NUISANCE

Appleby v. Erie Tobacco Co.

Divisional Court (UK)
1910
Nuisance is material discomfort and annoyance interfering with the reasonable enjoyment
of land / ordinary comfort of life. Injunction is an available remedy.
The case in which damages can be substituted for an injunction sought to abate a nuisance
of the first class must be exceedingly rare.
- Not really a definition, but a matter to which we direct our attention: EW
Miller v. Jackson
Court of Appeal (UK)
1977
Public interest and both parties use of land are considerations to be weighed in granting
the discretionary remedy of injunction for nuisance.
Pleading for injunctive remedy pigeonholes a claim as one for nuisance.
Doesnt cite Sturges; simply ignores it
- Damages ultimately awarded; maybe not so uncommon
- Acquiescence does not follow from inability to prevent injury
Sturges v. Bridgman
BCCA
2008
Precedence is a factor, but not a decisive one in deciding to grant an injunction
against nuisance.
Nuisance does not begin until there is an injury; easement not considered, as the
plaintiff did not know of the trespass suffered no injury until just before the action.
- RIGHTS ARGUMENT: No unilateral determination of the limits of a relationship.
Only the plaintiff can obviate his rights by acquiescence; the unilateral activities of
the defendant cannot do so in the plaintiffs ignorance.
A right is something that cuts off a sphere of autonomy and makes it proof against the
common weal: they are collectively the moral core of law.
NEGLIGENCE
Five Questions of Tort Law
1.
2.
3.
4.

Was the defendant under a duty to the plaintiff?

Did he breach that duty?
Were there any damages?
Is there a causal relationship between the defendants negligent act and the
plaintiffs injury? (Was there causation in the sense of both proximal and
factual cause?)
5. Are there any defences applicable?
o Did the plaintiff voluntarily assume the risk?
o Was the plaintiff engaged in an illegality?
o Was there contributory negligence on the part of the plaintiff?
To be successful in his action, a plaintiff must establish all five factors in his favour.

To determine negligence, we must ask when it can be said that the defendant has created
an unreasonable risk of harm. Without this fault element, we are left with strict (or
absolute) liability.
Strict liability (as was applied in Ramsbottom above and Polemis and the dissent in
Palsgraf, below) is now a pejorative because in every case it leaves causation questions
open at least to the point of public policy, if not outright infinity. Who in fact caused the
harm in Ramsbottom? The driver? The employer that hired him? His mother?
Reasonable Man Standard of Determining Negligence
Vaughan v. Menlove
Court of Common Pleas (UK)
1837
Objective standard used to determine negligence. What a reasonable man would do.
Insanity and childhood exceptions.
- Cannot allow one persons subjectivity to affect the others rights
Buckley v. Smith Transport Ltd.
OCA
1946
Inability to understand or discharge duty exempts a defendant from meeting reasonable
man standard.
Mind control, Head Office
- Vicarious liability!
Roberts v. Ramsbottom
Court of Queens Bench (UK)
1980
Defendant lacked complete unconsciousness necessary to relieve him of the reasonable
man standard. Simple impairment is no defence.
Strokes arguable strict liability; overruled on this point by Mansfield v. Weetabix
Mansfield v. Weetabix
Court of Appeal (UK)
1998
If the standard of care is that of a reasonably competent driver, then we can find for the
plaintiff that such a reasonable driver, with such a condition, would crash as he had.
Diabetic crash
McHale v. Watson
High Court of Australia
1966
Children lack foresight, and when they gain foresight, for a while they still lack prudence.
Children are therefore held to an objective standard reflecting their capacity for
circumspection. (Like age, education and experience standard never seen broken down.)
Menzies J. wants to keep the objective standard; says negligence is not about moral culpability
but the recovery of damages. (More strict liability bent?)
- It is prudence capacity to fulfill a duty once harm is foreseeable that matters; it
goes to incapacity to perform that duty. Foresight cant matter if you cant act on it.
- When performing an adult activity, children are held to adult standards.
Standard of Care Formulae
United States v. Carroll Towing Co.
2nd Circuit Court of Appeal
1947
Learned Hand test. The reasonable standard of care to be met is the taking of precautions
the burden of which do not exceed the accident cost (probability x gravity of injury) of
the materialization of harm to the plaintiff.

