.RECENT DEVELOPMENTS IN
STRICT LIABILITY
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. These materials were prepared by Richard Danyliukof McDougall Gauley law firm, Saskatoon,
Saska.tchewanfor -the -.Saskatchewan Legal
Education Society Inc. seminar, Tort Law Decisions
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Highlights, June 2005.
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RECENT DEVELOPMENTS IN STRICT LIABILITY
Richard W. Danyliuk
McDougall Gauley
Introduction
The doctrine of strict liability dates to 1866; one would hope for recent
developments to prompt a paper and discussion on this topic. While the law in
this area has remained relatively stable over the past century and one-half, there
have been changes and nuances which have evolved and which are worthy of
some discussion.
Formation of the Doctrine
The doctrine of strict liability is based upon the principles established in
Rylands v. Fletcher (1866), L.R. 1 Ex. 265; (1868), L.R. 3 H.L. 330.
It is,
therefore, often referred to and plead as the rule in Rylands v. Fletcher." A brief
review of that case, being the genesis of this tort, is instructive.
The plaintiff (Fletcher) conducted a coal mining operation on his land.
Fletcher's land was adjacent to land owned by the defendant (Rylands). Rylands
ran a mill, and had no knowledge of Fletcher's mining operation being conducted
next door. Rylands constructed a water reservoir, to supply water to his mill. It
broke and caused a flood to the mine on the adjoining land.
Fletcher sued,
successfully. Both the trial and appeal decisions are notable.
At trial Blackburn J. (ages 279 - 280) found for the plaintiff and said:
We think that the true rule of law is, that the person who for his own
purposes brings on his lands and collects and keeps there anything likely
to do mischief if it escapes, must keep it in at his peril, and, if he does not
do so, he is prima facie answerable for all the damage which is the
natural consequence of its escape. He can excuse himself by showing
that the escape was oWing to the plaintiff's default; or perhaps that the
escape was the consequence of vis major, or the act of God; but as
nothing of this sort exists here, it is unnecessary to inquire what excuse
would be sufficient.
Blackburn J. was upheld by the House of Lords.
However, the higher
court augmented the trial decision through the addition of "non-natural use", a
constituent element of this tort which survives to this day.
At page 339 the
House ruled:
... if the Defendants, not stopping at the natural use of their close, had desired
to use it for any purpose which I may term a non-natural use, for the purpose of
introducing into the close that which in its natural condition was not in or upon it,
for the purpose of introducing water either above or below ground in quantities
and in a manner not the result of any work or operation on or under the land, and if in consequence of their doing so, or in consequence of any imperfection in
the mode 'of their doing so, the water came to escape and to pass off into the
close of the Plaintiff, then it appears to me that that which the Defendants were
doing they were doing at their own peril; and, if in the course of their doing it, the
evil arose to which I have referred, the evil, namely, of the escape of the water
and its passing away to the close of the Plaintiff and injuring the Plaintiff, then for
the consequence of that, in my opinion, the Defendants would be liable ...
This statement of the House of Lords has been deemed "classic", perhaps
because of its absolute absence of clarity. Nevertheless, if one hacks through
the surplus wording with a machete, one can discern that this tort has four
essential elements:
(i)
the defendant must make a non-natural use of his land;
(ii)
the defendant must bring something onto his land which is likely to
do mischief if it escaped;
(iii)
the thing in question must actually escape; and
(iv)
damage must be caused to the plaintiffs person or property as a
result of the excape.
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Application of the doctrine
The case law that has subsequently evolved in relation to strict liability
suggests that, in order to be found liable, the creator of the harm must be in
control of the property from which it emanated.
An excellent review of the
general principles of this area of the law is found in Klar et ai, Remedies in Tort,
Volume 3 (Toronto; Carswell; 1987).
Note that this cause of action is related to liability in nuisance, but remains
a distinct cause of action. The two are often confused, especially in pleadings.
