Rylands V Fletcher
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''Rylands v Fletcher'' (1868) LR 3 HL 330 is a leading decision by the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
which established a new area of
English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requi ...
. It established the rule that one's non-natural use of their land, which leads to another's land being damaged as a result of dangerous things emanating from the land, is strictly liable.Bohlen (1911) 300 Rylands employs contractors to build a reservoir. As a result of negligent work done, the reservoir burst and flooded a neighbouring mine, run by Fletcher, causing £937 worth of damage (). Fletcher brought a claim under
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
against Rylands. At the court of first instance, the majority ruled in favour of Rylands.
Bramwell B George William Wilshere Bramwell, 1st Baron Bramwell, (12 June 1808 – 9 May 1892), was an English judge. Early years He was the eldest son of George Bramwell (1773–1858), a partner in the banking firm of Dorrien, Magens, Dorrien, & Mello; h ...
, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that Rylands was guilty of trespass and the commissioning of a nuisance. Bramwell's argument was affirmed by the
Court of Exchequer Chamber The Court of Exchequer Chamber was an England, English appellate court for common law civil actions before the reforms of the Judicature Acts of 1873–1875. It originated in the fourteenth century, established in its final form by a statute of 15 ...
and the House of Lords, leading to the development of the "Rule in ''Rylands v Fletcher''". This doctrine was further developed by English courts, and made an immediate impact on the law. Prior to ''Rylands'', English courts had not based their decisions in similar cases on
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
, and had focused on the intention behind the actions rather than the nature of the actions themselves. In contrast, ''Rylands'' imposed strict liability on those found detrimental in such a fashion without having to prove a duty of care or negligence, which brought the law into line with that relating to public reservoirs and marked a significant doctrinal shift. The rule in ''Rylands'' has both been distinguished with and regarded as a species of the fort of private nuisance. Unlike ordinary cases of private nuisance, the rule in Rylands requires the escape of a thing that arises from a non-natural use rather than the typical interference emanating from unreasonable use of land. It additionally does not require an act to be continuous, which is typically a requirement for nuisance. Academics have criticised the rule both for the economic damage such a doctrine could cause and for its limited applicability. The tort of ''Rylands v Fletcher'' has been disclaimed in various jurisdictions, including Scotland, where it was described as "a heresy that ought to be extirpated", and Australia, where the High Court chose to destroy the doctrine in ''
Burnie Port Authority v General Jones Pty Ltd ''Burnie Port Authority v General Jones Pty Ltd''. is a tort law case from the High Court of Australia, which decided it would abolish the rule in ''Rylands v Fletcher'', and the '' ignis suus'' principle, incorporating them generally into the ...
''. Within England and Wales, however, ''Rylands'' remains valid law, although the decisions in ''
Cambridge Water Co Ltd v Eastern Counties Leather plc ''Cambridge Water Co Ltd v Eastern Counties Leather plc'' 994 1 All ER 53 is a case in English tort law that established the principle that claims under nuisance and ''Rylands v Fletcher'' must include a requirement that the damage be foreseeabl ...
'' and ''
Transco plc v Stockport Metropolitan Borough Council is an important English tort law case, concerning the rule in '' Rylands v. Fletcher''. Facts Transco plc (British Gas come commercial) had sued the council for repairs of £93,681.55 underneath one of its pipes in Brinnington. The ground benea ...
'' make it clear that it is no longer an independent tort, but instead a sub-tort of nuisance.


Facts

In 1860, Rylands paid contractors to build a reservoir on his land, intending that it should supply the Ainsworth Mill with water. Rylands played no active role in the construction, instead contracting out to a competent engineer. While building it, the contractors discovered a series of old coal shafts and passages under the land filled loosely with soil and debris, which joined up with Thomas Fletcher's adjoining mine. Rather than blocking these shafts up, the contractors left them. On 11 December 1860, shortly after being filled for the first time, Rylands' reservoir burst and flooded Fletcher's mine, the Red House Colliery, causing £937 worth of damage. Fletcher pumped the water out, but on 17 April 1861 his pump burst, and the mine again began to flood. At this point a mines inspector was brought in, and the sunken coal shafts were discovered. Fletcher brought a claim against Rylands and the landowner, Jehu Horrocks, on 4 November 1861.