Posner expands on this and suggests that it is primarily helpful to judges, not juries
Bolton v. Stone
House of Lords (UK)
1951
Reasonable persons do not disregard risk unless that risk is extremely small.
UK standard does not compare costs of precaution against accident cost; rather considers that
any risk that is not small requires precaution.
- we take precautions against substantial risks: risks not small.
Overseas Tankship (UK) Ltd. v. The Miller
Privy Council
1967
Steamship Co. (Wagon Mound No. 2)
What Bolton v. Stone says is that it is justifiable not to take steps to eliminate a
real risk if it is small and if the circumstances are such that a reasonable man,
careful of the safety of his neighbour, would think it right to neglect it.

Wyong Shire Council v. Shirt

Australian High Court
1979
The greater the magnitude of risk, the greater the burden of precautions.
1% risk of nuclear meltdown requires greater precaution than a 1% risk of static shock
BUT any risk that is not fanciful or far-fetched is still foreseeable, however remote
Latimer v. AEC
House of Lords
1953
Finds no negligence because no one had ever been injured in such a way, and no one
on site foresaw the harm. Cited as evidence that risk must always be weighed
against burden, but more closely evidence of Wagon Mound No. 2s contention that a
small risk may not require expensive steps if a reasonable person careful of the
safety of his neighbour like a safety engineer would think it right to neglect it.
Watt v. Hertfordshire County Council
Court of Appeal (UK)
1954
Risk must be measured against end to be achieved. Risk undertaken for the
commercial end of profit requires more care than risk undertaken to save lives.
Public policy benefit in not holding firemen negligent in rush to scene

Trimarco v. Klein
New York Court of Appeal
1982
Although meeting customary practice is not proof that the standard of care has been
met, failing to meet customary standards is almost a slam-dunk for failing standard of care.
Finder of fact must still be satisfied with the customs reasonable prudence

The T.J. Hooper

2nd Circuit Court of Appeals
1932
A trades customary practice can collectively fail to meet the standard of care.
Thus, common practice is the plaintiffs friend, not the defendants. Meet it and you
still may not win, fail it and you almost certainly lose.
ter Neuzen v. Korn
Supreme Court of Canada
1995
Juries can only find professionals negligent if they have failed to comply with
their code of conduct. Beyond that point, it is only within their competence to find
the profession negligent if a judge determines they are able to do so judicially.
Still possible for a finder of fact to find a professional negligent if it is plain and obvious
not counting sponges that have gone into a patient, etc.
Reasonably competent professional

Duty of Care
Because negligence is the creation of an unreasonable risk, we must ask risk to whom? and
risk of what? Otherwise, how can we tell if it is unreasonable? Duty of care is conceived in
the foreseeable effect of an action, and in relation to the persons foreseeably affected.
Winterbottom v. Wright
Exchequer Court
1842
Plaintiff fails as he sues for breach of contract, but wider perspective taken in the judges
reasoning; Lord Albringer holds that a duty originating in contract cannot be owed to
anyone outside that contract.
No cause of action for a plaintiff injured outside by means of a contract between third parties
Donoghue v. Stevenson
House of Lords
1932
A duty of care is owed to those persons who are so closely and directly affected by my
act that I ought reasonably to have them in mind as being so affected when acting.
Macmillan, concurring: It isnt that third parties should never recover in Winterbottom, just
that they should not automatically recover.
Deyong v. Shenburn
Court of Appeal (UK)
1946
It is not the case that there is a duty of care whenever someone will suffer as a result
of ones act or omission. The duty of care has to be an established one.
Watson v. Buckley and Osborne,
Kings Bench (UK)
1940
Garrett and Co. Ltd. (Ogee Ltd.)
There can be multiple acts of negligence in the same injury.
The point in the chain of causation does not matter; if the defendants act or omission
puts the plaintiff at a foreseeable, unreasonable risk, there is negligence.
Clay v. A.J. Crump & Sons, Ltd.
Court of Appeal (UK)
There can be multiple duties of care in the same injury.
Each negligent defendant failing to meet the same duty of care is 100% liable

1964

Palsgraf v. Long Island Railway Co.

