Dear Steve;
Thanks for your very interesting comments. At the risk of further exposing my lack of understanding of civil law, I think two comments are in order.
(1) I can see some arguments which might justify distinguishing the ability to obtain a future injunction from the ability to get an award in damages for past injury, but it is worth noting that in Australia the High Court a few years ago, in Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/46.html ruled that where a statute provided a local Council with an immunity from suit in private nuisance framed in terms of "A council does not incur any liability in respect of:", this immunity also extended to them not being amenable to an injunction to prevent future harm.
(2) I understand your final para to suggest that art 976 CCQ might be subject to an implied restriction based on art 1457, at least in claims for damages. But (and I may be wrong) I thought that was precisely the proposition rejected by the SCC in St Lawrence at [86] (having previously distinguished fault-based actions under art 1457 at [33]-[34]). An award of damages was approved in the proceedings explicitly on a no-fault basis.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> "Stephen Smith, Prof." <stephen.smith@mcgill.ca> 29/11/08 6:51 >>>
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 neighbours 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 cant explain why this should matter in principle.
I wont 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 defendants 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 ones ability to obtain damages for such interferences requires a link between the loss and the defendants 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 Quebec
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 Australia at any rate there are conflicting dicta on the subject of whether a finding of nuisance requires "fault"- for the view that it does see Bryson JA in Sutherland Shire Council v Becker [2006] NSWCA 34 at [119]:
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 Quebec decisions finding a no-fault nuisance-like liability which the SCC said formed part of the background to the enactment of art 976. (See eg [58]). But I don't resile from saying this is very similar to Rylands v Fletcher liability- for example, they hold that (contrary to the current English law on nuisance in Hunter v Canary Wharf) there is no need for those who are injured to have a "proprietary" interest in land- see paras [81]-[84]. But I concede it is not identical- unlike R v F there is no need under the statute for an "escape" of something from the land, so presumably "abnormal or excessive annoyance" could occur in ways that would not be actionable under R v F.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
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/> <http://www.etl.oeaw.ac.at/>
________________________________
From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au] <mailto:[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 Quebec. That is no problem as a matter of theory- Rylands v Fletcher is pretty close to that. But the liability is based on Article 976 of the Civil Code of Quebec, which provides:
"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
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931