The rule known by this case is considered one of the most important surviving cases of absolute or strict liability in Torts. One, in fact, of the leading examples of circumstances in which the law says a person acts at his own peril, i.e. the law holds you liable for harm caused by your act whether you did it intentionally or negligently (without fault).
The rule was laid down by Blackburn J in the Court of Exchequer Chamber in the case of Rylands v. Fletcher.
The defendants owned a mill run by water. In order to improve the water system, they employed a firm of contractors to build a reservoir on their land. The defendants took all the care in appointing the contractors. The contractors, however, failed to exercise due care and certain old shafts which led to the mines of the plaintiff were not blocked. When the reservoir was filled with water, the water sipped through these shafts and flooded the mines of the plaintiff causing considerable damage.
Delivering the judgment of the Court of Exchequer Chamber which held the defendants liable, Blackburn laid down the rule in the following words:”… What is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escapes out of his land. …? We think that 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 at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
The defendants appealed to the House of Lords. The appeal was dismissed. But, in the process, the House of Lords (per Lord Cairns) narrowed down the principle or rule as laid down by Blackburn J. Lord Cairns, in the House of Lords, qualified the generality of Blackburn’s language by saying that the use to which the person was putting his land must have been “a non-natural user of the land‘.
At first, it would appeal that Lord Cairns’ qualification to Blackburn’s rule is in effect a new rule. But, on a closer analysis, it seems fair to say that his qualification softens the rigour of the original rule and turns a rigid rule into a flexible yardstick which enables the courts, by determining what is natural and non-natural user to inject their view of the economic and social needs of the moment into the application of the rule.
The rule as qualified (or subverted) by the House of Lords is stated by Street thus: “A person who, in the course of a non-natural user of his land, accumulates or is held to be responsible for the accumulation on it of anything likely to do harm if it escapes, is liable for the damage to the use of the land of another, which results from the escape of the thing from his land.”
The rule was developed at a time, when as a result of the change from an agricultural to an industrial society, the law was already moving away from strict liability. It has therefore been suggested by some writers that the rule simply illustrates the attachment of the English courts to interests in land.
But to take the explanation from Blackburn J. himself: “The general rule, as above stated, seems on general principle just. The person whose grass or corn is eaten by the escaping cattle of his neighbours, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighgbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.”
As was noted in CWC v. ECL, the general tenor of Blackburn J’s statement of ~ the principle is that foreseeability or at least knowledge of the risk is a prerequisite to the recovery of damages. But that the liability is strict in the sense that the defendant is liable, even though he has exercised due care to prevent the escape. Let us now examine the key elements of the rule.
(a) What is a “non-natural user” of the land?
The Privy Council had occasion to determine what “non-natural user” means in the case of Richards v. Lothian. In this case, the plaintiff-respondent was the tenant of the second floor of premises belonging to the defendant-appellant. He suffered damages as a result of an overflow of water from a lavatory basin situated on an upper floor of the same premises. This was caused by the water-tap being turned on full and the waste pipe plugged, as found by the jury, “by the malicious act of some person.” At the County Court at Melbourne, liability was upheld. The defendant appealed and the County Court decision was reversed by the Supreme Court of Victoria. A further appeal was made to the High Court of Australia which restored the County Court’s decision. And a further appeal was made by the defendant-appellant to the Privy Council.
Negligence having been negatived, the Privy Council considered the applicability of Rylands v. Fletcher to the facts and said per Lord Moulton: “It is not every use to which land is put that brings into play that principle. It must be some special use, bringing with it increased danger to others, and must not merely be the ordinary use of the land or such use as is proper for the general benefit of the community.”
On the facts of the case, the Privy Council said: “The provision of a proper supply of water to the various parts of a house is not only reasonable, but has become, in accordance with modem sanitary views, an almost necessary feature of town life. It is recognized as being so desirable in the interests of the community that, in some form or other, it is usually made obligatory in civilized countries. Such a supply cannot be installed without causing some concurrent danger of leakage or overflow. It would be unreasonable for the law to regard those who install or maintain such a system of supply as doing so at their own peril, with an absolute liability for any damage resulting from its presence even when there has been no negligence….”
