I would interpret 'unreasonable' interference in this context as meaning 'substantial' interference (see my essay in the Obligations V collection), and so I don't see any incompatibility between that concept and the idea of a one-off event which leads to physical damage giving rise to nuisance liability.

As for Rylands, as I recall a nuisance analysis was dismissed by Martin B in the Court of Exchequer in a rather cursory way, and there was more discussion there and in the Exchequer Chamber of trespass to land. It may be that the perception that nuisance required an ongoing state of affairs was the reason why it wasn't given more consideration, but even though that perception exists the fact remains that liability in nuisance is routinely recognised in cases involving floods and collapses of land etc.

Donal

 

---

From: John Goldberg [jgoldberg@law.harvard.edu]
Sent: 18 October 2012 19:42
To: obligations@uwo.ca

Subject: RE: ODG: Can an isolated event be a nuisance?

With due deference to the experts, and aware that I am unburdened by detailed knowledge of the relevant case law, it seems to me that ‘ongoingness’ may be built into the idea of “unreasonable interference.”   Thus, to Donal’s point, I would think that a one-off flood is better handled through negligence or trespass (or, in the case of a bursting reservoir, abnormally dangerous activity liability).  I am less sure it should count as nuisance.  Indeed, if a one-off flooding is so obviously capable of being a nuisance, then why was there anything for the judges to struggle with in Rylands v. Fletcher?  I know that some modern courts interpret Rylands as a nuisance case.  But in Rylands itself the Lords seem pretty clearly not to have relied on a standard nuisance framework to resolve that case  - there is no discussion of the unreasonableness of the interference, for example.  If so, wouldn’t that suggest that they, at least, had a notion that nuisance doesn’t sit well with one-off interferences?     

 

From: Donal Nolan [mailto:donal.nolan@law.ox.ac.uk]
Sent: Thursday, October 18, 2012 2:28 PM
To: Lewis N Klar; Matthew Dyson
Cc: Jason Neyers; obligations@uwo.ca
Subject: RE: ODG: Can an isolated event be a nuisance?

 

I agree with Lewis that the law is clear on this: isolated events such as one-off floods and landslips are routinely treated as giving rise to liability in private nuisance, and have been for a long time.

 

I don't however think that we should be worried by this, or by any overlap with negligence which results. I can't see any reason why a private nuisance should have to be an ongoing state of affairs, and the view that it should seems to me to confuse the old assize of nuisance (for which the primary remedy was specific relief, and which wouldn't therefore have been appropriate once the 'nuisance' had terminated) with the modern action on the case for nuisance, where damages for past harm are of course routine. As for the overlap with negligence, such overlaps seem to me to be inevitable in common law systems which combine nominate torts protecting specific interests with a more general cause of action for negligently inflicted damage. 

 

Donal  

---

From: Lewis N Klar [lklar@ualberta.ca]
Sent: 18 October 2012 18:56
To: Matthew Dyson
Cc: Jason Neyers; obligations@uwo.ca
Subject: Re: ODG: Can an isolated event be a nuisance?

Hi Jason:

 

There are many Canadian cases where one time isolated events have been actionable in nuisance -  bursting of water mains, back up of sewage or drainage systems, for example. In my  text (5th edition) I cite a number of these cases at p. 769 at footnotes 136 and 137.  They emanate from Courts at all levels. As I noted, at p. 770, it has been stated that "one incident of physical damage to property may constitute nuisance". Thus I think there is no doubt that this is Canadian law.

 

Having said that, I express unhappiness with that view; it is certainly not a classic nuisance, if the event is accidental, occurs one time, and the activity does not constitute an on-going nuisance. I suggest that the law must be rationalized so that nuisance is not a substitute for an injury which would normally be actionable in negligence, if neighbouring properties were not involved. 

 

Lewis  

On Thu, Oct 18, 2012 at 10:56 AM, Matthew Dyson <mnd21@cam.ac.uk> wrote:

The first one that pops into my head is British Celanese v Hunt [1969] 1 W.L.R. 959 per Lawton J

*969

...Most nuisances do arise from a long continuing condition; and many isolated happenings do not constitute a nuisance. It is, however, clear from the authorities that an isolated happening by itself can create an actionable nuisance. Such an authority is Midwood & Co. Ltd. v. Manchester Corporation [1905] 2 K.B. 597 <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=IFA777081E42711DA8FC2A0F0355337E9>, where an electric main installed by the defendants fused. This caused an explosion and a fire whereby the plaintiffs's goods were damaged. The Court of Appeal held that the defendants were liable, all the Lords Justices being of the opinion that they had caused a nuisance. The explosion in that case arose out of the condition of the electric main: the “flash over” in this case was caused by the way in which the defendants stored their metal foil, whereby those in the neighbourhood were exposed to the risk of having their electric power cut off. I am satisfied that the law is correctly stated in /Winfield on Tort /, 8th ed. at p. 364: “When the nuisance is the escape of tangible things which damage the plaintiff in the enjoyment of his property, there is no rule that he cannot sue for the first escape.” Anyway, in this case, the alleged happening of December 7, 1964, was not the first escape: there is said to have been one in 1961.


