Neil:
I agree with your main
point about the Court's striking exercise in statutory interpretation, though
perhaps it wouldn't be so striking to someone better versed than I in the
history of creative judicial interpretation of the code civil in
france.
A few small points about
nuisance / Rylands / strict liability:
(a) Though the contrary
is often alleged, limiting liability to reasonably foreseeable loss (Wagon
Mound 2, Cambridge Water) is not inconsistent with strict
liability: in fact, it can be seen as a practical necessity to it (that anway
was the view of such luminaries as Ehrenzweig, Prosser and
Calabresi).
(b) Canada has
tradittionally taken a different line from that of the HL in Hunter v Canary
Wharf (limiting liability in private nuisance to claimants with a
proprietary interest): see Motherwell v. Motherwell (1976) 73 D.L.R.
(3d) 62, Devon Lumber Co. Ltd v. MacNeill (1987) 45 D.L.R. (4th) 300
(New Brunswick Court of Appeal). I see, however, that the BCSC decided to
follow the HL, not the Canadian cases, in Sutherland v Attorney General of
Canada, 2001 BCSC 1024 at [233]. Maybe Canadian list members can enlighten
us on any further developments there.
(c) In England, it is
probably a requirement of the current law that a claimant under Rylands v
Fletcher must prove a proprietary interest in the land affected. (This
follows from HL's treatment of the liability as a branch of liability in private
nuisance: I believe this may itself have attracted academic debate... maybe
other list members can comment... ;-))
Lionel:
Thanks for the summary -
very helpful indeed!
Best
Ken
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
Ken;
You are quite
right to say that the SCC draws a parallel between their no-fault rule based on
the CCQ art 976, and what they say is a no-fault rule in the common law of
nuisance. Nor do they mention Rylands v Fletcher. But (and I should
have made this clearer initially) the reason I brought in R v F is that it seems
to me that they may be wrong about the current common law of nuisance, for just
the reason that you note in your comment- that it is debatable whether indeed
nuisance is now a "no-fault" liability. Certainly a fuller account of the common
law should at least have mentioned the debate occasioned by the words of Lord
Goff in Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2
AC 264, at 300:
[T]he fact that the defendant has taken all reasonable care will not of itself
exonerate him... But it by no means follows that the defendant should be held
liable for damage of a type which he could not reasonably
foresee.
I have taken the
quote from Street on Torts (12th ed) p 438. John there takes the view
that, I think, that the nature of the possible harm must be
foreseeable, but the precise circumstances of the harm occurring need
not be. In St Laurence Cement the trial judge held that all state of
the art precautions had been adopted, but there was still "excessive annoyance"
and hence there was no-fault liability. On this view of nuisance presumably an
action in nuisance would have succeeded. In Australia at any rate there are
conflicting dicta on the subject of whether a finding of nuisance requires
"fault"- for the view that it does see Bryson JA
in Sutherland Shire Council v Becker
[2006] NSWCA 34 at [119]:
Although there may be some exceptions, fault of some kind is now
usually necessary for liability in nuisance; see The Wagon Mound (No 2) at 639, and Montana Hotels Pty Ltd v Fasson Pty
Ltd (1986) 61 ALJR 282 at 284.
The main thing I guess I was commenting
on was the (to my mind) unusual step of statutory interpretation involved in
moving from a provision that says "A cannot complain of B's 'normal'
annoyances", to find a civil action by A for B's "abnormal" annoyances.
Re-reading the case the result seems to have been driven by a series of previous
Quebec decisions finding a no-fault nuisance-like liability which the SCC
said formed part of the background to the enactment of art 976. (See eg
[58]). But I don't resile from saying this is very similar to Rylands v
Fletcher liability- for example, they hold that (contrary to the current
English law on nuisance in Hunter v Canary Wharf) there is no need for
those who are injured to have a "proprietary" interest in land- see paras
[81]-[84]. But I concede it is not identical- unlike R v F there is no need
under the statute for an "escape" of something from the land, so presumably
"abnormal or excessive annoyance" could occur in ways that would not be
actionable under R v F.
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
>>> Ken Oliphant <
ken.oliphant@oeaw.ac.at> 25/11/08 8:33
>>>
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
plaintiffs 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 <http://www.etl.oeaw.ac.at/>
________________________________
From: Neil Foster
[mailto:Neil.Foster@newcastle.edu.au]
Sent: 25 November 2008
02:28
To: obligations@uwo.ca
Subject: ODG: St
Laurence Cement - statutory Rylands v Fletcher in Quebec
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