Loring v. Brightwood Golf and Country Club Ltd.,

• Jurisdiction: Nova Scotia
• Judge: Dubinsky, J.
• Citation: (1972), 7 N.S.R.(2d) 501 (TD)
• Court: Supreme Court of Nova Scotia (Canada)
• Date: 28 March 1972

Loring v. Brightwood Golf (1972), 7 N.S.R.(2d) 501 (TD)

MLB headnote and full text

Loring and Loring v. Brightwood Golf and Country Club Limited

Indexed As: Loring v. Brightwood Golf and Country Club Ltd.

Nova Scotia Supreme Court

Trial Division

Dubinsky, J.

March 28, 1972.

Summary:

This case arose out of an action for damages with respect to flood damage to a residential property. The plaintiffs-homeowners sued the defendant golf club in nuisance and negligence with respect to damage caused to their home as a result of a flow of water emanating from the defendant's golf course. The plaintiffs' basement was flooded on three separate occasions. The defendants had failed to clear drains located on their property prior to each of the three floods. The Nova Scotia Supreme Court, Trial Division, stated that the defendants owed a duty of care to the plaintiffs to keep the drains clear of debris. The trial court further stated that the defendant's failure to do so on three separate occasions constituted negligence. The trial court awarded the plaintiffs special damages and $600 general damages with respect to damage suffered by them - see paragraphs 57 to 60.

It was argued that there was no negligence on the defendants' part because the hazard arose through natural causes, i.e. wet weather. The trial court stated that the origin of the hazard was irrelevant. The trial court stated that "the [defendant's] neglect of action in the face of something which may damage his neighbour" formed the basis of the occupier's liability, i.e., the defendant had "a measured duty of care ... to remove or reduce hazards to [its] neighbours". The trial court further stated that the scope of the defendant's duty "ought to be to require of [it] what it is reasonable to expect of [it] in [its] individual circumstances" - see paragraphs 55 and 56.

Prior to the first flooding, a contractor employed by the defendant removed a natural barrier to the flow of water onto the plaintiffs' land. The trial court stated that it was prepared to hold that this act constituted a private nuisance and that the nuisance was one which had been "adopted" by the defendant - see paragraph 47.

Damage Awards - Topic 545

Torts affecting land - Trespass - Water flowing from defendant's land onto plaintiff's land on three separate occasions - The Nova Scotia Supreme Court, Trial Division, awarded the plaintiffs $600 general damages for trouble, inconvenience and aggravation - See paragraph 64.

Torts - Topic 45

Negligence - Standard of care - Particular persons and relationships - Landowner - The plaintiffs' basement was flooded on three separate occasions by water flowing from the defendant's golf course during wet weather - On each occasion the drains located on the defendant's property and maintained by the defendant were blocked - The Nova Scotia Supreme Court, Trial Division, stated that it was irrelevant that the hazard originated from an act of God - The Trial Division further stated that the failure of the defendant to keep the drains clear constituted negligence - The Trial Division awarded the action to the plaintiffs - See paragraphs 55 and 56.

Words and Phrases

Nuisance - The Nova Scotia Supreme Court, Trial Division, discussed the meaning of the word "nuisance" in the law of torts - See paragraph 40.

Words and Phrases

Continues or adopts a nuisance - The Nova Scotia Supreme Court, Trial Division, discussed the meaning of the words "continuing or adopts a nuisance" in the law of torts - See paragraph 46.

Words and Phrases

Negligence - The Nova Scotia Supreme Court, Trial Division, discussed the meaning of the word "negligence" in the law of torts - See paragraphs 48, 50 and 51.

Cases Noticed:

Sedleigh-Denfield v. O'Callagan and Others (Trustees for St. Joseph's Society for Foreign Missions), [1940] A.C. 880; [1940] 3 All E.R. 349, refd to. [para. 42].

Rylands v. Fletcher (1868), L.R. 3 H.L. 330, refd to. [paras. 44 & 45].

The J.P. Porter Co. Ltd. v. Bell et al. (1935), 32 M.P.R. 13, refd to. [para. 48].

Grant v. Australian Knitting Mills, [1936] A.C. 85: [1935] 3 All E.R. 209, folld. [para. 50].

Donaghue (or McAlister) v. Stevenson, [1932] A.C. 56, folld. [para. 50].

Goldman v. Hargrave and Others, [1967] 1-2 A.C. 645, folld. [para 53].

Giles v. Walker (1890), 24 Q.B.D. 656, refd to. [para. 54].

Job Edwards Ltd. v. Birmingham Navigations, [1924] 1 K.B. 341, refd to. [para. 54].

Counsel:

A. David MacAdam and Thomas J. Burchell, for the plaintiffs;

George T.H. Cooper and Robert G. Belliveau, for the defendant.