The Rule in Rylands vs Fletcher

Introduction

This paper focuses on the rule of Rylands vs. 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 (Rylands) 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 conclusion on whether this rule fits in the modern setting in commonwealth countries, and whether or not the rule has withstood the test of time to deserve recognition in the present times.

Hypothesis

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

The rule in Rylands vs. Fletcher

The plaintiff was Thomas Fletcher and the defendant’s was John Rylands. In the circumstances, the defendant had constructed a reservoir on land that was on leasehold, whose purpose was to supply water into his powered textile mill. Thomas Fletcher’s land neighbored that of Rhlands. In his land, Fletcher operated mines and had excavated up to disused mines which were under the land where the plaintiff’s reservoir was located. The land that both parties were using had been rented from lord Wilton and the “activities that each carried out were legal”. Rylands employed independent contractors and engineers to build a reservoir.

When on duty the contractors came across some mine shafts that were no longer in use and which were loosely filled with marl and earth. The contractors “made no attempt” to fix the shafts. These shafts led through a series of interconnected shafts and channels, into the plaintiff’s (Fletcher) mines and land. After completion, water burst and flooded into Fletcher’s land and mines. In those circumstances, Thomas Fletcher sued John Rhylands.

The Court Of Liverpool

This court’s ruling favored the plaintiff on the basis of both nuisance and trespass. Rylands was not satisfied by the decision of this case and thus applied for the case to be heard before the three judges of the exchequer in which he succeeded. The three exchequer judges “overturned the first ruling”. The exchequer judges based their judgment on the idea of trespass requiring a direct personal involvement in the invasion of the quiet enjoyment of land. This kind of invasion “required evidence of intent or negligence”.

Court Of Exchequer Chamber

Fletcher was angered by the decision of the three exchequer judges and appealed to the exchequer chamber composed of six judges. The six judges “overturned the previous decision” this time in favor of Fletcher. The judges held thus, “we, the judges of the exchequer think that correct rule of law is that, any person, who for his own intentions brings on his land, accumulates and keeps on the land anything likely to cause trouble if it escapes, must keep it at his own risk, and, if he does not do so, is prima facie (without need for further information), answerable for all the damage which is the natural effect of its escape. He can, however excuse himself by proving that the escape was caused by the plaintiff’s default; or possibly, that the escape was a consequence of the act of God” (Fordham Margaret1995)

The judges concluded that “none of these excuses had been proven in the case”, and it was therefore “unnecessary to find out what other excuse would be sufficient”. The judges, on making their ruling relied on the “basis of the liability for damages of land through the tort of chattel of trespass, the tort of nuisance”, as well as “the scienter action (common law rule that deals with the damages directly done by animals to human beings)” (Duhame.org, 2009). Rhylands felt that this was not just. He appealed to the House of Lords.

House Of Lords

The House of Lords dismissed Rhylands appeal. They agreed with the six exchequer judges but went further to add a limitation on the liability.

Strict Liability

From the proceedings of this case, there developed what is called “the strict liability” aimed at avoiding “misrepresentation of facts in a court of law”. In our case, “the defendant’s (Rylands) reservoir caused an old mine shaft owned by Fletcher to collapse”.

It was proven in courts that “the defendants were not negligent” but still the judges ruled that “the defendants ought to pay damages to the plaintiff and they conformed”. The case thus established doctrine of strict liability “but only in limited circumstances” which were stated by the judges. Any person “wishing to rely on this doctrine has to fulfill certain requirements that were highlighted by the judges during this case”.

Requirements For One To Rely On The Case Of Rylands And Fletcher

1. The defendant needs to have brought something into his land

In the case of Rylands and Fletcher, “the defendant brought water into their land”. The plaintiffs “depended on this fact”.

2. Non-natural use to the land

In our case “the defendants brought in water to their land and this was not the natural user of the land” (Weinrib, Ernest, pp 58).

3. There must be something likely to do mischief

The Court of Exchequer chambers stated that “if a person brings into his land something which is likely to do mischief if it escapes, the person keeps it at his own peril”.

4. Escape

The exchequer court came out clear and stated that “there must be escape of the dangerous substance”.

Remedy

The case of Rylands versus Fletcher “laid the basis on which the person who has suffered can be bona fide to be remedied” (Lillian Munroe, 09). The person “who has suffered damage can be compensated if he can prove damage on his property”.

