Documentation:Torts/Ultrahazardous activities
Ultrahazardous activities
In Canada there is no distinct common law rule of strict liability for "ultrahazardous activities."
Some other jurisdictions do apply strict liability to certain activities that are considered to be ultrahazardous. The rationale is that such activities involve a high degree of risk or danger for which it is appropriate that, in the event of resulting harm, liability is imposed even in the absence of the defendant's fault.
The rationale for strict liability for ultrahazardous activities
Similar to the rationale for the tort in Rylands v. Fletcher, where individuals or entities undertake activities that are inherently dangerous to others, the rationale of strict liability is to ensure the defendant fully internalises the costs of the risk they create, by imposing civil liability for any harm caused, regardless of the level of care exercised.
In the United States Restatement (Second) of Torts, such liability may be imposed where six factors are established:
| Factors for determining "Abnormally Dangerous Activity"[1] |
|---|
| (a) existence of a high degree of risk of some harm to the person, land or chattels of others; |
| (b) likelihood that the harm that results from it will be great; |
| (c) inability to eliminate the risk by the exercise of reasonable care; and |
| (d) extend to which the activity is not a matter of common usage; |
| (e) inappropriateness of the activity to the place where it is carried on; and |
| (f) extent to which its value to community is outweighed by its dangerous attributes. |
The scope of tortious activities goes beyond the strict liability rule set out in Rylands v. Fletcher: there is no requirement of “escape” of a dangerous thing, nor a “non-natural” use of land.[2] The tort is considered to encompass acts or omissions "carried [out] on public highway or public place[s]" not limited to the land of another.[1]
Jurisdictional divergence
Canada
Canadian common law does not recognise a distinct rule of strict liability for ultrahazardous activities. Professors Linden and Feldthusen have argued that strict liability should extend to activities whose very nature is hazardous, although they recognise this position has yet to be openly embraced by Canadian Courts.[3]
The Ontario Court of Appeal in Smith v. Inco Ltd rejected the extension of the Rylands v. Fletcher rule to activities of ultrahazardous nature generally.[3] The Court's reasoning rested on the contextual differences. Rylands v. Fletcher concerns the risk of accidental or unintended consequences of an escaping force, such as gas leaks or floods. By contrast, the proposed ultrahazardous activity tort would make the defendant "liable for damages even if they are not the product of any accident or misadventure, but are instead the product of the intended consequences of the activity."[3]
United States
Strict liability for ultra-hazardous activities is recognised in the Restatement Second of Torts, which restates the common law of the various states in the United States. American case law has applied the doctrine in a number of cases, including cases involving the spread of toxic fumes in a chemical facility (Indiana Harbor Belt Railroad Co. v. American Cyanamid Co), blasting activities (Friendswood Development Company v. Smith-Southwest Industries, Inc) as well as the operation of a crane during construction (Miller v. Civil Constructors, Inc.). The scope and applicability of this tort varies according to each state's laws and jurisprudence.
India
This tort garnered considerable attention after the Bhopal gas tragedy claimed the lives of 3787 people in India. After a highly toxic gas leaked and spread across the Bhopal plant many of those working or living proximate to the plant were exposed to toxic fumes, giving rise to 487,000 claims under the Bhopal Gas Leak Disaster (Processing of Claims) Act. [4] In response to concerns of lack of alternative legal remedy for the gas leak, the Court in M.C. Mehta v. Union of India affirmed tortious liability for ultra-hazardous activity, stating: [5]
| BBC News on "The Indian city that turned into a gas chamber" |
|---|
| This BBC News article details the Bhopal gas tragedy in India which gave rise to the tort of Ultra Hazardous Activity. |
"We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and nondelegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part."[5]
China
China recognizes strict liability for ultrahazardous activities, which extends no-fault liability in circumstances including "civil nuclear facilities; high-speed railways; activities involving high-pressure, high-altitude, and underground operations; as well as the possession or use of flammable, explosive, poisonous, radioactive, or other high-risk material".[6] The following requirements laid out in the civil code must be satisfied:
- "First, the operation itself has high risk. In other words, the probability that the risk will turn into actual harm is high and exceeds people’s normal sense of prevention.
- Second, even after reasonable prevention measures and corresponding cares were taken, damage caused by high-risk operations still could not be prevented.
- Third, ultrahazardous activities are legal activities; at least, they are not prohibited by law."[6]
Discussion questions
- How is strict liability in tort for ultrahazardous activities distinct from the tort in Rylands v. Fletcher?
- Scholars Linden and Feldthusen have argued that strict liability should extend to activities whose very nature is hazardous, but the Court and Smith v. Inco disagreed. Should Canadian common law recognise a distinct strict liability tort of ultra-hazardous activity?
- ↑ 1.0 1.1 American Law Institute (1965). Restatement of the Law, Second: Torts 2d. St. Paul: American Law Institute Publishers. p. 36.
- ↑ Smith v. Inco Limited, 2011 ONCA 628, at para 77.
- ↑ 3.0 3.1 3.2 Smith v. Inco Limited, 2011 ONCA 628, at para 78.
- ↑ Muchlinski, PT (1987). "The Bhopal Case: Controlling Ultrahazardous Industrial Activities Undertaken by Foreign Investors". Modern Law Review: 545.
- ↑ 5.0 5.1 M.C. Mehta v. Union of India (1987) 1 SCC 395.
- ↑ 6.0 6.1 Xiang Li & Jigang Jin (2014). Concise Chinese Tort Laws. Berlin, Heidelberg: Springer Berlin Heidelberg. p. 99.