Torts Connected to Land: Rylands v Fletcher (and more Private Nuisance)

 L.O:

1. State the Rule in Rylands v Fletcher
2. Explain the essential parts of the Rule
3. Explain the development of the Rule
4. Explain the impact on the Rule of the decision in Cambridge Water Co Ltd v Eastern Counties Leather PLC (1993)
5. Explain the defences to the Rule
6. Explain criticisms of the Rule

Intro

• Facts: Fletcher had a reservoir built on his land. Some time later the reservoir burst and flooded a neighbouring mine run by Ryland
• Decision: The House of Lords held 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
• Lord Cairns (the Lord Chancellor) added that the use of land must be non-natural. He suggested that if water had naturally accumulated on or below the surface of the land then liability would not have arisen

Prima facie - 

Vis major or Act of God

The Rule

The essential parts of the rule are:

1. Something must have been collected and kept on land
2. The use of land must be non natural
3. The thing brought onto the land must be likely to cause mischief if it escaped
4. The thing brought onto land must have escaped and caused damage

Some of these essential parts have been modified, refined and added to by precedent over the years

The Development of the Rule

Although the main principles of the rule have remained, precedent has adapted the rule in a number of ways. In particular, the courts have examined important issues such as:

1. Does the thing collected and kept have to escape itself?
2. What is the meaning of 'non-natural' use of land?
3. To what extent must the thing be likely to cause mischief?
4. Is foreseeability of harm needed?

Controlling the Land

• Smith v Scott (1973)
• The landlord was the council, but under the terms of the lease it was clear that the tenant was in control of the property
• When the tenants behaved in an anti-social manner, the neighbours sued the council as owners
• HELD - the council were not in control of the property, nor had they permitted the nuisance. Under these circumstances, the council would only have been liable if they permitted the nuisance
• Rigby v CC of Northamptonshire (1985)
• Shop owner's premises were damaged by the police using a gas canister that they knew was a fire risk
• There were sound Statutory and policy reasons for the police to use this type of equipment
• HELD - Court decided they were negligent in failing to have the means to put out any likely fire

Bringing or Accumulating on Land a Thing for an Unnatural Use

• Giles v Walker (1890)
• Defendant not liable for damage to crops caused when thistle seeds from plants growing on his land seeded themselves on the claimant's land
• Rickards v Lothian (1913)
• The defendant had not accumulated, nor permitted the accumulation of the water. The defendant was not using his property for an unnatural purpose and so the claim failed
• British Celanese v Hunt (1969)
• Claim failed because the strips of metal that caused the power cut were not a dangerous thing, and the use to which the defendant was putting the building was not unnatural as it was a brown field site/industrial estate
• The defendant successfully used the argument that there was a benefit to the wider community in that the activity was providing jobs for the area

The Thing Collected and Kept

The thing collected and kept on land need not be the thing that escapes. Something collected and kept on land that causes something else to escape can lead to liability

In Miles v Forest Granite Co Ltd (1918) explosives kept on land were detonated to break up some rocks. Some of the rocks were forced into the air and escaped the defendant's property, injuring the claimant. The explosives caused the rocks to escape the property. The defendant was held to be liable

Non-Natural Use: Rickards v Lothian (1913)

In Rickards v Lothian (1913) water had escaped from an overflow pipe connected to a washbasin where the tap had been left running and the washbasin's waste pipe had been blocked by an unknown peroson

The Judicial Committee of the Privy Council held that the water from the overflow pipe did not involve the non-natural use of land. It was also accepted that damage was caused by a third party (i.e the person who deliberately turned the tap on and blocked the wastepipe)

Why was the final appeal in Rickards v Lothian heard by the Judicial Committee of the Privy Council and not the House of Lords?

It was an Australian case and at that time the Judicial Committee of the Privy Council acted as the final court of appeal for Australia

Escape: Read v J Lyons & Co Ltd (1947)

• In Read v J Lyons & Co (1947) some explosives detonated in a munitions factory killing one person and injuring others. There was no evidence of negligence and the case was decided using the Rule in Rylands v Fletcher. It was held by the House of Lords that no liability arose because the persons injured were on the premises and there was no escape from the factory
• This case is also important because Lord Porter in the House of Lords stated that. in deciding whether something was being used in a non-natural way, all circumstances must be considered