Case 1: Greenock Corporation v Caledonian Railway [1917] AC 556

According to Willem H. Van Boom (2004), “Greenock Corporation constructed a concrete pool meant for rowing” “by children” in the bed of a stream and so “obstructed the stream from flowing down stream”. At some point, there was extraordinarily heavy rainfall that “led to overflowing from the pool and the property of the plaintiff” (Caledonian railway) “was damaged” (Jackson, Rupert M. Jackson & Powell, 207). The plaintiffs sued for damages. The court held that “the damages were to be paid”. The defendants “had relied on the facts of the case of Rhylands and Fletcher” (Helmut Keziol, 26). Their defense was that “the overflow was caused by an act of god but was not found to be sufficient”.

Case 2: Bolton v Stone [1951] AC 850, [1951] 1 All ER 1078

According to Bailii.Org (2009), it was during a game of cricket that Miss Stone “got hit by the cricket ball” in Manchester. The ball “flew from the ground and hit the claimant” that was “standing outside her house” about 100 meters from the cricket field: “the field had been used for cricket since 1864 before the road along which the claimant’s house was built in 1910” (Hodge, Sues, pp 254). The field was surrounded by a fence 3.7m long and, Valerie Hoag, (pp 40) argues that the ground sloped up so that the fence was 5.2m high. The fence was 71m from the batsman who had hit the ball. The ball rarely been hit out of the field; about six times in thirty years (Valerie Hoag, pp 42).

Court Ruling

The high court “was the first to hear this case”. It was held that “in the last 38 years, there was not a single incidence of injury” and so “this could not amount to negligence in the part of the club”.After the first judgment by the high court, the applicant felt that “the decision was not fair”. She then “applied to the court of appeal”. The case in the court of appeal “was heard by three judges: Somervell, Singleton and Jenkins” (Willem Van Boom, pp 34). They all “dismissed the case -just as the high court had done”. After the judgment, “the defendants appealed to the House of Lords”. In the House of Lords “the case was heard by five lords, in whom the lady lost”.

Case 3: Cambridge Water Co v Eastern Counties Leather plc (1994) 2 AC 264

Facts

The plaintiff (Cambridge Water Company) “had purchased a borehole in 1976 (18 years before the case came up in 1994) to extract water for supplying to the public” (Gleeson 09). In 1983, the “company carried out tests on water to see whether the water was safe for human consumption”. They found out that “the water was contaminated with a certain chlorine component”. When investigations were done, it was found out that the contaminating element came from Eastern Counties plc tannery located approximately 2.5kilometres (1.3 miles) from the borehole (Zachary Noon, 65).

The tannery had started its operations in 1879. From that time in1976 the chlorine solvent used by the defendants had always been delivered to the company in 40 gallon drums and could finally end up in a sump. After 1976 (the year which the borehole was dug) “the solvents were being delivered in bank and stored in the PLCs tanks”. From the tanks, the solvent was then “piped into the tanning machines”. There was “no evidence of spills from the pipes or the tanks”, it was concluded that “the spills must have occurred under the old system” (James, 66). Cambridge water company sued for damages on the basis of negligence, nuisance and on the basis of the rule in Ryland’s vs. Fletcher.

Court Ruling

The claims for negligence and nuisance were disallowed by the court. The plaintiff (Cambridge water Co) “appealed successfully against the first decision”. The Eastern counties leather PLC “was not contented with the decision that came up after the appeal”. They “appealed to the House of Lords”.

The House of Lords collectively found that “the eastern counties leather PLC was not guilty and so was not liable to pay damages”. They had also “not invaded plaintiff’s privacy”. The defendants had explained that they thought that “any spilt chemical could evaporate” 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 vapor.

The above three cases relate to England. The following cases relate to Australia a commonwealth country where the case in Rylands and Fletcher has been modified.

Case 1: Burnie Port Authority v General Jones Pty Ltd (1994)

According to Weinrib, Ernest (2003), an independent contractor’s employee welding negligently caused a fire that the caused damage to the defendant’s premises and even spread to the nearby property. The plaintiff’s property was burnt and this made him sue to recover the damages. “The plaintiff relied on negligence”, nuisance and the case of Rhylands vs. Fletcher.

Court Ruling

The judges held that the plaintiff could not rely on the rule of Rylands versus Fletcher. It was felt that the case should be done away with and so the independent contractor was not legally responsible under those circumstances, but could only be liable in the law of negligence.

Application In India (A Commonwealth Country)

Case 1: State of Punjab (defendant) Vs. Modern Cultivators, LADWA (Plaintiff) (2005)NBr 294

Facts

According to the records from the Supreme Court of India (2004), in 1960, a company by the name “Modern Cultivators” brought a case into court “against the State of Punjab”. The modern cultivators, suffered loss by flooding of its 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”. In its defense, 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 that pounded the area during the month of September.

