THE RULE IN RYLANDS V FLETCHER

Rylands v Fletcher is a common law rule of strict liability in tort which stems from judgment of Blackburn J. in the eponymous case. Liability under the rule is triggered if a person brings onto his land and keeps there something “likely to do mischief if it escapes”. In such circumstances he is deemed to act “at his peril” and will be “answerable for all the damage which is the natural consequences of its escape”. The rule has been described as “alive and well” in the 21st Century although it is rarely invoked. Nevertheless, it continues to provide a cause of action in some cases, normally involving the storage of hazardous materials.

The essence of the rule is that the defendant must have used his land for an unusual purpose which subjected his neighbours to the risk of substantial damage in the event of an escape. Given the centrality of Blackburn J’s judgment (in the Court of Exchequer Chamber) to the Rule it is worth citing the relevant passage of his judgment in its entirety:

” 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 in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. “

Per Blackburn J. in Rylands v Fletcher (1865-66) L.R. 1 Ex. 265.

The House of Lords upheld the decision and emphasised the strict nature of the duty in the following terms:-

” If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage. ” Per Lord Cranworth in Rylands v Fletcher (1868) L.R. 3 H.L. 330.

From this it is clear that there must be something unusual and potentially hazardous about the land use; the House of Lords judgments referred to unnatural land uses at various points. The case of Rylands itself concerned the storage of a large body of water in a reservoir; although, as will be apparent from the detailed analysis below, this does not mean that the storage of water per se is regarded as an unnatural use of land. Other examples drawn from the case law include the storage of chemicals, sewerage, diseases (in research laboratories), petrol, explosives, polystyrene and other flammable materials. Recent decisions have tended to limit the scope of those land uses which can be deemed “unnatural”; see Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1.

There must be an “escape” from land which means that damage contained within the boundaries of the property cannot give rise to liability under the Rule: see Read v J Lyons & Co Ltd [1947] A.C. 156 in which the House of Lords ruled that there could be no liability under the rule where an explosion in a munitions factory had been contained within the boundaries of the factory. Although Rylands is concerned with escapes from land, in certain cases parties may be liable notwithstanding the fact that they have no legal interest in the property itself. The key issue is whether they had complete control over the site and the activity conducted upon it: see Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 K.B. 772 and Rainham Chemical Works Ltd (In Liquidation) v Belvedere Fish Guano Co Ltd [1920] 2 K.B. 487.

Thus the rule in Rylands v Fletcher is concerned with danger from physical objects escaping from land where they have been accumulated (in Ellison v Ministry of Defence 81 Build L.R. 101 the defendant succeeded in part because there was no “accumulation” by him of the things on the land the escape of which was said to have caused the harm in question). In nuisance, liability can arise from intangible things, such as noise, and even though nothing is actually kept upon the premises. In nuisance there is no requirement for an accumulation or an escape, and liability does not arise if there is a reasonable user of the land. In Rylands v Fletcher the defence that the use of land constitutes a natural user has been substituted by a test of “ordinary user”.

Liability under Rylands v Fletcher. A person who for his own purposes brings on to his land and collects and keeps there “anything” “likely to do mischief if it escapes”, will be at risk if he fails to prevent it escaping, and will be liable for damage, which is the natural result of its escape (see Rylands v Fletcher (1866) 1 Ex. 265; (1868) L.R. 3 H.L. 330). Foreseeability of damage is not a relevant element in this cause of action.

“Things” which have been held in the past as within the rule include; electricity (National Telephone Co v Baker [1893] 2 Ch. 186), explosives (Rainham Chemical Works Ltd v Belvedere Fish Guano [1921] 2 A.C. 465); C.S. gas canister (Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242); a motor car petrol tank (Musgrove v Pandelis [1919] 2 K.B. 43 and Perry v Kendricks Transport Ltd [1956] 1 All E.R. 154), fumes (Halsey v Esso Petroleum Co Ltd [1961] 2 All E.R.145), coal (see Anthony v Coal Authority [2005] EWHC 1654 (QB)) and interferences of caravan dwellers (Att Gen v Corke [1933] Ch. 89), although a landlord’s unneighbourly tenants were held not within the rule, where there was no control over them (Smith v Scott [1973] Ch. 314). Note that in the House of Lords ruling in Transco Plc (formerly BG Plc and BG Transco Plc) v Stockport MBC [2004] 1 All E.R. 589; 91 Con. L.R. 28, the court considered that the threshold for liability should be high, limited to matters of exceptional risk. However, consider the observation of Lord Goff in Cambridge Water Co v Eastern Counties Leather [1994] 2 A.C. 264, that large amounts of solvents stored on site for commercial purposes would be such a “thing” within the rule.