Judgment


Liverpool Assizes

The tort of
trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding ...
was inapplicable, as the flooding was deemed not to be "direct and immediate"; the tort of
nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") ...
was rejected as this was a one-off event. The case was first heard by Mellor J and a special jury in September 1862 at the Liverpool
Assizes The courts of assize, or assizes (), were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes e ...
; a court order led to an arbitrator from the Exchequer of Pleas being appointed in December 1864. The arbitrator decided that the contractors were liable for negligence, since they had known about the old mine shafts. Rylands, however, had no way of knowing about the mine shafts and so was not.


Exchequer of Pleas

The case then went to the Exchequer of Pleas, where it was heard between 3 and 5 May 1865. It was heard on two points: first, whether the defendants were liable for the actions of the contractors and secondly, whether the defendants were liable for the damage regardless of their lack of negligence. They decided for the first point that the defendants were not liable, but were split on the second point. Channell B recused. Pollock CB and
Martin B Sir Samuel Martin Queen's Counsel, QC (1801 – 9 January 1883) was an Anglo-Irish politician and judge. Early life and education Martin was born in 1801, the son of Samuel Martin of Calmore, County Londonderry. He was educated at Trinity Col ...
held that the defendants were not liable, as since a negligence claim could not be brought there was no valid case.
Bramwell B George William Wilshere Bramwell, 1st Baron Bramwell, (12 June 1808 – 9 May 1892), was an English judge. Early years He was the eldest son of George Bramwell (1773–1858), a partner in the banking firm of Dorrien, Magens, Dorrien, & Mello; h ...
, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that as a result the defendant was guilty of trespass and the commissioning of a nuisance. He stated that "the general law, wholly independent of contract" should be that the defendants were liable, "on the plain ground that the defendants have caused water to flow into the laimants mines, which but for their act would not have gone there..."


Court of Exchequer Chamber

Fletcher appealed to the
Exchequer Chamber The Court of Exchequer Chamber was an English appellate court for common law civil actions before the reforms of the Judicature Acts of 1873–1875. It originated in the fourteenth century, established in its final form by a statute of 1585. The ...
of six judges. The prior decision was overturned in his favour. Blackburn J spoke on behalf of all the judges and said that: Blackburn J's opinion relied on the liability for damages to land available through the tort of chattel trespass and the tort of nuisance, as well as the '' in scienter action'', injury by a domesticated animal known to have a disposition to injure. Rylands appealed.


House of Lords

The House of Lords dismissed the appeal and agreed with the determination for Fletcher.(1868) LR 3 HL 330
Lord Cairns Hugh McCalmont Cairns, 1st Earl Cairns (27 December 1819 – 2 April 1885), was an Irish-born British statesman who served as Lord High Chancellor of Great Britain during the first two ministries of Benjamin Disraeli. He was one of the most p ...
, in speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn, but added a further limitation on liability, which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate. The case was then heard by the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
on 6 and 7 July 1868, with a judgment delivered on 17 July. Oddly the court consisted of only two judges,
Lord Cairns Hugh McCalmont Cairns, 1st Earl Cairns (27 December 1819 – 2 April 1885), was an Irish-born British statesman who served as Lord High Chancellor of Great Britain during the first two ministries of Benjamin Disraeli. He was one of the most p ...
and
Lord Cranworth Robert Monsey Rolfe, 1st Baron Cranworth, PC (18 December 1790 – 26 July 1868) was a British lawyer and Liberal politician. He twice served as Lord High Chancellor of Great Britain. Background and education Born at Cranworth, Norfolk, he wa ...
; Lord Colonsay failed to attend. The eventual judgment confirmed Blackburn's decision and general principle, adding a requirement that the use be "non-natural".Bermingham (2008) 248 The judgment of Lord Cairns LC was as follows.


Significance


Enjoyment of property

The 'enjoyment of land' was primary in the reasons of Lord Cairns (above). This foundation stone is a recurring theme in the common law throughout the ages, to wit: "It has been well said, that the use of the law consists, first, in preserving men's persons from death and violence; next, in securing to them the free enjoyment of their property." Tindal, CJ: Charge to the Grand Jury at Bristol on the occasion of the 1832 riots over the rejection in the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
of the Reform Bill.


