Tort - The Rule In Rylands -V- Fletcher

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Rylands -v- Fletcher - Introduction

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The tort developed under nuisance and was seen as constituting part of nuisance law for many years after, but now constitutes a distinct tort because of its unique application.

Thus, the following five elements form part of the tort, and have developed as follows:

1. Accumulation of a Dangerous Item;

2. Non-Natural Use of Property;

3. Escape;

4. Damage and Causation;

5. Lack of Defence.

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Rylands v. Fletcher (1868)

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Facts: The Def (Rylands) employed independent contractors to construct a reservoir to supply water to the mill on its land; they did so negligently, unaware of mine shafts underneath; water escaped and flooded the Pl’s coal mine; the Pl sued its neighbour for the significant financial damage caused.

Exchequer Decision: Blackburn J. held that where a Def brings something on his land for his benefit and knows it is likely to cause mischief if it escapes, he keeps it as his peril and is answerable for its escape. Limited defences are, however, available to the Def.

HL Decision: Cairns L.J. modified the principle slightly, holding that the use of the thing must constitute a “non-natural” use of property to render the Def liable.

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Accumulation of a Dangerous Item - Accumulation

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R v. F makes clear that: principle applies only to things the Def brings onto property the Def; not already (“naturally”) there.

The accumulation must be intentional, but not deliberate, thus in Chu v. District of North Vancouver (1983): storage of food attracting rats was held to fall under the rule.

R v. F makes clear that the thing must be for the Pl’s benefit, thus a tenant bringing something onto the property for his own benefit would not render the landlord liable, unless the accumulation was authorised by the landlord.

Northwestern Utilities v. London Guarantee & Accident Co. (1936): although bringing things onto land for the purposes of provided public utilities (water, gas etc.) is arguably for the entire public’s benefit, such accumulations still fall under the rule, as the relevant companies are accumulating for their own purposes.

Fire extinguishers and sprinkler systems have been held to fall outside the principle.

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Healy v. Bray UDC (1963)

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Falling rocks which had already formed part of hillside did not count as an accumulation.

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Burnie Port Authority v. General Jones (1994)

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HC of Australia held that, while the principle does not apply to mischievous things already there, it does apply to non-dangerous things which are rendered dangerous by the Def.

HC of Australia assimilated R v. F into negligence, with the only difference that the responsibility was non-delegable, i.e. the Def is still liable for the negligence of independent contractors. The HC held that in cases, the distinction between R v. F and negligence (including their respective defences) had become so blurred, that a Pl who succeeds under R v. F will almost always succeed in a simple negligence action.

NB: the problem with the reasoning is that the only difference the HC left intact was that former R v. F actions still involve non-delegable duties; to assess whether this issue applies to a particular case, a court still has to examine whether the facts would have come under R v. F. So the problem is merely relocated, not resolved.

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Chu v. District of North Vancouver (1983)

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Storage of food attracting rats was held to fall under the rule.

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Northwestern Utilities v. London Guarantee & Accident Co. (1936)

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Although bringing things onto land for the purposes of provided public utilities (water, gas etc.) is arguably for the entire public’s benefit, such accumulations still fall under the rule, as the relevant companies are accumulating for their own purposes. Although, there is case law suggesting the contrary. So, this area of the law is unclear – perhaps legislation is necessary.

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Accumulation of a Dangerous Item - Dangerous Item

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Per Blackburn J.: the consideration applies to “anything likely to do mischief if it escapes”.

However, Cairns L.J.’s insertion of the non-natural criterion means that looking at the inherent danger of a thing is insufficient, as the context of the thing’s use is crucial if the rule is to apply.

Animals and fire have been held to come under the rule, but have their own separate rules (cf. Topics 20/21) which tend to override R v. F liability.

Are people covered? Quill doubts that they should be, but in AG v. Corke (1933) a field-owner was held liable when licensee caravan dwellers on his land caused interference to neighbours; by contrast, in Smith v. Scott (1973) a local authority was not held liable for the conduct of tenants to whom it provided housing.

The disctinction may be explained by the licensee/tenant distinction (i.e. the level of legal control held by the Def), but Quill casts doubt on whether people count as dangerous items.

What level of awareness is needed on the part of the Def as to the danger? Cambridge Water v. Eastern Counties Leather (1994) introduced an ordinary negligence test into this element of the tort: the Pl must show that the danger of the item was reasonably foreseeable to the Def (i.e. foreseeability of the item’s existence, its possible escape and the possible harm).

Superquinn v. Bray UDC (1998): adopted the Cambridge foreseeability test in the HC.

Quill says that if the foreseeability test sticks, the potency of the tort will be significantly reduced, as it will veer toward negligence and nuisance, with an element of fault, despite retaining some strict elements (e.g. reasonable care is irrelevant).

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AG v. Corke (1933)

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A field-owner was held liable when licensee caravan dwellers on his land caused interference to neighbours.

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Smith v. Scott (1973)

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A local authority was not held liable for the conduct of tenants to whom it provided housing.

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Cambridge Water v. Eastern Counties Leather (1994)

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Introduced an ordinary negligence test into this element of the tort: the Pl must show that the danger of the item was reasonably foreseeable to the Def (i.e. foreseeability of the item’s existence, its possible escape and the possible harm). Thus in the present case, the HL found the Def not liable for allowing chemicals spilt on a factory floor to seep through soil, contaminate water and reach the Pl’s bore hole 2 km away.

The trial judge held the use of chemical solvents for tanning to be natural, while CA and HL both held it to be a classic non-natural use.

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Superquinn v. Bray UDC (1998)

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Adopted the Cambridge foreseeability test in the HC.

