Private Law Causes of Action
The judge-made common law
recognizes various types of harm as being worthy of intervention by the
court. If a person who has suffered
harm can show that he or she falls within one of these categories he or she can
claim compensation for the harm and/or a court order preventing the harm from
continuing.
The following is not a
comprehensive list of the types of harm that the courts will recognize. It is merely a list of some that relate more
directly to land use and environmental pollution: Negligence,
Negligent Mis-statement, Nuisance,
Riparian Rights, Strict
Liability, Trespass. If you intend to sue someone, or are being sued, you should
consult a lawyer.
At common law everyone is under
a duty to exercise reasonable care not to harm his or her “neighbours in law”.
Such “neighbours” include all of those people who a reasonable person would
expect might be negatively affected by his or her actions (or failure to
act). Negligence, then, is a failure to
look out for other people that results in damage that could have been foreseen
and avoided.
In a common-law action for
negligence, a plaintiff must successfully establish:
·
a duty of care – Should the defendant have known that
his or her actions might negatively affect the plaintiff?;
·
a breach of the duty of care – Did the defendant fail
to take adequate precautions to ensure that the possible harm did not occur;
·
damage resulting from the breach – Did the defendant’s
actions cause physical or financial harm?; and
·
that the damage was foreseeable and could have been avoided
with the exercise of reasonable care – Was the harm such that it could have
been avoided if reasonable steps were taken?
The basic test to which
defendants in a negligence action are held is whether a “reasonable person”
similarly situated would have acted similarly; and ultimately, whether the
damage or injury should have been avoided with the exercise of due care.
In the context of environmental
disputes, negligence actions can be used to obtain compensation for property
damage or harm to humans from human-caused forest fires, spills of
contaminants, pollution, flooding, and destruction of property or
wildlife.
A person who has relied upon
the assurances of a person with whom they have a special relationship, and who
has suffered harm as a result of a mistake made by that person, may sue for
negligent mis-statement. Defendants to
this cause of action most often include professional advisors, but may include
parties to any relationship where one party presents themselves as having
expertise.
Very briefly, the test for
negligent misstatement includes the following assessments:
·
whether there was a “special relationship” between the
parties giving rise to a duty of care (or whether the plaintiff was one of a
class of persons who ought to have been within the reasonable contemplation of
the defendant);
·
whether the representor ought to have foreseen the
representee’s reasonable reliance upon the information;
·
whether the information provided by the representor was
provided negligently;
·
whether the representee’s reliance on the information
was reasonable;
·
whether the information was untrue, inaccurate or
misleading; and
·
whether damage was sustained as a result.
This sort of action could be
useful for seeking redress in a situation where, for example, a person is
harmed after receiving negligent advice from an expert regarding the safety of
using or ingesting a certain product, or constructing something in a certain
way. It has been successfully used
where a farmer’s crops died after a particular pesticide was used (in
accordance with the instructions on the pesticides).
Private nuisance, often just
referred to as nuisance, is the unreasonable interference by a person with an
occupier’s use and enjoyment of his or her land.
If a person has done something
that makes another’s property less usable, a nuisance may have occurred. Examples could include air and water
pollution, noise, vibration, smells, spills, soil contamination and flooding. The person who has been affected can claim
compensation for the loss of enjoyment of the property and/or a court order
requiring the person causing the nuisance to remove it.
Nuisance can be the result of
direct or indirect action. It is not
necessary to demonstrate that the person causing the nuisance acted
inappropriately – simply that the damage to the property occurred. However, a court may refuse to award damages
against the person causing the harm if the nuisance is reasonable (given the
character of the neighbourhood) or if the harm is authorized by a statute.
At common law, riparian rights
are the rights of a property owner or tenant to use and enjoy the water
(stream, lake or river) flowing through or past that person’s land. Riparian rights also protect the landowner
or tenant’s right to the continued flow of the water in its natural quality and
quantity, undiminished and unpolluted.
In B.C., most common law
riparian rights have been effectively replaced as a result of the passage of
the Water Act. The Water
Act claims as Crown property all of the water in the province; and it also
establishes a priority-based scheme for the granting of rights to the
water. Because the Water Act does not deal with water quality, it remains an open
point whether one could successfully advance a claim for diminished water
quality, based on traditional riparian rights.
Groundwater is one exception to
the Water Act regime for water in the
province, a fact that means that it is likely possible to use common law rights
in respect of groundwater to advance a claim in respect of pollution of a
groundwater source (although the common law is less clear about protection of
the continued flow of groundwater).
Note, however, that springs flowing
out of the ground are covered by the Water
Act regime.
A second exception relates to
marine water. The Water Act
extends only to water resources flowing in streams (broadly defined). It does not appear to remove common law
rights of access to clean ocean water and other rights associated in the common
law with ownership of a waterfront lot.
This type of marine property rights are sometimes referred to as a type
of riparian rights, but are more accurately referred to as “littoral rights”.
When a person owns a good that
is likely to cause mischief should they escape (e.g. toxic or dangerous
substances), he or she is responsible for any harm to private property or human
health that they cause if they do escape.
The cause of action originated with the 1866 case of Rylands v. Fletcher and therefore, the
cause of action is sometimes referred to as “the Rule in Rylands v. Fletcher.”
Actions founded on strict
liability do not require proof of negligence or an intention to harm. Strict liability involves two key
components: a non-natural use of the land (e.g. use of the goods in question in
a manner other than the norm), and an escape of the goods causing harm. However, because of the strictness of the
rule, the courts have introduced various defences to strict liability; possible
defences include:
·
an “act of God”,
·
a default of the plaintiff,
·
consent of the plaintiff,
·
a deliberate act by a third person, or
·
legislative authority to carry on the activity.
Strict liability arguments have
been used successfully in cases involving the escape into the environment of
noxious or inflammable gases or chemical solvents used in industry, gases or
electricity being transported, escape of lead or mercury, or damage caused by
blasting of rock.
Trespass is concerned with
direct, voluntary, unauthorized interference by a defendant with an owner or
occupier’s land. The physical
interference can take the form of a person entering the land or a tangible
object or material being deposited onto the land. It can also involve unwanted, direct exposure to chemicals or
other substances.
Trespass actions may be
successfully defended with proof either that the trespass was unintentional, or
that the trespass was committed by the defendant without negligence. Trespass may also in rare cases be
successfully defended on the basis of necessity, for example where the entry
was made in order to save a life.
In addition to the common law
rules about trespass, some statutes make trespass an offence and set out other
rules around trespass. These statutory
trespass rules should not be confused with the common-law rules.
In an environmental context a
trespass may occur where a pollutant has been deposited upon land, or where a
person has entered onto a property in order to cut trees, spray substances or
do some other action with environmental implications.
Related Guide Pages:
·
Common Law Causes of Action.
·
Public Causes of Action.
For more information about private causes of
action:
·
The
“New” Toxic Torts: An Environmental Perspective – A paper by Richard
Lindgren, a lawyer with the Canadian Environmental Law Association, on common
law and statutory causes of action in Ontario.
·
Tort
Law in Canada: An Introduction – Pages maintained by Victoria Lawyer Lloyd
Duhaime. See in particular Mr.
Duhaime’s pages on nuisance
and negligence.
