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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 any thing 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 'non-natural.' 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.
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 non-natural 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.
'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 defendant’s car in the defendant's garage. The fire soon enveloped the car and spread to the claimant’s 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.
Few would argue against the sense of the additional requirement of non-natural 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).
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 and 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.
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.
Having explained the general rule in Rylands we now need to turn to the defences. These include consent, common benefit, act of a stranger, act of god, statutory authority and contributory negligence.
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.
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.
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.
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.
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 mains laid by the waterworks company burst. 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. In the absence of any evidence of negligence they were able to plead the defence of statutory authority and were not liable under Rylands v Fletcher.
The principles of contributory negligence apply to the tort and if it can be shown that the claimant is partly responsible for the escape the amount of damages claimed may be effected. In Eastern & SA Telegraph Co v Cape Town Tramways (1902) 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.
(Word count 2416)
This essay looks in detail at the rule in Rylands and Fletcher and how it has developed. As well as defining the tort, the essay examines the various elements that make up the rule. Cases discussed include:
Giles v Walker (1890)
British Celanese v A H Hunt (1969)
Ellison v Ministry of Defence (1997)
Musgrove v Pandelis (1919)
Shiffman v Order of St John of Jerusalem (1936)
Rickards v Lothian (1913)
Charing Cross Electricity Supply Co v Hydraulic Power Co (1914)
Cambridge Water Co Ltd v Eastern Counties Leather plc (1994)
Read v Lyons (1947)
Miles v Forest Rock Granite (1918)
Peters v Prince of Wales Theatre (1943)
Dunne v North West Gas Board (1964)
Perry v Kendrick's Transport Ltd (1956)
Nichols v Marsland (1876)
Green v Chelsea Waterworks Co (1894)
Eastern & SA Telegraph Co v Cape Town Tramways (1902)
Having explained the general rule in Rylands the essay turns to the defences. These include consent, common benefit, act of a stranger, act of god, statutory authority and contributory negligence.
As always the essay lends itself to further research and the links provided will enable you to develop your understanding of the rule.
(Word Count 2416)
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