Court Ruling

The court consisting of judges; Sarkar A.K, Hidayatullah M and Mudholkar J.R, ruled against the states government fining it Rs 20, 000 but it was later revised to Rs. 14,130 by the high court “on basis of negligence”. In its ruling the court held that the damage to the company’s field was caused by “the water from the canal and not from the river”. The Court agreed that the government had a duty of maintaining the canals and of being held liable for all damages caused by them (Linden Allen, pp 64).

Sarkar held that one, “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” (Supreme Court of India, 2004). Two documents called for in the court were produced deliberately a clear indication that “there was negligence in management of the canal”.

Hidayatullah held that there was sufficient evidence to conclude there was negligence referring to Barkway v. South Wales Transport Co. case of 1950 where the same position was taken to rule a case of similar nature. Secondly he ruled that “the scenario in Rhylands and Fletcher was hardly applicable in this case”. This is so 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 (Linden Allen, pp 67).

According to Devlin (2005), the rule of Fletcher had been used in several cases to make verdict in India and hence “regarded as part of common law but could not apply in this case”. However in its country of origin the rule has been subjected to certain law (pp 33). John Murphy (2007) said that 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”. And if the rule of Rayland and Fletcher 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”. This is because the defendant (State) would have excused itself by claiming that the escape was due to act of God (Pablo Salvador, 867). 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 bases of act of God, his excuses could not be sufficient enough to guarantee safety because there was clear indication of negligence (Nolan, Joseph, 61).

According to Quinn Frances (2007), “the tort of negligence is said to occur when actionable damage is sustained” (pp 75). 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”. The government has duty to take care of its citizen and hence “damages caused by its actions whether deliberate or accidental then it should be held liable” (Canon, Alan 37).

According to John Murphy (2007), 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 (Devlin, 112). The rule of Rayland and Fletcher 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”.

According to Richard Smellie (2009), the judges could not apply this rule in this case on basis that there was repeated interference. In addition the Rylands and Fletcher rule is only applicable in cases where there has been special use of land “that would increase danger to neighbors rather than ordinary use of land”. The use of land here by the state was not specific but an ordinary one and hence the rule could not be used for judgment.

Case2: M.C Mehta v. Union of India AIR (1987) 4 SCC 463

Shriram Food and fertilizer industry was producing caustic and chlorine. During its operation a major leakage occurred from one of the companies units in 1985 in the heart of New Delhi city resulting to death of several people among the an advocate in courts of Tis Hazari (Surajit, 22).

The leakage resulted from bursting of storage tanks containing Oleum gas when the structure from which it was standing collapsed and it caused fear on dwellers next to the company. The leakage is said to have been caused by both mechanical and human errors. Even before people had fully recovered from shock caused by previous escape of gas from the company, another leakage, this time a minor one occurred from the joints of pipe in the same company.

According to Surajit, (2003) among the units of the Shriram Foods and Fertilizer Company that were set up in a single complex included manufacture of caustic soda, soap, sulfuric acid, super phosphate, hydrochloric acid and bleaching powder . The company was surrounded by densely populated villages within a radius of 4 miles from this company with population of more than two hundred thousand people. As a result, In December of the same year the district magistrate, Delhi ordered the company to “shut down its units that dealt with manufacture of toxic/hazardous chemicals and gasses comprising chlorine, Oleum etc within two days at the company’s premises in New Delhi”.

Further the Company was given seven days to do away with such chemicals and gases from the city. M.C Mehta moved to Supreme Court to seek for compensation caused by the actions of the company and requested that the closed enterprise should not be allowed to reopen.This petition came before the court on reference to judgment made by a bench of three judges in February of 1986 that allowed Shriram to re-open its power plant and plants that manufactured caustic soda and chlorine subject to conditions set out in the judgment.

Court Ruling

The big question on this case was whether the victims of the Oleum leakage would be compensated and if so, how the liability of such establishment engaged in manufacturing hazardous products would be measured (Surajit, 33). In their ruling, the bench made up of five judges ruled against Shriram Food and fertilizer industry applying the rule of absolute liability. Although the principle of strict liability under the rule of Rayland and Fletcher was applicable in many cases in India, judges failed to apply this law under basis that “it was only applicable to non-natural users of land”.