New York Court of Appeals
1928
It is a risk of a specific harm to a specific class of persons that makes us consider a
defendants act negligent; risk imports relation. (Though some acts firing a gun out the
window are so reckless that a duty is owed to the whole public.)
Andrews J., dissenting: There are negligent acts, period, and a duty of care is owed to the
public. When rights are injured, we have a right to seek redress, period. But for causation.
- No negligence without the breach of a duty specific to the plaintiff; negligence is
about correlation. A right must be infringed, and the defendants act must be
considered negligent in relation to that right. Damage and liability are polar.
Haynes v. Harwood
Court of Appeal (UK)
1935
If you invite or can reasonably expect an intervening act to cause injury, the chain of
causation between your act and the injury is unbroken.
- Part of the unreasonable risk is the risk that a rescuer will come along and injure
himself or others in trying to mitigate the damages caused by your act

Wagner v. International Railway Co.

New York Court of Appeal
1921
Danger invites rescue. The creation of an unreasonable risk to one person includes
a correlative risk to anyone that (without recklessness) is compelled to assist.
Horsley v. MacLaren
Supreme Court of Canada
1971
A separate cause of action exists for a rescuer against the creator of the
unreasonable risk, as long as his action was not so utterly foolhardy as to be outside
of any accountable risk and thus beyond even contributory negligence.
This has to be the case because after Palsgraf, there is no such thing as derivative duty
Anns test via Kamloops v. Neilsen:
In order to decide whether or not a private law duty of care existed, two questions must be
asked:
(foreseeability part of 1 Reasonable contemplation)
1. Is there a sufficiently close relationship between the parties (the [defendant] and
the person who has suffered the damage) so that, in the reasonable contemplation
of the [defendant], carelessness on its part might cause damage to that person?
FIRST STEP CONSIDERATIONS from Cooper v. Hobart :
i. Defining this relationship involves looking at expectations,
representations, reliance, and the property or other interests
involved
From Childs v. Desormeaux:
i. We impose a positive duty of care if:
1. I intentionally attract and invite third parties to an inherent
and obvious risk that I control
2. I am in a paternalistic role
3. I exercise a public function or engage in a commercial
enterprise that includes implied responsibilities to the public
at large
a. These positive duty categories have the following in
common:
i. Material implication in the creation of risk or
my control of a risk to which others have
been invited
ii. Concern for the autonomy of the person
affected by the positive action imposed
iii. Theme of reasonable reliance
2. Are there any consideration which ought to negative or limit (a) the scope of the
duty and (b) the class of persons to whom it is owed or (c) the damages to which a
breach of it may give rise?
SECOND STEP QUESTIONS from Cooper v. Hobart:
i. Does the law already provide a remedy?
ii. Would recognition of this duty raise the spectre of unlimited liability
to an unlimited class?
iii. Are there other reasons of broad policy to negative this duty?
Dobson v. Dobson