Change to the law

Early English common law had, in many instances, imposed liability on those who had caused harm regardless of wrongful intent or negligence.
Trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding ...
was considered a remedy for all tortious wrongs, and sometimes used as a synonym for torts generally. Over the centuries, however, judges focused more on the intent and negligence behind the actions than the nature of the actions themselves, leading to the development of
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
and
nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") ...
and the further development of trespass. At the time of ''Rylands'', the previous case relied upon was ''
Vaughan v Menlove ''Vaughan v Menlove'' (1837) 132 ER 490 (CP) is a leading English tort law case that first introduced the concept of the reasonable person in law. Facts As hay decomposes, heat is generated. In the absence of ventilation, the increased heat ca ...
'', decided in the
Court of Common Pleas A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
in 1837. The case had almost identical facts to ''Rylands'', but
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
was never even considered. The case is instead thought of as one of the best attempts of early 19th century English judges to build up the law of
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
. The outcome of ''Rylands'' meant that judges would again impose strict liability on defendants who accumulated dangerous things on their land without any need to prove negligence or wrongful intent. The decision won support for bringing the law relating to private reservoirs up to standard with the law relating to public reservoirs, which contained similar statutory provisions thanks to a pair of private Acts of Parliament passed in 1853 and 1864.


Assessment

The decision in ''Rylands'' initially faced little criticism within
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, although many American scholars and judges of the time felt that judgment was a poor one. Doe CJ of the
New Hampshire Supreme Court The New Hampshire Supreme Court is the supreme court of the U. S. state of New Hampshire and sole appellate court of the state. The Supreme Court is seated in the state capital, Concord. The Court is composed of a Chief Justice and four Associate ...
wrote that it "put a clog upon natural and reasonably necessary uses of matter and tend to embarrass and obstruct much of the work which it seems to be a man's duty carefully to do". The American interpretation was based primarily on the idea that it would cause economic harm. Further American criticism is based on the idea that it is poor law. Firstly, they argue, it is not
trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding ...
, since the damage is not direct, and secondly, it is not a
nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") ...
, because there is no continuous action. Glofcheski, writing in the ''Hong Kong Law Journal'', notes that "the doctrine has not flourished... a tort imposing strict liability should be closely interpreted and circumspectly applied". It has been argued that the decision was never entirely accepted by the judiciary as a whole, and that it is difficult to justify. This is for two reasons; firstly, it is a case of very limited applicability, and it has been suggested that it be folded into a general principle of strict liability for "ultra-hazardous" activities. Secondly, subsequent case law in England and Wales, particularly in '' Rickards v Lothian'', has undermined the "non-natural use" element by introducing a cost/benefit analysis which severely limits the decision's usefulness.Cane (1994) 237


Canada

The first article in the 1960
Canadian Bill of Rights The ''Canadian Bill of Rights'' (french: Déclaration canadienne des droits) is a federal statute and bill of rights enacted by the Parliament of Canada on August 10, 1960. It provides Canadians with certain rights at Canadian federal law in rel ...
states that "the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law" is recognised. However it is difficult to adjudicate on this Bill, especially as the provinces have priority over property rights. A difficulty is encountered with the definition of "property", as remarked by Johansen,Johansen, "Property rights and the constitution"
/ref> which may well be the reason why the matter remains for interpretation by precedent. The 1974 test case for the Bill of Rights, '' Attorney General of Canada v. Lavell'', provided an impetus for the 1982 Charter of Rights, which specifically excludes the "enjoyment of property" for reasons described in the
