| From: | Stephen Smith, Prof. <stephen.smith@mcgill.ca> |
| To: | Neil Foster <Neil.Foster@newcastle.edu.au> |
| Ken Oliphant <ken.oliphant@oeaw.ac.at> | |
| obligations@uwo.ca | |
| Date: | 02/12/2008 22:00:05 UTC |
| Subject: | RE: St Laurence Cement - statutory Rylands v Fletcher in Quebec |
Neil
You are quite right that St Lawrence was
explicitly decided on the basis that Art 976 is no-fault. I don’t think we are
in any disagreement. My point was (merely) that the basic provisions of the CCQ
(and of the CN as well) gives some ground for saying that a defendant who either
knew or should have known that something on his land was creating an
unreasonable disturbance should be liable to stop the disturbance and to pay
damages for harm suffered once he knew or should have known this fact, but, at
the same time, for holding that the landowner is not liable for damages for past disturbances of which he was unaware
and could not reasonably have been aware. In short, that fault in the ordinary
sense of doing something or allowing something to remain on your land that you
knew or should have known would be an unreasonable disturbance is a prerequisite
to liability for damages for unreasonable disturbances.
It appears that SCC has decided
differently. The point was, however, a difficult one – the C of A had held that
fault was required. Further, it is interesting that in St Lawrence and all of
the cases that the SCC mentioned in support, the defendant was at ‘fault’ in
the sense described above because in every case the defendant did something,
such as run a cement factory, that he knew or should have known would create an
unreasonable disturbance. What the SCC in St Lawrence focused on was the fact
that the defendant was not at ‘fault’ in the sense of failing to install proper
filters, etc.; i.e, that they were not careless. But this is only one type of
fault. The defendant who steals my property is at fault even if he was careful
at all times during the theft. Stated differently, in St Lawrence and all the
cases cited by the court the defendant was at fault in the sense of being
morally culpable in the ordinary sense of the term (i.e., at fault for doing
something that he knew or should have known would excessively disturb his
neighbors). For true ‘no-fault’ liability (i.e. of the kind imposed on
employers for the torts of their employees), the court would need to find
liability for damages in respect of a past disturbance that, during the
relevant period, the defendant neither knew about nor should have known about. Both
common and civil law has imposed strict liability in various situations so
there is no reason a court or legislature could not make a landowner strictly
liable in this way (and I expect there are cases where courts have done this, though
none immediately come to mind that cannot be explained on other grounds). But such
a ruling would still stand out. And it would stand out in the civil law in
particular given that the central provisions on liability for damages in the
civil law make fault a fundamental pre-requisite.
Steve
From: Neil
Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Sunday, November 30, 2008
6:13 PM
To: Stephen Smith, Prof.; Ken
Oliphant; obligations@uwo.ca
Subject: RE: St Laurence Cement -
statutory Rylands v Fletcher in
Dear
Steve;
Thanks
for your very interesting comments. At the risk of further exposing my lack of
understanding of civil law, I think two comments are in order.
(1)
I can see some arguments which might justify distinguishing the ability to
obtain a future injunction from the ability to get an award in damages for past
injury, but it is worth noting that in Australia the High Court a few years
ago, in Bankstown City Council v Alamdo
Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2005/46.html ruled
that where a statute provided a local Council with an immunity from suit in
private nuisance framed in terms of "A council does not incur any
liability in respect of:", this immunity also extended to them not being
amenable to an injunction to prevent future harm.
(2)
I understand your final para to suggest that art 976 CCQ might be subject to an
implied restriction based on art 1457, at least in claims for damages. But (and
I may be wrong) I thought that was precisely the proposition rejected by the
SCC in St Lawrence at [86]
(having previously distinguished fault-based actions under art 1457 at
[33]-[34]). An award of damages was approved in the proceedings explicitly on a
no-fault basis.
