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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 27 / 64

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

12/11/02

Appleby v. Erie Tobacco Co., (1910) 22 O.L.R. 533 (Div. Ct.). (CB1p425)

Jurisdiction

Ontario

Facts

Appleby complained of a terrible smell from the neighbouring tobacco factory. It was unclear whether the odours affected health. This was in a city (Windsor).

Issues

Did the smell constitute a nuisance?

Holding

Yes. The tobacco factory was given six months to do something about the smell.  

Ratio

Anything that interferes with the comfort and enjoyment of a property can be a nuisance. The court accepted that the standard for reasonable interference will vary by locality; the reasonability of the activity itself is irrelevant. Injunctions are normally awarded, as damages are not really an adequate remedy.

Miller v. Jackson, [1977] 3 All E.R. 338 (C.A.). (CB1p434)

Jurisdiction

England

Facts

The Millers moved into a new house which had been built adjacent to a cricket field. Cricket had been played there for 70 years. Over the next few years balls were hit against their house and into their garden several times. The cricket club built a high fence to keep in the balls, but still a few balls went over it every year.

Issues

1. Was the cricket club liable in negligence and in nuisance?

2. Could an injunction be granted to stop people from playing cricket?

Holding

1. Yes. 2. No.

Ratio

According to Geoffrey Lane and Cumming-Bruce LJJ, the cricket club was negligent, and it committed a nuisance. However, according to Cumming-Bruce LJ, an injunction should not be granted because it was appropriate to weigh private interests against public interests, and public interests prevailed in this case.

Lord Denning MR, dissenting, said that the only essential difference between negligence and nuisance was whether an injunction could be granted: his test for nuisance was whether it was “a reasonable use” of the land. While Geoffrey Lane and Cumming-Bruce LJJ rejected the “coming to the nuisance” defence, this became an aspect of Lord Denning MR’s finding of reasonableness. He also considered policy grounds, defending the public interest against the private interest, and the importance of protecting the environment. So he decided that an injunction could not be awarded.

Since two of the three judges did not award an injunction, the cricket club could continue.

Comments

I think Lord Denning was getting a bit dotty by this point—he basically told Mrs. Miller that if she didn’t like it she could go live somewhere else!

In civil law: Troubles de voisinage have to do with going beyond the level of tolerance that neighbours owe one another.

The CCLC talked about “asocial” or “abnormal” exercise of proprietary rights.

beyond normal circumstances

The CCQ (a.976): “Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature of their land or local custom.”

The nature and location of land, and local custom are considered.

Drysdale v. Dugas, (1896) 26 S.C.R. 20. (CB1p422)

Jurisdiction

Quebec

Facts

Dugas owned two houses on rue St-Denis, one of which he lived in. He was harmed by the smell and noise from Drysdale’s stable next door, which was a first-class stable with most modern ventilation and drainage.

Issues

Is reasonable care or social utility any justification for annoying one’s neighbours?

Holding

No.

Ratio

Although this is a Quebec case, Sir Henry Strong CJC relied mainly on English

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