Non-natural Use and Likelihood of Mischief

• Transco PLC v Stockport Metropolitan Borough Council [2004]
• A waterpipe took water to a block of flats owned by the council. Unknown to anyone, the pipe had failed and water was escaping. This water caused an embankment to collapse and leave a gas main exposed and unsupported. The gas company took the council to court to recover the cost of repairing the gas main. It was accepted by the House of Lords that the council had not been negligent. The case was decided using the Rule in Rylands v Fletcher
• The House of Lords decided in favour of the Council because the supply of water through the pipes was normal and did not create any special hazard
• An unnatural use of land in this case was described as 'extraordinary and unusual, taking into account the time and place in which the activity is carried out'

Non-Natural Use and Foreseeability of Harm

• Cambridge Water Co Ltd v Eastern Counties Leather PLC (1994)
• European Directive was issued controlling the presence of PCE in water. Because the solvent the defendant used eventually soaked through the concrete floor, the borehole was contaminated
• The House of Lords accepted that the storage of PCE by the defendants was a non-natural use of land
• The HoL decided that the claimants needed to show that the defendant should have foreseen the potential contamination of the water supply. It was held that they could not have foreseen this because at the time of the spillages, the reasonable factory supervisor would have expected any spillage to evaporate rapidly in the air and would not have been expected to seep through the floor of the building into the soil below
• Claim failed because of remoteness of damage, but the case is useful because of the attempted definition by the House of Lords of what an unnatural use of land is. They said the storage of chemicals, even in a factory, could be 'unnatural' in principle, and just because the activity provides jobs did not offer up any kind of defence
• This type of foreseeability was established in Wagon Mound (No.1)
• Foreseeability of the type of damage should be regarded as a prerequisite of liability in damages under the rule

What is a dangerous thing?

• Batchellor v The Tunbridge Wells Gas Company (1901)
• Gas
• National Telephone Company v Baker (1893)
• Electricity
• West v Bristol Tramways (1908)
• Creosote fumes
• Shiffman v The Order of St John (1936)
• Flagpole
• Crowhurst v Amersham Burial Board
• Planting a yew tree, especially since the leaves are poisonous to animals. Planting a poisonous tree is an unnatural use
• Hale v Jennings (1938)
• A chair from an aerial fairground ride broke loose and clonked the claimant on the head, causing injury. This was an escape for the purposes of Rylands v Fletcher
• For this limb of Rylands v Fletcher to apply, the thing must actually 'escape'. It won't count if the claimant gets injured by the thing whilst themselves actually being on the defendant's land
• Crown River Cruises v Kimbolton Fireworks Co (1996)
• Rylands v Fletcher was held to cover the intentional release of dangerous substances
• HOWEVER, on the facts the defendant was not liable under Rylands v Fletcher
• Stannard v Gore (2012)
• Pile of tyres on defendant's land caught fire causing black smoke to drift onto the claimant's land
• HELD - no claim under Rylands v Fletcher as the tyres hadn't escaped, it was the black smoke

Defences: Rylands v Fletcher

Possible defences that can be used in Rylands v Fletcher include:

• Consent
• Vis major or an Act of God
• Act of a stranger
• Statutory authority
• Contributory negligence
• Volenti non fit injuria

Volenti non fit injuria

• And the idea that the activity undertaken and the substances stored on the defendant's land were consented to and confer a 'common benefit' - this can offer a defence
• Example: water tanks and water pipes in a block of flats

Contributory Negligence

• This can be a defence if it was the claimant who actually caused the escape of the dangerous thing
• This will also be a defence if the damage caused is due to the sensitivity of the claimant's land/property
• See Eastern and South African Telegraph Co (1902) regarding the minor escape of electricity

Statutory Authority

• Green v Chelsea Waterworks Co (1894):
• Damage caused by water pipes did not give rise to a claim because the defendant had a statutory duty to provide water. There was a greater public good and the court decided that in such circumstances the occasional leak was a small price to pay for that
• BUT it depends on what the relevant statute says about the service provided. In Charing Cross Electric v Hydraulic Company (1914) the defendant did not actually have a defence of statutory authority because the relevant Act only gave them a power, and did not impose a duty to provide water. So, for the defence to work there must be an obligation and not a discretion to provide the service complained of

Act of a Stranger

• In the sense that their actions amount to an intervening act - this is a total defence
• The person does not literally have to be a stranger, just someone NOT acting under the direction of the defendant
• Box v Jubb (1879):
• Defendants not liable for damage caused by the flooding of their reservoir which was itself caused by the flooding of someone else's
• SIDE NOTE - You can still sue under normal negligence principles of the act of a stranger was something that the defendant should have reasonably foreseen, and taken steps to prevent