Regards
Neil
F
Neil
Foster
Senior
Lecturer, LLB Program Convenor
Faculty of Business & Law
MC158,
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931
>>> "Stephen Smith, Prof." <stephen.smith@mcgill.ca> 29/11/08 6:51 >>>
In thinking about the role of fault in the civilian equivalent of liability for
nuisance I was led to wonder if we ought to distinguish between two (or maybe)
three types of liabilities. As a matter of principle, it seems clear (to me at
least) that fault should be irrelevant when considering whether someone subject
to an unreasonable interference with the use of their property (unreasonable in
the sense used in Art 976 and the common law, i.e., (roughly)
excessive/abnormal) should be able to obtain an injunction against that
interference. If noxious smells coming from my neighbours property make it
impossible for me to sit outside, then I should be able to get an injunction to
stop the smells regardless of whether my neighbour is responsible for those
smells in the sense of having done something that he knew or should have known
would cause the smell. Thus, if the smells emanate from a pile of dead animals
that, unknown to my neighbour, were buried by a previous owner (they now smell
because rain has washed away the topsoil), my neighbour should do whatever is
necessary to stop the smell. This forward looking obligation to stop the smell
is not inconsistent with a fault standard because, while once my neighbour is
aware of the smell he is at fault for allowing it to continue. It is
intentional wrongdoing, albeit the for an omission.
By the same reasoning, it seems clear that my neighbour should be liable to pay
damages for any harm I suffer from the smells once he is aware of the
smells and fails to take steps to stop them. Again, though my neighbour is not
careless, he is at fault in an ordinary sense of the world for failing to do
what any reasonable person would do. But it is much less clear to me that my
neighbour should be liable to pay me damages for any loss of enjoyment that I
suffered prior to him becoming aware that the smell was emanating from his land
(which might be the case if the animals remained partially buried while they
were giving off the smell). In this case, on the facts, my neighbour is not at
fault in any plausible sense of the word for the smells; he neither knew about
the smells nor should have known about them. Of course, if my neighbour was at
fault for creating the smells (e.g., if he buried the animals without taking
proper precautions, etc.) then he should be liable for damages regardless of
his knowledge. But otherwise, liability for my past loss seems unfair. Of
course, there are various situations where the law has thought it appropriate
to impose strict liability. Perhaps this should be one of them, but it is not
obvious why. Whatever one thinks of them, the usual policy arguments about
deterrence, enterprise liability, etc. seem inapplicable. Intuitively, the
argument for strict liability in a case where the loss was not mere loss of
enjoyment but was physical (e.g., the smell caused me to become physically ill)
seems stronger, but not much and I cant explain why this should matter in
principle.
I wont attempt to say how close the law, civil or common, lines up with these
intuitions. But it is interesting to note that although the right, enshrined in
Art 976 CCQ, to be free from excessive interferences says nothing about fault,
the basic obligation to repair the consequences of a wrong (Art 1457 in the
CCQ, 1382 in the French CN) only kicks in if the loss arose through the
defendants fault. The complete picture is more complex in the CCQ because fault
can mean different things in different contexts; because the CCQ also contains,
in addition to 1457, separate clauses on damages which do not refer to fault
see Art 1608; and because is difficult to tell what standards the courts are
actually doing (because there are few cases in which the defendant is not at
fault in any sense and because the courts rarely explain in detail how they
calculate damages). Nonetheless, the point is that the CCQ gives some
expression to the idea that one should have a right to stop others from
interfering with your ability to use and enjoy your property in the usual ways,
regardless of how that interference came about, but that ones ability to obtain
damages for such interferences requires a link between the loss and the
defendants fault in the sense described above.
cheers
Steve (Smith)
________________________________
From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: 25 November 2008 20:25
To: Ken Oliphant; obligations@uwo.ca
Subject: RE: St Laurence Cement - statutory Rylands v Fletcher in Quebec
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
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
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Faculty of Business & Law
MC158,
Callaghan NSW 2308
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/> <http://www.etl.oeaw.ac.at/>
________________________________
From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au] <mailto:[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
"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
Faculty of Business & Law
MC158,
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931