Dear Jason;

You are no doubt aware of this but in Australia it still seems to be open to recover damages for personal injury flowing from private nuisance. See Pelmothe v Phillips (1899) 20 LR (NSW) (L) 58, and more recent dicta of Windeyer J in Benning v Wong (1969) 122 CLR 249 at 318 also support recovery. His Honour was considering a claim in Rylands v Fletcher for escape of gas from a gas pipe but said:

 

A plaintiff who sues as an occupier of land, basing his case upon Rylands v. Fletcher (1868) LR 3 HL 330, is in my opinion entitled to recover damages for all harm which he has suffered which he could recover in an action for nuisance or trespass to land. In nuisance his claim would not be only for an injurious affection of his land diminishing the value of his interest in it. It would extend to harm done him by the disturbance of the healthy and peaceful enjoyment by him of his right there. I see no reason why those damages should not extend to any personal harm the nuisance has there caused him. A person who has a personal right of action because of some particular damage he has suffered by reason of a public nuisance, for example if he be hurt by the obstruction of a highway, has long been regarded as being entitled to recover for medical expenses, loss of earnings and so forth : see the precedent and cases referred to in Bullen & Leake, Precedents of Pleadings, 3rd ed. (1868), pp. 379-381. In the same way in an action for a private nuisance to a plaintiff's land, by for example polluting the air, damages have always been regarded as recoverable for such resulting harm as poisoning the plaintiff's animals : Bullen & Leake, Precedents of Pleadings, 3rd ed. (1868), pp. 382-383. If a land occupier who sues in nuisance can recover because his animals were made sick I cannot see why if he sues relying on Rylands v. Fletcher he cannot recover because he has himself been made sick.

 

This doesn’t quite address your question because the plaintiff in this case was treated as an occupier of land, not simply someone who enjoyed an easement; but it may be relevant.

Regards

Neil

 

 

 

 

 

Dear Colleagues:

Does anyone know of a case where damages for personal injury were awarded in a nuisance case which were consequential on an interference with an easement? I realize that since Hunter v Canary Wharf such a case should not exist but was wondering if there was anything in the pre-Hunter UK law or in Canadian law.  I couldn't seem to find anything in Gale.

Sincerely, 

-- 

Jason Neyers

Professor of Law

Faculty of Law

Western University

N6A 3K7

(519) 661-2111 x. 88435