Dear Colleagues:

I would be interested in anyone's view as to whether Tarry v Ashton is correctly decided (as a matter of principle).  The facts were as follows:  The defendant was an occupier of a house, from the front of which a heavy lamp projected over the public foot-pavement. As the plaintiff was walking along, the lamp fell on her and injured her.  The lamp fell because a person employed by the defendant hung on the lamp after his ladder fell away.  The jury found that the real reason that the lamp fell was because the screws fastening it to building were decayed (ie it would not have fallen had the screws been intact). They also found that the occupier was not negligent (he did not know the screws were decayed and the person employed to work on the lamp was a professional lamp repair-person).    The court found the defendant liable on the basis that if a person maintains a lamp projecting over the highway for his own purposes it is his duty to maintain it; and if it causes injury owing to want of repair, it is no answer on his part that he had employed a competent person to repair it.

The decision seems a little off to me since the lamp did not create a state of affairs that impeded anyone's right to pass or repass over the public highway (and is therefore not a public nuisance on that basis).  Moreover, since it is therefore the claimant's right to bodily integrity that is at issue, my gut reaction is that the owner should be liable only if he was negligent. I realize that there is a line of authority which Tarry spawned which holds people strictly liable for personal injury caused by structures near the public highways but I what I am grappling with is whether this is a legitimate offshoot or something that needs pruning.

Any and all thoughts appreciated.

 

-- 
Jason Neyers
Cassels Brock LLP Faculty Fellow in Contract Law
Associate Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435