CITY UNIVERSITY OF HONG KONG The Rylands and Fletcher Rule Refer to Elliott & Quinn Tort Law 7 th Edition Chapters 10 & 11 The Rule in Rylands v Fletcher I A Introductory Issues It is a Strict Liability Rule Rylands v Fletcher [1866] LR 3 HL 330 The person who for his own purposes brings on his land and keeps and collects there anything likely to do mischief if it escapes, must keep it in at his peril and is prima facie answerable for all the damage which is the natural consequence of its escape. (per Blackburn J) The rule in Rylands v Fletcher is concerned with the responsibility of a defendant who brings on to his land and accumulates anything which is not naturally there. By this rule if what is accumulated is likely to do harm if it escapes, the defendant will be liable if it does escape from his land and then interferes with the use of the land of another. In such cases, the plaintiff does not have to prove negligence. Rylands v Fletcher - Water escaped from a reservoir on the defendant s land causing the flooding of a mine on neighbouring land. In later decided cases all of the following have been held to be within the rule: electricity, gas, petrol, sewage and caravan dwellers. On appeal to the House of Lords, this dictum was accepted with the qualification that the Defendant must be engaged in a non-natural use of his land. That it is a tort of strict liability has been made clear by the House of Lords. There is no need to prove negligence. Cambridge Water Co. Ltd. v Eastern Counties Leather plc [1994] 2 AC 264 B Nuisance Contrasted 1
In as much as Rylands and Nuisance are land-centred torts they are related. But there are important differences. It is far from settled that the nuisance must emanate from the Defendant s land (whereas in Rylands it is critical). It is far from clear that one must possess a proprietary interest to sue in Rylands whereas in nuisance it is critical. Rylands only really concerns tangible interferences (cf. nuisance). There are crucial differences between the non-natural use test in Rylands and that of reasonable user in private nuisance. II A Elements of the Rule Non-natural Use The definition of non-natural user remains elusive (difficult to grasp). The closest we have come to a definition was in 1913. Rickards v Lothian [1913] AC 263 [It is]some special use bringing with it increased 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. Transco plc v Stockport Metropolitan BC [2003] UKHL 61 1. Determined as a Question of Fact Read v Lyons [1947] AC 156 2. Social Utility In Rickards, Lord Moulton in the Privy Council hinted at a connection between the social utility of the Defendant s enterprise and the natural nature of a particular land use. However, this connection is apt to be overstated, notwithstanding the fact that running a munitions factory in wartime was described as not being non-natural in Read v Lyons. Cambridge Water v Eastern Counties Leather (supra) Lord Goff said: I myself... do not feel able to accept that the creation of employment as such, even in a small industrial complex, is sufficient of itself to establish a particular use as constituting a natural or ordinary use of land. 2
B The Defendant Brings onto his Land and Keeps/Collects there... The difficulty with this element of the rule is what is meant by brings onto his land and keeps or collects there. Giles v Walker (1890) 24 QBD 656 C Escape There must be an escape from the Defendant s land. Read v Lyons [1947] AC 156 Crowhurst v Amersham (1878) 4 Ex D 5 Ponting v Noakes [1894] QB 281 D Liable to do Mischief if it Escapes It is clear that the thing need not be dangerous in itself: Rylands v Fletcher (supra). E Protected Interests Being another land-based tort, we face the same question posed in the context of nuisance: what are the interests protected by this tort? 1. Land Rylands v Fletcher itself makes clear that damage to land itself supports an action. 2. Chattels These, too, seem to be covered by the rule. Jones v Festiniog Railway (1868) LR 3 QB 733 3. Personal Injury This needs to be approached in two stages. 3
(a) Where the Claimant has a proprietary interest Where the Claimant is a landowner (or has a proprietary interest), the Court of Appeal has made it clear that personal injuries are recoverable. Hale v Jennings [1938] 1 All ER 579 (b) Where C does not have a proprietary interest. Here, the law is less clear. Perry v Kendricks Transport Ltd [1956] 1 All ER 154 Cf. Read v Lyons (supra) 4. Pure Economic Loss The matter is yet to be settled as to whether one can recover pure economic loss in Rylands v Fletcher. Weller v Foot and Mouth DRI [1966] 1 QB 569 Cf. Ryeford Homes Ltd v Sevenoakes (1989) 16 Con LR 75 F Foreseeability of Harm The House of Lords has made it clear that the Defendant is only liable for foreseeable forms of harm. Cambridge Water v Eastern Counties Leather (supra) III A Defences Act of God The crux of this defence is that if human foresight and providence would not have guarded against the danger involved, the Defendant will be able to raise Act of God as a valid defence. Nichols v Marsland (1876) 2 Ex D 1. Cf. Greenock Corp. v Caledonian Railway [1917] AC 556 4
B Act of a Stranger This defence escape caused by the unforeseeable act of a stranger over whom the Defendant has no control is very well rooted in the case-law and as such a valid defence. Perry v Kendricks [1956] 1 WLR 85 An alternative explanation is the Defendant is not at fault; but that s negligence (recall Smith v Littlewoods). C Consent of the Claimant The concept here is a familiar one. But, outside straightforward cases where consent is express, difficulties can arise where the Defendant makes the allegation that the Claimant consented impliedly. Kiddle v City Business Premises [1942] 2 All ER 216 Carstairs v Taylor (1871) LR 6 Ex 217 D Statutory Authority This operates in the same way as we saw in the context of nuisance. Green v Chelsea Waterworks (1894) 70 LT 547 Cf. Charing Cross Electricity v Hydraulic Power Co. [1914] 3 KB 772 NB Is the distinction akin to saying it is your fault there was burst because there was no absolute duty to have the water pressure so high? E Default of Claimant Where damage is wholly or partly attributable to the Claimant s own folly (being foolish), the Defendant is entitled to invoke this defence. Ponting v Noakes [1894] QB 281; Where the horse trespassed over the boundary. NB I Law Reform (Contributory Negligence) Act 1945 also applies to Rylands to reduce damages. Introductory Issues 5
Remarks: Rylands is rarely used and it has been argued that it should be abolished, but the House of Lords in Transco v Stockport [2003] said it still has a role to play. Read v Lyons [1946] The Claimant was a woman inspector of munitions, visiting the Defendants munitions factory. A shell being manufactured there exploded, injuring her, and because there was no suggestion that the Defendants had been negligent, she claimed under Rylands v Fletcher. The Defendants were held not liable, on the grounds that although highexplosive shells clearly were dangerous things, the strict liability imposed by Rylands v Fletcher requires an escape of the thing that caused the injury. The Court defined an escape as occurring when something escapes to outside a place where the Defendant has occupation and control. Dr Eric Cheng City University of Hong Kong 10 January 2014 6