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(p. 444) 17. Actions under Rylands v Fletcher 

(p. 444) 17. Actions under Rylands v Fletcher
Chapter:
(p. 444) 17. Actions under Rylands v Fletcher
Author(s):

Kirsty Horsey

and Erika Rackley

DOI:
10.1093/he/9780199678822.003.0017
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There has long been an argument about whether dangerous activities on land should attract a more stringent form of liability and there are various statutory examples of this, such as nuclear escapes (eg the Nuclear Installation Act 1965). Rylands v Fletcher brought a common law version of strict liability for the escape of dangerous things from land, though this has been strictly interpreted and has been less effective than might have been expected. That it was capable of transforming the law cannot be doubted and we might have had a tort of strict liability for hazardous activities had the rise of the fault principle not hampered the growth of the doctrine. The ‘rule’ has been restricted by its origins in trespass and nuisance, and now seems unlikely to be developed further.

Rylands v Fletcher Court of Exchequer Chamber (1866) LR 1 Ex 265

Rylands owned a mill in Lancashire, and Fletcher owned a nearby colliery. In 1860, Rylands constructed a reservoir for his mill and employed engineers and contractors to build it. During construction they found a number of old shafts, but did not realise that these indirectly connected with the colliery. The contractors were negligent in not ensuring that the filled-in shafts could bear the weight of water. The partially filled reservoir burst through the shafts into the claimant’s colliery. Held: the defendant was liable.


BLACKBURN J: We think that the true rule of law is, that the person who for his own purposes brings on his lands 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 prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others (p. 445) so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches. …

The view which we take of the first point renders it unnecessary to consider whether the defendants would or would not be responsible for the want of care and skill in the persons employed by them, under the circumstances stated in the case.

Rylands v Fletcher House of Lords (1868) LR 3 HL 330


LORD CAIRNS LC: My Lords, the principles on which this case must be determined appear to me to be extremely simple. The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so, by leaving or by interposing, some barrier between his close and the close of the defendants in order to have prevented that operation of the laws of nature. …

On the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land,—and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff, then for the consequence of that, in my opinion, the defendants would be liable. …

My Lords, these simple principles, if they are well founded, as it appears to me they are, really dispose of this case.

The same result is arrived at on the principles referred to by Mr Justice Blackburn in his judgment, in the Court of Exchequer Chamber …


LORD CRANWORTH: My Lords, I concur with my noble and learned friend in thinking that the rule of law was correctly stated by Mr Justice Blackburn in delivering the opinion of the Exchequer Chamber. If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.

(p. 446)

Notes

  1. 1. It may be that Lord Cairns in the House of Lords thought he was saying the same thing as Blackburn J, but the difference between something ‘which was not naturally there’ in Blackburn’s formulation and Lord Cairns’s ‘non-natural use’ is crucial and has enabled subsequent courts to limit the doctrine. It seems likely that the original point of the restriction was merely to exclude liability for natural lakes.

  2. 2. It is important to note that the claimant put forward two arguments for liability. The first sought to impose strict liability on the defendant for having constructed the reservoir. While the second sought to make him vicariously liable for the negligence of his independent contractor. The decision was based solely upon the first ground. For the vicarious liability point, see now Honeywill & Stein Ltd v Larkin [1934] 1 KB 191.

  3. 3. The facts of this case and the reasons for it have attracted enormous attention. See, for example, A W B Simpson Leading Cases in the Common Law (OUP, 2001), Ch 8. For a discussion of the fact that only two law lords appear to have sat in the case (whereas the quorum is three), see R F V Heuston ‘Who was the Third Law Lord in Rylands v Fletcher’ (1970) 86 LQR 160. For general studies see the judgment of Windeyer J in Benning v Wong (1969) 122 CLR 249 at 294; Allen M Linden ‘Whatever Happened to Rylands v Fletcher?’ in Lewis Klar (ed) Studies in Canadian Tort Law (Carswell, 1977); and Francis H Bohlen ‘The Rule in Rylands v Fletcher’ (1911) 59 U Pa L Rev 298.

  4. 4. In Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264, chemical solvent had been spilt at the defendant’s tannery and over the year small quantities had soaked into the ground and then dissolved in percolating groundwater. This eventually contaminated the claimant’s water borehole over a mile away. It was not foreseeable that the chemical would create an environmental hazard. In finding the defendants not liable for the escape, Lord Goff added the requirement that the harm caused must be reasonably foreseeable.

  5. 5. The ‘reasonably foreseeable’ requirement is important where a person knowingly does an unjustified act and can foresee that some damage will follow but not damage of the kind that occurred. Thus, in The Wagon Mound (No 2) the defendants could foresee that the oil they discharged would foul neighbouring slipways but not that it would cause a fire. This may limit common law liability for pollution, for example where a person unjustifiably discharges waste which he has no reason to believe is toxic but which is later found to have caused damage. See G Cross ‘Does Only the Careless Polluter Pay?’ (1994) 111 LQR 445.