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Accumulation of a Dangerous Item - Place of Accumulation

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Both instances in R v. F itself and all early authorities insisted that the only possible Def was the landowner himself.

The rule has been relaxed since, with Shell-Mex v. Belfast Corporation (1952) showing that the Def can be a party who has permission or authority to use land, when they are in control of the dangerous item.

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Shell-Mex v. Belfast Corporation (1952)

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Showed that the Def can be a party who has permission or authority to use land, when they are in control of the dangerous item.

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Non-Natural Use of Property

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“Non-natural” cannot be interpreted colloquially; it has a specifically legal meaning deriving from the dictum of Cairns L.J. in R v. F itself. He held the use of gathering water for a mill’s reservoir to be non-natural, but stated that water seeping to the Pl’s coal mines by means of the milling process would have been natural.

Per Macmillian L.J. in Read v. Lyons (1947): decisions as to non-natural use are decisions of fact, and do not generate binding authority.

Cambridge Water v. Eastern Counties Leather (1994) further shows the difficulty in classification, as the trial judge held the use of chemical solvents for tanning to be natural, while CA and HL both held it to be a classic non-natural use.

However, a case-by-case factual decision is useless in establishing the parameters of the law.

Thus, the following is the best guide: Moulton L.J. in Rickards v. Lothian (1913) – there must be “some special use bringing with it increase risk to others”.

Thus, water or gas in normal domestic quantities = natural; huge amounts for commercial purposes = non-natural. Negligence emerged in the 19th/20th Centuries, evolving from a number of diverse forms of action.

Problem: analysing the risk in detail makes R v. F indistinguishable from negligence. The difference is still the reasonableness requirement in negligence, but for seriously risky conduct, this virtually vanished in negligence too.


Burnie Port Authority v. General Jones (1994): HC of Australia assimilated R v. F into negligence, with the only difference that the responsibility was non-delegable, i.e. the Def is still liable for the negligence of independent contractors. The HC held that in cases, the distinction between R v. F and negligence (including their respective defences) had become so blurred, that a Pl who succeeds under R v. F will almost always succeed in a simple negligence action.

NB: the problem with the reasoning is that the only difference the HC left in tact was that former R v. F actions still involve non-delegable duties; to assess whether this issue applies to a particular case, a court still has to examine whether the facts would have come under R v. F. So the problem is merely relocated, not resolved.

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Rickards v. Lothian (1913)

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Moulton L.J. – there must be “some special use bringing with it increased risk to others”.

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Read v. Lyons (1947)

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Per Macmillian L.J.: decisions as to non-natural use are decisions of fact, and do not generate binding authority.

Pl was a ministry insepctor during WW2; inspecting Def’s munition’s factory; injured during an accidental explosion; one focus of the case was whether this constituted “escape”. HL: unanimously, no; escape had to involve the item leaving the Def’s control; however, this did not have to be another person’s land, e.g. an item escaping from D’s container to P’s container, both on the property of T would still qualify as escape.

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Escape

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Whereas the foregoing elements (accumlation; danger; non-natural) are equivalent to the duty of care in negligence (albeit that they give rise to a strict duty), escape is equivalent to the breach of that duty.

The level of obligation is higher, as escape leads to prima facie liability, and reasonableness is not considered (note, however, that the requirement of the foreseeability of the risk and the available defences do lessen the blow significantly for the Def).

Escape is confined to unintentional escape, as intentional escape gives rise to other torts, e.g. trespass. Note that the act leading to the escape can be intentional (see Miles below) but the escape must be unintentional.

This requirement is satisfied if either the accumulated item or its dangerous effects escape: Rylands v. Fletcher (1868) itself is an example of the accumulated item escaping; Miles v. Forest Rock Granite (1918) is an example of the effects escaping, namely rocks which damaged property after blasting operations, where explosives were held to the be accumulated item.

Does “escape” necessarily mean that the item leaves the land, or is loss of containment of the item sufficient? Read v. Lyons (1947): Pl was a ministry insepctor during WW2; inspecting Def’s munition’s factory; injured during an accidental explosion; one focus of the case was whether this constituted “escape”. HL: unanimously, no; escape had to involve the item leaving the Def’s control; however, this did not have to be another person’s land, e.g. an item escaping from D’s container to P’s container, both on the property of T would still qualify as escape.

Situation in Ireland unclear; situation in Australia simplified by Burnie’s assimilation of R v. F into negligence.

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Miles v. Forest Rock Granite (1918)

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An example of the effects escaping, namely rocks which damaged property after blasting operations, where explosives were held to the be accumulated item.

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Damage and Causation

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Damage is an essential element, unless the Pl seeks a quia timet injunction to prevent impending harm.

Case law makes clear that

(a) physical damage to land;
(b) consequential economic loss;
(c) damage to chattels; and
(d) personal injury are all recoverable.

The law is less clear on non-owner/occupiers of the neighbouring land;

Quill suggests that this area mirrors the right to sue in nuisance; he makes a case for the right of a non-owner to sue under the tort, as otherwise the cars of V and O, parked beside each other and damaged by an explosion on a neighbouring land, would not be subject to the same principles.

New Zealand Forest Products v. O’Sullivan (1974): the economic cost of averting damage about to be caused by an escape is recoverable.

Pure economic loss: in question. There is a case to be made for its recoverability under R v. F, but no case law.

Negligence emerged in the 19th/20th Centuries, evolving from a number of diverse forms of action.

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New Zealand Forest Products v. O’Sullivan (1974)

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The economic cost of averting damage about to be caused by an escape is recoverable.