Green v. Dunphy

Green v. Dunphy

Claims for trespass, breach of permit and Rylands v. Fletcher failed because the works and causes of flooding were not legally attributable to a non-natural use on the defendant's land or were matters for municipal enforcement; however negligence was established because the defendant had responsibility to keep culverts clear, the defendant damaged a culvert during mitigation efforts and debris repeatedly blocked the culverts, causally contributing to overflow and basement flooding; both parties bore responsibility for clearing debris so damages were apportioned 60% defendant / 40% claimant and damages were awarded accordingly.

Citation
2016 NSSM 5
Parties
Claimant: Lloyd R Green; Claimant: Pamela M Green; Defendant: Fred M Dunphy
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
31 March 2016
Procedural Posture
Small Claims Court Tort/property (flooding) / Decision (adjudicated After Transfer From Supreme Court)
Outcome
Judgment for claimants in part; defendant held 60% liable and ordered to pay damages and costs.
Legal Topics
Negligence, Nuisance, Trespass, Rylands V. Fletcher (strict Liability), Damages, Contributory Negligence, Breach of Permit
Source Language
English
Torts Property Environmental/watercourse Regulation Negligence Nuisance Trespass Rylands V. Fletcher (strict Liability) Damages +2 more

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Parties

Lloyd R Green

Claimant

Pamela M Green

Claimant

Fred M Dunphy

Defendant

Procedural Posture

Small Claims Court Tort/property (flooding) / Decision (adjudicated After Transfer From Supreme Court)

Legal Issues

  1. 1 Breach of permit/licence and effect on liability
  2. 2 Whether trespass occurred
  3. 3 Application of the rule in Rylands v. Fletcher

Ratio Decidendi

Claims for trespass, breach of permit and Rylands v. Fletcher failed because the works and causes of flooding were not legally attributable to a non-natural use on the defendant's land or were matters for municipal enforcement; however negligence was established because the defendant had responsibility to keep culverts clear, the defendant damaged a culvert during mitigation efforts and debris repeatedly blocked the culverts, causally contributing to overflow and basement flooding; both parties bore responsibility for clearing debris so damages were apportioned 60% defendant / 40% claimant and damages were awarded accordingly.

Court Disposition

Judgment for claimants in part; defendant held 60% liable and ordered to pay damages and costs.

Orders

  • Defendant to pay claimant $6071.97 (60% of allowed losses)
  • Defendant to pay court costs $246.80