1) Physical Damage to Land

The courts take a strict approach to the infliction of physical damage to the plaintiff's property. The infliction of physical damage is, in almost all circumstances, regarded as an unreasonable interference with the plaintiff's use and enjoyment of land. Consequently, damage to the paintwork of buildings and chattels on the land caused by the discharge of pollutants, structural damage to premises caused by vibrations, crop damage caused by the drift of herbicide sprayed on the defendant's property, water damage to the basement of a house caused by a blocked drain on the defendant's land, damage caused by the escape of fire from the defendant's land, and damage to trees and shrubs caused by polluting fumes from the defendant's factory are all actionable. There is no need for continual interference with the property. An isolated incident causing physical damage may be sufficient. In Tock v. St. John's (City) Metropolitan Area Board, [Note 4: [1989] 2 S.C.R. 1181. ] for example, the Supreme Court imposed liability in private nuisance when a blockage of the defendant's sewer drains and a heavy rainfall combined to flood the basement of the plaintiff's house.

The proof of physical damage is not conclusive of the issue of unreasonable interference. If the damage is trivial it may not be beyond the bounds of reasonable tolerance. There is also no liability where physical damage has arisen solely as a result of the abnormal sensitivity of the plaintiff's land use. This proposition was established in Robinson v. Kilvert. [Note 5: (1889), 41 Ch.D. 88 (C.A.).] The defendant's business of manufacturing paper boxes in the cellar of a building required a hot, dry environment. Although the heat was never more than eighty degrees Fahrenheit, it damaged a quantity of high-quality paper used in the plaintiff's business on the ground floor. The Court held that there was no liability in private nuisance. The heat would not have affected the ordinary use of land. The plaintiff's damage arose solely from the abnormal delicacy and sensitivity of his business. The ruling in this case may reflect an early reluctance to hold a defendant liable for unforeseeable damage. This may explain why Robinson has not been followed in subsequent cases where the defendant knew of the plaintiff's sensitive operation and with malice or spite deliberately caused damage. Such a situation arose in Hollywood Silver Fox Farm v. Emmett. [Note 6: [1936] 2 K.B. 468.] The defendant real estate developer concluded that a sign indicating the proximity of the plaintiff's silver fox farm to his residential real estate development was detrimental to its commercial success. The defendant asked the plaintiff to take it down. When the plaintiff refused to remove it, the defendant tried to persuade him to change his mind by discharging shotguns near the plaintiff's farm. The defendant knew that the loud noise would disrupt the breeding season of the plaintiff's extremely nervous and temperamental animals. The defendant argued that in normal circumstances the discharge of firearms is not an unreasonable interference with the enjoyment of land and the plaintiff's loss arose solely from the hypersensitivity of silver foxes in the breeding season. Nevertheless, the defendant was found liable in private nuisance. The defendant's knowledge of the plaintiff's sensitive land use, combined with the malicious nature of the defendant's conduct, made the interference unreasonable. One Canadian court has pushed this exception further and imposed liability in the absence of malice. The defendant was held liable for failing to take reasonable care by suspending the blasting of stumps on his land while the plaintiff's fur-bearing animals were breeding. The defendant, at no inconvenience to himself, could have suspended the blasting for a month and avoided causing damage to the plaintiff. [Note 7: See, for example, MacGibbon v. Robinson, [1953] 2 D.L.R. 689 ( B.C.C.A.)]