According to judges, the rule of strict liability evolved during the 19th century before industrialization had taken place and hence the principle could not be used as guide in determining any standard of liability constituent with the needs of modern day economy and social structures. Laws must grow at par with the needs of changing community and be at par with economic development taking place in the nation (David Engel, Michael McCann, 45).

According to David Engel, Michael and McCann, (2009) “law should be dynamic, so that, as new situations develop, it can evolve to meet challenges and problems presented by the new situations”, (pp46). Hence the judges felt that it was only fair to rely on new principles that would adequately address new challenges that arise from the industrializing society rather than referring to laws that prevailed in England or in any other foreign country.

On the basis of the principle of strict liability under the rule of Rylands and Fletcher, the accused is allowed to give his defense of due negligence (Matthew Fletcher, 06). Hence, if this principle could have been applied in this case the court would have failed to provide justice to the victims of Oleum gas leakage (Legal service of India, 04). This is because the accused could have defended him by arguing that, the plant was playing a decisive role in the economic development and hence he could not be held liable to damages under this circumstance.

According to Legal service of India (2004) if any company manufacture hazardous or engage in inherently dangerous activity, the enterprise is absolutely liable to compensate all those who are affected by accident resulting from escape of toxic gas e.g. In India such liability are not subject to exception made in the principle of strict liability. That is, the defendant can not defend him or herself on basis of due negligence.

Going by the Law Society of Upper Canada Continuing Legal Education (2003), once a company is given permission to manufacture inherently dangerous products such as toxic gasses; such arrangement is conditional on the company “absorbing the cost of any damage arising from its hazardous activity”. The law presumes that the enterprise has a duty to protect individuals working in it or people living next to the establishment (Ajayi 99).Hence the principle of strict liability “became obsolete in the Indian court ruling after the determination of this case”.

Application In Canada (A Commonwealth Country)

Case1: Scythes & Co. Ltd. (plaintiff) V. Gibson’s Ltd. (Defendant) (1927) [1927] S.C.R. 352

Facts

According to the records of the Supreme Court of Canada (2007), the defendant, a leaseholder of building, “rented some parts of the building to the plaintiff”. Within the premise was a stand pipe that conducted water from the city’s system for fire protection through the building. A pipe which happened to pass through the plaintiff’s premises burst and the plaintiff‘s goods were damaged by the water. Consequently, the plaintiff sued the defendant for damages stating that the pipe’s water froze and burst due to the defendant negligence in failing to heat up the room. Further the plaintiff argued that the defendant failed to take precautions by turning off the water and draining the pipe during the cold weather.

Ruling By The Court Of British Columbia

In its ruling the court held that “the defendant was not liable”. Further the judges held that the pipe was not part of definition of the plaintiff premise area. In this ruling it is clear that the rule Rylands and Fletcher did not apply, either in its general effect or subject to any of its modification. Both the plaintiff and the defendant shared the same land and the escape of the water did not cause damage to a person from another land.

The plaintiff’s premise was described “in terms of floor spaces defined within walls and partition rather and not on land basis” (Lawteacher.net, 09). Again the water did not cause adverse or general effect on the natural environment. As stated earlier the rule of Fletcher is applicable in non natural activities. If the rule was applied in deciding this case then “the dependent would have been held liable”.

Under the doctrine of the Rylands and Fletcher, the defendant would be held liable “only if he had control over artificial construction which causes mischief to the plaintiff”. In this case the judges failed to apply this rule on basis that the defendant did not retain control over the construction (Ernst Christopher, 165).

Case2: Ross v. Dow Chemicals December (1999) AC No 90-C-2420

According to the Ontario Court of Appeal (2000), the common features prominent in modern Canadian law are statues that “designed to protect both environment and people who live work and play in it”. Concerning the above mentioned case, the Dow chemicals, operated a chemical production plant, in Sarnia city (Linden, 354). Propylene oxide whose manufacturing process used chlorine was one product of the company.

In November of 1991, uncontrolled fumes of chlorine gas were discharged from the plant where the oxide was being manufactured (Ontario Court of Appeal, 2000). At time of the discharge an employee of the complex was working in the roof of the complex checking valves for proper set. The chlorine gas being heavier than air enveloped the worker chocking and blinding him. As the worker “became disoriented and could not find his way down, he stumbled and felled down several times before finally managing to secure a ladder to the ground”. “This called for a case”.