As has been observed already, the non-natural user qualification enables the courts to adapt the rule to changed circumstances. Compare for this purpose the following two cases of performance of public duty, on the question of putting land to non-natural use:
a) Carrying on an industrial duty is not putting land to non-natural use in an industrial society: Read v. Lyons
b) In Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co. – manufacture of ammunition during war time held not to be non-natural use of the land.
Doubt was expressed by Viscount Simon about die correctness of Rainham’s case in the Read v. Lyons. To summarise on non-natural user, from the cases, it means:
a) Special use of the land.
b) Which use brings with it increased dangers
c) It must not be the ordinary use or use for the general benefit. See also Vanderpuye v. Pioneer Shoe Factory Ltd.
(b) What are “things” within the rule
These are things likely to do mischief, if they escape. It means that the things need not be dangerous in themselves but must have the character of causing danger if they escape. It need not necessarily, be the thing which was accumulated on the land. Things so far held within the rule: electricity; gas; water; explosives; and fire: see Mason v. Levy Auto Parts of England Ltd.
In Attorney-General v. Corke, it was held that the owner of land who allowed caravan-dwellers to live on it was liable in Rylands v. Fletcher for interferences which they caused on adjoining land. Thus, here, human beings were held to be “things” within the Rule! It seems fair also to assume that only tangible things are likely to come under this rule.
(c) Accumulation
Justice Blackburn talked of “a person who, for his own purposes brings, collects and keeps there the thing that caused the mischief.” This means that the rule will not apply to things which accumulate or grow on the land naturally. The authorities are Pontardawe Rural Council v. Moore-Gwyne; Dublin v. Ghana Housing Corporation.
(d) Escape
There must be an escape of the thing. The escape which will satisfy the rule was explained by Viscount Simon in Read v. Lyons. In that case, the plaintiff-appellant was injured in an explosives factory, while on an inspection duty, by a high explosive shell during the process of manufacture. There was no allegation of negligence on the part of the defendants who were operating the factory under a contract. It was held that there was no liability under Rylands v. Fletcher because there had been no escape of a thing from their premises and the rule would not apply because of the absence of an essential condition for its application.
At page 168, Viscount Simon explained that escape means: “Escape, for the purpose of applying Rylands v. Fletcher, means escape from a place where the defendant has occupation of or control over land to a place which is outside his occupation or control.” This serves as a further check on the application of Rylands v. Fletcher.
This condition is further illustrated by Pouting v. Noakes. A horse reached over the defendant’s land and ate of a yew tree’s leaves and was poisoned. It was held that Rylands v. Fletcher did not apply because the tree did not extend beyond the defendant’s land and so there was no sufficient escape.
EXTENT OF DEFENDANT’S LIABILITY
The defendant is liable for any injury to land as a result of the escape of the thing as well as consequential damage. Unless the thing escaping causes damage, no action will lie under this rule. Indeed in Jones v. Festimog Rly Co., a claim was allowed where the sparks from a railway engine set fire to haystack on the plaintiffs laud on the Rylaiuls v. Fletcher rule. And also in Musgrave v. Pandelts, damage to the plaintiff’s furniture caused by escaping fire was held recoverable.
Any special capacity for plaintiff?
But it must be remembered that, in both cases, the plaintiffs were occupiers of the land. So is the action available only to occupiers of the land to which the thing escaped? Indeed. Lord Macmillan seems to be emphasising the interest of the plaintiff in the land as a basis of the liability when he said in Read v. Lyons that we must remember that Rylands v. Fletcher derives from a conception of mutual duties of adjoining or neighbouring landowners and its congeners are trespass lo land and nuisance.
Can a plaintiff who is not an occupier recover for injuries to chattels or person?
