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The Rule in Rylands v Fletcher Explained

In Rylands v Fletcher (1868), the defendant, a mill owner, had paid


independent contractors to make a reservoir on his land, which was intended
to supply water to the mill. During construction, the contractors discovered
the shafts and passages of an old coal mine on the land, some of which
joined up with a mine situated on neighbouring land, belonging to the
claimant. The contractors could have blocked up these shafts but did not
and, as a result, when the reservoir was filled, the water from it burst
through the shafts and flooded the claimants mine, causing damage
estimated at 937.
The defendant himself had not been negligent, since there was no way he
could have known about the shafts, and nor could he be held vicariously
liable for the contractors, who were clearly not his employees for that
purpose. An action for trespass was unavailable because the damage was
not direct and immediate, and at the time of the case the tort of nuisance
could not be applied to an isolated escape. Nevertheless, the House of Lords
held that the defendant was liable in tort, upholding the judgment delivered
in the lower court by Blackburn J, which defined the rule: A person who, for
his own purposes, brings on his land and keeps there anything likely to do
mischief if it escapes, must do so at his peril, and, if he does not do so, he is
prima facie answerable for all damage which is the natural consequence of
its escape. The justification for this rule, he explained, was that 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 neighbours reservoir, or whose
cellar is invaded by the filth of his neighbours privy, or whose habitation is
made unhealthy by the fumes and noisome vapours of his neighbours alkali
works, is damnified without any fault of his own . . .
Despite the fact that the courts claimed a clear foundation for the rule in
previous cases, these authorities did not go nearly as far as the decision in
the case, and it is generally regarded as establishing a completely new
principle at the time.
In order to succeed in a claim under Rylands v Fletcher , the claimant must
therefore prove the following:
The defendant must control the land from which the problem has come.
The defendant must have brought or accumulated something in the course
of some unnatural use of land.

The thing brought or accumulated must be dangerous, meaning likely to


do damage if it escapes from the land.
There must be an escape of the dangerous thing.
There must be damage as a result of the escape.
----------------------------------------------------------------------------------------------------------------This tort is a tort which relates to the use of land but is usually contained in a
separate section in textbooks as it appears to have a special category all of
its own. The tort seems to have come about as a result of the unnatural use
of land and the escape from it of a substance which caused damage. The
courts appear to have recognised the need for a principle of liability and
established the rule accordingly.
The case itself concerned the construction of a reservoir which, when filled
with water, flooded the underground mines on the neighbouring land. It
transpired that some disused shafts had not been filled properly allowing
water to escape causing damage to the adjoining mines. The courts
eventually found in favour of the claimant who had claimed in tort in respect
of the damage to his mines.
The tort under the rule in Rylands v Fletcher, (1868) is described as one
of strict liability whereas it appears to be closely related, in many respects,
to the tort of nuisance. This will become more apparent when we note that
one of the elements of the tort requires that the user is 'non-natural' and that
the tort only applies in respect of damage to land. This suggests that the tort
was born out of necessity and convenience in order to meet the needs of the
situation. We need to look at the elements of the tort in order to properly
understand the nature of the liability created by the rule.
It was Mr Justice Blackburn who defined the tort for the first time with the
now famous words: 'the person who, for purposes of his own, brings on 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, he is prima facie
answerable for all the damage which is the natural consequence of its
escape'.
We have come to accept that the tort can be defined as the liability for
bringing onto land an accumulation of something which is likely to cause

harm if it escapes, and such a use amounts to a non-natural use of land, and
should the substance escape causing damage the tort can be said to exist.
The rule was developed slightly on appeal to the House of Lords where Lord
Cairns is credited as adding the requirement that the use of the land be 'nonnatural.' This highlighted that there is no liability for a natural accumulation.
Care must be exercised over this matter as to what amounts to 'non-natural'
use and this has been the subject of scrutiny by the courts over the years.