Strict Liability. Although it may be that some fault may be necessary in nuisance, it appears that it is no defence that the thing escaped without the defendant’s neglect, or even that he had no knowledge of its existence. It has been suggested that the strict liability in Rylands v Fletcher has been somewhat attenuated (see Dunne v North Western Gas Board [1964] 2 Q.B. 806; Pearson v North Western Gas Board [1968] 2 All E.R. 669 and British Celanese Ltd v AH Hunt (Capacitors) Ltd [1969] 1 W.L.R. 959). However, in the light of the ruling in Cambridge Water Co v Eastern Counties Leather [1994] 2 A.C. 264 this is to be doubted, and see also Transco Plc (formerly BG Plc and BG Transco Plc) v Stockport MBC [2004] 1 All E.R. 589; 91 Con. L.R. 28.

Escape. There must be an escape from where the defendant has occupation to another place outside his occupation or control, so that a claimant would fail when an explosion occurred within the factor where she worked (see Read v Lyons [1974] A.C. 156). The House of Lords has affirmed the need in this cause of action for an escape “from one tenement to another”; Transco Plc (formerly BG Plc and BG Transco Plc) v Stockport MBC [2004] 1 All E.R. 589; 91 Con. L.R. 28. It was suggested, obiter, that there will not be an “escape” within the rule in Rylands v Fletcher if that escape was the result of a deliberate act to create the “escape” (Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242), but this, it is submitted, is to be doubted as good law.

It has been held that the escape may be from property of which the defendant is in occupation to the highway or from the highway (see Rigby v Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242). However, if Lord Goff’s recommendation that the rule in Rylands v Fletcher be aligned with the common law principles established for nuisance is accepted by the courts, then in the light of Hunter v Canary Wharf Ltd [1997] A.C. 655, this proposition from the Rigby case, if it were considered to be a proposition of general application, would not remain good.

Non-natural user. This has been a traditional term in Rylands v Fletcher. Liability was for something not naturally there. “It must be some special use bringing with it increased danger, and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community” (see Rickards v Lothian [1913] A.C. 263, approved in Read v Lyons [1974] A.C. 156). However, whilst ordinary use has been extended to cover domestic recreational uses and even some industrial use (see Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 A.C. 264 at 308D), the creation of employment, even in a small industrial complex or for the benefit of a local community is not within the protection of ordinary user.

Origins of the rule: The origins of the Rule are complex and the subject of much academic debate in that it is difficult to discern from the case how it builds upon earlier authority. In Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 A.C. 264, the House of Lords cited with approval the work of Professor Newark who argued that the Rule arose as an offshoot of nuisance. Whereas nuisance is concerned with an ongoing state of affairs, Rylands is concerned with a sudden escape. The Rule in Rylands ensured that the strict standard of liability applied by nuisance could be utilized in respect of certain land uses where lasting damage could result from isolated escapes. In this respect the Rule could be regarded as plugging a gap left by nuisance. Although, as will be apparent from the “key areas of complexity or uncertainty” section, Professor Newark’s theory is strongly contested.

Non-natural user: At the heart of liability under Rylands is the notion that liability will only be triggered if the defendant has used his land (or the land over which he has control) for the storage of a substance “likely to do mischief if it escapes”. This denotes some un-natural (or non-natural) land use which risks causing substantial damage to neighbouring property should such an escape occur. Rylands itself arose from the escape of water from a reservoir onto neighbouring property via disused mine-workings of which the defendant was unaware. The storage of very large amounts of water in this manner was deemed to constitute such a non-natural land use. Thus, the defendant was held liable notwithstanding the fact that he was not at fault in failing to discover the disused mine-workings during construction.

The storage of chemicals or other materials liable to constitute a threat to public health, property or the environment constitute classic examples of non-natural land uses which may trigger liability under the rule. However, it should be noted that, as a result of progress and technological change, activities which may hitherto have been regarded as non-natural may become regarded as natural and ordinary land uses. For example, in British Celanese Ltd v AH Hunt (Capacitors) Ltd [1969] 1 W.L.R. 959 long strips of metal foil, stored in the yard of an electronics manufacturer, blew away in strong winds and shorted out an electrical substation thereby interrupting the electricity supply to the claimant’s factory causing damage to work in progress and economic loss. As regards the claim in Rylands, Lawton J. held that in 1964 the storage of such raw materials used in electronics manufacturing could not be a regarded as a “special” use of land meaning something out of the ordinary or hazardous. More recently, in Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685; 154 Con. L.R. 26 it was held that the use of concrete in construction could not, in this day and age, be regarded as anything other than normal and reasonable.