Supreme Court of Canada

1999

Policy considerations can militate against finding a novel duty of care, as per the Anns
test. Women do not owe a duty of care to their born-alive children.
Major and Bastarache JJ. would have allowed the child to recover as part of a class of persons
on the road to whom the mother owed an established duty, foreclosing on Anns.
- recognizes otherwise legitimate Duval v. Seguin, though
Wellbridge Holdings v. Greater
Supreme Court of Canada
1970
Winnipeg
Obiter from a Man. C.A. case; a duty of care can be owed to a corporation if it was
incorporated after the act, provided the class of persons put at risk by the act
included potential future actors such as itself.
Renslow v. Mennonite Hospital
Illinois Court of Appeals
1976
The class of persons to whom a duty can be owed need not be in existence at the
time of the negligent act; all that is required is the foreseeable harm to such a
future class of persons.
Cooper v. Hobart
Supreme Court of Canada
2001
Reasonable foreseeability must be supplemented by proximity.
Policy considerations can militate against finding a novel duty of care at the first stage of
the Anns test.
Governments are never liable for policy decisions only operational undertakings of policy.
Major J. beefs up the first step by saying proximity is used to characterize the close and direct
Donoghue relationship in which a duty of care may arise, and secondly that we determine
those relationships using extant categories. Cooper establishes that these relationships are
based in expectations, reliance, representations, etc. The relationship may not exist because no
one may expect it to; hence policy considerations at the first step.
- Proximity here would come at the expense of other, more important interests.
Hence, there must be none!
Remoteness
Remoteness is another word for proximate cause: cause in law, as well as in fact. If duty of
care is about risk to whom, proximate cause / remoteness is about risk of what.
In Re Polemis and Furness, Withy & Co.
Court of Appeal (UK)
1921
Foreseeability of harm is all that is necessary. The fact that a different sort of harm
resulted is irrelevant. You foresaw harm to a class of persons and breached your duty of
care. You were therefore negligent, causing all that ensues.
F.W. Jeffrey and Sons Ltd. and Finlayson v.
Copeland Flour Mills, Ltd.
Houses with tie rods case.

Ont. S.C.

1923

Overseas Tankship (UK) v. Morts Dock &

Privy Council
1961
Engineering (The Wagon Mound, No. 1)
Responsibility for the probable consequences of an act. (DOCK)
It is damage, not the act, which gives rise to liability, so that is what liability must rest on.
If damages were direct but unpredictable, whence a duty of care?

If damages were indirect but foreseen, then tortfeasor should not escape liability.
- In Wagon Mound #1, the plaintiffs relied on Polemis; you knew the dock would decay, so
you are liable for it burning down. Hence the overhaul taken by the Privy Council.
Overseas Tankship (UK) v. The Miller
Privy Council
1966
Steamship Co. (Wagon Mound, No. 2)
Defendant actually found liable in this one Bolton v. Stone; a risk that was significant and
that had a large potential harm could not be overlooked. (SHIP)
Plaintiff could not claim fire was foreseeable in the dock case, Wagon Mound No. 1, because
their dockworkers would have been found contributorily negligent. Here they did attack
foreseeability.
Smith v. Leech Brain & Co., Ltd.
Queens Bench
1962
Thin skull principle. Foresaw a particular form of damage, which was multiplied by a
pre-malignant condition; take a victim as you find him. Adapts Wagon Mound No. 1.
Question was not whether they foresaw cancer, but whether they foresaw the burn. The burn
that they foresaw then caused further damage, and thin skull applies.
Stephenson v. Waite Tileman Limited
Court of Appeal (UK)
Just as danger invites rescue, wound invites infection. Damage to a human body is
sufficiently unpredictable that defendants are stuck with all kinds of unforeseeable
consequences; take your victim as you find him.

1973

Cotic v. Gray
OCA
1981
Thin-skull principle would be thwarted if we threw out some cases as too unusual.
Take your victim as you find him, even if hes suicidal.

Mustapha v. Culligan of Canada, Ltd.

SCC
1981
Difference between thin skull and person of reasonable fortitude. Defendants
are liable for greater injuries due to a plaintiffs subjective state, but not for plaintiffs
that will be injured extremely easily; foreseeability of harm is impossible for them.
Reasonable fortitude is a test for foreseeability; thin skull is a test for damages.
Subjective state of the plaintiff can determine damage, but not relationship
Personal injury at law connotes serious trauma or illness The law does not
recognize upset, disgust, anxiety, agitation or other mental states that fall short of
injury. [Compensable injury] must be serious and prolonged and rise above the
ordinary annoyances, anxieties and fears that people living in society routinely, if
sometimes reluctantly, accept.

Hughes v. Lord Advocate

House of Lords
1963
It is not necessary that precise concatenation of events be foreseeable. Workers
foresaw fire damage, and it resulted. Sure, it was in explosion form, but these are not two
different species of accident.
Also, foreseeability of enticing children. Children are ubiquitous.
Doughty v. Turner Manufacturing Co., Ltd.
Court of Appeal
1964
There can be two different risks on the same facts with the same negligent act ad the
same injury; if the mechanism of injury is sufficiently different (splash v. swoosh),
then one type of harm may be foreseeable and the other not.