Court Ruling

Although “the amount of chlorine gas was not too much as earlier described it mattered in the eyes of the court as put during the case hearing”. The Dow Chemical Canada “was found guilty and was charged with two offenses”. “The charges for both offenses were sufficient in guaranteeing that other companies learnt from it”. According to Valerie Hogg (2006), Judge Eddy, in his ruling held that the release of chlorine gas “was not totally within the building but to the environment outside the building from where the employee was working”.

However upon appeal on high court the rule was overturned in the favor of the Down Company. In his ruling judge, Ross of Supreme court found the company “not guilty on basic distinction between direct and consequential effects”. This meant that a person would only be presumed guilty “if the discharged contaminant had an adverse effect on environment”.

From ruling of the case by the judges “it is evident that the rule of Rylands and Fletcher did apply”. For one the company “was given chance to rule out the conviction”. The environmental act clearly outlined that no person was allowed to discharge a hazardous or contaminant into the natural environment that causes or is likely to cause adverse effect and event of such happen the person was “supposed to report to the ministry”. However Dow action “did not cause adverse effect to the natural environment but rather a direct effect”. If the rule was not applied by the court of appeal then Dow “would have paid the fine and compensate the victim” (archives.org, 2004).

Application In Africa

Kivuitu vs. the Electoral Commission of Kenya

In Kenya, a country which was under the British Colonial rule until 1963, and “whose many cases use a replica of the British law system”, the case ruling of Rylands vs. Fletcher has been modified and incorporated in their constitution as part of the country’s common law (Alfred Munene, 365). It was put to use in the 2002’s case of Kivuitu vs. the Electoral Commission of Kenya. This case had involved the breach of electoral Commission rules, in which Kivuitu was convicted for failing to protect the election ballots in which many votes were lost following a heavy rainfall that fell in the Coastal part of Mombasa, destroying votes for Mvita constituency. Kivuitu was then the chairman of the electoral commission of Kenya.

Court Ruling

When the case was brought to the High court of Kenya, the presiding judge, Kaplana Lawal, “dropped the case”. If the plaintiff, (Electoral Commission of Kenya) was able prove otherwise, “the case would be re-petitioned”. To date, there has never been found any implicating evidence that Kivuitu was on the wrong, a fact that proves that the Rule in Ryland’s v Fletcher ought to be reviewed.

Conclusion

In all the cases discussed, ranging from Canada, Australia, India and Africa, we can see that the application of the doctrine of Rhylands v Fletcher had failed to bear fruits. Instead, the judges are found to advise the complainants of other possible remedies such as negligence. In Australia, the doctrine of Rhylands v Fletcher is no longer applicable, but has rather been modified to negligence. The three Australian cases cited have shown that the plaintiffs or the defendants who relied on the case of Rhylands and FLetcher did not succeed.

In India and Canada we can see there is difference in application of the doctrine of Rhylands and Fletcher. First when this rule was adopted in England in late 19th century it was viewed to play a major role in tort law. However due to advent of tort of negligence and the concern of strict liability in extreme circumstances it meant it never fulfilled its foreseen initial promise. This can be evidenced from the two Indian cases outlined in the paper.

Initially the doctrine was used in some Indian cases but later as evidenced in given cases the doctrine become marginalized. In Canadian case following the outlined cases in the paper we can seen that originally the principle was not prominent as it was not used din the first case. But later we can see its application in cases in Canada. Finally, in Africa, we see that the doctrine could not be relied upon in which it complicates a simple matter of negligence into a case that is limited by lack of evidence. Therefore, the doctrine of Rhylands and Fletcher has no meaning in the modern law.

Recommendation

Since the application of the doctrine of Rylands v Fletcher has been found wanting in the settlement of cases, it would be imperative that the stakeholders in different countries who are charged with the responsibility of making laws, to look for alternative laws to replace that doctrine. This has earlier been recommended by Shapo (2003) and compliance with that recommendation would be important .They might want to begin with expounding on the negligence laws to make them broader, in order that they may incorporate aspects of the doctrines that are seen to complicate the doctrine’s application.

Works Cited

Books Cited

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Valerie Hoag. Foundations of Criminal and Civil Law in Canada. Ontario: Edmond Montgomery Publications, 2006

Quinn, Frances. Tort law. London: Pearson Longman, 2007

Nolan, Joseph. Tort law. Massachusetts: West pub. co, 2000

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Links

Asaph K, L. a Review of Lawnotes.com. Bolton v. Stone (1951)2009.23-Dec-09< http://www.4lawnotes.com/showthread.php?t=1238

Armada Hooper Rule of Law in Liverpool, journal of the Fletcher Doctrine (1), 2004, pp 98

Archives.org. personality l