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Documentation:Torts/Non-Natural Use of Land

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Non-Natural Use of Land

The strict liability tort of non-natural use of land relies upon a landmark case Rylans v. Fletcher which affirms that: "anyone who brings something onto his land which is not naturally there is strictly liable if the thing escapes and injures someone".[1] In practice, this can include injuries caused by domestic pets, wild animals kept on land, and fires created by land users. While non-natural use of land is a noteworthy area of tort law, they are known to be "relatively rare" in light of the expansion of negligence law. [1]

Rule in Rylands v. Fletcher

The tort of non-natural use of land, was created by the House of Lords rule in Rylands v. Fletcher. The landmark case was preceded by a 1860 incident where Rylands, a local millworker, employed contractors to construct a reservoir on his land. However, unknown to Rylands, the reservoir was built atop vertical shafts underground and shortly after Rylan's newly erected reservoir flooded his neighbour Fletchers mine, causing significant property damage.

Bazley v. Currey & Employment liability
This animated video by Quimbee provides a summary of

Case history

After the flooding of the mine, Fletcher brought an action against Rylands which reached the Exchequer of Pleas in 1865. The case focused on whether Rylands could be liable for

damages given the absence of negligence. The majority, Chief Baron Pollock CB and Barin Martin, ruled that there could be "no liability without negligence, because otherwisese the defendant would be an insurer" which was viewed as "contrary to legal analogy and principle". However, Baron Bramwell disagreed and advocated for the right for Fletcher to use his land without interference.

Fletcher appealed the majority's decision in Exchequer of Please to the Court of Exchequer Chamber. The six judges hearing the case allowed the appeal, and Justice Blackburn affirmed for the majority the following:

We think that the true rule of law is, that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

This decision led Ryland's to appeal to the final court, the House of Lords. Lord Cairns spoke for the house and affirmed the below judgements reasons delivered by Justice Blackburn. However, the house added limitations that the dangerous thing of escaping from land must be being used in a non-natural manner. [2]

Elements

While the elements of the torts have been a source of question in recent years; writers of The Law of Nuisance in Canada suggest four elements of the rule set out in Rylands v. Fletcher:

Elements of Rylands v. Fletcher Rule[3]
(a) the defendant made a "non-natural" or "special" use of their land;
(b) the defendant brought on to their land something that was likely to do mischief if it escaped;
(c) the substance in question in fact escaped; and
(d) damage was caused to the plaintiff's property as a result of the escape.

The rule in Rylands v. Fletcher permitted a large range of applications for circumstances involving land-related damages.[4] These circumstances, however, required the interpretation of the above four ambiguous elements.

Non-natural use of land in Canada

Port Colborne, Ontario, the city where over 7,000 property owners brought an action against Inco Limited for the contamination of soil from the neighbouring nickel refinery.

Refashioning of the Elements in Rylands

The strict liability tort of non-natural use of land has been adopted by Canadian courts, and distinguished from "negligence, private nuisance, and statutory liability". [5] In practice, cases operationalizing the Rylands v. Fletcher rule involve "floods, gas leaks, chemical spills, sewage overflows, fires and the like."[6] The first case to address Rylands v. Fletcher's applicability in Canada was Tock v. St. John's Metropolitan Area Board.[7] [8] The 1989 Supreme Court case, among others, have refashioned the original elements set out by Lord Carin in 1868 to accommodate Canada's legal, economic, and political circumstances.

"Non-natural use of land"

The non-natural use of land was originally intended by Lord Cairn to apply to situations where the defendant brings "for his own purposes brings on his land and collects anything likely to do mischief". [9] In following cases such as Rickards v. Lothian, the court expanded on the definition, stating non-natural use is the "special use [of land]" that is not "ordinary use" or use that is "proper for the general benefit of the community". [10] Despite these definitions, non-natural use application to contemporary landscapes remains tricky, as non-natural use of land during the era of Rylands may resemble something different in the current industrial landscape of much of the Canadian physical landscape.

The Supreme Court in Tock, followed England's approach to the rule, stating that the strict liability tort required non-natural use involves "some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community".[7] The case, which involved a sewer system block resulting in flood, was decided in favour of the defendant, as the court stated that public sewage infrastructure is "necessary to support urban life" and thus does not satisfy the requirement for non-natural use of land.