Constitutional history of Canada The constitutional history of Canada begins with the 1763 Treaty of Paris, in which France ceded most of New France to Great Britain. Canada was the colony along the St Lawrence River, part of present-day Ontario and Quebec. Its government underwe ...
page. Fridman on Torts in Canada has helpful material. In
Ontario Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
, a
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
province, ''Rylands'' was upheld by a lower court in '' Smith v. Inco Ltd.'' a case alleging that a factory in
Port Colborne, Ontario Port Colborne is a city in Ontario, Canada that is located on Lake Erie, at the southern end of the Welland Canal, in the Niagara Region of Southern Ontario. The original settlement, known as Gravelly Bay, dates from 1832 and was renamed after S ...
had contaminated adjacent lands with
nickel Nickel is a chemical element with symbol Ni and atomic number 28. It is a silvery-white lustrous metal with a slight golden tinge. Nickel is a hard and ductile transition metal. Pure nickel is chemically reactive but large pieces are slow to ...
. A subsequent Ontario Court of Appeal ruling in 2010 found that the plaintiff had not provided sufficient evidence of economic harm, raising the
legal burden of proof In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
but not invalidating ''Rylands'' as precedent law. However, it has been said that the Court of Appeal erred in law in their adjudication over the words "non-natural". In April 2012, the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
chose not to hear the appeal.
Mineral rights Mineral rights are property rights to exploit an area for the minerals it harbors. Mineral rights can be separate from property ownership (see Split estate). Mineral rights can refer to sedentary minerals that do not move below the Earth's surfac ...
in the subsurface seem to be preferred over the landowner's rights by the Mineral Tenure Act or the Petroleum and Natural Gas Act in
British Columbia British Columbia (commonly abbreviated as BC) is the westernmost province of Canada, situated between the Pacific Ocean and the Rocky Mountains. It has a diverse geography, with rugged landscapes that include rocky coastlines, sandy beaches, ...
"War Brewing' over Mining Rights in Rural BC" Salcito, 14 Jun 2006, TheTyee.ca
/ref> (also a
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
province) so that recourse to ''Rylands'' is quite limited, as case law has developed over liability "to compensate the owner of a surface area for loss or damage caused by the entry, occupation or use of that area" (MTA) and "compensation for nuisance and disturbance from the entry, occupation or use" (PNGA).Bepple v. Western Industrial Clay Products Ltd., 2004 BCCA 497 (CanLII)
/ref> The compensation for "entry, use and occupation of the Property" seems not to "exceed the entire axablevalue of the land" as written in the registry. This means in effect that the relocation costs (of, say, a farming operation, or an abode) or emotional damage are likely not payable by the expropriator. Even municipalities cannot exclude miners.Falkoski v. Osoyoos (Town of), 1998 CanLII 2817 (BC SC)
/ref> The powers of an arbitrator include compensation for land, timber and time, but expressly do not include watershed, health and welfare, or lost cattle."A Rancher's Radioactive Hell" The Tyee, 4 Jan 2007
/ref> Miners avoid environmental review; the province has no discretion to refuse mineral leases; miners need not notify landowners of transactions; the province can exempt mines from review when mining commences; and landowners do not have rights to refuse to negotiate."Company Grabs Mining Rights to Premier’s Land" 19 Apr 2005, TheTyee.ca
/ref> The impact of ''Rylands v Fletcher'' in Quebec law, which is based for historical reasons on the
civil code A civil code is a codification of private law relating to property, family, and obligations. A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
, was evaluated by the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
in the 1916 case of '' Vandry et al. v. Quebec Railway, Light, Heat and Power Co.'' The SCC found that a section in the
civil code A civil code is a codification of private law relating to property, family, and obligations. A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
had ample scope to support the liability of the Quebec Power Co. The rule in ''Rylands v Fletcher'' gives support to '' Ernst v. EnCana Corporation, 2013 ABQB 537''.