Bringing onto the land or accumulating for unnatural use


The dangerous thing must have been accumulated or brought onto the
defendants land in the course of some unnatural use of the land; the rule
does not apply to damage caused by anything which naturally occurs there
(for such problems there will often be an action in nuisance or negligence).
There has been much debate over what does amount to natural and nonnatural use of land. It is clear that a defendant will not be liable for damage
caused by trees or plants which grow naturally, nor for the escape of water
which is naturally present on the land.
In Giles v Walker (1890) the seeds from thistles were carried by the wind
from the defendant's land to the claimant's land. Because the thistles
occurred naturally on the defendant's land, it was decided that he was not
liable.
In British Celanese v A H Hunt (1969) the storage of metal foil on
premises situated on an industrial estate was held to be a natural use. The
foil in question had escaped and come into contact with an overhead power
cable resulting in a power cut. The court said that there was no special risk
attached to storing the foil and the use of the land was beneficial to the
community, therefore the defendants were held not liable under Rylands
because where their factory was situated could not be regarded as a nonnatural use of land and the claim failed.
In the case of Ellison v Ministry of Defence (1997) it was held that
rainwater held on land amounted to a natural use. The defendant had built
bulk fuel installations at Greenham Common airfield. This caused rain water
which had accumulated on the airfield to run off and flood land nearby. The
court held that the construction work was an ordinary use of the land and
had been needed in order for the land to be used as an airfield and therefore
there was no non-natural use. The rain water had accumulated naturally and
had not been artificially kept there.

Danger
'thing likely to do mischief if it escapes' does not mean that escape is
likely or probable. In Musgrove v Pandelis (1919) a fire accidentally
started in the carburettor of the defendants car in the defendant's garage.
The fire soon enveloped the car and spread to the claimants rooms above
the garage. The defendant was held liable for the negligence of his servant,
who could have prevented the development and spread of the fire. The Court
of Appeal also held that the defendant was liable under the rule in Rylands v
Fletcher because the motor car was a dangerous thing. The parking of a
car with a full tank of petrol was considered a non-natural use as presumably
the petrol was likely to cause damage although the risk of it escaping must
be low, and what was at that time considered a dangerous innovation would
now be seen as commonplace.
In Shiffman v Order of St John of Jerusalem (1936) children in Hyde
Park pulled down a flag pole resulting in the injury of the claimant. The claim
succeeded even though the flag pole was not dangerous in itself, it was held
to amount to an escape for the purposes of Rylands v Fletcher. It was
considered that the flagpole design allowed harm where people, including
children, congregate.

Non-natural User
Few would argue against the sense of the additional requirement of nonnatural use as a result of Lord Cairns views expressed in the former House of
Lords, but this concept has still taken up the court's time in defining what
amounts to non-natural use. Lord Moulton helpfully stated in Rickards v
Lothian (1913) that 'not every use of land brings into play this principle. It
must be some special use bringing with it increased danger to others, and
not merely by the ordinary use of land or such as is proper for the general
benefit of the community.'
What we understand to be non-natural use is not fixed and is likely to change
as and when new technologies allow for new innovative processes, and this
is probably right in that the law needs to reflect the needs of society. On the
other hand natural use arising from domestic use which is considered
natural, may be less likely to change so often. The case of Rickards v
Lothian involved the use of water pipes a natural use as is the use of fire
and electricity. In Rickards v Lothian a wash basin on the top floor of a
property was deliberately blocked and a tap was left turned on. The water
leaked down to the premises below causing damage to stock. The water

pipes and the supply of water was held to be a natural use of the land and
the act of a vandal blocking the sink and turning on the tap counted as an
act of God. The act which caused the damage to the property was a wrongful
act by a third party and there was no non-natural use of land.
Charing Cross Electricity Supply Co v Hydraulic Power Co
(1914) (sometimes simply referred to as the Charing Cross Case)
concerned the storage of water in a high pressure main laid under the road in
a city area. This was considered a non-natural use as it was considered a
danger. The case is usually used to support the argument that volume or
quantities can be associated with the increased risk of harm.
However some characteristics, including the question of whether the public
benefit in some way which makes it a natural use, add to the difficulties of
predicting the outcome of a case. This was the position in British Celanese
v A H Hunt (1969), where the defendants owned a factory on an industrial
estate in which they manufactured electrical components. Strips of their
metal foil escaped from the factory and blew onto an overhead cable,
causing a power failure which stopped production at the claimants factory.
The defendants were held not liable under Rylands v Fletcher because, given
where their factory was sited, theirs could not be called a non-natural use of
land. There were no special risks attached to the storage of foil and the use
was beneficial to the community. On the other hand, the defendants were
held liable in both negligence and nuisance.
Some uses however will always be considered non-natural even though there
may be a public benefit as was the case in Cambridge Water Co Ltd v
Eastern Counties Leather plc (1994) which established the principle that
claims under nuisance and Rylands v Fletcher must include a requirement
that the damage be foreseeable. The case involved the presence of
chemicals originating from the leather company contaminating the water in
the borehole owned by the Claimant water company. At the time the
borehole had been purchased the issues relating to the chemicals were not
known about. Lord Goff finally dismissed the case and argued that it had
always been intended for forseeability of harm to be a factor. The seminal
principle emanating from the case was that industrial processes can be an
unnatural use of land, even if they benefit the community as a whole. Most
importantly, the case of Cambridge Water not only gave new life to the tort
in Rylands , but also brought in a new element of fault. It established that a
defendant could only be liable for a type of damage which was reasonably