In Smith v. Inco Limited, Smith and co-claimants brought an action to the Ontario Court of Appeal because Inco Ltd's nickel factory was causing nickel particles to spread to the soil of surrounding properties. [11] On the other hand, in Canada (Attorney General) v MacQueen claimants brought an action after the contamination of their property by a neighbouring steel plant. In both cases the courts ruled that both the nickel refinery and steel plant were ordinary uses of land. While the rulings in Ontario and Nova Scotia demonstrate a high threshold for successful claims of non-natural use of land, approaches of other provinces to this legal matter have yet to be addressed.

"Escape of something likely to do mischief"

The element of "escape of something likely to do mischief" was used by the court in Rylands to identify two factors; one being the physical escape and the other being the hazardous nature of the thing escaping. In practice, escape has resembled; floods (Rylands v. Fletcher[2]), fires (Jones v. Festiniog Railway Co[12]), gas (Batchellor v Tunbridge Wells Gas Co[13]), among others.

Revisiting the alleged escape of nickel onto neighbouring properties in Smith v. Inco Limited, the court of appeal stated that the emission of nickel into the soil did not constitute an "escape" which according to the court required "some kind of mishap or accident that results in damage."[14]

"Damage"

The damage element of the tort of non-natural use of property adds harm to the requirements the plaintiff must satisfy. While a majority of strict liability cases deal with harm caused to adjacent lands, "harm to chattels is also recoverable".[4] While English courts restricted recoverable damage to land and chattels, Canadian courts extended it to personal injury. [15] Such a shift from English law is especially important in considerations of personal autonomy in circumstances where "toxic fumes" or "harmful biological agents" may influence a ones health as a result of nonnatural use of lands.

Environmentalism, industrialization, and restriction of non-natural use

For years commercial activities involving mines, mineral and oil refineries, paper mills, industrial plants, and more have been known for their tendency to discharge hazardous elements into their surrounding environment. [16] These elements have on a variety of occasions been known to pollute proximate communities, taking an immeasurable toll on both the local ecosystem and people. In light of this, the decisions in Smith v. Inco drew many questions as to why industrial activity is not characterized as a non-natural use of land under the rule in Rylands v. Fletcher. While Smith stands as an indicator of courts favouring industrial progress over community well-being, burgeoning public policy surrounding environmental control has played a pivotal role in enforcing accountability for industries with the capacity to cause significant harm through pollution.

Flint water crisis is a public health crisis originating in 2014 that involved the contamination of the cities water supply.

Statutory landscape

The Canadian Environmental Protection Act (CEPA) of 1999 was created set a framework for the management of toxic substances in the environment related to industrial activities. In practice, the Act serves as a basis for many government programs that monitor industrial plants and report on a range of concerns relating to toxic emissions and the environment. Section 99(2) of the Act, creates a cause of action for those experiencing harm from a spill of a pollutant.[17] Yet, the Act still requires fault in order to be found liable, moving environmental legal claims away from strict liability set out in Rylands v. Fletcher.

While many environmental critics have questioned CEPA and other environmental legislation's ability to deter and control pollution resulting from industrial activities, tort law remains confined to the ambiguous rule set out in Rylands v. Fletcher.

Environmental Racism

Researchers have noted a disproportionate number of communities greatly affected by environmental emissions and pollution in North America are Indigenous or Black.[18] The term "environmental racism" is used to describe this reality, viewable in examples such as Grassy Narrows, Ontario or even Flint, Michigan in the United States. As a result of the restricted legal avenues involving non-natural use of land John Forstorm interprets the current landscape of toxic tort litigation to create "victims without cause".[19]

Connection to nuisance and diverging international approaches

Nuisance in Canada, is separated from the tort of non-natural use of land, and defined as the interference with one's enjoyment of property. While they are two separate torts, nuisance and non-natural use of land have accompanied each-other in cases including Smith v. Inco. However, many other jurisdictions approach nuisance and non-natural use of land much differently.

England

Since World War II, there has been no case in England which applies the Rylands v. Fletcher rule in favour of the plaintiff.[20] In the more recent caseTransco Plc v. Stockport MBC the House of Lords revisited the rule of Rylands, stating that non-natural use of land is a "sub-species of nuisance, which is itself a tort based on the interference by one occupier of land with the right or enjoyment of land by another". [21] As a result, non-natural use of land is a no longer a distinct tort in England, and is most after appear if cases under the category of nuisance.

