Barry j. Reiter Melanie a. Shishler

Joint Ventures

(1999)

PART THREE, Implementing the Business Plan

CHAPTER 5, STRICT LIABILITY

FURTHER READINGS

Ehrenzweig, A.A., "Negligence without Fault" (1966) 54 Cal. L. Rev. 1422

Flannigan, R., "Enterprise Control: The Servant-Independent Contractor Distinction" (1987) 37 U.T.L.J. 25

Fletcher, G.P., "Fairness and Utility in Tort Theory" (1972) 85 Harv. L. Rev. 537

Jones, W.K., "Strict Liability for Hazardous Enterprise" (1992) 92 Colum. L. Rev. 1705

Keeton, R.E., "Conditional Fault in the Law of Torts" (1959) 72 Harv. L. Rev. 401

King Jr., J.H., "A Goals-Oriented Approach to Strict Tort Liability for Abnormally Dangerous Activities" (1996) 48 Baylor L. Rev. 341

Manitoba Law Reform Commission, Report on Tort Liability for Animals (Winnipeg: Manitoba Law Reform Commission, 1992)

Simpson, A.W.B., "Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v. Fletcher" (1984) 13 J. Legal Stud. 209

CHAPTER 6

Chap.6 Contents

NUISANCE

			A. Introduction
			B. Private Nuisance

1) Physical Damage to Land 2) Interference with Enjoyment and Comfort of Land a) The Character of the Neighbourhood b) The Intensity of the Interference c) The Duration of the Interference d) The Time of Day and the Day of the Week e) Zoning Designation f) The Utility of the Defendant's Conduct g) The Nature of the Defendant's Conduct h) The Sensitivity of the Plaintiff 3) Non-intrusive Nuisances 4) Malice 5) Coming to the Nuisance 6) Standing a) Defendants b) Plaintiffs 7) Defences a) Statutory Authority b) Statutory Immunity c) Consent d) Prescription e) Contributory Negligence 8) Remedies a) Injunction b) Damages c) Abatement

C. Public Nuisance

1)

The Definition of a Public Nuisance 2) Remedies

Further Readings

CHAPTER 6, NUISANCE

A. INTRODUCTION

There are two torts of nuisance: private nuisance and public nuisance. Other than their name, they do not have a great deal in common. Private nuisance protects people from interference with the use, enjoyment, and comfort of their land. Public nuisance primarily protects the public in the exercise of rights that are common to all citizens, such as the right of passage on public highways and navigable rivers. A common trait of each tort is the elusive nature of the term "nuisance" and the difficulty in defining the limits of its application

CHAPTER 6, NUISANCE

B. PRIVATE NUISANCE

A person's interest in the integrity, security, enjoyment, and use of land is protected by the torts of trespass to land, the rule in Rylands v. Fletcher, negligence, and private nuisance. Trespass to land is available in respect of any direct and physical intrusion onto land that is in the possession of the plaintiff. It is actionable without proof of damage. The rule in Rylands v. Fletcher [Note 1: 1 (1868), L.R. 3 H.L. 330, aff'g (sub nom. Fletcher v. Rylands) (1866), L.R. 1 Ex. 265 (Ex. Ch.).] provides a remedy for damage caused by the escape of something likely to do mischief from a neighbour's non- natural use of land. Negligence is available in respect of all physical damage to land caused by a failure to take care. Private nuisance is applicable to indirect physical or intangible interference with property and all direct interference that is not physical. [Note 2: In some situations private nuisance may provide a remedy for a series of direct physical intrusions, such as the continual intrusion of golf balls from a neighbouring golf course.] Private nuisance is most frequently used to deal with noise, odour, fumes, dust, and smoke that emanate from the defendant's land and interfere with the plaintiff's use, enjoyment, and comfort of land. Private nuisance is not actionable unless the interference is unreasonable and the plaintiff has suffered some damage.

The primary function of private nuisance is to draw an appropriate balance between the defendant's interest in using land as he pleases and the plaintiff's interest in the use and enjoyment of land. Although some fault concepts have crept into the private nuisance action, it is still, in the main, a tort of strict liability. Liability does not depend upon the nature of the defendant's conduct or on any proof of intention or negligence. It depends, primarily, upon the nature and extent of the interference caused to the plaintiff.

Not every interference with the comfort and enjoyment of property is a nuisance. In both urban and rural areas there must be a good deal of give and take between neighbours and a degree of tolerance of the reasonable and beneficial activities of others. The limits of tolerance are reached when the defendant's activity causes an unreasonable interference with the plaintiff's use, enjoyment, and comfort of land. This discretionary concept allows courts to tailor their decisions sensitively to the particular circumstances of the case. The advantage of a high degree of fact sensitivity and flexibility is, however, offset by a related degree of uncertainty and unpredictability, leading some commentators to despair of finding a workable and predictable guide to decision making. [Note 3: William Prosser described the law of nuisance as an "impenetrable jungle" : see W.P. Keeton, ed., Prosser and Keeton on the Law of Torts, 5th ed. (St. Paul, Minn.: West, 1984) at 616.] One useful starting point is to distinguish between conduct that causes physical and material damage to the plaintiff's land and conduct that interferes with the plaintiff's enjoyment and comfort of land.