Transco v Stockport Metropolitan Borough Council House of Lords [2003] UKHL 61

The defendants owned an 11-storey tower block which was provided with a high-pressure water pipe. This supplied large tanks in the basement which then pumped water to the flats. This pipe fractured and a considerable amount of water escaped before the break was discovered and repaired. The water had run into an old landfill and thence along an old railway formation. Transco had laid a gas main under the old railway line and where it became an embankment the water washed away the formation leaving the gas pipe suspended. Repairs by the claimants cost £93,681. Held: the defendants were not liable for the damage caused by the escape of the water.


LORD HOFFMANN:

27. Rylands v Fletcher was therefore an innovation in being the first clear imposition of liability for damage caused by an escape which was not alleged to be either intended or reasonably foreseeable. I think that this is what Professor Newark meant when he said in his celebrated article (‘The Boundaries of Nuisance’ (1949) 65 LQR 480, 488) that the novelty in Rylands v Fletcher was the (p. 447) decision that ‘an isolated escape is actionable’. That is not because a single deluge is less of a nuisance than a steady trickle, but because repeated escapes such as the discharge of water in the mining cases and the discharge of chemicals in the factory cases do not raise any question about whether the escape was reasonably foreseeable. If the defendant does not know what he is doing, the plaintiff will certainly tell him. It is the single escape which raises the question of whether or not it was reasonably foreseeable and, if not, whether the defendant should nevertheless be liable. Rylands v Fletcher decided that he should.

The Social Background to the Rule

28. Although the judgment of Blackburn J is constructed in the traditional common law style of deducing principle from precedent, without reference to questions of social policy, Professor Brian Simpson has demonstrated in his article ‘Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v Fletcher’ (1984) 13 J Leg Stud 209 that the background to the case was public anxiety about the safety of reservoirs, caused in particular by the bursting of the Bradfield Reservoir near Sheffield on 12 March 1864, with the loss of about 250 lives. The judicial response was to impose strict liability upon the proprietors of reservoirs. But, since the common law deals in principles rather than ad hoc solutions, the rule had to be more widely formulated.

29. It is tempting to see, beneath the surface of the rule, a policy of requiring the costs of a commercial enterprise to be internalised; to require the entrepreneur to provide, by insurance or otherwise, for the risks to others which his enterprise creates. That was certainly the opinion of Bramwell B, who was in favour of liability when the case was before the Court of Exchequer: (1865) 3 H & C 774. He had a clear and consistent view on the matter: see Bamford v Turnley (1862) 3 B & S 62, 84–85 and Hammersmith and City Railway Co v Brand (1867) LR 2 QB 223, 230–231. But others thought differently. They considered that the public interest in promoting economic development made it unreasonable to hold an entrepreneur liable when he had not been negligent: see Wildtree Hotels Ltd v Harrow London Borough Council [2001] 2 AC 1, 8–9 for a discussion of this debate in the context of compensation for disturbance caused by the construction and operation of works authorised by statutory powers. On the whole, it was the latter view—no liability without fault—which gained the ascendancy. With hindsight, Rylands v Fletcher can be seen as an isolated victory for the internalisers. The following century saw a steady refusal to treat it as laying down any broad principle of liability. I shall briefly trace the various restrictions imposed on its scope.

Restrictions on the Rule

(a) Statutory authority

30. A statute which authorises the construction of works like a reservoir, involving risk to others, may deal expressly with the liability of the undertakers. It may provide that they are to be strictly liable, liable only for negligence or not liable at all. But what if it contains no express provision? If the principle of Rylands v Fletcher is that costs should be internalised, the undertakers should be liable in the same way as private entrepreneurs. The fact that Parliament considered the construction and operation of the works to be in the public interest should make no difference. As Bramwell B repeatedly explained, the risk should be borne by the public and not by the individual who happens to have been injured. But within a year of the decision of the House of Lords in Rylands v Fletcher, Blackburn J advised the House that, in the absence of negligence, damage caused by operations authorised by statute is not compensatable unless the statute expressly so provides: see Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171, 196. The default position is that the owner of land injured by the operations ‘suffers a private loss for the public benefit’. In (p. 448) Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, 455 Lord Blackburn summed up the law:


It is now thoroughly well established that no action will lie for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to anyone.

31. The effect of this principle was to exclude the application of the rule in Rylands v Fletcher to works constructed or conducted under statutory authority: see Green v Chelsea Waterworks Co (1894) 70 LT 547; Dunne v North Western Gas Board [1964] 2 QB 806.

