Tooley et al. v. Arthurs, 2002 NBQB 32

• Judge: McLellan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 25, 2002
• Jurisdiction: New Brunswick
• Citations: 2002 NBQB 32;(2002), 246 N.B.R.(2d) 160 (TD)

Tooley v. Arthurs (2002), 246 N.B.R.(2d) 160 (TD);

    246 R.N.-B.(2e) 160; 638 A.P.R. 160

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.B.R.(2d) TBEd. JA.040

Nicholas Tooley and Barbara Thompson (plaintiffs) v. Paul Arthurs, doing business as Arthurs Enterprises (defendant)

(S/C/759/00; 2002 NBQB 32)

Indexed As: Tooley et al. v. Arthurs

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

McLellan, J.

January 25, 2002.

Summary:

While excavating near the foundation of an old farmhouse, a bulldozer scraped a large stone that was part of the foundation. Small rocks fell from the top of the inside of the foundation wall and one rock broke a brass valve from the bottom of an oil tank. Fur­nace oil escaped and went down a drain. The owners of the farmhouse claimed the cost of the clean-up from the bulldozer operator.

The New Brunswick Court of Queen's Bench, Trial Division, held that the bulldozer operator was liable for the clean-up expense.

Damages - Topic 528

Limits of compensatory damages - Re­moteness - Torts - Foreseeability - While excavating near the foundation of an old farmhouse, a bulldozer scraped a large stone that was part of the foundation - Small rocks fell from the top of the inside of the foundation wall and one rock broke a brass valve from the bottom of an oil tank - Furnace oil escaped and went down a drain - The owners of the farmhouse claimed the cost of the clean-up from the bulldozer operator - The bulldozer operator claimed that the damage was too remote - The New Brunswick Court of Queen's Bench, Trial Division, held the bulldozer operator liable - He graded too close to the foundation; the homeowners relied on him and did not assume the risk; he breached a duty of care owed to the homeowners and negligently damaged the foundation; it was reasonably foreseeable that the bulldozer could physically damage the stone founda­tion - It was not necessary for anyone to have been able to foresee the extent, pre­cise type, sequence of events or manner of incidence of the resulting damage - See paragraphs 9 to 28.

Damages - Topic 529

Limits of compensatory damages - Re­moteness - Torts - Recoverable damages - General - [See Damages - Topic 528 ].

Torts - Topic 49.3

Negligence - Standard of care - Particular persons and relationships - Heavy equip­ment operator - [See Damages - Topic 528 ].

Torts - Topic 60

Negligence - Causation - Foreseeability - [See Damages - Topic 528 ].

Cases Noticed:

Belanger et al. v. Ross (1969), 1 N.B.R.(2d) 833 (C.A.), refd to. [para. 11].

Dairy Belle Ltd. et al. v. Carson (1970), 3 N.B.R.(2d) 359 (C.A.), refd to. [para. 11].

Westcott v. Hall (1979), 28 N.B.R.(2d) 171; 63 A.P.R. 171 (T.D.), refd to. [para. 12].

Vancouver General Hospital v. McDaniel et al., [1934] 4 D.L.R. 593 (P.C.), refd to. [para. 14].

Frawley v. New Brunswick et al. (1996), 182 N.B.R.(2d) 241; 463 A.P.R. 241 (T.D.), refd to. [para. 16].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241, refd to. [para. 16].

Hughes v. Lord Advocate, [1963] A.C. 837; [1963] 1 All E.R. 705 (H.L.), refd to. [para. 21].

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (Wagon Mound No. 2), [1967] 1 A.C. 617; [1966] 2 All E.R. 7090 (P.C.), refd to. [para. 21].

School District of Assiniboine South No. 3. v. Hoffer et al. (1972), 1 N.R. 34; 21 D.L.R.(3d) 608 (Man. C.A.), affd. [1973] S.C.R. vi; 1 N.R. 32; 40 D.L.R.(3d) 480 (S.C.C.), refd to. [para. 21].

Williams et al. v. Saint John (City), New Brunswick and Chubb Industries Ltd. (1983), 53 N.B.R.(2d) 202; 138 A.P.R. 202 (Q.B.), affd. (1985), 66 N.B.R.(2d) 10; 169 A.P.R. 10 (C.A.), appld. [para. 21].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, appld. [para. 23].

Counsel:

Danys R.X. Delaquis, for the plaintiffs;

Duane M. McAfee, for the defendant.

This case was heard on January 17 and 18, 2002, before McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on January 25, 2002.