England and Wales


Developments

The party that can be sued in a ''Rylands'' claim is an owner or occupier of land, along with anyone who stores or collects the dangerous material, as in ''
Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd Rainham may refer to: * Rainham, Kent, Medway, England ** Rainham railway station (Kent) *Rainham, London, London Borough of Havering, England **Rainham railway station (London) Rainham railway station is on the London, Tilbury and Southend lin ...
''. 921All ER 48 The party suing was initially one with an interest in land, but '' Perry v Kendricks Transport Ltd'' confirmed that an interest in land was not necessary to bring a claim. Historically, personal injury claims have been allowed, as in ''
Hale v Jennings Hale may refer to: Places Australia *Hale, Northern Territory, a locality *Hale River, in southeastern Northern Territory Canada *Hale, Ontario, in Algoma District United Kingdom * Hale, Cumbria, a hamlet near Beetham, Cumbria * Hale, Greater Ma ...
''. 9381 All ER 579 More recent cases, however, such as the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
decision in ''
Transco plc v Stockport Metropolitan Borough Council is an important English tort law case, concerning the rule in '' Rylands v. Fletcher''. Facts Transco plc (British Gas come commercial) had sued the council for repairs of £93,681.55 underneath one of its pipes in Brinnington. The ground benea ...
'',
003 003, O03, 0O3, OO3 may refer to: *003, fictional British 00 Agent *003, former emergency telephone number for the Norwegian ambulance service (until 1986) *1990 OO3, the asteroid 6131 Towen * OO3 gauge model railway *''O03 (O2)'' and other related ...
UKHL 61
have confirmed that ''Rylands'' is "a remedy for damage to land or interests in land. It must...follow that damages for personal injuries are not recoverable under the rule". In ''Cambridge Water''
Lord Goff Robert Lionel Archibald Goff, Baron Goff of Chieveley, (12 November 1926 – 14 August 2016) was an English barrister and judge who was Senior Lord of Appeal in Ordinary, the equivalent of today's President of the Supreme Court. Best known for ...
opined that the rule in ''Rylands'' should not further be developed, and that rather than being an independent tort it should be instead considered a sub-tort of
nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") ...
. Statutory provisions, such as the
Environmental Protection Act 1990 The Environmental Protection Act 1990 ( initialism: EPA) is an Act of the Parliament of the United Kingdom that defines, within England and Wales and Scotland, the fundamental structure and authority for waste management and control of emissions ...
, were a more modern and appropriate way of addressing environmental problems which would previously have been covered by ''Rylands''. Subsequently, ''Transco'' disapproved of the Australian decision in ''
Burnie Port Authority v General Jones Pty Ltd ''Burnie Port Authority v General Jones Pty Ltd''. is a tort law case from the High Court of Australia, which decided it would abolish the rule in ''Rylands v Fletcher'', and the '' ignis suus'' principle, incorporating them generally into the ...
'' to absorb ''Rylands'' into the general law of
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
, deciding that ''Rylands'' should continue to exist but, as
Lord Bingham Sir Thomas Henry Bingham, Baron Bingham of Cornhill, (13 October 193311 September 2010), was an eminent British judge who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. He was described as the greatest lawyer of ...
said, as a "sub-species of nuisance...while insisting upon its essential nature and purpose; and...restate it so as to achieve as much certainty and clarity as is attainable". It is now a sub-tort, rather than an independent tort; they have confirmed that it will be allowed to remain. Donal Nolan has argued that to consider ''Rylands'' as part of private nuisance is unsound. Private nuisance requires the claimant to have an interest in land, while ''Rylands'' does not; although exceptions to this rule have occasionally been made in private nuisance, in ''
Hunter v Canary Wharf Ltd ''Hunter v Canary Wharf Ltd'' 997UKHL 14is an English tort law case on the subject of Nuisance in English law">private nuisance. Several hundred claimants alleged that Canary Wharf Ltd, in constructing One Canada Square, had caused nuisance to t ...
'', the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
ruled that to make exceptions would transform nuisance from a tort against land to a tort against the person, and should not be permitted. John Murphy, Professor of Common Law at the
University of Manchester , mottoeng = Knowledge, Wisdom, Humanity , established = 2004 – University of Manchester Predecessor institutions: 1956 – UMIST (as university college; university 1994) 1904 – Victoria University of Manchester 1880 – Victoria Univer ...
, agrees with Nolan, and makes the additional point that nuisance is focused on a loss of enjoyment to land, not physical damage as ''Rylands'' is. It has also been concerned that the reasonable use test, which appears in nuisance, is not applicable to cases brought under ''Rylands''.


Brings, collects and keeps

The first requirement under ''Rylands'' is that the defendant "for his own purposes brings onto land and collects and keeps there". In ''Rylands'', this was the keeping of water in a reservoir; other cases in England and Wales have illustrated what sort of material is considered. In ''
British Celanese v AH Hunt British may refer to: Peoples, culture, and language * British people, nationals or natives of the United Kingdom, British Overseas Territories, and Crown Dependencies. ** Britishness, the British identity and common culture * British English, ...
'', the accumulation was of metal foil strips. "For his own purpose" is not understood to be "for his benefit", although that was what Blackburn was referring to at the time; in ''
Smeaton v Ilford Corp Smeaton may refer to: * Smeaton, East Lothian, a village and estate in Scotland * Smeaton House, East Lothian, a historic site * Smeaton, Saskatchewan, a Canadian community * Smeaton, Victoria, an Australian town * Smeaton (surname), people wi ...
'', ''Rylands'' was held to apply to a local authority accumulating sewage on its land, although there was no benefit to the local authority from doing this.


