| From: | Stephen Smith, Prof. <stephen.smith@mcgill.ca> |
| To: | Neil Foster <Neil.Foster@newcastle.edu.au> |
| Ken Oliphant <ken.oliphant@oeaw.ac.at> | |
| obligations@uwo.ca | |
| Date: | 28/11/2008 19:51:18 UTC |
| Subject: | RE: St Laurence Cement - statutory Rylands v Fletcher in Quebec |
In thinking about the role of fault in the
civilian equivalent of liability for nuisance I was led to wonder if we ought
to distinguish between two (or maybe) three types of ‘liabilities’. As a matter
of principle, it seems clear (to me at least) that fault should be irrelevant when
considering whether someone subject to an unreasonable interference with the use
of their property (‘unreasonable’ in the sense used in Art 976 and the common
law, i.e., (roughly) excessive/abnormal) should be able to obtain an injunction
against that interference. If noxious smells coming from my neighbour’s
property make it impossible for me to sit outside, then I should be able to get
an injunction to stop the smells regardless of whether my neighbour is
responsible for those smells in the sense of having done something that he knew
or should have known would cause the smell. Thus, if the smells emanate from a
pile of dead animals that, unknown to my neighbour, were buried by a previous
owner (they now smell because rain has washed away the topsoil), my neighbour should
do whatever is necessary to stop the smell. This forward looking obligation to
stop the smell is not inconsistent with a ‘fault’ standard because, while once
my neighbour is aware of the smell he is at fault for allowing it to continue. It
is intentional wrongdoing, albeit the for an omission.
By the same reasoning, it seems clear that
my neighbour should be liable to pay damages for any harm I suffer from the
smells once he is aware of the smells and fails to take steps to stop them. Again,
though my neighbour is not careless, he is at fault in an ordinary sense of the
world for failing to do what any reasonable person would do. But it is much
less clear to me that my neighbour should be liable to pay me damages for any loss
of enjoyment that I suffered prior to him becoming aware that the smell
was emanating from his land (which might be the case if the animals remained
partially buried while they were giving off the smell). In this case, on the
facts, my neighbour is not at fault in any plausible sense of the word for the
smells; he neither knew about the smells nor should have known about them. Of course,
if my neighbour was at fault for creating the smells (e.g., if he buried the
animals without taking proper precautions, etc.) then he should be liable for
damages regardless of his knowledge. But otherwise, liability for my past loss
seems unfair. Of course, there are various situations where the law has thought
it appropriate to impose strict liability. Perhaps this should be one of them,
but it is not obvious why. Whatever one thinks of them, the usual policy
arguments about deterrence, enterprise liability, etc. seem inapplicable. Intuitively,
the argument for strict liability in a case where the loss was not mere loss of
enjoyment but was physical (e.g., the smell caused me to become physically ill)
seems stronger, but not much and I can’t explain why this should matter in
principle.
I won’t attempt to say how close the law,
civil or common, lines up with these intuitions. But it is interesting to note that
although the right, enshrined in Art 976 CCQ, to be free from excessive
interferences says nothing about fault, the basic obligation to repair the
consequences of a wrong (Art 1457 in the CCQ, 1382 in the French CN) only kicks
in if the loss arose through the defendant’s fault. The complete picture is
more complex in the CCQ because ‘fault’ can mean different things in different
contexts; because the CCQ also contains, in addition to 1457, separate clauses
on damages which do not refer to fault – see Art 1608; and because is difficult
to tell what standards the courts are actually doing (because there are few
cases in which the defendant is not at fault in any sense and because the
courts rarely explain in detail how they calculate damages). Nonetheless, the
point is that the CCQ gives some expression to the idea that one should have a right
to stop others from interfering with your ability to use and enjoy your
property in the usual ways, regardless of how that interference came about, but
that one’s ability to obtain damages for such interferences requires a link
between the loss and the defendant’s fault in the sense described above.
cheers
Steve (Smith)
From: Neil
Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: 25 November 2008 20:25
To: Ken Oliphant;
obligations@uwo.ca
Subject: RE: St Laurence Cement -
statutory Rylands v Fletcher in
Dear
Ken;
You
are quite right to say that the SCC draws a parallel between their no-fault
rule based on the CCQ art 976, and what they say is a no-fault rule in the
common law of nuisance. Nor do they mention Rylands
v Fletcher. But (and I should have made this clearer initially)
the reason I brought in R v F is that it seems to me that they may be wrong
about the current common law of nuisance, for just the reason that you note in
your comment- that it is debatable whether indeed nuisance is now a
"no-fault" liability. Certainly a fuller account of the common law
should at least have mentioned the debate occasioned by the words of Lord Goff
in Cambridge Water Co Ltd v Eastern
Counties Leather plc [1994] 2 AC 264, at 300:
[T]he fact that the defendant has taken all reasonable care will not of itself exonerate him... But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee.
