Tortuous Doctrine of Rylands v Fletcher Relevance

This paper focuses on the rule of Rylands v Fletcher, a case that was heard in the early 1860s (specifically 1860-1868). In this case the plaintiff (Fletcher) sued Rylands for the damage that the plaintiff believed was caused by the defendant. The defendant had a water reservoir in his land. It was the water from the reservoir that overflowed to the plaintiff’s land and caused damage on his mines. This will be the basis for drawing a conclusion on whether this rule is still applicable in the modern setting in commonwealth countries, and whether or not the rule has withstood the test of time to continue recognition.

Hypothesis

“The rule in Rylands and Fletcher has no place in the modern world”.

The Rule in Rylands v Fletcher

Rylands had constructed a reservoir on his land, whose purpose was to supply water to his powered textile mill. Fletchers owned the neighbouring land, he operated mines and had excavated up to the disused mines which were under the land the land where the plaintiff’s reservoir was located.

Rylands employed independent contractors and engineers to build the reservoir. The contractors came across some mine shafts that that were no longer in use and made ‘no attempt’ [1] to fix the shafts. After completion, water burst and flooded into Fletchers land and mines.

Fletcher argued the enjoyment of his land had been invaded and Rylands should be liable for the damages caused by inherently dangerous activities therefore the doctrine of strict liability should be applied. Rylands argued that he was acting reasonably and lawfully [2] on his land and should not be held responsible for an accident [3] which resulted without any negligence [4] .

The Court of Liverpool ruled in favour of the plaintiff on the basis of both nuisance and trespass [5] . Rylands was not satisfied and applied for the case to be heard before the judges of the exchequer in which he succeeded. The judges overturned the first ruling on the idea of trespass requiring a direct personal involvement in the invasion of the quite enjoyment of land. This kind of invasion ‘required evidence of intent or negligence’ [6] .

The defendants were not negligent [7] on the basis that he had no knowledge of the existence of the shafts. Fletcher appealed to the exchequer chamber where the previous decision was overturned; this time in favour of Fletcher.

Blackburn J held:

“..any person, who for his own intentions brings on to his land, accumulates and keeps on that land anything likely to cause trouble if it escapes, must keep it at his own risk [8] , and, if he does not do so is prima facie, answerable for all the damage which is the natural effect of its escape.”

The judges relied on the basis of liability for damages of land through the tort of chattel of trespass, the tort of nuisance [9] as well as ‘the scienter action’ [10] . Rylands appealed to the House of Lords [11] .

HOLs dismissed Rylands appeal on the basis that he had turned the land to a non-natural use and was therefore liable for the escape of the water he had collected [12] .

The judges ruled the defendants ought to pay damages to the plaintiff [13] and from the judgement in the principle of Rylands the case developed strict liability.

The primary justification for this was premised upon the belief that the rights of individuals should not be sacrificed in the furtherance of the public interest in cases where the acts were “one off” and therefore difficult to be liable under nuisance which requires the acts to be continuous or where it was difficult to prove that the defendant had not taken all reasonable precautions to prevent the mischief since the escape would not have been foreseeable. Therefore if the water had accumulated on Fletchers land naturally, the rule as to strict liability [14] would not apply.

The application of strict liability is contentious because it looks at the harmful result rather than to the kind of conduct. This is very different from the traditional fault-based formulation in negligence.

Distinct elements of Rylands v Fletcher liability: [15]

The defendant must have brought something onto his land [16]

The rule refers to items accumulated by the defendant which are items bought onto the property by the defendant, and not something which accumulated there naturally; in Rylands v Fletcher the defendant bought water onto his land [17] .

In Healy v Bray [18] , a rock had dislodged from the defendant’s land and rolled down the hill towards the plaintiff. The court held since the rock was there naturally and part of the land itself, it was not bought onto the land.

It must be a non-natural use of the land:

Lord Cairns LC laid down the requirement that there must be a non-natural use of the land. Non-natural means ‘some special use bringing it an increased danger to others, and must not merely be the ordinary use of land or such a use as is proper for the general benefit for the community’ [19] .