foreseeable, which means that liability can no longer properly be seen as


strict.
The latest House of Lords view on the issue of non-natural uses of land was
delivered in Transco plc v Stockport Metropolitan Borough Council
(2003). Here the defendant owned a water pipe, which carried water from
the mains to a large block of flats. The pipe fractured and huge amounts of
water ran along an embankment, which contained the claimants gas
pipeline. The embankment collapsed, leaving the gas pipeline unsupported.
The claimant repaired the damage, and claimed the costs of the repairs
under Rylands v Fletcher. Their claim failed, because the House of Lords held
that a water pipe was not an unnatural use of land. This in itself was no
surprise, but their Lordships went on to talk about how they would decide
that a use of land was unnatural.
Lord Bingham stated that the phrase unnatural user was not very helpful,
and that a better question might be whether the defendant was an ordinary
user. Rylands v Fletcher should only offer a cause of action where the
defendants use of the land was extraordinary and unusual. However, said
Lord Bingham, this test should not be applied inflexibly: a use may be
extraordinary and unusual at one time or in one place, but not so at another
time or in another place. The question to be asked was whether the
defendant had done something out of the ordinary, considering the time and
place in which he did so. Lord Bingham also stated that the question of
whether the defendants use of land was of benefit to the community was
not relevant, which suggests that the approach used in Rickards and
British Celanese is definitely no longer in favour. The legal principle derived
was that Rylands v Fletcher should only offer a cause of action where the
defendants use of land was out of the ordinary, considering the time and
place.

Escape
It should be borne in mind that there must be an escape of the thing causing
damage. As regards the nature of such an escape the rule, as originally
outlined by Blackburn, was not strictly limited to situations which involved
neighbouring landowners. Blackburn's original definition could be construed
as intending to create a general liability for harm caused by the escape of
dangerous substances.
Read v Lyons (1947) was interpreted in a restrictive way by Lord MacMillan
when he stated that 'the rule derives from a conception of mutual duties of

adjoining landowners...' Viscount Simon reminded us that the requirement of


an escape was necessary for liability under the rule in Rylands v
Fletcher to be established. In Read the exploding shell on the defendant's
munitions factory injured the claimant while she was on the defendant's
property so there was no escape as such. There was no cause of action on
which the claimant could succeed.
The issue of an escape also arose in the case of British Celanese v A H
Hunt (1969) when Lawton J stated that escape could arise 'from a set of
circumstances over which the defendant has control to a set where he does
not'. In Miles v Forest Rock Granite (1918) we were further enlightened
by the view that explosives themselves may be dangerous and non-natural
but the explosion will constitute the escape. The explosives were
accumulated and caused the rocks to escape.
The tort is not a straightforward strict liability tort and this is borne out by
the fact that damages must be foreseeable in the sense that the defendant
must have been aware or should reasonably to have foreseen the harm of
the sort that actually did result from the escape. This supports the view that
this approach is more in keeping with negligence and not in line with what
one would ordinarily understand to be strict liability.

Defences
Having explained the general rule in Rylands we now need to turn to the
defences. These include consent or common benefit, act of a stranger, act of
god, statutory authority and contributory negligence.

Consent or Common Benefit


Consent and common benefit can be illustrated by the case of Peters v
Prince of Wales Theatre (1943) where the damage to the claimants
property was caused by sprinklers in the adjacent theatre. The sprinkler
system had been installed before the claimant had secured his lease and the
sprinklers were of equal benefit to the claimant. The claimant was deemed to
have consented to the use of the sprinkler system as it was already installed.
The defendant was not liable.

