The "adopting or continuing the nuisance cases" do present a separate problem, which do require fault on the occupier before liability can be imposed. But the flood, sewage overflow, drainage overflow cases do not require fault; liability is strict once the fortuitous and non-preventable event causes the damage. There is no "pre-requisite" of the defendant having adopted or continued the nuisance in these types of flood etc. cases.
Lewis
On Thu, Oct 18, 2012 at 1:35 PM, Jason Neyers
<jneyers@uwo.ca> wrote:
With the flood and collapse cases, isn't it generally a
pre-requisite that the defendant adopted or continued the nuisance
(knew or should have known, ie committed what would amount to a
breach of the standard of care expected of a reasonable landowner)?
That seems to be the requirement with the trees cases that I have
seen (see eg,
Caminer (HL)).
It seems strange to me that if something falls over without any
fault on my part (ie through the operation of invisible and
unknowable natural forces) and without any intention on my part that
it fall on your property, that I am strictly liable for that
eventuality. My gut reaction is that these are generally cases of
negligence in disguise (nuisance is the label and negligence the
normative basis for liability) and hence only a state of affairs is
a true nuisance.
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
--
Lewis N. Klar, Q.C.,
Professor of Law,
University of Alberta.
(780) 492-7408