Careless Smoking a Nuisance

We have attached a copy of the reasons for judgment in Kinsmen et al. v. Walker Estate, a decision of Mr. Justice Denis Power that was handed down last week. Our firm acted for the plaintiffs in this subrogated claim for damages arising out of a 1999 fire at an apartment building in Kingston. The decision addressed two issues that might interest you:

1. mental incompetence as a defence in a civil action; and

2. careless smoking and the law of nuisance.

The claim was against a tenant in the building who was alleged to have caused the fire through careless smoking. The tenant was an elderly woman who died during the litigation. (The action continued against her estate.) One of the defences raised on her behalf was that, at the time of the fire, she was so mentally incompetent that she was unable to understand that she had a duty of care and so, could not be found liable. (There was also a dispute as to whether the fire had even been caused by careless smoking.)

Justice Power allowed the claim. He found that the tenant’s careless smoking had caused the fire and that her mental condition did not amount to a defence to the claim in negligence. His Honour’s discussion of this rather rare defence (in civil actions, at least), is of interest. He makes it clear that not just any degree of mental incapacity will suffice to relieve a defendant of civil liability. He cited an 1923 Ontario case which had held that “when a tort is committed by a lunatic, he is unquestionably liable in many circumstances”. Justice Power found that the mental incapacity of the defendant Walker was not so severe as to provide a defence.

He also found, as an alternative ground, that careless smoking constitutes a “nuisance”. This is significant because liability in nuisance is often argued to be strict, or something close to it. (In a 2004 case for example, Best v. Spasic, the court observed that nuisance “is a unique combination of strict liability and negligence”.) In this case, the finding did not make any difference, because liability was also imposed on the basis of negligence. But in other circumstances, where negligence cannot be established, the difference between the two causes of action might be important.

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