Strict Liability and Land – Rylands v Fletcher
10
Strict liability and land – Rylands v Fletcher
AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the unique purposes behind the creation of the rule
■ Understand the essential elements that must be proved for a successful claim
■ Understand the wide range of available defences
■ Understand the limitations on bringing a claim
■ Critically analyse the tort and identify the wide range of difficulties associated with it
■ Apply the law to factual situations and reach conclusions as to liability
10.1 Purpose and character of the tort
Trespass to land protects landowners from infringement of their boundaries. The tort of negligence gives a right of action where damage is caused as a result of a ‘careless’ act. We have also seen that the tort of nuisance comes to the assistance of a person whose use of land is interfered with indirectly by activities of the defendant on their land. It might appear that all possible eventualities have been catered for but this is not the case.
Trespass to land depends on direct and intentional interference while negligence will fail if it can be shown that the defendant did all that was reasonable to minimise the risk of damage. Nuisance will generally only be established if the activity is continuing over a period of time even though there can be liability for a ‘one off’ incident in rare cases.
So it could traditionally be considered where this leaves occupiers whose land is damaged by a non-negligent escape of something from another’s land?
This would be an indirect interference so might fail under trespass to land. A one off escape might also fail the requirement of continuous interference in private nuisance.
The rule in Rylands v Fletcher [1865] 3 H & C 774 (Court of Exchequer) came about to fill this gap. It has its roots in nuisance and in reality most claimants are likely to plead nuisance as an alternative to Rylands v Fletcher. For many years it has been argued that Rylands v Fletcher is a tort of strict liability. It is questionable whether this has been an accurate view since the early part of the twentieth century. From that time, as will be seen, the judges have gradually changed the rules so that it has long been a favourite question of examiners – ‘To what extent can the tort of Rylands v Fletcher be truly described as a tort of strict liability?’ The issue will be returned to later in this chapter.
10.2 Definition
The definition most commonly used is found in the judgment of Mr Justice Blackburn in Rylands v Fletcher as modified in the House of Lords judgment in the same case by Lord Cairns LC [1868] LR 3 HL 330:
JUDGMENT
‘A person who for his own purpose brings onto his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is … answerable for all the damage which is the natural consequence of its escape.’
It was later added in the House of Lords in the case by Lord Cairns that the use of the land must amount to a non-natural use. So even at the very start the scope of the tort was being limited.
On the face of it, there is no requirement of fault on the part of the person who accumulates the thing, nor need the escape or the likelihood of damage be foreseeable. It is these facts which for many years led lawyers to argue that the tort imposed strict liability. As we shall see, the judges have refined these basic principles over the years.
10.3 Elements of the tort
10.3.1 Bringing on to land and keeping there
The first requirement is that the thing must be brought on to the land. Anything which is naturally there will not suffice.
CASE EXAMPLE
Giles v Walker [1890] 24 QBD 656
Here the defendant was not liable for the spread of thistledown from his land and could not be. He had not brought the weeds on to his land and accumulated them there. They had grown naturally.
Similarly this element is not made out where things accumulate on the land normally such as rainwater.
CASE EXAMPLE
Ellison v Ministry of Defence [1997] 81 BLR 101
It was held that at Greenham Common (the scene of a very long-running protest against nuclear weapons) a natural accumulation of rainwater which escaped and caused flooding to neighbouring land did not give rise to liability.
CASE EXAMPLE
Leakey v The National Trust [1980] QB 485
Here a mound of loose earth on a hill was particularly subject to cracking and slipping in bad weather. When the mound did in fact slip and cause damage to neighbouring land the defendants were liable because they knew of this possibility and yet failed to do anything to prevent it.
The fact that something naturally on the land has escaped will not suffice for liability under Rylands v Fletcher but we have already seen in Chapter 9.3.2 there may be liability in nuisance (Leakey v National Trust [1980] QB 485).
It is not essential that the thing be brought on to the land by an owner or occupier.
CASE EXAMPLE
Charing Cross Electric Supply Co v Hydraulic Power Co [1914] 3 KB 772, CA
Water mains were placed above electric cables. When the water main burst, the cables were flooded and a large part of London was blacked out. The water company, a mere licensee with no interest in the land, was liable for the escape of the water.
The thing has to be accumulated for the purposes of the defendant but this does not necessarily mean that it is also for the defendant’s benefit. For instance the accumulation of sewage by a local authority is done for the purpose of exercising statutory powers. It cannot be said that the local authority benefits from the accumulation.