Australia

In Burnie Port Authority v General Jones Pty Ltd the High Court of Australia rejected the rule set out in Rylands v. Fletcher.[22] The court reasoned that the rule encompassed "quite unacceptable uncertainty" and was not required given the expansion of negligence and nuisance causes of action.[22] As the situation in Burnie involved the spread of a fire, the court accordingly ruled that a person who undertakes a dangerous activity on their property, owes a duty of care to avoid foreseeable harm created by the spread of that dangerous element onto the property of others.

India

Unlike Australia India has applied Rylands v. Fletcher rule to domestic cases. In 1986 the case MC Mehta v. Union of India reached the Supreme Court of India. [23] The case, concerning a gas lead following the deadly 1984 Bhopal gas leak drew significant attention of those concerned with the application of Rylands v. Fletcher to industrial activity in India. The court applied a more narrow version of the rule in Rylands by ruling that act done "for the benefit of the community and undertaken under statute were excepted from the principle" of strict liability. [20] In addition, the court emphasized the need for 'escape' of a thing, and stated gas leaks effecting those on the premise did not satisfy the element of escape set out in the test. [23]

Discussion Questions

Common day interpretations of Rylands

  • How did the court in Smith apply Rylands? What are the similarities and what are some differences?
  • Canadian common law currently recognizes the tort of non-natural use of land, but the "non-natural" element has diverged since Rylands v. Fletcher. How do you think the divergence of interpretations of "non-natural" impacts cases involving this tort?

Modes of liability

  • Most torts involve an element of fault, however, many advocate for strict liability in the area of pollution and environmental catastrophe. Do you think strict liability is an effective deterrent?
  • Various jurisdictions have had different approaches to creating liability for incidents of pollution or emission affecting land, chattels, or people. What are these different approaches and what do you find to be the challenges of each?

Quiz

Insert H5P quiz



  1. ↑ 1.0 1.1 Klar, L.N. "Strict Liability". The Canadian Encyclopedia.
  2. ↑ 2.0 2.1 Rylands v. Fletcher [1868] UKHL 1, (§22.1.1).
  3. ↑ Smith v. Inco Limited, 2011 ONCA 628, at para 71.
  4. ↑ 4.0 4.1 Osborne, Philip H. (2020). The Law of Torts. Toronto: Irwin Law. pp. 363 & 368.
  5. ↑ Smith v. Inco Limited, 2011 ONCA 628, at para 68.
  6. ↑ Smith v. Inco Limited, 2011 ONCA 628, at para 68.
  7. ↑ 7.0 7.1 Tock v. St. John's Metropolitan Area Board, 1989 CanLII 15 (SCC).
  8. ↑ Nova Scotia (Attorney General) v. MacQueen 2007 NSCA 33 (CanLII).
  9. ↑ Rylands v. Fletcher [1868] UKHL 1, (§22.1.1), para 4-5.
  10. ↑ Rickards v. Lothian [1913] AC 263, at 280.
  11. ↑ Smith v. Inco Limited, 2011 ONCA 628.
  12. ↑ Jones v. Festiniog Railway Co (1868) LR 3 QB 733
  13. ↑ Batchellor v Tunbridge Wells Gas Co (1901) 65 JP 680.
  14. ↑ Smith v. Inco Limited, 2011 ONCA 628, at para 112.
  15. ↑ Gertsen et al. v. Municipality of Metropolitan Toronto et al., 1973 CanLII 606 (ON SC).
  16. ↑ Osborne, Philip (2020). The Law of Torts. Toronto: Irwin Law. p. 372.
  17. ↑ Environmental Protection Act, RSO 1990, c E.19, s. 99(2).
  18. ↑ Waldron, Ingrid, (2018). There's Something in the Water: Environmental Racism in Indigenous and Black Communities. Black Point, Nova Scotia;Winnipeg: Fernwood Publishing.CS1 maint: extra punctuation (link)
  19. ↑ Forstorm, John (1987). "Victim Without a Cause: The Missing Link Between Compensation and Deterrence in Toxic Tort Litigation". Journal of Environmental Law. 18.
  20. ↑ 20.0 20.1 Swarup, Aditya (Strict Liability and Its Misapplications in India). "Strict Liability and Its Misapplications in India". NLUD Journal of Legal Studies. 1: 75–8. Check date values in: |date= (help)
  21. ↑ Transco Plc v. Stockport MBC [2003] UKHL 61 (§22.1.2)
  22. ↑ 22.0 22.1 Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, at 540.
  23. ↑ 23.0 23.1 MC Mehta v. Union of India 1987 SCR (1) 819.
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