Contributory Negligence and Default of the Claimant

Where a claimant contributes to causing the escape of the dangerous thing,


their damages can be reduced under the normal rules of contributory
negligence. A further defence, known as default of the claimant, applies if
the escape of the dangerous thing is completely the fault of the claimant, or,
more commonly, if the escape only causes damage because of some
abnormal sensitivity on the part of the claimants property. This was the case
in Eastern and South Africa Telegraph Co v Cape Town Tramways Co
(1902), where the defendants were held not liable when a very minor
escape of electricity caused by them affected the claimants extremely
sensitive power cables. The principle was applied as one of the parties had
used their property in a special way which was considered a contributory
factor. The damages will be reduced if the claimant is partly at fault for the
escape.

The case of Dunne v North West Gas Board (1964) supports the view
that if both parties stand to gain and therefore the parties acquiesce in the
keeping of the thing, then one or other of the parties cannot later complain if
there is a problem. In this case a burst water main caused gas to escape
from a gas main. The gas travelled along a sewer and was ignited, this in
turn caused a series of explosions resulting in injuries to five claimants. They
each brought an action based on liability under Rylands v Fletcher. Because
the Gas Board had not accumulated the gas for their own purpose the
defendant was not liable.

Act of Stranger
The act of a stranger is not seen as the act of the defendant if the defendant
is not entitled to exercise any control. This defence proved successful in the
case of a fire started accidentally in Perry v Kendrick's Transport Ltd
(1956). If the escape was caused by the unforseeable act of a stranger
the Rylands v Fletcher rule does not apply. In Perry v Kendricks Transport two
young boys trespassed onto the defendant's land and threw a lighted match
into the petrol tank of a disused bus. There was an explosion and the plaintiff
was injured. As the defendants had no control over the trespassers and they
had not been negligent the Court of Appeal held that the defendants were
not liable. Parker LJ said that once the defendant proves that the escape was
caused by a stranger the burden of proving negligence rests with the
plaintiff. This defence is restricted in the sense that it can only afford a
defence in the case of extreme natural conditions 'which no human foresight

can provide against'. The defendant was not liable as the escape was caused
by the deliberate action of a third party.

Act of God
In Nichols v Marsland (1876) the defendant owned a number of artificial
lakes. Following an exceptional rainfall the lakes overflowed causing the
dams to give way. In the absence of any evidence of negligence the defence
of Act of God was allowed.
The defence of Act of God was pleaded in the Jamaican case of Synagogue
Trust Ltd v Perry (1988). There, it was argued that the spread of a fire by
wind was an act of God for which the defendant was not liable. Not
surprisingly, the contention was rejected by Morgan J. He said:
To avail the defendant, the act must be something which no human
foresight could provide against, and something which human prudence was
not bound to recognise as possible. A windy day in our fair island is
something everyone is bound to recognise, and which every citizen expects
and can guard against or take precautions ... That windy day clearly did not
fall within what can be determined as an Act of God.
Similarly, in Brown v AG (1978), where the deceased had been
electrocuted when she came into contact with a live electric wire which had
fallen to the ground, the defence that the wire had been blown down by the
wind, which was an Act of God, was rejected. Hewlett J said:
Act of God is only a defence if it is impossible to provide against the
occurrence, and in this case the evidence is that there were some strong
winds in Nevis on the night of 8 March 1977. But there is nothing so unusual
about occasional strong gusts in the Caribbean. In fact, we are in a hurricane
zone, and we know to prepare against hurricanes every year, so it cannot be
true to say that strong winds could not reasonably be anticipated.

Statutory Authority
Defendants may escape liability under Rylands v Fletcher if the terms of a
relevant statute clearly authorise their actions. However, many Acts which
permit the performance of dangerous activities do not specify whether the
rule should apply, and the question then becomes one of interpretation of
the particular statute. Statutory authority may amount to a defence if it can
be shown that the escape arose as a direct consequence of the defendant
carrying out a duty imposed under statute. Presumably the basis being that

Parliament anticipated a need for the duty to be carried out and that this
overrode any potential for harm. In Green v Chelsea Waterworks Co
(1894), a water main laid by the defendant burst, flooding the claimants
premises. The company were empowered to lay the main and were under a
statutory obligation to maintain high pressure in the water main meaning
that any escape would be sure to cause damage. The Court of Appeal held
that the company was not liable because they were not only permitted but
obliged by statute to maintain a water supply, and occasional bursts were an
inevitable result of such a duty. By contrast, in Charing Cross Electricity
Co v Hydraulic Co (1914), which featured similar facts, the defendants
were found not to have a defence of statutory authority because the relevant
statute did not oblige them to provide a water supply but only gave them the
power to do so.