The plaintiff manufacturers claimed damages against the defendants, manufacturers of electrical components, alleging by their statement of claim that in December, 1964, metal foil strips blown from the defendants's factory premises on the same industrial estate as the plaintiffs's factory came into contact with an electricity sub-station on the estate, causing a power failure which brought the plaintiffs's machines to a halt; and that as a result certain materials in their machines solidified, the machines had to be cleaned before production could restart, materials and time were wasted and production lost. The electric sub-station, which included 33 kilowatt bus bars standing in the open air, lay 120 yards from the defendants's factory. The plaintiffs claimed that the defendants knew or ought to have known that the likely consequences of allowing their metal foil to escape would be for a strip to be blown against more than one of the bus bars, thereby causing a flash-over resulting in a power failure for a similar flash-over had occurred three years previously owing to the escape of the defendants's foil, and the latter had received a warning letter from the electricity board. The plaintiffs claimed damages under each of the four heads: on the basis of strict liability under the rule in Rylands v. Fletcher (1868) L.R. 3 H.L. 330 <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=I913A6901E42811DA8FC2A0F0355337E9>, in negligence; for nuisance and for public nuisance. The defendants contended that nothing more than a damnum absque injuria was revealed.

On the trial of a preliminary issue whether, on the facts set out in the statement of claim, the defendants were in law liable for the damage claimed:—

/Held, / (1) that the plaintiffs's claim under the strict rule of Rylands v. Fletcher <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=I913A6901E42811DA8FC2A0F0355337E9> failed since the manufacture of electrical and electronic components in a factory on an industrial estate, and the bringing and storing of metal foil on the premises, could not be said to be a special use, but was a natural user of the site.

Dictum of Lord Moulton in Rickards v. Lothian [1913] A.C. 263, 279, P.C. <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=I880E6340E42811DA8FC2A0F0355337E9> and Read v. J. Lyons & Co. Ltd. [1947] A.C. 156; [1946] 2 All E.R. 471,H.L.(E.) applied <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=I84B65EA0E42811DA8FC2A0F0355337E9>.

(2) That the defendants, whose factory was only 150 yards away from the plaintiffs's, owed the plaintiffs a duty to take reasonable care to prevent the metal foil from being blown about in such a way as to foul the bus bars; that as regarded *960 remoteness of damage there was no difference in principle between the present case, which alleged physical injury with consequential loss of profits, and the ordinary case of negligence in which a plaintiff alleged that he had suffered some physical injury whereby he had lost earnings.

Donoghue v. Stevenson [1932] A.C. 562, H.L.(E.) applied <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=I99FC57C0E42711DA8FC2A0F0355337E9>.

Weller & Co. v. Foot and Mouth Disease Research Institute [1966] 1 Q.B. 569; [1965] 3 W.L.R. 1082; [1965] 3 All E.R. 560 <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=IF7A56F50E42811DA8FC2A0F0355337E9>; Electrochrome Ltd. v. Welsh Plastics Ltd. [1968] 2 All E.R. 205 <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=I5CABC9A0E43611DA8FC2A0F0355337E9> and Seaway Hotels Ltd. v. Gragg (Canada) Ltd., and Consumers Gas Co. (1960) 21 D.L.R. (2d) 264 considered <http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=I99BA20D0E43611DA8FC2A0F0355337E9>.

(3) That an isolated happening by itself could create an actionable nuisance, and the plaintiffs, being directly and foreseeably affected by the defendants's negligent method of storing foil, had a good cause of action against them in nuisance.

On 18/10/2012 17:45, Jason Neyers wrote:

Dear Colleagues:

I was wondering whether anyone: (1) knows of any helpful discussions (judicial or academic) surrounding whether a one-off or isolated event can be a nuisance; and/or (2) has any definitive view on the matter that they would be willing to share. I am currently leaning to the view that a nuisance must be a state of affairs (the /Stone v Bolton/ line) but I am interested in other's views as to why this would be incorrect.

Sincerely,
--
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

--
Dr Matt Dyson
Trinity College
Cambridge
CB2 1TQ
01223 338520

View my research on my SSRN author page:
http://ssrn.com/author=1729519

 

--
Lewis N. Klar, Q.C.,
Professor of Law,
University of Alberta.
(780) 492-7408