Non-natural Use of Land

The man in the street might legitimately expect the Common law to have developed a means by which persons who suffer personal injury or damage to their property due to the release of dangerous substances outside the walls of a facility would recover compensation without having to prove fault on the part of those who operate that facility.

Assess the extent to which this expectation is realised by the so-called Rule in Rylands v Fletcher as amended and restricted up to the present date.

To successfully bring a claim under the Rule in Rylands v Fletcher, there must be an escape of a dangerous thing in the course of a non-natural use of land, for which the occupier will be liable for the damage caused to another as a result of that escape. This is provided for by Mr Justice Blackburn, who said: “We think the true rule of law is that the person who, for his own purposes, 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, is prima facie answerable for all damages which is the non-natural use of land.”

From this articulation, it could be seen that it is a tort of strict liability, and this simply means that regardless of whether the occupier (who accumulated the dangerous thing which escaped) is at fault, he/she will be liable to the claimant who suffered personal injury or damage to property.

On the face of it, therefore, where anyone who suffers personal injury or damage to their property due to the release of dangerous substance from someone’s land, he/she will be entitled to compensation even where the occupier is not at fault (i.e. he/she was not in anyway to blame for the escape). Nevertheless, in actual fact, the law surrounding this area is not as clear cut. The recent added requirement that the defendant would only be liable to a “foreseeable consequence of escape” brings greater doubts (i.e. further to the already existing debate) into whether the tort remains one of strict liability or is there no longer difference (for example) to the tort of negligence. It is also essential to bear in mind that it is merely an area of law which provides strict liability, but not absolute liability and so, there are still defences available to the tortfeasor.

Before examining the question whether the tort remains to be one of strict liability, which is important in accessing the extent to which the fault-based element is realised by the law surrounding this area, it is first necessary to establish and understand the basic requirements to the tort.

When deciding whether the case before them is one of Rylands, the court must be able to establish that there is:

1. A Dangerous Thing

It should be noted from Blackburn J’s judgment (above) that things that are brought onto the land must be “likely to do mischief” but it does not mean that the thing accumulated must be dangerous itself. This means that almost anything can be a dangerous thing (for example: water could not be seen as being “dangerous” in itself, but was certainly a dangerous thing that is capable of satisfying the requirement- the case of Rylands v Fletcher) and in fact in Attorney General v Corke, it was held by Benett J that noxious persons was capable of fulfilling this requirement. Similarly in Hale v Jenning Bros, a “chair-o-plane” in a fairground which caused damage when one of the chairs flew off and damaged the adjoining land was held to be a dangerous thing for the purpose of Rylands. It might seem, therefore, that anything kept on land has the potential for doing harm if it escapes. However, since the recent of Tranco plc v Stockport MBC, the requirement are now harder to satisfy. The House of Lords in Transco considered that foreseeability must be inherent in the requirement of “dangerous things”. Lord Bingham commented that “it must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape however unlikely an escape may have been thought of.” From this, we see that the test was quite a strict one and the thing would only be considered “dangerous” if the defendant recognised (or should have recognised) that “an exceptionally high risk of danger” would result if the thing or substance accumulated on the land was able to escape. In the case, accordingly, it was held that the defendants were not liable since at the time of accumulation, it was not known that the thing which is accumulated is an exceptionally high risk of danger. This was initially a standard of foreseeability where the defendant will not be liable for damage caused by something which no one could have foreseen as causing damaging if it escaped. Nevertheless, since this is a tort of strict liability, the standard mutated and the fact that the possibility of escape was not foreseeable, offers no defence. Whilst so, it should be seen that this appear to introduce the element of a fault-based liability.

2. An Accumulation Of That Dangerous Thing

3. The Accumulation Is A Non-Natural Use Of Land

The Rule in Rylands v Fletcher would only apply where the defendant deliberately accumulated or brought onto his/her land a “dangerous thing” in the course of some “non-natural” use of land. In Giles v Walker, it was held that there was no liability under the rule in respect of trees, shrubs and other plants that are naturally found on the defendant’s land, even if part of these do escape to the claimant’s land. This should be distinguished, yet, with genetically modified crops (or seed) – they are specifically/deliberately accumulated. In Pontordawe RDC v Moore-Gwyn, rocks which fell to the claimant’s land as a result of weathering was held to be not deliberately accumulated (similar to the decision in Giles v Walker), and so no liability was owed.

It should be seen that the accumulation must be a non-natural use of land for there to be a liability to be owed; there has been a clear intention by the courts to distinguish things which are naturally on land and something which is brought onto the land. Lord Cairns drew a clear distinction between natural use and non-natural use of land when the case of Rylands v Fletcher reached the House of Lords, this is a refinement to the Rule given by Blackburn J that there should be liability for things brought onto the land and accumulated by the defendant. In Rickards v Lothian, Lord Moulton explained that “It is not every use to which land is put that brings into play [the] principle. It must be some special use bringing with it increase danger to others, and must not merely be the ordinary use of land or such use as is proper for the general benefit of the community”. In Read v J Lyon Co Ltd, this was considered to be dependent upon the benefit to the community and this was confirmed in British Celanese Ltd v A H Hunt Ltd and Lawton J further commented that the use of land on an industrial estate for industrial purposes was an ordinary use of land. However, Lord Goff said in Cambridge Water v Eastern Counties Leather that “The storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use.” This was finally settled Transco where Lord Bingham made it clear the rule in Rylands v Fletcher will only apply “where the defendant’s use is shown to be extraordinary and unusual” and therefore the argument of “general benefit of the community” is not sufficient.

