Common Law Rule in Rylands vs Fletcher

The man in the street might legitimately expect the Common law to have developed a means by which persons who suffer personal injury or damage to their property due to the release of dangerous substances outside the walls of a facility would recover compensation without having to prove fault on the part of those who operate that facility.

Assess the extent to which this expectation is realised by the so-called Rule in Rylands v Fletcher as amended and restricted up to the present date.

To successfully bring a claim under the Rule in Rylands v Fletcher [1] , there must be an escape of a dangerous thing in the course of a non-natural use of land, for which the occupier will be liable for the damage caused to another as a result of that escape. This is provided for by Mr Justice Blackburn and it could be seen from his speech that it is a tort of strict liability, which means that regardless of whether the occupier (who accumulated the dangerous thing which escaped) is at fault, he/she will be liable to the claimant who suffered personal injury or damage to property. On the face of it, therefore, where anyone who suffers personal injury or damage to their property due to the release of dangerous substance from someone’s land, he/she will be entitled to compensation even where the occupier is not at fault (i.e. he/she was not in anyway to blame for the escape). Nevertheless, in actual fact, the law surrounding this area is not as clear cut. The recent added requirement that the defendant would only be liable to a “foreseeable consequence of escape” brings greater doubts (i.e. further to the already existing debate) into whether the tort remains one of strict liability or is there no longer difference to (for example) the tort of negligence.

Before examining the question whether the tort remains to be one of strict liability, which is important in accessing the extent to which the fault-based element is realised by the law surrounding this area, it is first necessary to establish and understand the basic requirements of the tort.

When deciding whether the case before them is one of Rylands, the court must be able to establish that there is:

A dangerous thing

It should be noted from Blackburn J’s judgment that things that are brought onto the land must be “likely to do mischief” but it does not mean that the thing accumulated must be dangerous itself. This means that almost anything can be a dangerous thing (for example: water could not be seen as being “dangerous” in itself, but was certainly a dangerous thing that is capable of satisfying the requirement- the case of Rylands v Fletcher [2] . In Hale v Jenning Bros [3] , a “chair-o-plane” in a fairground which caused damage when one of the chairs flew off and damaged the adjoining land was held to be a dangerous thing for the purpose of Rylands.

An accumulation of that dangerous thing

The accumulation is a non-natural use of land

The Rule in Rylands v Fletcher would only apply where the defendant deliberately accumulated or brought onto his/her land a “dangerous thing” in the course of some “non-natural” use of land. In Giles v Walker [4] , it was held that there was no liability under the rule in respect of trees, shrubs and other plants that are naturally found on the defendant’s land, even if part of these do escape to the claimant’s land. This should be distinguished, yet, with genetically modified crops (or seed) – they are specifically/deliberately accumulated. In Pontordawe RDC v Moore-Gwyn [5] , rocks which fell to the claimant’s land as a result of weathering was held to be not deliberately accumulated (similar to the decision in Giles v Walker [6] ), and so no liability was owed.

It should be seen that the accumulation must be a non-natural use of land for there to be a liability to be owed; there has been a clear intention by the courts to distinguish things which are naturally on land and something which is brought onto the land. Lord Cairns drew a clear distinction between natural use and non-natural use of land when the case of Rylands v Fletcher reached the House of Lords, this is a refinement to the rule given by Blackburn J that there should be liability for things brought onto the land and accumulated by the defendant. In Rickards v Lothian [7] , Lord Moulton explained that “It is not every use to which land is put that brings into play [the] principle. It must be some special use bringing with it increase danger to others, and must not merely be the ordinary use of land or such use as is proper for the general benefit of the community [8] “. In Read v J Lyon Co Ltd [9] , this was considered to be dependent upon the benefit to the community and this was confirmed in British Celanese Ltd v A H Hunt Ltd [10] where Lawton J further commented that the use of land on an industrial estate for industrial purposes was an ordinary use of land. However, Lord Goff said in Cambridge Water v Eastern Counties Leather [11] that “The storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use. [12] ” This was finally settled Transco v Stockport Metropolitan Council [13] where Lord Bingham made it clear the rule in Rylands v Fletcher will only apply “where the defendant’s use is shown to be extraordinary and unusual [14] ” and therefore the argument of “general benefit of the community” is not sufficient.

The dangerous thing has escaped.

