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Tort Law – Weinrib UNIVERSITY OF TORONTO FACULTY OF LAW Page 1 of 8 DATE: December 13, 2019 TIME: 9:30am - 12:30pm ANNUAL EXAMINATION 2019-2020, DECEMBER 2019 Course: LAW 104H1F. Torts Examiner: Professor E. J. Weinrib NOTE: 1. This is a 3 hour exam closed book examination. You may not consult any materials. A list of cases is attached to this exam. 2. The exam is composed of three questions of equal value. 3. Cell phones, pagers and other communication devices are prohibited in exams. Cell phones are not permitted as a time keeping device, therefore should not be visible on the desk during an examination. Communication devices left on the desk during an exam may be removed by the invigilator. 4. During the examination, only one student at a time is permitted to leave the examination room. No student may leave within fifteen minutes of the conclusion of the examination. 5. At the end of this examination, the invigilator will ask you to stop typing and exit ExamSoft. For students who are handwriting their examination, you will be asked to stop writing, count the total number of booklets used, record this on the front of the first booklet, and insert all booklets into the first booklet. You will then remain seated and quiet until all the examination papers are collected. The invigilator(s) will let you know when you can leave the examination room. 6. Time limits will be strictly enforced. Students who continue to write or type after the examination has ended will have their answer booklets/examination envelope collected separately and may be subject to a penalty. Instructions for handwriters: 7. Before you begin, ensure that you have written your pseudonym, course name, and the number of the booklet on each examination booklet and the name of the instructor on the first booklet. If you request an additional booklet(s) during the examination, write the required information on the booklet at the time you receive it. No time will be permitted for this at the end of the examination. IF YOU ARE WRITING BY HAND, PLEASE DOUBLE SPACE YOUR ANSWERS. Torts, December 2019 Page 2 of 8 Prof. E. Weinrib Question One: (1 hour) The editor of the prestigious journal The Legal Beagle of Canada has asked you to write a comment on the following case. She knows that you have been intensively studying tort law at the best law school on Queen’s Park Crescent. She accordingly considers you a ‘natural’ for commenting on this important judgment. You are given the liberty to comment on any aspect(s) of the judgment that seem to you to be interesting or significant. Write the first draft of the comment (do not repeat the facts). BOLD SPIRIT J.: From a judgment permanently enjoining the defendant, Dysodoria Cattle Farm, from operating a cattle feedlot near the plaintiff Pleasant Properties Development Company's Fairhaven Retirement Community. Dysodoria appeals. We feel that it is necessary to answer only two questions. They are: 1. Where the operation of a business, such as a cattle feedlot is lawful in the first instance, but becomes a nuisance by reason of the development of a nearby residential area, may the feedlot operation be enjoined in an action brought by the developer of the residential area? 2. Assuming that the nuisance may be enjoined, may the developer of a completely new town or urban area in a previously agricultural area be required to indemnify the operator of the feedlot who must move or cease operation because of the presence of the residential area created by the developer? [Bold Spirit J. then outlined the facts. The defendant operated a cattle feedlot situated 25 kilometres west of the city of Metropolis in what had long been an agricultural district. The plaintiff purchased land (for considerably less than the price of land in urban Metropolis) in the neighbourhood of the feedlot in order to develop an urban area to be known as Fairhaven Retirement Community. Fairhaven catered to senior citizens, who began to purchase homes there as they became available. As the development grew, it came closer and closer to the feedlot, until the developer encountered sales resistance because of the flies and smells of the feedlot.] At the time of the suit, Dysodoria was feeding between 20,000 and 30,000 head of cattle, and the facts amply support the finding of the trial court that the feed pens had become a nuisance to the people who resided in the southern part of Pleasant’s development. The testimony indicated that cattle in a commercial feedlot will produce 35 to 40 pounds of wet manure per day, per head, or over a million pounds of wet manure per day for 30,000 head of cattle, and that despite the admittedly good feedlot management and good housekeeping practices by Dysodoria, the resulting odor