In Rylands, the defendant’s use of water was ‘non-natural’ on the basis that domestic use of water is natural use but accumulating large quantities of water is non-natural. [20]

And if it escapes it must be likely to cause mischief

The defendant must have accumulated a dangerous item which is anything likely to do mischief if it escapes [21] . The court will examine the item and the circumstances of the accumulation. In such a situation the defendant keeps it in at his peril.

Escape

There must be an escaped from the land which the defendant occupied and it must effectively relate to the hazardous substance [22] .

The case of Rylands v Fletcher laid the basis on which the person who has suffered can be bona fide to be remedied [23] . The person who has suffered damage can be compensated if he can prove damage on his property [24] .

Where there is damage to neighbouring land, there are a number of different causes of action available, such as negligence, trespass, private nuisance and Rylands v Fletcher, depending on the circumstances.

Negligence depends on the existence of a breach of duty of care [25] owed by one person to another [26] . This duty is a standard of reasonable care that an individual is required to adhere to whilst performing any act that could forseeably harm others [27] .

Private nuisances [28] are generally relates to a wrongful disturbance with a person’s use or enjoyment of land [29] involving a deleterious escape. [30] The intention of the person causing a nuisance is usually irrelevant but malice may turn a reasonable act into an unreasonable one.

The distinguishing factor is nuisance concerns the protection of the use and enjoyment of land whereas negligence is not limited to the protection of any particular interest. Rather liability is based on the defendant’s conduct, and may be imposed in respect of a wide range of interests damaged by that conduct.

The two overlap in that a claim in nuisance concerning damage to property or land, certainly with regard to the encroachment of tree roots. [31]

In Low v Haddock [32] , Judge Newey said:-

‘Nuisance, when knowledge and foresight of consequences are required for it, bears a strong resemblance to negligence …’

Nuisance involves a continuing action rather than a single event unlike Rylands or negligence and does not require lack of care or culpability. However, there has been an application of nuisance principles to isolated escapes such as Tenant v Goldwin [33] .

Holt CJ stated that nuisance is sometimes an action of strict liability rather than requiring “fault” of negligence.

There will never be a case where a plaintiff will succeed in Rylands v Fletcher without also succeeding in nuisance [34] and there will rarely be a case where a plaintiff would succeed would succeed in nuisance without also succeeding in negligence. This evidence supports the argument against Rylands.

Despite the judicial tendency to restrict the applicability of the strict liability principle, it remains relevant, augmenting the law of nuisance and negligence by providing a mechanism whereby risk is allocated justly and efficiently. Despite negative views on the principle being expressed in the House of Lords it has been applied by the English Courts.

Rylands was a major development in modern law and has influenced many subsequent rulings. The change in negligence law as a field of torts has in some jurisdictions incorporated the Rylands rule. E.g.Australia

Burnie Port Authority v General Jones Pty Ltd (1994)

In this case an independent contractor’s employee welding negligently causing damage to the defendant’s premises. The plaintiff’s property was burnt; he relied on negligence [35] , nuisance and the case of Rylands v Fletcher.

Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said:

“The result of the development of the modern law of negligence has been that ordinary negligence has encompassed and overlain the territory in which the rule in Rylands v Fletcher operates. Any case in which an owner or occupier brings onto premises or collects or keeps a “dangerous substance” in the course of non-natural use of the land will inevitably fall within a category of case in which a relationship of proximity under ordinary negligence principles will exist between owner and occupier and someone whose person or property is at risk of physical injury or damage in the event of the “escape” of the substance.

The High Court of Australia held that the plaintiff could not rely on the rule of Rylands v Fletcher [36] because it had been absorbed into the law of negligence with all the requirements [37] . Which meant the independent contractor was not legally responsible under those circumstances, but could only be liable under the umbrella of negligence.

It is evident here that the same action could be sought under negligence instead of Rylands.

The English courts did not isolate the principle of Rylands despite the decision in the Cambridge Water, the HOLs stated that the rule in Rylands should be considered as an extension of the law of nuisance relating to isolated incidents rather than continuing problems. [38]

The historical connection with the law of nuisance must now be regarded as pointing towards the conclusion that forseeability of damage is prerequisite of the recovery of damages under the rule.