May have to be able to foresee the general concatenation of events

Jolley v. Sutton London Borough Council
House of Lords
2000
If a defendant is under an existing duty of care to take a particular precaution,
they are liable for any damage resulting from a failure to take that precaution
they accept liability in exposing a class of persons to danger.
Children are a supernova of liability.
This is no good gun on toe: not the reason we characterize as negligent.
Novus Actus Interveniens
Is this the kind of thing that gives rise to the characterization of the defendants act as
negligent? In Haynes v. Harwood, emphatically yes. In the following cases
Bradford v. Kanellos
Supreme Court of Canada
1973
Although stampedes are a risk of fire, the intervening act was not foreseeable. Was someone
shouting Gas! a foreseeable consequence of letting grease accumulate? No.
Spence and Laskin JJ. in dissent: Foreseeable that people panic in emergencies.
If the idiot had yelled, Fire!, there may well have been liability in not removing the grease
Home Office v. Dorset Yacht Co. Ltd.
House of Lords
1970
Embryonic Anns test. Time to recognize Donoghue v. Stevenson as a general principle unless
justification to do otherwise. Boys act did not break the causal chain; this is exactly what
negligent guarding causes. Although we do not hold the Home Office liable for the acts of a
third party in general, we hold them liable for the immediate consequences of escape.
Subsequent crimes are not its problem, but the resulting frenzy and panic are.
Negligence if the result is foreseeable, even if it is through subsequent human intervention, as
long as the intervening acts were NATURAL and PROBABLE consequences of mine
Wrongful Life
MacKay v. Essex Area Health Authority
Court of Appeal (UK)
1982
We do not recognize wrongful life cases, as they have no legal remedy. We cannot
compensate a plaintiff for being alive; nor can we measure in damages the difference
between existence and non-existence.
Wrongful birth is different; its a case wherein the parent brings suit for negligently allowing
there to be a birth, and the subsequent financial and emotional harms that follow. A child
claiming damages in negligence for harms caused in utero is a claim for straight negligence.
- Canada follows this case
Zaitsov v. Katz
Israel S.C.
1986
Wrongful life cases are legally cognizable, but damage is measured as between life and
life with a defect; not between life and non-life. A plaintiff has no right to the latter.
Essex says a claim for wrongful life is not cognizable because the damages are immeasurable;
but for medical negligence, the plaintiff would not be alive. Zaitsov says they are measurable;
but for medical negligence, the plaintiff would have no bodily damage.
-

and other wrongful birth cases you totally know inside out

NONFEASANCE
Union Pacific v. Cappier
Court of Appeal (UK)
1982
When the plaintiff is the architect of his own injury, there is no duty breached and thus no
negligence possible no duty to rescue or mitigate severity of harm.
Stovin v. Wise
House of Lords
1993
There can be a duty to positively act if the duty is reciprocal (farmers extinguishing
fires threatening each others lands), or in the case of an omission converting an
act into a negligent one (failing to apply brakes).
Epstein: If we accept a duty to assist in cases where there is little or no inconvenience,
where does liberty end and obligation begin? What if that inconvenience is monetary? If
we disregard the difference between doing harm and not preventing it, why should the test
for aid be so much lower than the tests for negligence? One is what a reasonable person
would do to prevent harm; the other assumes a lazy reasonable person.
Weinrib: Public policy occasionally does not value the right to contract above the tort law.
Police officers that do not report things they see off-duty have been held liable in tort,
without having been given a chance to bargain for that information. Family members are
under an obligation to provide the necessities of life despite having no negotiation
opportunity. Some relationships in the public interest are exposed to tort nonfeasance
despite there being an opportunity to contract. Contracts made under duress are
unenforceable. The test for nonfeasance could be the failure to expend unmarketable
goods and effort at no cost, to the harm of another.
- but this does not address the last point of Epstein; the difference in standards. If we
are going to say that there is a tort of nonfeasance, preventing harm to someone as
long as it is an unmarketable effort:
- 1. No amount of time or effort is absolutely free where is the line? Pulling a girl
down out of a second-story window? Climbing a scaffold to do so? These are
unmarketable efforts, but they can become a marketable expenditure of time.
- 2. The difference between the measure of care owed to persons I put at risk and the
persons already at risk establishes that the standard of care I owe to plaintiffs
jeopardized by my negligent act as that amount I owe them above and beyond what
I owe the general public.
Never mind the above: The precautions I must take to prevent the
materialization of an unreasonable risk of harm to the plaintiff are those efforts I
owe to that person beyond that which others owe to shield them from my act, as well.
Am I not then responsible only for the foreseeable harm that others will fail to
prevent? If I fail to post a safety guard, instead relying on foot traffic to assist a
plaintiff, is my liability then to be less than the damages to the plaintiff? Might I
have taken reasonable care? (Ugh, enough, get back to work)
o Bender! Will a nonfeasor be liable to countless persons for not saving an
important figure in the community? We will have to begin considering a
class of persons potentially put at risk by my inaction isnt this negligence?
Oke v. Wiede Transport
Man. C.A.
1963
Foreseeability and causation may be sufficient to find a defendant liable for
nonfeasance.

