Hedley Byrne and Rylands and Fletcher can both support causes of action involving damage to land. There have been attempts to exclude liability by statute. However, if the tort claim relates to land, it is not excluded in most statutes. Click here for more.

Hedley Byrne and Rylands and Fletcher can both support causes of action involving damage to  land. There have been attempts to exclude liability by  statute.  However, if the tort claim relates to land, it is not excluded in most statutes. It does not matter if the claim is based in negligent misstatement or negligent action.  The claim, either way, is based on damage to land or real property.   There is a tort to real property whether it is caused by negligent instruction, misstatement  or physical deed. The class discussed and allowed  by the statute involves injury to property. Then it allows claims involving injury to the real person.   Here is an example of a situation:

The farmer suffered some blight and made a claim for Assistance from a Land commission. He spent monies to cure the blight, using chemicals and was supposed to be compensated for the monies spent. There may have been some chemical damage to the land.    He sued.  The situation was decided as follows although his claim should have succeeded under the common law and regardless of the Crown Proceeding Act for the reasons stated above that confirm his claim for damage to property is not excluded. The class of Tort in question here is a Tort against property regardless of the method or cause as in word or deed.  Torts against property is a class of tort allowed by statute.    Please read the excerpt;

" I conclude that Gauthier cannot be relied on as an authority when determining whether a claim for negligent misrepresentation is actionable against the provincial Crown in the Province of New Brunswick. With all due respect for my colleague’s differing opinion, I conclude that the state of the law in the Province of New Brunswick concerning the tort of negligent misrepresentation is as found by Stevenson J. in Daigle and Rideout and the cases that followed. An action in negligent misrepresentation cannot be maintained against the provincial Crown in New Brunswick as it does not fall within those classes of tort enumerated in the Proceedings Against the Crown Act. 

            Therefore, assuming without deciding, that proof of the facts alleged by the plaintiff would establish the elements of a claim for negligent misrepresentation on a balance of probabilities, such a claim would still fail as it does not fall within the language of subsection 4(1) of the Proceedings Against the Crown Act.

See B.M.G. Farming Ltd v. New Brunswick, 2010 NBQB 151 (CanLII) for the full judgement. 

Section 4(1) of the Proceedings Against the Crown Act states the following with section 4(1) being the operative provision for the farmer: 

Liability of Crown respecting Tort

4(1)Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject,

(a) in respect of a tort to real or personal property, or causing bodily injury, committed by an officer or agent;

(b) in respect of a breach of a duty that a person owes to his servant or agent by reason of being his employer;

(c) in respect of a breach of a duty attaching to ownership, occupation, possession or control of property;

(d) under any enactment, or under any regulation made under authority of any enactment.

Liability for acts of officers

4(2)No proceedings lie against the Crown under paragraph (1)(a) in respect of an act or omission of an officer or agent unless the act or omission would, apart from this Act, have given rise to a cause of action in tort against that officer or agent or his personal representative.

Even if his claim was statute barred by the above provision while it is certainly allowed by S.4(1), the Courts of England and Wales confirm that where there is a conflict between law and equity, equity prevails.  His claim can proceed.