(b) Acts of God and third parties

32. Escapes of water and the like are often the result of natural events—heavy rain or drains blocked by falling leaves—or the acts of third parties, like vandals who open taps or sluices. This form of causation does not usually make the damage any the less a consequence of the risk created by the presence of the water or other escaping substance. No serious principle of allocating risk to the enterprise would leave the injured third party to pursue his remedy against the vandal. But early cases on Rylands v Fletcher quickly established that natural events (‘Acts of God’) and acts of third parties excluded strict liability. In Carstairs v Taylor (1871) LR 6 Ex 217, 221 Kelly CB said that he thought a rat gnawing a hole in a wooden gutter box counted as an Act of God and in Nichols v Marsland (1876) 2 Ex D 1 Mellish LJ (who, as counsel, had lost Rylands v Fletcher) said that an exceptionally heavy rainstorm was a sufficient excuse. In Rickards v Lothian [1913] AC 263 the same was said of the act of a vandal who blocked a washbasin and turned on the tap. By contrast, acts of third parties and natural events are not defences to the strict criminal liability imposed by section 85(1) of the Water Resources Act 1991 for polluting controlled waters unless they are really exceptional events: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.

(c) Remoteness

33. Rylands v Fletcher established that, in a case to which the rule applies, the defendant will be liable even if he could not reasonably have foreseen that there would be an escape. But is he liable for all the consequences of the escape? In Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 the House of Lords decided that liability was limited to damage which was what Blackburn J had called the ‘natural’, ie reasonably foreseeable, consequence of the escape. Lord Goff of Chieveley, in a speech which repays close attention, took the rule back to its origins in the law of nuisance and said that liability should be no more extensive than it would have been in nuisance if the discharge itself had been negligent or intentional. Adopting the opinion of Professor Newark, to which I have already referred, he said that the novel feature of Rylands v Fletcher was to create liability for an ‘isolated’ (ie unforeseeable) escape. But the rule was nevertheless founded on the principles of nuisance and should not otherwise impose liability for unforeseeable damage.

(d) Escape

34. In Read v J Lyons & Co Ltd [1947] AC 156 a radical attempt was made to persuade the House of Lords to develop the rule into a broad principle that an enterprise which created an unusual risk of damage should bear that risk. Mrs Read had been drafted into the Ministry of Supply and directed to inspect the manufacture of munitions at a factory operated by J Lyons & Company Ltd. In August 1942 she was injured by the explosion of a shell. There was no allegation of negligence; the cause of action was said to be the hazardous nature of the activity. But the invitation to (p. 449) generalise the rule was comprehensively rejected. The House of Lords stressed that the rule was primarily concerned with the rights and duties of occupiers of land. Escape from the defendant’s land or control is an essential element of the tort.

(e) Personal injury

35. In some cases in the first half of the 20th century plaintiffs recovered damages under the rule for personal injury: Shiffman v St John of Jerusalem (Grand Priory in the British Realm of the Venerable Order of the Hospital) [1936] 1 All ER 557; Hale v Jennings Bros [1938] 1 All ER 579 are examples. But dicta in Read v J Lyons & Co Ltd cast doubt upon whether the rule protected anything beyond interests in land. Lord Macmillan (at pp 170–171) was clear that it had no application to personal injury and Lord Simonds (at p 180) was doubtful. But I think that the point is now settled by two recent decisions of the House of Lords: Cambridge Water Co v Eastern Counties Leather plc [1994] AC 264, which decided that Rylands v Fletcher is a special form of nuisance and Hunter v Canary Wharf Ltd [1997] AC 655, 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.

(f) Non-natural user

36. The principle in Rylands v Fletcher was widely expressed; the essence was the escape of something which the defendant had brought upon his land. Not surprisingly, attempts were immediately made to apply the rule in all kinds of situations far removed from the specific social problem of bursting reservoirs which had produced it. Leaks caused by a rat gnawing a hole in a wooden gutter-box (Carstairs v Taylor LR 6 Ex 217) were not at all what Blackburn J and Lord Cairns had had in mind. In some cases the attempt to invoke the rule was repelled by relying on Blackburn J’s statement that the defendant must have brought whatever escaped onto his land ‘for his own purposes’. This excluded claims by tenants that they had been damaged by escapes of water from plumbing installed for the benefit of the premises as [a]‌ whole. Another technique was to imply the claimant’s consent to the existence of the accumulation. But the most generalized restriction was formulated by Lord Moulton in Rickards v Lothian [1913] AC 263, 280:


It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.

37. The context in which Lord Moulton made this statement was a claim under Rylands v Fletcher for damage caused by damage to stock in a shop caused by an overflow of water from a wash-basin in a lavatory on a floor above. To exclude domestic use is understandable if one thinks of the rule as a principle for the allocation of costs; there is no enterprise of which the risk can be regarded as a cost which should be internalised. That would at least provide a fairly rational distinction. But the rather vague reference to ‘the ordinary use of the land’ and in particular the reference to a use ‘proper for the general benefit of the community’ has resulted in the rule being applied to some commercial enterprises but not others, the distinctions being sometimes very hard to explain.

