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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 26 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

Facts

Anastasia Rubis, age 4, fell out the window of a hotel room when the screen she was leaning on came loose. She (and her parents) sued.

1. a. 1054, CCLC, does not apply when the damage is not caused by a thing but by the action of the person who has control over it.

2. Under a. 1055, CCLC, the owner of a building cannot be held liable for damage caused by construction defect or want of repair when the the building or part of the building is used “contrary to the purpose for which it was intended.”

Issues

Was it contrary to the purpose of the screen to lean on it? (fact)

Holding

Yes; the appeal was dismissed. Estey and McIntyre JJ. dissented.

Ratio

The majority held that the screen’s primary purpose was to keep bugs out. Estey and McIntyre’s dissent was partly because they felt that screens also had the purpose of keeping things in, but more because of questions about the proper role of an appellate court. They felt that the Court of Appeal had ignored the trial judge’s finding that the screen itself was defective.

5/11/02

[Review session]

7/11/02

[Review session continued]

Nuisance/Troubles de Voisinage

In common law: The issue in the tort of private nuisance is “unreasonable interference” with the occupier’s enjoyment of land.

This can be in the form of physical damage or loss of health, comfort or convenience.

This is based on the Latin maxim, “Sic utere tuo ut alienum non laedas”: You must use your property so as not to injure that of your neighbour.

However, this is not applied in an absolute way. Each individual in a community has to put up with some inconvenience and annoyance.

The plaintiff must have a property right in order to sue:

owners in possession

owners out of possession (would have to prove that the nuisance has a long-term effect on their proprietary interests)

tenants

the defendant: The person who creates the nuisance can be sued.

The owner of the land where the nuisance came from can also be sued, even if he didn’t create the nuisance, if the owner was negligent.  

reasonableness: This has nothing to do with the defendant’s conduct. It depends on:

the character and extent of harm caused

circumstances such as:

character of neighbourhood

intensity of interference

duration of interference

time of interference

and sometimes:

zoning designation

utility of defendant’s conduct

motive of defendant’s conduct

The courts will not consider the plaintiff’s special sensitivities.

The fact that the plaintiff “came to the nuisance” is not a defence.

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