The Rule in Rylands and Flecther remains to be one of strict liabilty. Discuss
“The Rule in Rylands v. Fletcher remains a tort of strict liability. The statement posed to us above is quite contentious, a statement which attracts diverse views from a number of different jurisdictions. The main question to consider here is whether the rule in Rylands v. Fletcher remains an independent tort of strict liability or whether there has been a move towards negligence and nuisance in recent years. There is a great emphasis placed on the rule of Rylands v. Fletcher for law students, however as noted by Lord Hoffman in Transco v.Stockport; “It is perhaps not surprising that counsel could not find a case since 1939-1945 war in which anyone had succeeded in a claim under the rule. It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse! ”1 As mentioned above, a number of common law jurisdictions have diverse views on this issue.
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I shall discuss each separately throughout my answer. Firstly, in order to provide a fully comprehensive answer, I will discuss the facts of the case.
The rule in Rylands v. Fletcher is a decision of the House of Lords which established a new area of tort law. According to Paul Ward; “it is a land associated tort which is considered to attract strict liability,”2 that is, it imposes liability for harm without having to prove negligence. Ward explicitly lays out that it is a tort that compromises of four elements; of accumulation of a natural thing, which if escapes and causes damage to the plaintiff, the defendant will be strictly liable. 3 The case concerned two adjacent landowners, Rylands and Fletcher.
The defendant landowners, Rylands and Horrocks engaged with an independent contractor to build a reservoir in order to supply water to their mill. Due to negligence of the contractors and unbeknownst to the defendant landowners, the reservoir was built above a disused mine shaft, which flooded and collapsed causing water to escape and flood the neighbouring mine owned by the claimants. The plaintiff sued for damages, however a problem arose. At the time of the case, liability could not be based on any of the existing torts for a number of reasons.
With respect to nuisance, the court found that the incident lacked continuity; it was not trespass because the flow of water onto land was not a direct impact consequence, and as vicarious liability was not an action at the time, the defendants could not be found liable for the negligent act of the contractor. One would therefore presume that there was no cause of action and that the defendants would escape liability, however liability was imposed. Professor Simpson stated that this was so because of the public anxiety about the safety of reservoirs at the time. 4 Blackburn J.stated the rule as follows; “a person who, for his own purposes, brought on his land and collected and kept there anything likely to do mischief if it escaped, had to keep it in his peril; and if he did not do so, he was prima facie answerable for all the damage which was the natural consequence of its escape. ”5 However it is important to note that the House of Lords did add a further limitation on liability, they altered the notion of a “thing not naturally there” to a “non-natural use”, which was described by Lord Cairns as “that in its natural condition was not in or the land, then if it escapes, the defendant will be prima facie liable.”6 Blackburn, J. judgment was such that it led to the formulation of a new rule of strict liability for damage caused by an escape of something accumulated on a person’s property, if the accumulation is a non-natural use of property. The question today is; is this rule still in operation, one which remains a tort of strict liability? In particular, English, Irish and Australian judges have questioned the eligibility of the rule in recent decades. The main argument is over how one can keep the rule in Rylands v. Fletcher separate from other torts, in describing this Megaw, LJ.stated; “A regrettable modern instance of the forms of action successfully clanking their spectral chains. ”7 The rule is so closely connected to these two torts, it is only natural to ask whether the rule should still claim its independence. I shall discuss this throughout my answer. In relation to Australian law, the rule of Rylands v. Fletcher remains no longer valid since the high court decision of Burnie Port Authority v. General Jones Pty Ltd, which abolished the rule and incorporated it generally into the tort of negligence.
This case concerned a fire which started on a defendant’s property, caused by an employee of an independent contractor who was welding negligently. The fire spread to a nearby property causing 2. 5 million Australian Dollars’ worth of damage. The plaintiff sued under nuisance, negligence and the rule in Rylands v. Fletcher. 8 The High Court held that Blackburn’s justification was “all but obliterated by subsequent judicial explanations and qualifications”9 and that Rylands involved “quite unacceptable uncertainty. ”10 Therefore, thejustices felt that the law should be abolished and that the independent contractor be found culpable under the law of negligence. The new test laid down in this judgment was;
A person who takes advantage of his or her control of premises to introduce a dangerous substance or to carry on a dangerous activity, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. Where the person is outside the defendant’s premises, the duty varies according to the magnitude of the risk involved.”11 The judges believed in this case the Authority had breached the duty that it owed to General Jones for the damage sustained in the fire and that this therefore came under the law of negligence. According to Cane, the High Court’s view was that the Rylands rule “should bow been seen…as absorbed by the principles of ordinary negligence, and not as an independent principle of strict liability. ” 12 It is clear from my research that the rule remains valid law in English and Irish jurisdictions, but that it is now viewed as a sub-tort of nuisance.
Cambridge Water v. Eastern Counties Leather and Transco v. Stockport are two English cases which bring the rule of Rylands v. Fletcher under the wing of nuisance. The former case concerns the defendant who was a leather manufacturer. His employees spilled a solvent used in the tanning process prior to a change in a method; this solvent seeped through the floor and travelled until it met the plaintiff’s water supply. The well became unusable, and hence the plaintiff sued under Rylands v. Fletcher.
