally dangerous activities" (or "extrahazardous activities" or "ultrahazardous activities"). To qualify, these activities must be both quite risky and not common.

By quite risky, I think we mean at a minimum that a large amount of damage might (but need not in the actual case) occur if things go awry.

It is less clear whether the probability of harm must meet some threshold (I don't think so.) By uncommon, I think we mean not frequent, but some would include activities done only be specialists (not ordinary folks), even if they do the activities a lot.

Of course, sometimes those engaging in ultrahazardous activities do so in a careless manner and could held liable under ordinary negligence law. But the bite of this are of the law is that proof of fault is not required, and indeed, convincing us that you were not at fault does not allow you to avoid liability. This is why it is "strict liability" as Professor Wright stated.

I also believe that activities covered under this doctrine are not ones that it is unreasonable to engage in. Indeed, were it unreasonable to do the activity at all, then again there would be liability under fault rules. Rather, these are activities which we have concluded are socially acceptable (perhaps even desirable) and yet we force the actors to pay for the accident costs they impose. (Why we do that is another matter I will not go into here.)

Nuisance law in the US, in my view, requires either that D was at fault (in the negligence sense -- either for carrying out an unreasonable activity or for doing a reasonable act in a careless manner) or that D's conduct was an ultrahazardous activity that calls for strict liability as just described. Apart perhaps from some special cases of truly intentional harm that Professor Wright alluded to, I think that this exhausts the scope of nuisance liability in the US. Hence, in my view, nuisance itself does not provide some helpful independent basis for liability. It just carries over the other two main categories to actions that tend to be ongoing or at least causing ongoing harm.

As Professor Wright says, we take Fletcher v Rylands to be an example, or to suggest the possibility of an example, of ultrahazardous activity liability; and so whether the precise actions there would qualify aside, it represents the idea of how we'd treat, say, dynamite blasting -- strict liability.

The question, then, is to what extent do other common law systems recognize true strict liability for what we call ultrahazardous activities, regardless of the label they employ to get there. This has not been clear to me in the exchange so far.

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