There are distinctions in the requirements required to prove each tort, and care
must be taken to avoid a blurring of these distinctions. The primary differences
are:
a. A proprietary interest in land is not a prerequisite to an action in strict
liability;
b. An isolated escape constitutes sufficient grounds for an action in strict
liability; and
c. In a strict liability action, something likely to do mischief if it escapes
must be brought onto the land.
i. Non-natural use of land
The meaning ascribed to "non-natural use" was explained by Lord
Moulton in Rickards v. Lothian, [1913] A.C. 263 (C.A.) at page 280:
It is not every use to which land is put that brings into play that principle. It
must be 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.
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In Tock v. St. John's Metropolitan Area Bd. (1989), 64 D.L.R. (4th) 620,
[1989] 2 S.C.R. 1181 the Supreme Court of Canada held that non-natural use "is
a flexible concept that is capable of adjustment to the changing patterns of social
existence." While this undoubtedly is intended, and most often used as a means
for this tort to keep pace with changes in this society, it also has allowed some
excessive flexibility in applying the test.
In Mihalchuk v. Ratke (1966), 57 D.L.R. (2d) 269 (Sask. Q.B.) the
defendant had carried out aerial spraying of herbicide which had drifted onto the
plaintiff's land and caused damage. The Court held there was strict liability and
found that, while spraying herbicide was a natural use, the method by which it
was applied (aerial spraying) was not a common or natural use.
In Cambridge Water Co. Ltd. v. Eastern Counties Leather Pic., [1994]
2 A.C. 263 (P.C.) the House of Lords found that the use and storage of
substantial quantities of industrial chemicals was a non-natural use of the land.
Further, the Court in Cambridge, supra, held that it was essential that the
plaintiff establish that the harm inflicted was foreseeable. The Court found that
the water contamination was not foreseeable, and the defendant was not liable.
(iiJ
Defendant brought it onto the land
This is an absolute requirement for this tort. It is not enough that damage
is caused; the source of it is crucial for a grounding of strict liability.
In the case of Dibartolo Estate v. Avanti Tavern, 1994 Carswell Onto
3060 (Ont. Gen. Div.), a fire started in a deep fryer located in the defendants'
restaurant. The cause of the fire was unknown. The fire spread because the fire
extinguisher system was inadvertently deactivated by a serviceman. The court
held that the defendants had not brought anything onto the premises which was
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likely to do mischief if itescaped, nor were the defendants using the premises in
a non-natural way. As such,"the rule in Rylands v. Fletcher, supra did not apply.
The case of Hallick v. Doroschuk, [1985] S.J. No. 148 (Q.B.) should be
noted. There, fires were intentionally set in various places in the defendant's
field, for legitimate purposes.
The fire escaped onto the plaintiffs land, and
burned down his bin full of barley. The plaintiff sued, based on negligence and
strict liability. The action was dismissed, based on the plaintiffs failure to prove
that it was the defendant or his servants who set the fires. It must be noted that
plaintiffs counsel used "read-ins" from the defendant's examination for discovery,
and did so poorly and to the detriment of his own case. Nonetheless, this case
reinforces the requirement that the defendant bring the "dangerous thing" onto
his land.
While Goldenburg J. did not specifically deal with this issue in light of the
problems with the evidence, there is some doubt whether the burning of stubble
in a Saskatchewan field would be held to be either dangerous or a non-natural
use of the land. For example, see the recent case of Denys v. Gabel, [2003]
S.J. No. 428 (Prov. Ct.), a small claims decision involving an analysis of strict
liability. There, the defendant burned a brush pile in a slough on his land. The
evidence was that this fire had actually occurred a few months previously, but a
conservation officer testified that the brush pile fire was the origin of the later fire,
which spread to the plaintiffs land.
The defendant was found negligent, but was held not to be liable under
the doctrine of strict liability. Judge Halderman discussed this at paragraphs 21
to 25, and found that the piling of brush and burning it is the most common way
to clear land. This being so, setting the fire could not be a "non-natural use" of
the land.
J
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Further, note that strict liability does not apply to accidental fires - they
must be set intentionally, and spread to other land:
Hal/ick, supra; Denys,
supra.