CASE EXAMPLE
Smeaton v Ilford Corporation [1954] Ch 450
A local authority collected sewage under a statutory authority and some of this escaped on to the claimant’s land. It was held that it was responsible for the sewage even though it was accepted that it derived no benefit from collecting the sewage but it did have a defence under the statute.
10.3.2 Something likely to do mischief if it escapes
The thing need not be dangerous in itself but it must be likely to cause damage should an escape occur. This point is illustrated by the facts of Rylands v Fletcher.
CASE EXAMPLE
Rylands v Fletcher [1868] LR 1 Exch 265; LR 3 HL 330
The defendants used reputable engineers to build a reservoir on their land to accumulate water. While the reservoir was under construction, the engineers came across old mine shafts which they failed to seal properly. When the reservoir became full of water, it escaped along the old shafts into the mine owned by the claimant. Water is not intrinsically dangerous but a large accumulation of water will be likely to cause damage if it escapes. The defendant was held liable and the tort of Rylands v Fletcher came into being.
■ The owners of a cemetery were liable when branches from yew trees spread across the boundary into an adjoining field where they were eaten and poisoned animals pastured in the field (Crowhurst v Amersham Burial Board [1879] 4 Ex D 5).
■ A motor car, which was then regarded as a ‘new fangled thing’, was stored in a garage with petrol in the tank. The car caught fire and a neighbour’s house was damaged. The owner of the car was held liable under Rylands v Fletcher (Musgrove v Pandelis [1919] 2 KB 43).
■ A flag pole ‘escaped’ from a building by falling and causing damage. It was held to be a dangerous thing (Shiffman v Order of the Hospital of St John of Jerusalem [1936] 1 All ER 557). (This also illustrates the point that the thing need not be dangerous in itself, but merely likely to become so if it escapes.)
■ A fairground was liable when a chair flew from a ‘chair-o-plane’ roundabout causing injury to a neighbouring stallholder (Hale v Jennings Bros [1938] 1 All ER 579).
■ Electricity stored in high voltage cables which ‘leaked’ from under the claimant’s land and electrocuted his cows meant that the defendant was liable (Hillier v Air Ministry [1962] CLY 2084).
The list could go on but what is clear is that anything can be regarded as dangerous, or ‘liable to cause a mischief ’, in particular circumstances. The courts have avoided giving a definition of ‘dangerous’ and have decided each case on its own particular facts.
Recent case law has added another dimension to what will be regarded as ‘dangerous’. In Cambridge Water v Eastern Counties Leather [1994] 2 WLR 53 Goff LJ explained:
JUDGMENT
‘foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in damages under the rule’.
He added that it must be possible to foresee the potential for damage at the time the accumulation occurs. The facts of the case illustrate the point.
CASE EXAMPLE
Cambridge Water v Eastern Counties Leather [1994] 2 WLR 53
Chemicals which were stored by the defendants seeped into the underground water supply used by the claimant. At the time the chemicals were accumulated the amount of contamination caused to the water supply was within acceptable standards. Some time later, the law was changed and the level of contamination could no longer be tolerated. The change in the law could not have been foreseen by the defendants who were found not to be liable.
The issue of foreseeability has been discussed in the later case of Transco plc v Stockport Metropolitan Council [2003] UKHL 61 which enabled the House of Lords to review the scope and application of the tort.
CASE EXAMPLE
Transco plc v Stockport Metropolitan Council [2003] UKHL 61
A multi-story block of flats, built by the defendants, was supplied with water for domestic use. A large pipe from the water mains led to tanks in the bottom of the buildings to supply the needs of 66 households. Without negligence, the pipe failed and water escaped. Without negligence the leak was undiscovered for some time by which time sufficient water had escaped to cause an embankment beneath the claimant’s gas mains to collapse. As a result, the gas main posed an immediate and serious risk. The claimants took prompt action and sought to recover the cost from the defendants on the basis that the defendants were strictly liable under Rylands v Fletcher.
Lord Bingham acknowledged:
JUDGMENT
‘many things not ordinarily regarded as sources of mischief or danger may nonetheless prove to be such if they escape’.
Having reviewed cases since Rylands v Fletcher itself, he concluded:
JUDGMENT
‘It must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be.’
It is clear from this judgment that the issue of foreseeability is closely linked to the concept of ‘non-natural user’ discussed in section 10.3.4.
The rules for foreseeability of the type of damage are those which have previously been discussed coming from The Wagon Mound (No 1) (see Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) [1961] AC 388).