Cambridge Water Co v Eastern Counties Leather plc (1994) 2 AC 264

The plaintiff “had purchased a borehole to extract water for supplying to the public [39] and carried out tests on water to see whether the water was safe for human consumption [40] . They found out that the water was contaminated with a certain chlorine component [41] from eastern counties plc located approximately 1.3 miles from the borehole. The chemicals had seeped through the floor of the defendants’ premises, penetrated the chalk and had been continually polluting the well since sometime.

There was “no evidence of spills from the pipes or the tanks” [42] , it was concluded that “the spills must have occurred under the old system” [43] . Cambridge Water company sued for damages on the basis of negligence, nuisance and on the basis of the rule in Rylands [44] .

the claims for negligence and nuisance were dismissed similar to the case of Venning [45] . With regards to negligence the damage had to be reasonably foreseeable, as was required under Overseas Tankship [46] case; the same test was applied to the claim under nuisance. Applying the case of Hughes [47] , Kennedy J found that the harm was not reasonably foreseeable, and both actions under nuisance and negligence must fail [48] . The plaintiff appealed successfully against the first decision [49] . However it seemed appropriate to take the view that foreseeability [50] of damage should be regarded as a pre-requisite of liability in damages under the rule.

Lord Goff stated that Rylands was arguably a sub-set of nuisance, not an independent tort, and as such the factors which led him to including a test of forseeability of harm in Rylands cases also imposed such a test on all nuisance cases. Lord Goff’s judgment has been criticised on several points highlighting flaws in wording which leave parts of the judgment ambiguous and a selective assessment of Rylands that ignores outside influences.

As foreseeability had not been established, eastern Counties appealed to the HOLs [51] .

The HOL collectively found that the Eastern Counties was not guilty did ‘not invade plaintiff’s privacy’ [52] and were not liable to pay damages [53] . The defendants had explained that they thought “any spilt chemical could evaporate” [54] and the only way there could be a risk is only if large a mounts were spilt, in this way a person could be overwhelmed by vapour [55] .

Furthermore, the HOLs held the rule should never have been accorded the status of a distinct tort, since it was in reality merely a sub-category of nuisance.

The application of Rylands should have deemed inadequate following these decisions. However, the HOLs in the case of Transco [56] chose, in spite of apparently persuasive arguments that the rule should be allowed to fade into historical obscurity, to reaffirm its applicability, albeit within the framework of nuisance. In that Lord Hofmann protected the rule in Rylands but within strict confines. The court considered the escape must be of something dangerous, out of the ordinary, which did not include a burst water pipe on council property.

The HOLs declined to follow the Australian High Court, and reaffirmed the rule and principle underlying Rylands. As commented by Lord Walker. [57]

Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61

In this case, it was held that although there was large quantity of water and the damage was extensive [58] , there had been no ordinary or unusual use of the land as the water supplies were domestic. The court also concluded that there was no escape of water from the defendant’s premises.

Lord Bingham discussed three options for the rule in Rylands; similar to the Burnie case, the first option was to abandon it and deal with negligence. This was rejected [59] for a number of reasons including the fact that it would leave a number of cases, however small, where it is just to ascribe no fault liability, and which are not covered by statute [60] .

The second option would be to extend the scope of the rule to cover ultra-hazardous activities, but this was also rejected on the basis that it was rather the role of Parliament. And finally, the third option was to keep the rule and state principles to achieve greater clarity for the future application [61] .

It was specified the rule was a ‘sub-species of nuisance’ therefore there must be i) two occupations of land involved and ii) there could be no claim for death or personal injury [62]

The suggestion of assimilation of private nuisance and negligence in Bolton v Stone, the underlying principle and purpose behind these civil actions sic utere tuo ut alienum non laedas – man should not use his property so as to hurt another. [63]

Bolton v Stone [1951] AC 850, [1951] 1 All ER 1078

The court [64] held that in the last 38 years, there was not a single incidence of injury [65] and so this could not amount to negligence in the part of the club [66] . The COA [67] dismissed [68] her appeal on the same grounds as Oliver J. Somervell LJ; the claimant had failed to establish that the defendants had not taken due and reasonable care, so there was no negligence either. However, the majority, [69] held that an accident of this sort called for an explanation, and that the defendants were aware of the potential risk. On that basis, applying the legal maxim of res ipsa loquitur [70] , the defendants were found to be negligent.