In the recent class action decision in Hoffman et al
v. Monsanto Canada
Inc. et al (May 11, 2005, unreported, Sask. Q.B., G.A. Smith J.) reviewed
issues surrounding strict liability at paragraphs 47 to 52. This was done in the
context of an application to certify as a class action a lawsuit brought by organic
farmers against the two companies that introduced genetically-modified canola
into the market and environment in the mid-1990s. That application failed; note
the matter is presently under appeal with leave being sought by the plaintiffs this
summer. This writer was co-counsel for Monsanto. Madam Justice Smith (as
she then was) discussed the general principles of strict liability in the context of
Section 6(a) of The Class Actions Act, under which the judge is to consider
whether the Claim discloses a cause of action. With respect to strict liability, she
concluded it did not.
(iii)
Thing likely to do mischief
Even though an object may not be inherently dangerous, it may attract the
strict liability doctrine if there is an extraordinary use of the land and the object
can be classified as dangerous. See Fleming, The Law of Torts, 6th ed. (Toronto:
Butterworths, 1983) at p. 311.
In
the
Monsanto
decision,
the
Plaintiffs'
Statement
of
Claim
acknowledged that by the year 2000, half of the canola grown in Western
Canada was of a genetically-modified variety.
This rose to 70% by 2003,
according to the Claim. Monsanto successfully argued that this could hardly be
seen as an "extraordinary" use.
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The Plaintiffs had also acknowledged in their Claim that the Canadian
Food Inspection Agency ("CFIA") granted approval to Monsanto for the
"unconfined release" of its GM canola into the environment. Monsanto argued it
was not possible that its canola would be found to be "dangerous" when the
CFIA's Plant Biosafety Office has granted its regulatory approval, and determined
that the product is safe.
This case highlights the need for caution when drafting pleadings involving
this tort, or that of nuisance.
iv.
Escape
The issue of escape is often litigated, and engenders much dispute. As
was the case in Rylands v. Fletcher, supra, the movement from one place to
another has been found to constitute an "escape" and is a necessary element of
this tort. In Read v. Lyons, [1947] A.C. 156 (H.L.) the Court stated that there
had to be an "escape from a place which the defendant has occupation of,
or control over, to a place which is outside his occupation or control."
The Courts have been liberal in their interpretation of whether escape has
occurred. For example, escape has been found to occur when an engine was
shooting out sparks while travelling along a· road, and a steam roller that crushed
pipes under a highway was found to be an escape (Gas Light and Coke Co. v.
St. Mary Abbott's Kinsington Vestry (1885), 15 Q.B.D. 1 (C.A.).
In Read v. Lyons, supra, the plaintiff was injured in the course of her
employment while inspecting ammunition on the defendant's property. At issue
was whether the defendant was liable under the doctrine of strict liability. The
Court held that the defendant was not liable as there was no "escape" from the
defendant's factory. The decision is important in that it clarifies the comments in
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Rylands and appears to provide a clear indication that the principle in Rylands
should not be extended.
The House of Lords also discusses whether strict
liability would apply if the plaintiff were injured off the defendant's property. In
commenting on a previous case Lord Macmillan stated as follows at 476:
In the next place, the question as stated would seem to
assume that liability would exist in the present case to
persons injured outside of the defendant's premises
without any proof of negligence on the part of the
defendants. Indeed, Cassels, J. in his judgment records
that:
It was not denied that if a person outside the
premises had been injured in the explosion
the defendants would have been liable
without proof of negligence.
I do not agree with this view. In my opinion persons
injured by the explosion inside or outside the defendant's
premises would alike require to aver and prove negligence
to render the defendant's liable.
Lord Macmillan goes on at page 477:
The doctrine of Rylands v. Fletcher, as I understand it,
derives from a conception of the mutual duties of adjoining
or neighboring landowners and its congeners are trespass
and nuisance.... The two prerequisites of the doctrine are
that there must be the escape of something from one's
man's close and that which escapes must have been
brought on the land from which it escapes in consequence
of some non-natural use of that land whatever· precisely
that may mean. Neither of these features exist in the
present case.
Lord Porter stated that the doctrine of strict liability requires an escape
from a place over which the defendant has some measure of control to a place
where he has not.