Mischief and escape

The next element of ''Rylands'' is that the thing be something "likely to do mischief if it escapes". Before ''
Transco plc v Stockport Metropolitan Borough Council is an important English tort law case, concerning the rule in '' Rylands v. Fletcher''. Facts Transco plc (British Gas come commercial) had sued the council for repairs of £93,681.55 underneath one of its pipes in Brinnington. The ground benea ...
'' this did not have to be a dangerous item (see below); the risk was instead in its behaviour if it escapes. In ''Rylands'' the "thing" was water. Other examples are fire, as in ''
Jones v Festiniog Railway Jones may refer to: People *Jones (surname), a common Welsh and English surname *List of people with surname Jones * Jones (singer), a British singer-songwriter Arts and entertainment * Jones (''Animal Farm''), a human character in George Orwell ...
'', gas, as in '' Batchellor v Tunbridge Wells Gas Co'', fumes, as in ''
West v Bristol Tramways Co West or Occident is one of the four cardinal directions or points of the compass. It is the opposite direction from east and is the direction in which the Sun sets on the Earth. Etymology The word "west" is a Germanic word passed into some R ...
'', and electricity, as in '' Hillier v Air Ministry''. The extent of the "thing"'s accumulation can also be considered, as in '' Mason v Levy'', where it was not just the type of thing kept but the sheer amount which created the danger. It is essential for a ''Rylands'' claim that there be an escape of a dangerous thing "from a place where the defendant has occupation of or control over land to a place which is outside his occupation or control". In '' Read v J Lyons & Co Ltd'', an explosion in a munitions factory killed an inspector on the property. ''Rylands'' was held not to apply, because there was no escape. The dangerous thing that escapes does not always have to be the thing which was accumulated, but there must be a causal link. In '' Miles v Forest Rock Granite Co (Leicestershire) Ltd'', explosives stored on the defendant's land led to the escape of rocks in a blast, and the defendant was found liable. In ''
Transco plc v Stockport Metropolitan Borough Council is an important English tort law case, concerning the rule in '' Rylands v. Fletcher''. Facts Transco plc (British Gas come commercial) had sued the council for repairs of £93,681.55 underneath one of its pipes in Brinnington. The ground benea ...
'',
Lord Bingham Sir Thomas Henry Bingham, Baron Bingham of Cornhill, (13 October 193311 September 2010), was an eminent British judge who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. He was described as the greatest lawyer of ...
stated ''obiter'' that "I do not think the mischief or danger test should be at all easily satisfied. 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 to be."


Non-natural use

The requirement of "non-natural use", which was created when the case went to the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
, was described by
Lord Moulton John Fletcher Moulton, Baron Moulton, (18 November 1844 – 9 March 1921) was an English mathematician, barrister, judge and Liberal politician. He was a Cambridge Apostle. Early life Moulton was born in Madeley, Shropshire, England, as ...
, in '' Rickards v Lothian'', as "some special use bringing with it increased danger to others". Because the idea of something being "non-natural" is a subjective one, the interpretation of this principle has varied over the years. In '' Musgrove v Pandelis'', a
car A car or automobile is a motor vehicle with wheels. Most definitions of ''cars'' say that they run primarily on roads, seat one to eight people, have four wheels, and mainly transport people instead of goods. The year 1886 is regarded as ...
filled with petrol was considered "non-natural", while in ''
Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd Rainham may refer to: * Rainham, Kent, Medway, England ** Rainham railway station (Kent) *Rainham, London, London Borough of Havering, England **Rainham railway station (London) Rainham railway station is on the London, Tilbury and Southend lin ...
'', so was the operation of a munitions factory during war-time. There is no single concrete test to define what is "non-natural", for reasons given by
Lord Bingham Sir Thomas Henry Bingham, Baron Bingham of Cornhill, (13 October 193311 September 2010), was an eminent British judge who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. He was described as the greatest lawyer of ...
in ''
Transco plc v Stockport Metropolitan Borough Council is an important English tort law case, concerning the rule in '' Rylands v. Fletcher''. Facts Transco plc (British Gas come commercial) had sued the council for repairs of £93,681.55 underneath one of its pipes in Brinnington. The ground benea ...
''; " on-natural useis not a test to be inflexibly applied: a use may be extraordinary and unusual at one time or in one place but not so at another time or in another place...I also doubt whether a test of reasonable user is helpful, since a user may well be quite out of the ordinary but not unreasonable"...


Defences

There are several defences in England and Wales to a claim under ''Rylands v Fletcher''; act of an unknown third party, contributory negligence, consent and statutory authority. An act of an unknown third party will absolve the defendant of liability, as in '' Perry v Kendricks Transport Ltd''. In '' Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd'', the principle was established that if a claimant knows of the unknown third party and their actions, the defendant is additionally likely to be able to deny liability. As ''Rylands'' requires
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
, any contributory negligence voids most of the claim. Initially it was sufficient to offset the case itself; with the
Law Reform (Contributory Negligence) Act 1945 The Law Reform (Contributory Negligence) Act 1945 is an Act of Parliament of the United Kingdom, which allows a judge to apportion liability for compensatory damages as he feels to be "just and equitable" between a tortfeasor and an injured pers ...
, courts instead apportion damages, taking into account how much of the harm was contributed by the claimant. Nevertheless, contributory negligence is still a viable partial defence to a ''Rylands'' claim. Other valid defences are where the claimant has consented, expressly or impliedly, to the accumulation of the "thing", and where there is statutory authority for the accumulation.