38. In the Cambridge Water Co case [1994] 2 AC 264, 308–309 Lord Goff of Chieveley noted these difficulties but expressed the hope that it would be possible to give the distinction ‘a more recognisable basis of principle.’ The facts of that case, involving the storage of substantial quantities of chemicals on industrial premises, were in his opinion ‘an almost classic case of non-natural use’. He thought that the restriction of liability to the foreseeable consequences of the escape would reduce the inclination of the courts to find other ways of limiting strict liability, such as extension of the concept of natural use.

(p. 450) Where Stands the Rule Today?

39. I pause at this point to summarise the very limited circumstances to which the rule has been confined. First, it is a remedy for damage to land or interests in land. As there can be few properties in the country, commercial or domestic, which are not insured against damage by flood and the like, this means that disputes over the application of the rule will tend to be between property insurers and liability insurers. Secondly, it does not apply to works or enterprises authorised by statute. That means that it will usually have no application to really high risk activities. As Professor Simpson points out ([1984] 13 J Leg Stud 225) the Bradfield Reservoir was built under statutory powers. In the absence of negligence, the occupiers whose lands had been inundated would have had no remedy. Thirdly, it is not particularly strict because it excludes liability when the escape is for the most common reasons, namely vandalism or unusual natural events. Fourthly, the cases in which there is an escape which is not attributable to an unusual natural event or the act of a third party will, by the same token, usually give rise to an inference of negligence. Fifthly, there is a broad and ill-defined exception for ‘natural’ uses of land. It is perhaps not surprising that counsel could not find a reported case since the second world war in which anyone had succeeded in a claim under the rule. It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse.

Is It Worth Keeping?

40. In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 a majority of the High Court of Australia lost patience with the pretensions and uncertainties of the rule and decided that it had been ‘absorbed’ into the law of negligence. Your Lordships have been invited by the respondents to kill off the rule in England in similar fashion. It is said, first, that in its present attenuated form it serves little practical purpose; secondly, that its application is unacceptably vague (‘an essentially unprincipled and ad hoc subjective determination’ said the High Court (at p 540) in the Burnie case) and thirdly, that strict liability on social grounds is better left to statutory intervention.

43. But despite the strength of these arguments, I do not think it would be consistent with the judicial function of your Lordships’ House to abolish the rule. It has been part of English law for nearly 150 years and despite a searching examination by Lord Goff of Chieveley in the Cambridge Water case [1994] 2 AC 264, 308, there was no suggestion in his speech that it could or should be abolished. I think that would be too radical a step to take.

44. It remains, however, if not to rationalise the law of England, at least to introduce greater certainty into the concept of natural user which is in issue in this case. In order to do so, I think it must be frankly acknowledged that little assistance can be obtained from the kinds of user which Lord Cairns must be assumed to have regarded as ‘non-natural’ in Rylands v Fletcher itself. They are, as Lord Goff of Chieveley said in the Cambridge Water case [1994] 2 AC 264, 308, ‘redolent of a different age’. So nothing can be made of the anomaly that one of the illustrations of the rule given by Blackburn J is cattle trespass. Whatever Blackburn J and Lord Cairns may have meant by ‘natural’, the law was set on a different course by the opinion of Lord Moulton in Rickards v Lothian [1913] AC 263 and the question of what is a natural use of land or, (the converse) a use creating an increased risk, must be judged by contemporary standards.

45. Two features of contemporary society seem to me to be relevant. First, the extension of statutory regulation to a number of activities, such as discharge of water (section 209 of the Water Industry Act 1991) pollution by the escape of waste (section 73(6) of the Environmental Protection Act 1990) and radio-active matter (section 7 of the Nuclear Installations Act 1965). It may have to be considered whether these and similar provisions create an exhaustive code of liability for a particular form of escape which excludes the rule in Rylands v Fletcher.

(p. 451) 46. Secondly, so far as the rule does have a residuary role to play, it must be borne in mind that it is concerned only with damage to property and that insurance against various forms of damage to property is extremely common. A useful guide in deciding whether the risk has been created by a ‘non-natural’ user of land is therefore to ask whether the damage which eventuated was something against which the occupier could reasonably be expected to have insured himself. Property insurance is relatively cheap and accessible; in my opinion people should be encouraged to insure their own property rather than seek to transfer the risk to others by means of litigation, with the heavy transactional costs which that involves. The present substantial litigation over £100,000 should be a warning to anyone seeking to rely on an esoteric cause of action to shift a commonplace insured risk.