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Lord Simmonds also provides the following comments at 481 :
The decision itself does not justify the broad proposition
which the appellant seeks to establish, and I would venture
to say that the word "escape" which is used so often in the
judgment of Blackburn, J. meant to him escape from the
defendant's premises and nothing else. It has been urged
that escape means escape from control and that it is
irrelevant where damage takes place if there has been
such an escape, but, though it is arguable that that ought
to be the law, I see no logical necessity for it and much
less an jUdicial authority. For, as I have said, somewhere
the line must be drawn unless full rein be given to the
doctrine that a man acts always at his peril, that "coarse
and impolitic idea" as O.W. Holmes somewhere calls it. I
speak with all deference of modern American text books
and judicial decision, but I think little guidance can be
obtained from the way in which this part of the common
law has developed on the other side of the ocean, and I
would reject the idea that, if a man carries on a so-called
ultra-hazardous activity on his premises, the line must be
drawn so as to bring him within the limit of strict liability for
its consequences to all men everywhere. On the contrary,
I would say that his obligation to those lawfully on his
premises is to be ultra-cautious in carrying on his ultrahazardous activity, but that it will still be the task of the
injured person to show that the defendant owed to him a
duty of care and did not fulfill it. It may well be that in the
discharge of that task he will sometimes be able to call in
aid the maxim res ipsa loquitur.
The House of Lords in Read v. Lyons, supra, provided some clarification
of the concept of strict liability. Arguably, the discussion could also be directly
applicable to the tort of nuisance where, like strict liability, negligence is not
necessary.
In Boudreau v. Irving Oil Co., 1974 Carswell- NB 103, [1974] 9 N.B.R.
(2d) 377 (N.B.S.C.), the owner of land adjacent to a gas station discovered that
his land was contaminated with gasoline. The plaintiff lessee [Mr. Roy] sued the
oil company which owned the land and leased it to operator. The oil company
provided the operator with petroleum products. Under the lease, Mr. Roy, as
lessee, had the obligation to keep in good repair the pumps etc. The Court held
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that the oil company was not liable because it was not in occupation of the
service station. The Court stated as follows:
[12]
The lessee Raymond Roy was the occupier of the premises held by him
under the lease from the Defendant Company. The Company as lessor
and in accord with the terms of the lease cannot be deemed to be the
occupier of the service station premises even though it is the owner
thereof. The gasoline which escaped to the premises owned by the
plaintiff was brought on the service station premises and stored by and
under the control of Mr. Roy the occupier of the premises.
[13]
The principle in Rylands and Fletcher (cited above) is
based on an "escape" from land. in occupation of the
defendant. In Read v. Lyons, [1947] A.C. 156, it was held
that the escape must be from land under the control of the
defendant.
[14]
In Rainham Chemical Works Limited v. Belvedere Fish
Guano Company Limited [1921] 2 A.C. 465, at 479, while
the court questioned the necessity of establishing the
premises, from which the escape of the dangerous
substance occurred, must be occupied by the defendant it
confirmed the principle that the substance must be under
the control of the defendant at the relevant time.
[15]
No evidence was adduced to establish occupation of the
service station premises or control of the gasoline which
escaped to be in the defendant Company at the relevant
time. To make the defendant liable for the escape while
the lessee was in occupation it would be necessary to
show the lessee occupied the premises as agent of the
defendant.
There was no such evidence.
See
Rainham... supra.
In Darbey v. Winnipeg Electric Co, [1933] 4 D.L.R. 252 (Man.C.A.) the
owner of premises contracted with a gas company for the supply of gas.
The
owner subsequently placed concrete pillars near the gas pipes. Gas escaped
and injured the plaintiff, the daughter of the owner.
The Court held that the
damage to the pipes was caused by a third person over which the company had
no control, and therefore, was not liable. The Court stated at page 5:
In Smith's Leading Cases, 13th ed., vol. 1, p. 915, when discussing Fletcher
v. Rylands, it is said, and the authorities for the statement are quoted:
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Upon the same principle it has been held that one who has
collected water upon his land, and has used all reasonable means
to keep it from escaping, is not liable for damage done by an
escape caused by the acts of a stranger over whom he has no
control, and which he could not reasonably have anticipated: Box
v. Jubb (1879), 4 Ex. D. 76.
