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
plaintiff’s 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
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