I
have taken the quote from Street on Torts
(12th ed) p 438. John there takes the view that, I think, that the nature of the possible harm must be
foreseeable, but the precise circumstances
of the harm occurring need not be. In St
Laurence Cement the trial judge held that all state of the art
precautions had been adopted, but there was still "excessive
annoyance" and hence there was no-fault liability. On this view of
nuisance presumably an action in nuisance would have succeeded. In
Although there may be some exceptions, fault of some kind is now usually necessary for liability in nuisance; see The Wagon Mound (No 2) at 639, and Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282 at 284.
The
main thing I guess I was commenting on was the (to my mind) unusual step of
statutory interpretation involved in moving from a provision that says "A
cannot complain of B's 'normal' annoyances", to find a civil action by A
for B's "abnormal" annoyances. Re-reading the case the result seems
to have been driven by a series of previous
Regards
Neil
F
Neil
Foster
Senior
Lecturer, LLB Program Convenor
Faculty of Business & Law
MC158,
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931
>>> Ken Oliphant <ken.oliphant@oeaw.ac.at> 25/11/08 8:33 >>>
What's the fuss? Isn't this a straightforward case of (in common law terms)
private nuisance? SCC doesn't mention Rylands at all. But it does draw this
parallel:
[77]
At common law, nuisance is a field of liability that focuses on the harm
suffered rather than on prohibited conduct (A. M. Linden and B. Feldthusen,
Canadian Tort Law (8th ed. 2006), at p. 559; L. N. Klar, Tort Law (2nd ed.
1996), at p. 535). Nuisance is defined as unreasonable interference with
the use of land (Linden and Feldthusen, at p. 559; Klar, at p. 535).
Whether the interference results from intentional, negligent or non\u8209 -faulty
conduct is of no consequence provided that the harm can be characterized as a
nuisance (Linden and Feldthusen, at p. 559). The interference must be
intolerable to an ordinary person (p. 568). This is assessed by
considering factors such as the nature, severity and duration of the
interference, the character of the neighbourhood, the sensitivity of the
plaintiffs use and the utility of the activity (p. 569). The interference
must be substantial, which means that compensation will not be awarded for
trivial annoyances (Linden and Feldthusen, at p. 569; Klar, at p. 536).
FWIW, while I agree with the above in substance, I maintain the rather
unfashionable view that the liability is still correctly categorised as one for
fault. The best analysis is in Williams & Hepple, Foundations of the Law of
Tort (2nd edn. 1984), which no one to my knowledge has yet satisfactorily
refuted.
Thanks anyway for drawing this interesting case to our attention, Neil.
Best
Ken
Ken Oliphant
Institute for European Tort Law
Reichsratsstrasse 17/2, A-1010 Vienna, Austria
Tel. (+43-1) 4277-29 662, Fax (+43-1) 4277-29 670
http://www.etl.oeaw.ac.at <http://www.etl.oeaw.ac.at/>
________________________________
From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: 25 November 2008 02:28
To: obligations@uwo.ca
Subject: ODG: St Laurence Cement - statutory Rylands v Fletcher in Quebec
Dear Colleagues;
As a common lawyer I must say the gap between my system and the
"civil" law (or whatever one calls the system in Quebec) has never
been illustrated with such clarity as when I have been trying to understand the
decision of the SCC in St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64
(20 Nov 2008) http://scc.lexum.umontreal.ca/en/2008/2008scc64/2008scc64.html . The court rules that there is a civil,
no-fault liability for causing "abnormal or excessive" annoyance to
neighbours in
"976. Neighbours shall suffer the normal neighbourhood annoyances
that are not beyond the limit of tolerance they owe each other, according to
the nature or location of their land or local custom."
? I'm sure it sounds better in French, but as far as I can tell reading the
English version of the judgement, that is it. So a provision which says
"neighbours have to put up with the ordinary events of neighbourhood
life", is then interpreted to find a full-blown no-fault liability for
someone who causes "excessive" annoyance. In the end the
interpretation is based on examination of the legislative history, although to
this little black duck a legislative history (see paras [54] ff) which involved
two previous draft provisions which would have explicitly imposed liability for
"damage to another beyond the normal inconveniences resulting from
proximity", but which were deliberately not adopted, seems to suggest a
different outcome...
I notice, following up some comments I seem to recall Jason made recently, that
there is also some discussion of "abuse of rights" as a possible
basis for a civil claim as well at [23]-[29].
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Faculty of Business & Law
MC158,
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931