In Rickards v. Lothian, [1913] A.C. 263, Lord Moulton, delivering the
judgment of the Privy Council in a case which dealt with water which
escaped from an upper story of a building doing damage to the plaintiff's
goods on a lower story, on pp. 278-9, says:
I admit that it is not a question of negligence. A man may use all
care to keep the water in... but would be liable if through any defect,
though latent, the water escaped... But here the act is that of an
agent he cannot control. ... [emphasis added]
The matters complained of took place through no default or
breach of any duty of the defendants, but were caused by a
stranger over whom and at a spot where they had no control.
[emphasis added]
And he proceeds:
Their Lordships agree with the law as laid down in the jUdgments
above cited, and are of opinion that a defendant is not liable on the
principle ofF/etcher v. Ry/ands, L.R. 1 Ex. 265; L.R. 3H.L. 330, for
damage caused by the wrongful acts of third persons.
In the present case. the defendants were guilty of no negligence in
connection with the construction, operation or maintenance of their gas
plant. Their pipe, situate under the building in question, was broken by the
subsidence of a wall superimposed over their pipe, years after it had been
properly placed in position, without their knowledge or consent by lithe
conscious act of another volition." [page 259]
Fenn v. Peterborough (City) (1979), 104 D.L.R. (3d) 174 was a similar
situation. The city was not liable for a fire caused by leak from gas pipe because
the city did not own or control the pipes.
Finally, in terms of recent developments in this area, reference is once
again had to. the recent Saskatchewan case of Hoffman v. Monsanto, supra.
Smith J. noted the pleadings (including, notably, detailed particulars which were
sought and furnished) were not consistent as to what constituted the alleged
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escape. This confusion was compounded in oral argument (see paragraphs 94
and 95).
However, Smith J. determined that the "escape" argued was the
general commercial release of the Defendants' genetically modified canola
cultivars into the environment, following confined field trials and federal
regulatory approval.
At paragraph 97 Smith J. stated "it is not reasonably arguable that the
commercial release and sale of Roundup Ready canola seed and Liberty Link
canola seed constituted an 'escape' of a sUbstance, dangerous or otherwise,
from property owned or controlled by the defendants in the sense of 'escape'
required by the rule in Rylands v. Fletcher." She ultimately found the pleadings
did not disClose a cause of action under the doctrine.
Aerial Spray Cases
As alluded to above, aerial crop spraying has given rise to significant
amounts of litigation in this province. The case of Mihalchuk v. Ratke, supra,
established that the method of aerial spraying is not a natural use. While this
was likely true in the niid-1960s, quaere whether this remains true today?
According to Saskatchewan cases, aerial spraying done improperly will
still invoke the doctrine of strict liability as a basis for grounding liability. The
following cases stand for the proposition that where there is drift of chemical from
.one landowner to an adjoining landowner, there is liability under the rule in
Rylands v. Fletcher.
-
Sartel v. Ector (1978), 90 DLR (3d) 89 (Sask. Q.B.);
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Salanoff v. McHarg, [1982] S.J. No. 948 (Q.B.);
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Desautels v. Sakundiak (1986),47 Sask.R. 291 (Q.B.).
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This line of cases was approved and applied by Madam Justice Hunter in
Fondrick v. Gross, [2003]
S~J.
No. 442 (Q.B.). Strict liability is discussed at
paragraphs 89 - 92. It does appear that Hunter J. recognizes the rules peculiar
to this doctrine, and limits it to cases where the chemical drift is from one land
parcel to an adjoining parcel. If, for example, the pilot simply missed his bearings
and sprayed the wrong land entirely, the action would have to be grounded in
negligence rather than strict liability.
Conclusion
While there has been a gradual expansion of strict liability, the tort has
remained true to its original four principles or requirements.
Recent cases in
Saskatchewan appear to have re-emphasized the need to fit within the tenets of
this doctrine.
However, given the expanded social consciousness regarding matters of
environmental law, together with the new Environmental Management Protection
Act, 2002, one must wonder if there will not be further attempts to expand the
ambit of this rule. While some recent efforts in this regard have met with failure,
it is suggested that in the right factual setting the doctrine of strict liability could
be an important weapon.
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