McKinnon Industries v William Wallace Walker
Privy Council (Canada)
Citations:  3 DLR 577.
The defendant operated a steel and iron manufacturing plant 600 feet from the claimant’s land. The claimant’s land was used for both residential purposes and as a commercial florist and plant nursery. The nursery housed orchids, a particularly sensitive variety of flower. Fumes and smuts from the defendant’s land caused a range of trees, hedges and flowers on the claimant’s land to die. this included the claimant’s orchids.
The claimant sued the defendant in nuisance. The defendant resisted an injunction restraining the fumes, on the grounds that the claimant could be adequately compensated with a small monetary sum. They relied on the fact that the claimant had accepted compensation from the defendant for the damage during WW2. The claimant argued that they had only done so because there was no chance of obtaining an injunction during the war. The defendant also contended that they should not be liable for the damage to the orchids, because this was an especially sensitive use of the land.
- Was the claimant entitled to an injunction?
- Could the defendant exclude the damage to the orchids from the ambit of the injunction?
The Privy Council held in favour of the claimant. The fumes and smut were an actionable nuisance because they unreasonably affected ordinary use of the claimant’s land. This having been established, the defendant was liable for all consequential property damage. This including damage to unusually sensitive uses. There was therefore no reason to distinguish between the orchids and the rest of the claimant’s plants.
The fact that the claimant had accepted money during the war did not preclude him from acquiring an injunction once this became possible. The damage suffered was serious, ongoing and getting worse. In these circumstances, a small sum of money would not be adequate compensation. An injunction was appropriate.
This Case is Authority For…
If the defendant’s use of the land would not affect normal use of the land, it is not an actionable nuisance just because it impacts an unusually sensitive or special use. However, if the defendant’s use would affect normal use of the claimant’s land, they are liable in respect of losses suffered because of the impact on unusually sensitive and special uses of their land.
This case indicates that the court is unlikely to grant damages in lieu of an injunction where the claimant’s loss is considerable, ongoing and getting worse.