Caused a hazard without negligence, foresaw harm, resolved but failed to rectify
Moch Co. v. Rensselaer Water Co.
New York Court of Appeals
1928
Failing to provide water in hydrants to the general public is failure to confer a
benefit, and there is no misfeasance in the defendants breach of contract with the
city.
But cant we say that they supplied water negligently?
Childs v. Desormeaux
Supreme Court of Canada
2006
As the Anns test obviates a duty of care owed to party guests, this is at best a case
of nonfeasance; a failure to bestow the benefit of preventing drunk driving.
What of Haynes v. Harwood? Why consider this social host instead of social hosts as a
class? (Were checking duty, not standard!)
From notes on Childs: But if you establish a duty of care, how can there be a question of
misfeasance? Youre entitled to your rights; thats the point of establishing duty of care.
Once we establish that potential infringement on rights, how can we say the negligence
infringing on such is just a missed opportunity for altruism?
Just v. Queen in Right of British
Supreme Court of Canada
1989
Columbia
The government loses step one of Anns due to binding legislation, and loses step two
as decision to inspect is operational, not policy. New trial is ordered, as there is a
duty of care, although the standard will likely be quite easy to meet, as the
government is in charge of such a huge task.
Sopinka J., dissenting: Low-level officials make policy decisions, too! This is a
discretionary power; you cant hold the government responsible for not exercising
power. What kind of policy implementation wouldnt be operational under this
definition? (But we now accept limits on discretion in the public interest: Roncarelli.)
Anns v. London Borough of Merton
House of Lords
1977
Precedent setting the difference between policy and operational decisions. Actually
found for the plaintiff; although implementation of policy is regulated by the ballot
box and not the courts, public bodies do take on responsibilities to the public.
Also held that statutes giving rise to Crown liability must either do so because they
interfere with private rights or grant discretionary powers that may only be
caught at the operational level.
Stevens-Willson v. City of Chatham
Supreme Court of Canada
1934
Pre-Anns: despite firefighter incompetence, municipalities cant be held liable to the
public.
Swinamer v. AG Nova Scotia
Supreme Court of Canada
1994
There is no Crown duty of care to the public in general. A policy decision is the
precondition to finding a duty at the operational level.
Kamloops v. Nielsen
Supreme Court of Canada
1984
Imports Anns test. After finding duty of care, found standard to be good faith

consideration of action to prevent harm. (Following Roncarelli.)

Also, economic losses only recoverable from Crown if it is the sort of loss within the
purview of the empowering statute
Jane Doe v. Metropolitan Police
Ont. Divisional Court
1990
Sufficient proximity (knowing victim class) and foreseeable harm. Following
Kamloops, the statutory duty empowering the police puts this kind of harm within
their purview. Policy or not, the duty of care is found.