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Gertsen v Toronto [1973], 2 OR (2d).

Facts:

Toronto dumped putrescible organic waste into a land-fill site in York. Methane gas escaped from the site and accumulated in the plaintiffs garage which exploded when he started his car.

Issue(s):

Is the particular object dangerous or the particular use non-natural?

Ratio:

A number of factors must be taken into consideration in determining natural/non-natural use:
- Location
- Benefit of use (social & economic)
- No other option (Tock v SJMAB)
-

Analysis:

Has "Escape" Occurred? - Yes, methane went from under the control of Toronto to Plaintiffs land and caused the explosion.

If because of the non-natural use something escapes capable of causing mischief (methane gas), the defendant is strictly liable.

Time, place and circumstance
“The Courts have looked not only to the thing in isolation, but also to the place and manner in which it is maintained and its relation to its surroundings” (@ 908)

The distinction between natural and non-natural is relative and capable of adjustment.

The “qualification” of exempting activities from non-natural use which are of social or economic importance (I.e. in the public interest”) must not be regarded as a general exemption.

Therefore, it must be assessed in light of the current nature of the public authority statutory defence. (Tock: public authority has no alternative but to act in the manner they did) <- (Ryan)

What may be a non-natural use in one area may be a natural use in another and vice versa. What is a non-natural use is not immutable.

Holding:

Plaintiff successful - non-natural use of land.

Comments:

Defenses to non-natural use of land:
-Consent
-Common Benefit (shared benefit of NNU)
-Default of the Plaintiff
-Act of God
-Act of a Stranger
-Statutory Authority

(Fire Cases 910 notes 3-5)


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