47. In the present case, I am willing to assume that if the risk arose from a ‘non-natural user’ of the council’s land, all the other elements of the tort were satisfied. Transco complains of expense having to be undertaken to avoid damage to its gas pipe; I am willing to assume that if damage to the pipe would have been actionable, the expense incurred in avoiding that damage would have been recoverable. I [am] also willing to assume that Transco’s easement which entitled it to maintain its pipe in the embankment and receive support from the soil was a sufficient proprietary interest to enable it to sue in nuisance and therefore, by analogy, under the rule in Rylands v Fletcher. Although the council, as owner of Hollow End Towers, was no doubt under a statutory duty to provide its occupiers with water, it had no statutory duty or authority to build that particular tower block and it is therefore not suggested that the pipe was laid pursuant to statutory powers so as to exclude the rule. So the question is whether the risk came within the rule.

48. The damage which eventuated was subsidence beneath a gas main: a form of risk against which no rational owner of a gas main would fail to insure. The casualty was caused by the escape of water from the council’s land. But the source was a perfectly normal item of plumbing. The pipe was, it is true, considerably larger than the ordinary domestic size. But it was smaller than a water main. It was installed to serve the occupiers of the council’s high rise flats; not strictly speaking a commercial purpose, but not a private one either.

49. In my opinion the Court of Appeal was right to say that it was not a ‘non-natural’ user of land. I am influenced by two matters. First, there is no evidence that it created a greater risk than is normally associated with domestic or commercial plumbing. True, the pipe was larger. But whether that involved greater risk depends upon its specification. One cannot simply assume that the larger the pipe, the greater the risk of fracture or the greater the quantity of water likely to be discharged. I agree with my noble and learned friend Lord Bingham of Cornhill that the criterion of exceptional risk must be taken seriously and creates a high threshold for a claimant to surmount. Secondly, I think that the risk of damage to property caused by leaking water is one against which most people can and do commonly insure. This is, as I have said, particularly true of Transco, which can be expected to have insured against any form of damage to its pipe. It would be a very strange result if Transco were entitled to recover against the council when it would not have been entitled to recover against the Water Authority for similar damage emanating from its high pressure main.

Notes

  1. 1. This case is an important restatement of the Rylands principle, but it is also important for what it does not do. In particular, it restricts any move towards a more general tort of strict liability for hazardous activities and closely limits Rylands to its historical origins. The Supreme Court of India took a very much wider view in Mehta v Union of India 1987 AIR (SC) 1086, where there (p. 452) was a discharge of toxic gas from a factory in Delhi. The court rejected many of the traditional limitations of Rylands, adopting a more general tort of strict liability for engaging in hazardous activities (see David Bergman ‘The Sabotage Theory and the Legal Strategy of Union Carbide’ (1988) 138 NLJ 420). This approach has been rejected by the Law Commission (Report No 32, 1970) and twice by the House of Lords, citing the uncertainties and practical difficulties of its application.

  2. 2. Transco also adopts a very strict interpretation of the elements of the tort, including the rules on escape from the premises, non-natural user and no liability for personal injuries. Non-natural user has been much discussed and in Transco Lord Bingham said that ‘ordinary user is a preferable test to natural user … [as it makes] clear that the rule in Rylands v Fletcher is engaged only where the defendant’s use is shown to be extraordinary and unusual’ (at [11]). It is not a question of reasonable user but rather whether the defendant has done something quite out of the ordinary in the place and time when he does it. The question is to what extent industrial activities might be considered to be an ordinary use of land, and later Lord Bingham refers to an occupier who has brought onto his land an ‘exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances’. Is this too narrow an interpretation?

  3. 3. One particular problem with Rylands has been the issue of remoteness of damage, but this seems to have been resolved in Transco. In Cambridge Water v Eastern Counties Leather [1994] 2 AC 264, the House of Lords held that the use of the chemical was ‘non-natural’ but that the eventual damage was not a foreseeable kind of damage. It seems clear from Transco that the issue is whether, assuming there is an escape, the damage which has occurred is of a foreseeable kind (see Lord Hoffmann at [33]). There is no need to foresee the escape itself.

  4. 4. In Burnie Port Authority v General Jones Pty Ltd (1992) 179 CLR 520, the High Court of Australia rejected Rylands v Fletcher altogether, saying that the situations envisaged by that doctrine can be dealt with by negligence. It was said that proximity would exist because of the special vulnerability and dependence of the claimant arising out of the hazardous activities of the defendant, and that this would give rise to a non-delegable duty of care arising out of the defendant’s control of the premises. It was also said that the standard of care would relate to the degree of danger and that it could even involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’. For a general discussion of the value of the tort see Donal Nolan ‘The Distinctiveness of Rylands v Fletcher’ (2005) 121 LQR 421 who argues that the tort has become so emasculated that it no longer serves a useful function. Note, however, John Murphy ‘The Merits of Rylands v Fletcher’ (2004) 24 OJLS 643, which seeks to defend the rule, arguing that it provides a useful residual mechanism for securing environmental protection by individuals affected by harmful escapes from polluting heavyweight industrialists.