However, the HOLs unanimously found that there was no negligence. Lord Atkin [71] stated on this [72]

Whether the defendant had a duty to the claimant to take precautions and to take into account the foreseeability of the risk and the cost of measures to prevent the risk. The risk in this case may have been foreseeable, but it was so highly improbable that a reasonable person could not have anticipated the harm to the claimant and would not have taken any action to avoid it. In the words of Lord Normand [73] :

Despite Vaughan [74] , a generally coherent law of negligence is still abridged, as accepted by MR’s judgement in Heaven v Pender [75] . Against the social backdrop of major civil disasters and the level of common law development at the time, Rylands might be seen not as dramatic and conscious rejection of fault based liability but more reasoned reflection of the facts and the existing law on escaping hazards, such as cattle trespass consistent with a utilitarian view of tortuous liability. [76]

Recent years have provided the HOLs with several opportunities to work through the contemporary role of private nuisance. It is acceptable to expect in an area subject to so much high level judicial attention, private nuisance and the rule in Rylands v Fletcher have been under considerable pressure. The issue which has resurfaces has been repeatedly addressed in the case-law; that the absorption of the rule in Rylands into the more dominant tort of negligence and it should be recalled that nuisance more generally has often been vulnerable to fault-based analysis.

I will now extend my analysis by introducing the principle of Rylands in other countries. To begin with, I have chosen to analyze the application of Rylands v Fletcher in India where the doctrine has been modified.

The first case I will consider is:

State of Punjab (defendant) V Modern Cultivators, LADWA (Plaintiff) (2005) NBr 294

India Modern Cultivators [77] brought an action against the State of Punjab [78] as they suffered loss by flooding of land as a result of a burst in a canal owned by the state. The company case was that there was breach of duty owing to negligence of state and water from the canal escaped to the fields “causing floods in modern cultivators’ land” [79] . In its defence, the state argued that there was no breach that took place because the canal had been repaired and the flooding was due to heavy rains.

The court held that the damage to the company’s field was caused by the water from the canal and not from the river [80] . The Court agreed that the government had a duty of maintaining the canals and of being held liable for all damages caused by them.

Sarkar held that firstly, “Law of negligence was applicable to that case because there would not have been a breach of duty had those people in management taken proper care and hence the breach itself remained a proof of negligence” [81] . Two documents called for in the court were produced deliberately a clear indication that there was negligence in management of the canal [82] .

Hidayatullah held that there was sufficient evidence to conclude there was negligence referring to Barkway [83] where the same position was taken to rule a case of similar nature.

Secondly the scenario in Rylands was hardly applicable in this case” [84] , because canal systems are essential for the life of the whole country and land that is used as canals is subjected to an ordinary use.

The rule of Fletcher had been used in several cases to make verdict in India and was therefore regarded as part of common law but could not apply in this case [85] . However in its country of origin the rule has been subjected to certain law.

One of the exceptions to the rule is that, unless proof of negligence is established as the cause of the accumulated substance escape, the defendant can not be held liable for damages caused on other persons by escaping substances [86] . If the rule of Rylands had to apply in this case, then the state of Punjab would not be liable for damages but is liable on the basis of negligence [87] . This is because the defendant (State) would have excused itself by claiming that the escape was due to act of God. However because there was nothing of such sort existing, the court ruled that the breach of duty was due to negligence by the people managing the canal banks. Although the defendant could have defended himself on the bases of the defence of ‘act of God’, his excuses could not be sufficient enough to guarantee safety because there was clear indication of negligence in that a duty of care had been breached.

The tort of negligence is said to occur when actionable damage is sustained, that is “the concern here is not being careless but the damage that results from careless conduct of a person especially in places where the law recognizes a duty to be careful” [88] . The government has a duty to take care of its citizens and hence “damages caused by its actions whether deliberate or accidental then it should be held liable” [89] .

The mere fact that a person is injured by actions of another person does not arise to cause of action. Even if the action is deliberate, the party who suffers loss will have no claim in law so long as the doer was exercising legal right. But if the act involves due care cause of actionable damage will arise. The rule of Rylands imposes liability only when something accumulated in defendant land is likely to cause mischief in event of escape to plaintiff land. Although this might give rise to tort of nuisance, it is not necessarily so [