Scotland

The principles of ''Rylands v Fletcher'' were initially applied in
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland l ...
, first in the case of ''
Mackintosh v Mackintosh The Mackintosh or raincoat (abbreviated as mac) is a form of waterproof raincoat, first sold in 1824, made of rubberised fabric. The Mackintosh is named after its Scottish inventor Charles Macintosh, although many writers added a letter ''k' ...
'', where a fire spreading from the defendant's land to the claimant's land caused property damage. Scots lawyers and judges applied ''Rylands'' differently from their English counterparts, however. While the rule is interpreted in
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
as being distinct from negligence and the rules of duty of care and liability applied there, the principle in Scotland was that "negligence is still the ground of liability. The only difference is that in such cases the proprietor is doing something upon his property which is in its nature dangerous and not necessary (or usual?) in the ordinary management of the particular kind of property, and he is therefore bound to observe a higher degree of diligence to prevent injury to his neighbour". The use of ''Rylands'' in Scots law, which was started in ''Mackintosh'', finally came to an end in ''
RHM Bakeries v Strathclyde Regional Council RHM may refer to: *RHM, the FWB code for Rheinmetall Rheinmetall AG is a German automotive and arms manufacturer, headquartered in Düsseldorf, Germany Germany,, officially the Federal Republic of Germany, is a country in Centr ...
''.
Lord Fraser The Lordship of Fraser was created in the Peerage of Scotland on 29 June 1633. when granted by letters patent to Andrew Fraser and his male descendants. The peerage expired in 1720, with the death of the 4th Lord Fraser, as a result of his part ...
, as part of his judgment, stated that the idea of
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
that was brought into play by ''Rylands'' was not a part of Scots law, and the idea that it ever had been valid was "a heresy that ought to be extirpated".Cameron (2004) 119


United States

Within the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, there are many situations in which
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
is applied to actions, and ''Rylands'' is commonly cited as the origin of that rule (particularly where strict liability is based on the defendant's "
ultrahazardous activity An ultrahazardous activity in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person, even if the person engaged in the activity t ...
"); it was first applied in '' Ball v. Nye'', by the
Supreme Judicial Court of Massachusetts The Massachusetts Supreme Judicial Court (SJC) is the highest court in the Commonwealth of Massachusetts. Although the claim is disputed by the Supreme Court of Pennsylvania, the SJC claims the distinction of being the oldest continuously functi ...
. The
Supreme Court of Minnesota The Minnesota Supreme Court is the highest court in the U.S. state of Minnesota. The court hears cases in the Supreme Court chamber in the Minnesota State Capitol or in the nearby Minnesota Judicial Center. History The court was first assembl ...
also adopted it in '' Cahill v. Eastman'', while the highest courts of
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
,
New Hampshire New Hampshire is a U.S. state, state in the New England region of the northeastern United States. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Gulf of Maine to the east, and the Canadian province of Quebec t ...
and
New Jersey New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
all rejected the principle, in '' Losee v. Buchanan'', ''
Brown v. Collins Brown is a color. It can be considered a composite color, but it is mainly a darker shade of orange. In the CMYK color model used in printing or painting, brown is usually made by combining the colors orange and black. In the RGB color model use ...
'', and '' Marshall v. Welwood'' respectively. The Supreme Court of New Jersey, however, reversed ''Welwood'' in 1983 in '' Department of Environmental Protection v. Ventron Corp''. Many courts in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
have attempted to use ''Rylands'' to justify
absolute liability Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions. To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action but also h ...
, which it was never intended to do; while absolute liability is where no defence is applicable, in ''Rylands'' itself Lord Cairns accepted that there were some situations where the case should not be applied.


Australia

In Australia, the principles of ''Rylands v Fletcher'' were "killed off" by the
High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...
in ''
Burnie Port Authority v General Jones Pty Ltd ''Burnie Port Authority v General Jones Pty Ltd''. is a tort law case from the High Court of Australia, which decided it would abolish the rule in ''Rylands v Fletcher'', and the '' ignis suus'' principle, incorporating them generally into the ...
''. The High Court's view was that the ''Rylands'' principles "should now been seen ... as absorbed by the principles of ordinary negligence, and not as an independent principle of strict liability". Contrasting this, the principles have escaped destruction in
Hong Kong Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China ( abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delt ...
, where the courts are yet to follow the examples set by Australia and England and Wales, and ''Rylands'' remains an independent tort.Glofcheski (2004) 194