  5. 5. In Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248, the defendant stored large quantities of tyres on his land. These caught fire, subsequently destroying both the claimant’s and the defendant’s premises. There was no liability under Rylands as the tyres themselves had not escaped and the fire was not something that had been ‘brought onto land’ by the defendant.

17.1 Merging Rylands, nuisance and negligence?

Just as the creator of a nuisance and person who is ‘responsible’ for its continuance can be liable—an occupier can be liable for a nuisance created by a trespasser if they ‘adopt’ or ‘continue’ that nuisance—equally a person can be liable for a natural hazard which they ought to have removed or done something about, for instance in order to prevent a one-off escape.

(p. 453) Sedleigh-Denfield v O’Callaghan House of Lords [1940] AC 880

A council replaced a culvert with a pipe, the end of which projected about two feet onto the defendant’s land (therefore the council were technically trespassing when they put the pipe there). The workmen placed a grating over the end of the pipe to prevent leaves blocking it, but this was done incorrectly, as the grating was placed directly onto the end of the pipe so leaves collected on the grating and blocked the pipe. After the pipe was in place, the defendant’s workers regularly cleaned out the ditch and the end of the pipe. In 1937 a severe storm blocked the pipe causing flooding on the claimant’s neighbouring land. Held: the defendant was liable for the nuisance.


LORD ATKIN: In this state of the facts the legal position is not I think difficult to discover. For the purposes of ascertaining whether as here the plaintiff can establish a private nuisance I think that nuisance is sufficiently defined as a wrongful interference with another’s enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour’s property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word ‘use.’ This conception is implicit in all the decisions which impose liability only where the defendant has ‘caused or continued’ the nuisance. We may eliminate in this case ‘caused.’ What is the meaning of ‘continued’? In the context in which it is used ‘continued’ must indicate mere passive continuance. If a man uses on premises something which he found there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is himself in continuing to bring into existence the noise, vibration, etc, causing a nuisance. Continuing in this sense and causing are the same thing. It seems to me clear that if a man permits an offensive thing on his premises to continue to offend, that is, if he knows that it is operating offensively, is able to prevent it, and omits to prevent it, he is permitting the nuisance to continue; in other words he is continuing it. The liability of an occupier has been carried so far that it appears to have been decided that, if he comes to occupy, say as tenant, premises upon which a cause of nuisance exists, caused by a previous occupier, he is responsible even though he does not know that either the cause or the result is in existence. …

In the present case, however, there is as I have said sufficient proof of the knowledge of the defendants both of the cause and its probable effect. What is the legal result of the original cause being due to the act of a trespasser? In my opinion the defendants clearly continued the nuisance for they come clearly within the terms I have mentioned above, they knew the danger, they were able to prevent it and they omitted to prevent it. In this respect at least there seems to me to be no difference between the case of a public nuisance and a private nuisance, and the case of Attorney-General v Tod-Heatley [1897] 1 Ch 560, is conclusive to show that where the occupier has knowledge of a public nuisance, has the means of remedying it and fails to do so, he may be enjoined from allowing it to continue. I cannot think that the obligation not to ‘continue’ can have a different meaning in ‘public’ and in ‘private’ nuisances. …


LORD WRIGHT: Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, (p. 454) namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware if it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that with ordinary care in the management of his property he should have realised the risk of its existence.

Notes

  1. 1. A person can be liable even for natural phenomena which cause a nuisance. In Leakey v National Trust [1980] QB 485, the claimants owned houses next to a large mound in Somerset called the Burrow Mump which was owned by the defendants. Part of the mound subsided and encroached on the claimants’ houses. The defendants were liable even though the mound was natural and the subsidence was caused by the forces of nature. It was said by the Court of Appeal that the defendant’s obligation is what it is reasonable for him as an individual to do, taking account, for example, of his means, and the practicality of taking preventative measures.

  2. 2. Would the defendant in Sedleigh-Denfield v O’Callaghan have been liable if, although knowing of the existence of the ditch and the pipe, he completely ignored them and was unaware of how the pipe and grating had been put together?

Holbeck Hall Hotel v Scarborough BC Court of Appeal [2000] QB 836

The Holbeck Hall Hotel stood 65 metres above sea level on South Cliff, Scarborough. The defendants owned the land between the hotel and the sea. In 1993 there was a massive landslip on the defendants’ land. The hotel’s gardens disappeared and the ground collapsed under part of the building, which became unsafe and had to be demolished. Earlier, minor slips in 1982 and 1986 led to some rather ineffective remedial steps being taken, and it was said that the defendants knew that at some indeterminate time the slip might progress. However, no one could have foreseen the catastrophic slip that did occur without further extensive geological investigation. The trial judge held the defendants liable for the total loss. Held: the defendants were under a duty to the claimants but were liable only for part of the loss.