As the definition by Blackburn J establishes, the defendant is only liable when damage is caused by the escape- and it has been defined that it is an “escape from a place where the defendant either have occupation or control over land to a place which is outside his occupation or control.” In Read v Lyons [15] , the munitions inspector was injured while visiting a munitions factory but had failed in her claim under Rylands since she was unable to prove that there is an escape from a place where defendant have control to a place outside his control. With the absence of negligence, the claimant was unable to succeed in the action. Clearly, the thing must move from the defendant’s land to cause damage elsewhere, and if this is not so, there will be no liability. From the case of Miles v Forest Rock Granite Co [16] , it could be seen that the thing that actually escapes does not have to be the dangerous thing brought onto the land provided that the escape is referable to an non-natural use of land.

5) The escape must causes damage of a foreseeable type?

In Cambridge Water, the claimant was unable to succeed on the ground that the damage was too remote a consequence of the escape. This seems to mean that since this case, the claimant would not be able to recover if the damage was not of a type or kind which is reasonably foreseeable. What the court seem to have in mind (particularly Lord Goff) in this case is that one could only be strictly liable for a damage which is deemed to be reasonably foreseeable and because damage in this case is not so, liability could not arise. On such findings, it must also be noted that personal injuries does not seem to be a type of injury which the rule provides for. Lord Macmillian commented in obiter of Read v Lyons [17] that “as the law stands an allegation of negligence is in general essential to the relevancy of an action of reparation for personal injuries,” [18] and so he was not prepared to allow for a personal injury under Rylands. The House of Lords made it incredibly apparent in Transco that Rylands v Fletcher was to be seen as a “sub-species” of nuisance and thus; it could only protect rights to an enjoyment of land, it does not extend to allowing a claim for personal injuries. Despite their comments were delivered in obiter but it appears that it is settled that a claim could only arise in respect of damage to land in which the claimant has an interest and probably would never succeed in respect to personal injuries.

Is the tort still one of strict liability?

The courts created this new tort during the industrial revolution in the eighteenth century, attempting to make industrialists strictly liable for any damage caused by the escape of an dangerous thing, regardless of whether or not they could have taken any precaution to prevent it or when they are no way at fault for its escape. However, as we have seen, over the years elements of fault-based liability have been introduced, raising a debatable question as to whether the tort remains to be one of strict liability.

Initially, it is necessary to note that since the tort is one of strict liability, rather than one of absolute liability, there have always been a possibility of defences and a number of defences are in fact available to defendants who have been alleged to owe a liability under the rule. This includes: 1) Consent- where the claimant consented to the accumulation and the defendant had not been negligent in its escape (Kiddle v City Business Premises Ltd [19] ), 2) Statutory Authority- that on construction of statute, no liability should arise, 3) Act of God- no human foresight and prudence could reasonably recognise the possibility of such an event (Greenock Corp v Caledonian Railway [20] ), 4) Act of a stranger- there is an unforeseeable act of a “stranger” over whom the defendant had no control (Rickards v Lothian [21] ), and 5) Claimant’s default- the claimant is partly at fault ( a quasi-defence). Arguably, a person should legitimately expect that where he/she suffers damage to their property due to the release of a dangerous substance from the defendant’s land, that no defences should be available. This seems to be a basic expectation particularly when personal injuries are not a possible head of claim. Nevertheless, far from this, we see that instead of the tort being one where the defendants can raise no defences, the defences available to them were in fact of quite a wide range. In Burnie Port Authority v General Jones Pty Ltd [22] , the majority in the case viewed that the defences which could be raised by the defendants such as Act of God were more “attuned to the notion of fault-liability than that of strict liability”. This reasoning is, however, seen to be flawed by Nolan [23] . He commented that while consent and statutory authority are defences which are generally applied in tort, Act of God, Act of Stranger and Claimant’s default are that based on causation- that because there has been a novus actus interveniens, there should be no liability owed by the defendant. He concluded that such an argument is merely over-exaggerating the effect such defences have on the tort, which seems to be incorrect. Such existence to him, therefore, should not be seen as watering down the strict liability principle, which seems accurate along with his justification.

Moreover, we see that the tort was limited immediately by Lord Cairins when the original case of Rylands v Fletcher arose in the House of Lords with the additional requirement of non-nature use of land- this surely limit the application of the tort as one of strict liability. It is already seen that the tort will apply only when the defendant had deliberately accumulated a “dangerous thing” in the course of some “non-natural” use of land. This might itself be seen to be an immense limitation to the application of the tort yet, the House of Lords decided to limit this further in Transco by holding that it will apply only when the use is shown to be “extraordinary or unusual”. As seen from the case and as agreed by the Law Lords in the case, such would mean that there will be very few circumstances to which the definition would be satisfied; that is many things which may not be natural on land may be quite ordinary and this requirement will be dependent upon time and space (Lord Moulton in Rickards v Lothian) as well as the context of the use of land (similar to that in nuisance “What would be a nuisance in Belgravia Square would not be so in Bermonsey [24] “). This requirement seems to go against the purpose of strict liability since it basically made it much more difficult for a claimant to succeed in any claim taken against general industrialised activity- which the tort was initially introduced to protect against. The courts may thought that such would be a control mechanism to which will could be used to limit the number of cases arising, yet there is no real justification (or so it seems) doing so. The fact that they wanted to limit the number of claims does not appear sufficient when the main purpose of the tort in the first place was to make defendants strictly liable for any escape of dangerous thing.