Rylands itself concerned damage caused by water. However, it is important to note that the storage of water per se does not constitute non-natural user. Reservoir building is a potentially dangerous enterprise because of the volume of water concerned. By way of contrast, in Rickards v Lothian [1913] A.C. 263the storage of water for domestic purposes was deemed not to constitute a non-natural use of land. In Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1, where a large water main serving a block of flats burst and damaged the claimants gas main, the House of Lords held that, despite the large volumes of water concerned, piping water for domestic use was clearly a routine and ordinary use of land. Although it seems that domestic sewerage would still be regarded as a non-natural use of land due to its noxious nature: see Smeaton v Ilford Corp [1954] Ch. 450.

The other type of land use which has been a fertile ground for litigation under the rule concerns the storage of flammable material which combusts and causes fire damage to neighbouring property. In LMS International Ltd v Styrene Packaging & Insulation Ltd [2005] EWHC 2065 (TCC); [2006] T.C.L.R. 6, the defendant was in the business of manufacturing polystyrene blocks, the storage of which was found to constitute a non-natural user due to their flammable nature. However, this should now be read in the light of the Court of Appeal decision in Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248; [2013] 1 All E.R. 694 in which the storage of large quantities of tyres, pursuant to a tyre fitting business, was found not to constitute a non-natural use of land. However, a far more restrictive aspect of the judgment is the notion that an escape of fire must be distinguished from the escape of the material which caught fire in the first place. There is further discussion of this under “key areas of complexity or uncertainty”, below.

Escape: There must be an escape of material beyond the bounds of the property where the material was kept. The classic case law example is provided by Read v J Lyons & Co Ltd [1947] A.C. 156 where the claim failed because the explosion was contained within the bounds of the factory.

A related issue concerns the fact that the escape must have occurred from land over which the defendant had control; which means that those other than the owner (whether under a freehold or leasehold arrangement) may be liable in appropriate circumstances. In Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 K.B. 772, the defendant’s owned a hydraulic main which burst and damaged electricity cables. Although they did not own the subsoil in which the main was buried the defendants controlled it and enjoyed a licence to run the main through the land. In Rainham Chemical Works Ltd (In Liquidation) v Belvedere Fish Guano Co Ltd [1920] 2 K.B. 487, the sole directors of a company which manufactured explosives incurred personal liability under Rylands v Fletcher notwithstanding the fact that it was the company which owned the site from which the escape occurred. Although the House of Lords rejected the notion that the company was a mere agent or sham, the complex agreements under which the site was managed indicated that the directors could still be regarded as occupiers if not owners of the site. In this sense they could be regarded as enjoying sufficient control of the site and the activities conducted thereon.

Personal injuries: There is now an overwhelming consensus to the effect that liability under Rylands v Fletcher is concerned with escapes from the defendant’s land (or land over which he has sufficient control) causing harm to the claimant’s land. In the past there have been some attempts to establish liability under Rylands in respect of personal injury claims unconnected with any interest in land; see Hale v Jennings Brothers [1938] 1 All E.R. 579. However, the use of Rylands in such circumstances was firmly rejected by Lord Macmillan in Read v J Lyons & Co Ltd [1947] A.C. 156.

Foreseeability of harm: Although Rylands v Fletcher establishes strict liability, in Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 A.C. 264 the House of Lords held that it is still necessary to show that the harm was foreseeable. In this case the harm was not foreseeable because no one could have foreseen that chemicals could have penetrated the bedrock beneath the works. Moreover, at the time the spillages occurred drinking water containing such levels of the chemicals in question was perfectly acceptable. It was unforeseeable that in years to come new European regulations would be passed which would render the water unfit.

Defences: Liability under Rylands is strict but it is not absolute. This means that the defendant will have a defence in certain circumstances.

The defence of Act of God or Act of Nature establishes a defence in respect of harm caused by natural phenomena, such as extreme weather events, which are beyond the control of the defendant and against which it is not possible to take precautions. See, for example, Nichols v Marsland (1876) 2 Ex. D. 1.

A defence may also be available where the damage is caused by the intervention of a malevolent third party; as in the case of Perry v Kendricks Transport [1956] 1 W.L.R. 85. Although, rather than establishing a specific defence the case establishes that such acts may break the chain of causation between the defendant’s land use and the claimant’s harm: see novus actus interveniens under Causation.

The final defence relates to consent or common benefit. Where the claimant gains a direct benefit from the defendant’s land use it could be argued that he has consented to the risk which is a generally applicable defence in tort; see volenti non fit injuria. An alternative explanation is that there is a specific defence applicable to Rylands known as “common benefit” which precludes the claimant from obtaining damages in such circumstances. In Kiddle v City Business Properties Ltd [1942] 1 K.B. 269 it was held that the defence would apply where damage was caused by water supply to a building upon which the claimant also relied.