and flies produced an annoying if not unhealthy situation as far as the senior citizens of southern Fairhaven were concerned. There is no doubt that some of the citizens of Fairhaven were unable to enjoy the outdoor living which Pleasant Properties Development had advertised, and that Pleasant Properties Development was faced with sales resistance from prospective purchasers as well as strong and persistent complaints from the people who had purchased homes in that area. Torts, December 2019 Page 3 of 8 Prof. E. Weinrib It is noted, however, that the citizens of Fairhaven are not represented in this lawsuit and the suit is solely between Pleasant Properties Development Company and Dysodoria Cattle Farm. It is clear that the operation of Dysodoria's feedlot is a private nuisance. There was no indication at the time that Dysodoria set up its operations that a new city would spring up, full-blown, alongside the feeding operation and that the developer of that city would ask the court to order Dysodoria to move because of the new city. Dysodoria is required to move not because of any wrongdoing on the part of Dysodoria, but because of a proper and legitimate regard of the courts for the plaintiff’s rights. Pleasant Properties Development, on the other hand, is entitled to the relief prayed for (a permanent injunction), not because Pleasant Properties is blameless, but because of the damage to the people who have been encouraged to purchase homes in Fairhaven. It does not equitably or legally follow, however, that Pleasant Properties, being entitled to the injunction, is then free of any liability to Dysodoria if Pleasant Properties has in fact been the cause of the damage that Dysodoria has sustained. It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result. Having brought people to the nuisance to the foreseeable detriment of Dysodoria, Pleasant Properties must indemnify Dysodoria for a reasonable amount of the cost of moving or shutting down. It should be noted that this relief to Dysodoria is limited to a case wherein a developer has, with foreseeability, brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief. This remedy, although novel, is both fair and efficient. It is fair because Pleasant Properties is responsible for creating the incompatibility between its use of the land and Dysodoria’s. It is efficient because Pleasant Properties will not impose the cost of moving on Dysodoria unless Pleasant Properties gains more from the defendant’s move than Dysodoria loses from it. We all recall Bramwell LJ’s famous statement in Bamford v Turnley, (1862) 122 ER 27, that something is in the public benefit “when the loss to individuals of the public who lose will bear compensation out of the gains of those who gain.” That happy result is what our decision achieves. Question Two: (1 hour) In Home Office v Dorset Yacht Co. Ltd, [1970] AC 1004 (HL), Viscount Dilhorne (dissenting) made some observations about the limits of judicial action in developing the law of negligence. Torts, December 2019 Page 4 of 8 Prof. E. Weinrib Those observations are reproduced in the next few paragraphs. Do you think that those observations are adequate? If you do, what positions are you rejecting. If you do not, what do you think might be viable alternatives to what Viscount Dilhorne is saying? Illustrate your comments by reference to the material on negligence law studied this term. (You should not confine yourself to the Dorset Yacht case.) Your answer should not be merely a list of illustrations but should coherently develop a theme that relates the material studied to the issues raised by Viscount Dilhorne’s observations. (In answering this question do not use illustrations that will overlap with your answer to question three.) Lord Atkin's answer to the question "Who, then, in law is my neighbour?" while very relevant to determine to whom a duty of care is owed, cannot determine, in my opinion, the question whether a duty of care exists … [T]he Donoghue v. Stevenson principle cannot be regarded as an infallible test of the existence of a duty of care; nor do I think that if that test is satisfied, there arises any presumption of the existence of such a duty. Lord Denning MR in the course of his judgment in this case said that he thought that the absence of authority was "because, until recently, no lawyer ever thought such an action would lie." Whatever be the reasons for the absence of authority, the significant fact is its absence and that leads me to the conclusion, despite the disclaimer of counsel for the respondents of any such intention, that we are being asked to create in reliance on Lord Atkin's words an entirely new and novel duty and one which does not arise out of any novel situation.
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