In his judgment, Lord Goff rejected the claim of the plaintiffs; stating that this is an area of law which should not be developed further and that rather than being an independent tort it should be considered as a sub tort of nuisance. 13 He was of the belief that statutory provisions are a more modern way of dealing with issues which were previously solved with reference to Rylands. This judgment added an important concept to the rule, which is the concept of foreseeability; “knowledge, or at least foreseeability of risk, is a prerequisite of the recovery of damages under the principle.”14 This is important for us to note as it poses a limitation on the rule, that now in order to impose strict liability, the damage cause by the escape must be reasonably foreseeable consequence of the escape of the defendant. In this particular case, the seepage of chemicals was not reasonably foreseeable and therefore the plaintiff could not recover. One may view this as a way of weaning out the concept of strict liability; however this is a concept which would be difficult to argue. Transco v. Stockport is also an influential English case dealing with the rule of Rylands v.
Fletcher, a judgment which once again questioned the eligibility of the rule as a tort of strict liability. This case concerned the defendant council who were responsible for the maintenance of pipe work which supplied water to a block of 66 flats. A leak developed in the pipes and this was left undetected for a considerable period of time. This water collected at the claimant’s high pressure gas main, the embankment collapsed leaving the gas main unsupported. The claimants took immediate action and sought to recover remedial costs of nearly ? 100,000. 15 While the Lordships protected the rule of Rylands v.
Fletcher, however more strict requirements were added which needed to be accounted for before imposing strict liability. It was stated that the escape must be something dangerous and out of the ordinary, which in this case did not include a burst water pipe on the council’s property. Lord Bingham noted; “to retain the rule, while insisting upon its essential nature and purpose; and to restate it so as to achieve as much certainty and clarity as is attainable, recognising that new factual situations are bound to arise posing difficult questions on the boundary of the rule, wherever that is drawn.”16 Transco disapproved with of the Australian decision in Burnie Port Authority to absorb the rule into the general law of negligence, with Lord Scott stating that it was “a rather drastic solution and not necessary,”17 but they did agree with the ruling in Cambridge that Rylands should remain valid in law but 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.”18 In the common law jurisdiction of the United States of America, the rule in Rylands v. Fletcher initially faced very little criticism. There are many situations in which strict liability is applied to actions and according to Woodside; Rylands is commonly cited as the origin of this rule. 19 However, there have also been a number of American judges and scholars who have given notable criticism of this rule, who view it as a very poor decision. The Supreme Court of New Hampshire, New Jersey and New York have all respectfully rejected the rule.
Bohlen gives a great insight in his article, he notes of a decision of the Supreme Court of New Hampshire, where an unnamed judge said the rule “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. ”20 These courts believed that the rule enunciated in Rylands v. Fletcher would cause economic harm. Bohlen also argues that the rule established is not trespass nor nuisance as there is respectfully no damage or no continuous action.
He argues that the American jurisdiction never accepted the rule because of its “limited applicability. ”21 On the other hand, Woodside notes that some Americans use the rule of Rylands v. Fletcher to justify absolute liability, an offence to which there is no defences. 22 This was never the intent of Lord Cairns in his judgement. Therefore it is very unclear as to whether the rule of Rylands v. Fletcher remains a tort of strict liability within the American jurisdiction. The Scottish jurisdiction, like Australia, has also abolished the ruling of Rylands v.
Fletcher. The principles of Rylands v. Fletcher were first applied in Scots law in the case of Mackintosh v. Mackintosh, however according to Cameron; it was applied in such a way as that negligence was still the ground of liability. 23 However, the absolute use of the rule was abolished with the RHM Bakeries v. Strathclyde Regional Council when Lord Fraser stated that strict liability had no place in Scots law and that it was “a heresy that should be extirpated. ”24 Finally I will make reference to New Zealand.
The law regarding the rule of Rylands v. Fletcher remains unclear in this jurisdiction. A recent article by The Honourable Justice Chambers discusses the inter-relationship between the torts of nuisance, negligence and the ruling in Rylands v. Fletcher. The argued that there is a need for simplicity in the law of tort, “Where the law is clear, where the principles are clear, there are usually few cases”. 25 The recent Autex Industries Ltd v. Aucklands City Council case clearly illustrates how the law in New Zealand is unclear regarding this issue.
A water main belonging to Auckland City Council burst and caused damage to Autex’ premises, plant, equipment and stock. Autex sued the council for damages. Strict liability and negligence were pleaded. Autex argued that this was a Rylands v. Fletcher case and therefore negligence did not need to be proved. 26 The Court of Appeal divided on their judgment; the majority believed that there was not sufficient evidence before them to make public policy decisions. These decisions should not be based on intuitivestatements, the consequences which flow from them should also be considered. 27 The minority on the other hand disagreed with the judgment in the Australian Burnie case. It is also important to note that in the Hamilton v. Papakura District Council case that it was established that there is no difference in the foreseeability test between nuisance and negligence.
The Honourable Justice Chambers states; “The moment one states that as a proposition, one realises that it is absurd to continue talking about nuisance or Rylands v Fletcher as strict liability torts. They are not.”28 This leaves a question as to whether New Zealand will follow the court of Australia and abolish the rule in Rylands v. Fletcher or if the law will remain valid. With all the criticism posed above, can one still say that it is an area of strict liability? It is clear from the information which is presented in the above paragraphs that there is no clear answer as to whether the rule in Rylands v. Fletcher remains one of strict liability. Each common law jurisdiction appears to have different views on this rule. It is a contentious issue, an issue which is in need of worldwide reform.