4. The Dangerous Thing Has Escaped.

As the definition by Blackburn J establishes, the defendant is only liable when damage is caused by the escape- “escape from a place where the defendant either have occupation or control over land to a place which is outside his occupation or control.” In Read v Lyons, the munitions inspector which was injured while visiting a munitions factory failed in her claim under Rylands since he was unable to prove that there is an escape from a place where defendant have control to a place outside his control- the claimant suffered the injuries while she was still on the property that the defendant have control. With the absence of negligence, the claimant was unable to succeed in the action. Clearly, the thing must move from the defendant’s land to cause damage elsewhere, and if this is not so, there will be no liability. From the case of Miles v Forest Rock Granite Co , it could be seen that the thing that actually escapes does not have to be the dangerous thing brought onto the land provided that the escape is referable to an non-natural use of land.

5) The Escape Must Causes Damage Of A Foreseeable Type?

In Cambridge Water, the claimant was unable to succeed on the ground that the damage was too remote a consequence of the escape. This seems to mean that since this case, the claimant would not be able to recover if the damage was found to be too remote; the damage caused by the escape must be foreseeable. What the court seem to have in mind (particularly Lord Goff) in this case is that one could only be strictly liable for a damage which is deemed to be reasonably foreseeable and because damage in this case is not deemed to be reasonably foreseeable, liability could not arise. On such findings, it must also be noted that personal injuries does not seem to be a type of injury which the rule provides for. Lord Macmillian commented in obiter of Read v Lyons that “as the law stands an allegation of negligence is in general essential to the relevancy of an action of reparation for personal injuries,” and so he was not prepared to allow for a personal injury under Rylands. The House of Lords made it incredibly apparent in Transco that Rylands v Fletcher was to be seen as a “sub-species” of nuisance and for this reason; it could only protect rights to and enjoyment of land. It does not extend to allowing a claim for personal injuries-Lord Bingham and Lord Hoffman. Despite their comments were delivered in obiter but it appears that it is settled that a claim could only arise in respect of damage to land in which the claimant has an interest and probably never going to succeed in respect to personal injuries.

Is The Tort Still One Of Strict Liability?

The courts created this new tort during the industrial resolution in the eighteenth century, attempting to make industrialists strictly liable for any damage an escape of dangerous thing caused, regardless of whether or not they could have taken any precaution to prevent it or are no way at fault for its escape. However, as we have seen, over the years elements of fault-based liability have been introduced, raising a debatable question as to whether the tort remains to be one of strict liability.

Initially, it is necessary to note that since the tort is one of strict liability, not one of absolute liability, there are defences which are available to defendants who have been alleged to owe a liability under the rule. This includes: 1) Consent- where the claimant consented to the accumulation and the defendant has not been negligent in its escape (Kiddle v City Business Premises Ltd), 2) Act of God- no human foresight and prudence could reasonably recognise the possibility of such an event (Greenock Corp v Caledonian Railway), 3) Act of a stranger- there is an unforeseeable act of a “stranger” over whom the defendant had no control (Rickards v Lothian), 4) Statutory Authority- that on construction of statute, no liability should arise and 5) Claimant’s default- the claimant is partly at fault. Arguably, a person on the street should legitimately expect that where he/she suffers personal injury or damage to their property due to the release of a dangerous substance from the defendant’s land, no defences should be available. Nevertheless, we see that instead of the liability being one where the defendants can raise no defences, the defences available to them were in fact of quite a wide range. While understanding that since the tort is one of strict liability (rather than absolute liability), there always exist a possibility of defence, it is surely unexpected for there to be quite a wide range of defences available (as we have seen). This surely limits the application of the tort as one of strict liability.

Moreover, we see that the tort was limited immediately by Lord Cairins when the original case of Rylands v Fletcher arose in the House of Lords with the additional requirement of land. It is already seen that the tort will apply only when the defendant had deliberately accumulated a “dangerous thing” in the course of some “non-natural” use of land. This in itself is a greater limitation to the application of the tort yet, the House of Lords decided to limit this further in Transco by holding that it will apply only when the use is shown to be “extraordinary or unusual”. As seen from the case, this mean that there will be very few circumstances to which the definition will fit into; that is many things which may not be natural on land may be quite ordinary and this requirement will be dependent upon time and space (Lord Moulton in Rickards v Lothian) as well as the context of the use of land (similar to that in nuisance “What would be a nuisance in Belgravia Square would not be so in Bermonsey”). The requirement had, as we have seen; go against the element of strict liability and it basically made it much more difficult for a claimant to succeed in any claim taken against general industrialised activity (which the tort was initially introduced to protect against). The courts may thought that such would be a control mechanism to which will be imposed in deciding whether the tort should apply, yet there is no real justification doing so (the fact that they wanted to limit the number of claims similar to that done in negligence is not sufficient when the main purpose of the tort in the first place was to make defendants strictly liable for any escape of dangerous thing).