STUART-SMITH LJ:

31. In Goldman v Hargrave [1971] AC 645 the Privy Council extended the principle in Sedleigh-Denfield’s case to a hazard caused on the Defendant’s land by the operation of nature. In that case a tall redgum tree on the Defendant’s land was struck by lightening [sic] and set on fire. The Defendant at first took reasonable steps to deal with the problem. He cleared and dampened (p. 455) the area round the tree and then cut it down. Having done so, however, the Defendant took no further steps to prevent the spread of fire, which he could readily have done by dousing it with water. Instead, he let the fire burn out. The wind got up and set light to the surrounding area from whence it spread to the Plaintiff’s land and damaged his property. The Privy Council held the Defendant liable. There was no difference in principle between a nuisance created by a trespasser and one created by the forces of nature, provided the Defendant knew of the hazard. Lord Wilberforce, who delivered the advice of the Board, said in relation to the supposed distinction at p 661:


The fallacy of this argument is that, as already explained, the basis of the occupier’s liability lies not in the use of his land: in the absence of ‘adoption’ there is no such use; but in the neglect of action in the face of something which may damage his neighbour. To this, the suggested distinction is irrelevant.

32. In both Sedleigh-Denfield’s case and Goldman’s case the hazard arose entirely on the Defendant’s land; the Plaintiff had no knowledge of it before the damage was done; the Defendant was liable for failing to take steps to stop the spread or escape to the Plaintiff’s land, steps which he could reasonably take.

33. In Leakey v National Trust [1980] QB 485 the Court of Appeal held that the law, as laid down in Goldman’s case, correctly stated the law of England. In that case the Plaintiffs’ houses had been built at the foot of a large mound on the Defendant’s land. Over the years soil and rubble had fallen from the Defendant’s land onto the Plaintiffs’. The falls were due to natural weathering and the nature of the soil. By 1968 the Defendant knew that there was a threat to the Plaintiffs’ properties. After a very dry summer and wet autumn a large crack opened in the mound above the Plaintiffs’ house. They drew the Defendant’s attention to the danger to their houses; but the Defendant said it had no responsibility. A few weeks later a large quantity of earth and some stumps fell onto the Plaintiffs’ land. In interlocutory proceedings the Defendant was ordered to carry out the necessary work to abate the nuisance. The Court of Appeal upheld the judge’s decision in the trial of the action to the effect that the Defendant was liable.

The extent of the Defendant’s knowledge

39. In order to give rise to a measured duty of care, the Defendant must know or be presumed to know of the defect or condition giving rise to the hazard and must, as a reasonable man, foresee that the defect or condition will, if not remedied, cause damage to the Claimant’s land. In Goldman [and] Leakey … the Defendant had actual knowledge of the defect or condition giving rise to the hazard or alleged hazard. In Sedleigh-Denfield the Defendant’s responsible servant knew. In each case it was reasonably foreseeable that damage would occur to the Plaintiff’s land if nothing was done.

41. In Leakey’s case Megaw LJ said at p 518D:


So long as the defect remains ‘latent’ there is no duty on the occupier, whether the defect has been caused by a trespasser or by nature. Equally, once the latent becomes patent, a duty will arise, whether the causative agent of the defect is man or nature. But the mere fact that there is a duty does not necessarily mean that inaction constitutes a breach of the duty.

In that passage Megaw LJ referred to the defect. At p 522D he said:


… the duty arising from a nuisance which is not brought about by human agency does not arise unless and until the defendant has, or ought to have had, knowledge of the existence of the defect and the danger thereby created.

(p. 456) Here the Lord Justice is referring both to the defect and the danger arising from it. And again at p 524G when discussing the scope of the duty he posed this question:


Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred?

Here Megaw LJ refers to the risk or the danger.

46. But the present is a case of non-feasance: Scarborough have done nothing to create the danger which has arisen by the operation of nature. And it is clear that the scope of the duty is much more restricted. It is defined in the cases of Goldman and Leakey as a measured duty of care. In the former case Lord Wilberforce said at p 663A:


So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be ‘reasonable,’ since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it. And in many cases, as, for example, in Scrutton LJ’s hypothetical case of stamping out a fire, or the present case, where the hazard could have been removed with little effort and no expenditure, no problem arises. But other cases may not be so simple. In such situations the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. …

47. In the passage which I have [emphasized] Lord Wilberforce refers expressly only to the existence of the duty; but the passage occurs in the middle of that part of the judgment dealing with the scope of the duty. It seems to me that Lord Wilberforce could equally have said ‘existence and scope of the duty’, especially as ability to abate it is related to the subjective characteristics of the Defendant.