When considering the nature of damage caused, it is clear that there will be other factors being satisfied as well as liability for damage to property. For many years it was not clear whether there could also be liability for personal injury. In Read v Lyons [1947] AC 156 the damage caused was personal injury. While the case was decided upon the issue of escape, the judges discussed, obiter, whether or not the tort could enable such damages to be paid. Lord Macmillan suggested that there could not be liability for personal injury in the absence of negligence, stating that the basis of Rylands v Fletcher is a mutual duty owed between landowners. ‘It has nothing to do with personal injury.’ Lord Simonds stated that he could not support the view that liability under the tort ‘extends to purely personal injuries’. The point was discussed obiter and it should be remembered that damages had in fact already been awarded for personal injury.
CASE EXAMPLE
Hale v Jennings Bros [1948] 1 All ER 579
A car from a ‘chair-o-plane’ ride on a fairground became detached from the main assembly while it was in motion and injured a stallholder as it crashed to the ground. The owner of the ride was held liable. Risk of injury was foreseeable if the car came loose.
In Transco v Stockport, two of the judges took the opportunity to debate this issue further. Although the comments are obiter as the case did not involve any claim for personal injury, they are informative. Lord Bingham stated:
JUDGMENT
‘the claim cannot include a claim for death or personal injury, since such claim does not relate to any right in or enjoyment of land’.
Lord Bingham acknowledged that his view, given the close relationship between Rylands v Fletcher and nuisance, was based on Hunter v Canary Wharf. Lord Hoffmann referred to the fact that claims for personal injury had been admitted in the past but stated:
JUDGMENT
‘the point is now settled by [Cambridge Water] which decided that Rylands v Fletcher is a special form of nuisance and Hunter v Canary Wharf … which decided that nuisance is a tort against land. It must, I think, follow that damages for personal injuries are not recoverable under the rule.’
10.3.3 The thing must escape
This means precisely what it says – the thing must move from the land controlled by the defendant to land controlled by the claimant. This is clear from the facts of Rylands v Fletcher but it was explained in Read v J Lyons & Co Ltd.
CASE EXAMPLE
Read v J Lyons & Co Ltd [1947] AC 156
In 1942, munitions were manufactured by the defendants. The claimant was a munitions inspector in the shell-filling shop when an explosion occurred. One person was killed and the claimant was injured. There was no negligence involved in the explosion.
Viscount Simon LC held that the claimant could not succeed in her claim under Rylands v Fletcher, explaining:
JUDGMENT
‘Escape, for the purpose of … Rylands v Fletcher means escape from a place which the defendant has occupation of, or control over, to a place which is outside his occupation or control.’
It is also clear that the ‘thing’ itself need not escape.
CASE EXAMPLE
Miles v Forest Rock Granite Co (Leicestershire) Ltd [1918] 34 TLR 500
The claimant brought the action in respect of injuries suffered when rocks flew on to the highway from the defendants’ land where they were blasting. It was the explosives that had been brought on to land that actually caused the rock to escape, but there was still liability. There had been an escape – the blast.
It is sometimes difficult to see how the courts have enforced this requirement. In Hale v Jennings both the roundabout and the injured stallholder were in fact on the same land while in Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyd’s Rep 533 both parties occupied the same stretch of river.
The different approaches perhaps anticipate or reflect the view expressed by Mr Justice Lawton in British Celanese v A H Hunt (Capacitors) Ltd [1969] 1 WLR 959 when he said the escape should be:
JUDGMENT
‘from a set of circumstances over which the defendant has control to a set of circumstances where he does not’.
We shall see that the identity of the defendant in some cases will depend on whether the judges follow the approach set out in Read v Lyons or in British Celanese v Hunt. Certainly the approach taken by Lawton J allows for a wider range of claimants while that taken by Viscount Simon LC limits the number of potential claimants.
10.3.4 Non-natural use
It is always difficult to decide where the discussion of non-natural use should appear. It is arguable that all the above essential elements of the tort are involved therefore it has been decided to include this very important issue at this point.
The House of Lords in Rylands v Fletcher stated that the escape must be of something which is brought on to the land and does not naturally occur there. This view is potentially extremely wide and the floodgates were at risk of being opened to extremes. Over the years the courts have guarded against this risk by refusing to give a specific definition of what will be regarded as ‘non-natural use’ preferring instead to deal with the issue on a case by case basis.
In Read v J Lyons & Co Ltd Viscount Simons LC said obiter that he would question:
JUDGMENT
‘whether the making of munitions in a factory at the government’s request in time of war for the purpose of helping to defeat the enemy’
was a non-natural use of land. In the same case Lord Porter said that the court should take into account:
JUDGMENT
‘all the circumstances of time and practice of mankind … so that what may be regarded as dangerous or non-natural may vary according to the circumstances’.
Lord Porter’s view appears to have been based in an earlier view expressed by the Privy Council Rickards v Lothian [1913] AC 280.