India

The rule of strict liability famously laid down by Blackburn J., in ''Rylands v. Fletcher'', proved to be rather ineffective with the passage of time to counter the dangerous use of one’s property or an industry that produced substances or wastes detrimental to public health. The pre-requirements essential for establishing a liability under the principle of strict liability viz., the non-natural use of land, use of a dangerous thing, and the element of escape provided substantial loopholes to the enterprises to escape liability under the ''Rylands v. Fletcher'' rule. Moreover, the exceptions provided within the rule (and restated by the Supreme Court of India in ''MC Mehta v. Union of India'') afford ample opportunity to the commercial enterprises to escape liability. The Supreme Court of India in ''MC Mehta v. Union of India'' evolved a more stringent rule of strict liability than the ''Rylands v. Fletcher'' rule. In this case, which involved the leakage of and the harm caused by Oleum gas from one of the units of Shriram industries in Delhi, the court held that keeping in mind the needs and demands of a modern society with highly advanced scientific knowledge and technology where for the sake of development programme, it was necessary to carry out inherently dangerous or hazardous industry, a new rule had to be laid down to adequately deal with the problems arising in a highly industrialised economy. This new rule had to be based on the English rule of strict liability, but had to be even more stringent, as a result of which no firm carrying out an inherently dangerous or hazardous activity might escape from liability, irrespective of whether there was any negligence involved on the part of the firm or not. The court also pointed out that the duty owed by such an enterprise to the society is “absolute and non-delegable” and that the enterprise cannot escape liability by showing that it had taken all reasonable care and there was no negligence on its part. The bases of the new rule as indicated by the Supreme Court are two: # If an enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident (including indemnification of all those who suffer harm in the accident) arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads; and # The enterprise alone has the resource to discover and guard against hazards or danger and to provide warning against potential hazards. The rule in ''Rylands v. Fletcher'' requires non-natural use of land by the defendant and escape of the thing from his land, which causes damage. But the rule in ''MC Mehta v. Union of India'' is not dependent upon any such condition. The necessary requirements for applicability of the new rule of absolute liability are that the defendant is engaged in hazardous or inherently dangerous activity and that harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity. The rule in ''Rylands v. Fletcher'' will not cover cases of harm to persons within the premises where the inherently dangerous activity is carried out, for the rule requires escape of the thing which causes harm from the premises. The new rule makes no distinction between the persons within the premises where the enterprise is operating and persons outside the premises because escape of the thing causing harm from the premises is not a necessary condition for the applicability of the rule. Further, the rule in ''Rylands v. Fletcher'', though strict in the sense that it is not dependent on any negligence on the part of the defendant and in this respect similar to the new rule, is not absolute as it is subject to many exceptions but the new rule in Mehta’s case is not only strict but absolute and is subject to no exception. Another important point of distinction between the two rules is in the matter of award of damages. Damages awardable where the rule in ''Rylands v. Fletcher'' applies will be ordinary or compensatory; but in cases where the rule applicable is the one laid down in MC Mehta’s case the court can allow exemplary damages, and the bigger and more prosperous the enterprise, the greater can be the amount of compensation payable by it. A small bump in the road was encountered in ''Charan Lal Sahu v. Union of India'' and doubts were expressed as to the quantum of damages payable. But the Supreme Court set all doubts aside in another landmark decision in the case of ''Indian Council for Enviro-Legal Action v. Union of India'' where, it was held that the rule laid down in Mehta’s case was not ''obiter'' and was appropriate and suited to the conditions prevailing in the country.


See also

*
English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requi ...
*
US tort law This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, neg ...
*
Strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
*
Lake Peigneur Lake Peigneur (locally pronounced ) is a brackish lake in the U.S. state of Louisiana, north of Delcambre and west of New Iberia, near the northernmost tip of Vermilion Bay. With a maximum depth of , it is the deepest lake in Louisiana. Its ...


Notes


References

* * * * * * * * * * * * * * *{{cite journal, last=Woodside III, first=Frank C., author2=Mark L. Silbersack , author3=Travis L. Fliehman , author4=Douglas J. Feichtner , year=2003, title=Why Absolute Liability under Rylands v Fletcher is Absolutely Wrong!, journal=Dayton Law Review, publisher=
University of Dayton School of Law The University of Dayton School of Law (UDSL) is a private law school located in Dayton, Ohio. It is affiliated with the University of Dayton, which is a Catholic university of the Society of Mary. The school is accredited by the American Bar As ...
, volume=29, issue=1, issn=0162-9174


External links


Full text of judgment on Bailii
English tort case law English nuisance cases House of Lords cases 1860s in the environment 1868 in case law Lord Blackburn cases Baron Bramwell cases 1868 in British law Legal doctrines and principles