48. In Leakey’s case Megaw LJ dealt with the scope of the duty at p 524E:


The duty is a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one’s neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there had been a breach of duty, and, if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made. Thus, there will fall to be considered the extent of the risk; what, so far as reasonably can be foreseen, are the chances that anything untoward will happen or that any damage will be caused? What is to be foreseen as to the possible extent of the damage if the risk becomes a reality? Is it practicable to prevent, or to minimise, the happening of any damage? If it is practicable, how simple or how difficult are the measures which could be taken, how (p. 457) much and how lengthy work do they involve, and what is the probable cost of such work? Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred? Factors such as these, so far as they apply in a particular case, fall to be weighed in deciding whether the defendant’s duty of care requires, or required, him to do anything, and, if so, what.

49. In both these passages concentration tends to be upon the ease and expense of abatement and the ability of the Defendant to achieve it. But in the passage in Megaw LJ’s judgment which I have [emphasized], the extent of the foreseen damage is said to be a relevant consideration. Moreover, I do not think either judge was purporting to give an exhaustive list of relevant considerations. While I agree with Megaw LJ (see p 524B) that it would be a grievous blot on our law if there was no liability on the Defendants in those cases, I do not think justice requires that a Defendant should be held liable for damage which, albeit of the same type, was vastly more extensive than that which was foreseen or could have been foreseen without extensive further geological investigation; and this is particularly so where the defect existed just as much on the Claimant’s land as on their own. In considering the scope of the measured duty of care, the courts are still in relatively uncharted waters. But I can find nothing in the two cases where it has been considered, namely Goldman and Leakey to prevent the Court reaching a just result. 

51. The cases of Goldman and Leakey were decided before the decision of the House of Lords in Caparo Industries Ltd v Dickman [1990] 2 AC 605, in which the three stage test for the existence of a duty of care was laid down, namely foreseeability, proximity and the need for it to be fair, just and reasonable. In Marc Rich & Co v Bishop Rock Ltd [1996] 1 AC 211 it was held that the three stage Caparo test was appropriate whatever the nature of the damage. (See per Lord Steyn at p 235 approving a dictum of Saville LJ.) The requirement that it must be fair, just and reasonable is a limiting condition where foreseeability and proximity are established. In my judgment very similar considerations arise whether the court is determining the scope of a measured duty of care or whether it is fair, just and reasonable to impose a duty or the extent of that duty. And for my part I do not think it is just and reasonable in a case like the present to impose liability for damage which is greater in extent than anything that was foreseen or foreseeable (without further geological investigation), especially where the defect and danger existed as much on the Claimants’ land as the Defendants’.

54. For the reasons I have given I conclude that the scope of Scarborough’s duty was confined to an obligation to take care to avoid damage to the Claimants’ land which they ought to have foreseen without further geological investigation. It may also have been limited by other factors, as the passages from Goldman and Leakey cited in paragraphs 46 and 48 make clear, so that it is not necessarily incumbent on someone in Scarborough’s position to carry out extensive and expensive remedial work to prevent the damage which they ought to have foreseen; the scope of the duty may be limited to warning claimants of such risk as they were aware of or ought to have foreseen and sharing such information as they had acquired relating to it.

Notes

  1. 1. In Holbeck Hall Hotel, Stuart-Smith LJ talks of a ‘measured’ duty in cases of omission by which the defendant will not be liable for all the damage even if it is of a type of damage that was foreseeable, where what actually happened was more extensive than expected. This is not a matter of remoteness of damage, but rather defines what it is that the defendant failed to do. Here the defendants were aware that the land was unstable and should have taken remedial steps to prevent (p. 458) that limited damage, or perhaps even only warn the claimants of the problem. The court said that the defendants were only liable for damage that might have been expected bearing in mind the previous minor slips, and held that this was limited to slips which would have affected the garden and some part of the lawn and did not extend to the collapse of the whole hotel.

  2. 2. An occupier of land can be liable for the acts of their licensees away from the land, either because they created the nuisance or because they have allowed it to continue. In Lippiatt v South Gloucestershire Council [1999] 4 All ER 149, a number of travellers occupied council land from 1991 until 1994. During that time they entered neighbouring land causing damage. It was held that the nuisance ‘emanated’ from the defendants’ land and they were liable either because they had created the nuisance by allowing the travellers to occupy the land, or because they ‘continued’ or ‘adopted’ the nuisance. However, a landlord is not liable for the acts of their tenants unless they have authorised the nuisance (see Hussain v Lancaster City Council [1999] 4 All ER 125).

  3. 3. In Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, Lord Cooke said that the nuisance/negligence distinction in this kind of case ‘is treated as of no real significance’ (at [31]). See also Bybrook Barn Centre Ltd v Kent County Council [2001] BLR 55; Lambert v Barratt Homes Ltd [2010] EWCA Civ 681 and Vernon Knight Associates v Cornwall Council [2013] EWCA Civ 950.