Act of God

• Nichols v Marsland (1876)
• The storm that caused the flooding of the claimant's property was genuinely a once in a lifetime event that the defendant could not have foreseen, so Act of God worked as a defence - but crucially, the construction of the pools was not negligent, which would have helped the defence work
• Greenock Corporation v Caledonian Railway Corporation (1917)
• There was a storm of enormous magnitude which the House of Lords decided did not qualify as an Act of God - so it depends on the storm, but construction will play a part in the decision making. The judge will ask the question (no matter how violent the weather event) should the structure have stood up to it?
• Whether something qualifies as an Act of God depends on the judge's assessment of it - simply pleading the defence is not guaranteed to succeed

The Relationship Between Rylands and Other Areas of Tort

• For Rylands v Fletcher you will need accumulation and the fact that the substance will cause damage if it escapes - and there is the issue of whether something is an 'unnatural use of land'
• None of these things are required for an ordinary private nuisance claim - apart from the need for physical damage to property
• In negligence, the duty of care is relevant. In Rylands v Fletcher it is less so. However, when the defences of Act of God, Act of a Stranger or Common Benefit are used, it does become relevant - especially the degree of responsibility to prevent loss that exists for the defendant

In order to have a claim that will work under the tort of nuisance, you will need:

1. Interference with someone's enjoyment of land
2. That interference was unreasonable
3. That interference resulted in physical damage

Whether the interference is unreasonable depends on four things

1. Locality
2. Sensitivity
3. Duration
4. Malice

In Rylands, you need:

1. The defendant to control the land that the nuisance comes from
2. He must have brought or accumulated on his land something that has escaped, and that could be dangerous in the sense that it could cause physical damage to neighbouring property
3. The use of the land by the defendant must be 'unnatural' in the sense that it is a use that the land has not supported before. It often comes down to whether the land causing the nuisance is industrial, residential or agricultural
4. The 'dangerous' thing must have escaped
5. The damage must be physical and relate directly to the escape of the dangerous material

Do you need to intend or be reckless as to the consequences of your material escaping onto adjoining land?

• It used to be the case that liability was strict
• Where the defences of Act of God, Statutory Authority or Common Benefit are used, the courts will see whether recklessness is present in the defendant's actions and whether they could have done more to avoid the damage occurring

Damage

• The damage done (to succeed under Rylands) must be indirect - whereas it can be direct in private nuisance

A03 Material for a Conclusion in Essays

• Rylands used to be a pretty rare kind of negligence to appear before the courts
• People would find it much easier to sue in Private Negligence because of the tests for damage and unreasonableness. The Cambridge Water Case revived Rylands v Fletcher and the hope was that it would become a useful tool in fighting environmental pollution. This hasn't really happened, and the Law Commission at one point recommended that Parliament provide statutory guidance for these matters, which it did to a certain extent indirectly in Delegated Legislation, but no Primary Legislation came into force
• In the case of Transco - Lord Bingham was all for relegating Rylands cases to being a sub species of nuisance - and he referred to environmental disasters such as the Aberfan disaster of the 1960s when a pit heap in Wales slid onto a school and some houses in a Welsh village, killing 140 people
• The problem with using Rylands is that people would only have been compensated for the loss of property. The death and personal injury aspect would have to be addressed through private nuisnace
• The situation is that Rylands cases are not common, but they have not completely disappeared

A03 - Is Rylands unfair in its typical reliance on strict liability?

• Using Rylands requires lawyers to understand the nature of collecting and keeping something, and to recognise the risk of damage if it escapes. Because this can result in serious property damage/physical harm - strict liability is surely necessary to maintain health and safety? The later development of some level of intention would surely reduce the effectiveness of a Rylands action as a deterrent. Strict liability has always been good for public health - see Miles v Forest Rock Granite
• Also, the concept of an 'unnatural use of land' is vague. Rickards v Lothian, Read v Lyon and Transco provide inconsistent direction on the issue
• "Likely to do mischief" is a vague concept. What degree of risk are we talking about, in terms of level of damage that would be actionable?
• Look at the defences to it. Contributory Negligence, Consent, Act of God and Statutory Authority in particular - these vary from case to case and require greater clarity in terms of judicial discretion
• There is still a strong argument for saying that Rylands is not really needed when you can invoke normal Tort principles, and can fall back on Private Negligence anyway
• Finally, many Torts have a cross over with criminal law in any case - since there are clearly drafted offences for environmental carelessness

The Rule in Rylands v Fletcher: A Review

• The rule was decided at a time when there was growing public concern over bursting reservoir dams which was damaging property
• Australia no longer follows the rule:
• Burnie Port Authority v General Jones Pty Limited (1994)
• The rule is not followed in Scotland
• RHM Bakeries Ltd v Strathclyde Regional Council (1985)
• In English and Welsh law it is increasingly being seen as part of the tort of nuisance rather than a separate tort itself