The requirement of foreseeability from Cambridge Water seems to have an inevitable (as commonly argued) effect of removing the element of strict liability from the tort of Rylands v Fletcher. From that case, we have seen that the claimant would not be able to succeed on the ground that the damage was to too remote consequence of the escape, i.e. once there has been an escape, the damage caused must be of a type or kind that was a reasonably foreseeable consequence of the escape. In his judgment, Lord Goff held that “foreeseeability of damage of the relevant type should be regarded as a prerequisite of liability under the rule. [25] ” Unquestionably, this brings into the question of whether the tort will remain one of strict liability since this is evidently (or so it seems) an element of fault-based tort. Lord Goff justified his position by stating that the tort is an extension to the law of nuisance to cases of isolated escape and since private nuisance would only provide a remedy for a foreseeable type of damage, it seems logical to him to extend this to Rylands. In Transco, their Lordship confirmed this approach and Lord Bingham stated that the tort is now to be considered to be a “sub-species of nuisance [26] “. While this seems clear, the problem is that whether the tort could still be regarded as one of strict liability following these two cases. If it were to be seen as a sub-species of the tort of nuisance, surely the element of strict liability will no longer stand. However, Lord Hobhouse tried to clarify the position that it still remains to be one of strict liability, when he said “It is thus the creation of a recognisable risk to other landowners which is an essential constituent of the tort and the liability of the defendant. But, once such a risk has been created, the liability for the foreseeable consequences of failure to control and confine it is strict. [27] ” It appears to the House of Lords that foreseeability in this case is one of the conditions to be met (as Lord Goff in Cambridge Water put it a “prerequisite”) before strict liability could be imposed on the defendants. In fact in Lord Bingham’s judgement, he provided Rylands is “a category of case, however small, in which it is just to impose liability without fault. An example is Cambridge Water if the damage had been foreseeable. [28] ” This means, while the House of Lords recognised in Transco that Rylands is a sub-species of nuisance; they did not incorporate it within the tort of nuisance. Their Lordship rejected the arguments that the rule should no longer have separate existence and thus the element of strict liability is preserved within the tort of Rylands v Fletcher.

After in depth analysis, it seems that the tort of Rylands v Fletcher is now to be classified as a subset of tort of nuisance but it has a separate existence (House of Lords in Transco) and that liability is strict when the damage is a type which is foreseeable. However, it could be seen that the extent to which a man could legitimately expect when someone suffers damage to their property due to the release of dangerous substances without having to prove fault is minimal since there is a need to prove that the damage suffered is of a type which is foreseeable (which is essentially a fault-based element). We see that although the defendants are said to be strictly liable (or so the House of Lords argued), foreseeability is still required and that it is necessary to prove that there is an “extraordinary and unusual” use of defendants’ land. These two preconditions to the tort could be seen to have an effect of shifting the tort to a fault-based liability (even if it is argued that it does not). We see that even if the tort remains one of strict liability, the effect of such characteristic is nominal when the tort could only be applied in very few (if any) circumstances and this is recognised by the House of Lords in their decision in Transco. More so, as seen, since the tort is now a subset of nuisance, liability under Rylands could only be claimed where there has been damage to land (or interest in it) – it is not available to personal injuries, and so the expectation regarding that head is never met. While it is controversial whether it is desirable to categorise the tort as one of nuisance or whether the House of Lords have approached it in the correct way, it seems to be how the law stands today. Accordingly we see that the Rule in Rylands v Fletcher meet the expectation only in a minimal extent and this is additional reduced by out-ruling any possibility of personal injury claims. If such a scenario do arise, it seems much better to approach the case; either under the tort of nuisance (if the victim have proprietary interest in the land affected), tort of negligence (where the defendant had been negligent), or by Occupier’s Liability Act 1957 and 1984 (where the victim suffered personal injury while on the defendant’s land- apply also to unlawful visitors- subject to limitations).