In Halsey v. Esso Petroleum it was held that the plaintiff could recover on Rylands v. Fletcher principles for injury to his car, though the car was stationed on the highway and not on the plaintiff’s land. See also Perry v. Kendricks Transport. ‘ But, in Welter v. Foot & Mouth Disease Research Institute,’ doubt was expressed which suggests that a plaintiff with no proprietary interest in the land on lo which the thing which caused the damage escaped, cannot recover.
Type of injury recoverable
In Read v. Lyons,’ (lie House of Lords, in an obiter, cast considerable doubt on whether a plaintiff car recover for personal injuries as distinct from injury to land or chattels. However, we can say here that the Court of Appeal has decided in Hale v. Jennings Brothers3 that an occupier can recover in respect of personal injuries. Here a tenant of a stall at a fair suffered personal injuries as the result of the escape of a chair-o-plane of the defendant. It was held that Rylands v. Fletcher applied and she should recover.
The rule was in issue in the Ghanaian case of Dublic v. Ghana Housing Corporation. In this case, the plaintiff and defendants were neighbours in a low lying area surrounded by hills. After rains, water rushed down from the hills. To prevent its estate from being flooded, the defendants constructed gutters on their land to divert the cause of the water and thus prevent the estate from being flooded. The plaintiff whose property was lower down the line than that of the defendants took no such precautions. As a result, the water flooded her house and her tenants moved. She sued the defendants first for trespass but subsequently amended her claim to include liability under the Rule. The action failed under the Rule because, according to the trial judge there was no evidence that the defendants at any time accumulated water anywhere on their property.
The reader is also encouraged to read the cases of Vanderpuye v. Pioneer Shoe Factory Ltd and Attraah v. Aboah.
DEFENCES TO AN ACTION IN RVLANDS v. FLETCHER
To start with, reference can be made to Blackburn J in Rylands v. Fletcher.35 There he said: “He [i,e, the defendant] can excuse himself by showing that the escape was owing to plaintiff’s default; or. perhaps, that the escape is the consequence of Vis Major, or the act of God.” This sentence contains three possible defences.
– CONSENT — Voluntarily given.
If the plaintiff expressly or impliedly consents to the accumulation of the thing which escapes, then he cannot sue if it escapes. So, before a plaintiff can recover, where consent is proved, then he must establish negligence, i.e. bring his action in the tort of negligence. The decisions on this defence are all well reviewed in Peters v. Prince of Wales Theatre.
–THE ACT OF THIRD PARTIES
Liability is excluded if the escape is caused by the deliberate unforeseeable act of third parties. But if the defendant could have foreseen or prevented the act of the third parties and did not, then he is liable: see Richards v. Lothian; and Box v. Jubb . In the latter case, the defendants were held not liable for damage done through an overflow from their reservoir because the overflow was caused by an act of a third party who emptied his own reservoir into the stream which fed the defendants’ reservoir. See also Perry v. Kendricks.’
–ACT OF GOD
If an escape is caused, through natural causes and without human intervention, “/’// circumstances which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility,” then it is said this defence is available. Thus in Nichols v. Mankind’0 where a most violent thunderstorm caused flooding, the defence succeeded. In Ruck v. Williams Baron Bramwell made a statement which is perhaps a rough guide for this defence.
Talking about an extraordinary storm; he said: “We call it extraordinary, but, in truth, it is not an extraordinary storm which happens once in a century, or in 50 or 20 years; on the contrary, it would be extraordinary if it did not happen. There is a French saying ‘that there is nothing so certain as that which is unexpected.’ In like manner, there is nothing so certain as that something extraordinary will happen now and then.”
This means, for example, that for an extraordinary occurrence to amount to an act of God, it must be the kind of thing which happens rarely or happens once 20, 50 or more years.
So, in Greenock Corpn v. Caledonian Ryl Co., an extraordinary and unprecedented rainfall was held not to be an act of God. The House of Lords explained that, in Nichols v. Marsland, the jury had found that no reasonable person could have anticipated the storm and because the court did not want to disturb the jury’s finding, that is why the defence succeeded.