Rylands and fletcher

Question 1

What does the rule in Rylands and Fletcher concern?

Answer 1

A particular cause of action which protects an occupier against interference due to an isolated escape from his or her neighbour’s land.

Question 2

What occured in Rylands v Fletcher?

Answer 2

• The defendant was a millowner, who had employed independent contractors to build a reservoir on his land to provide water for his mill.
• During the course of building, the independent contractors discovered some old shafts and passages of an abandoned coalmine on the defendant’s land, which appeared to be blocked.
• When the reservoir was filled, the water burst through the old shafts, which were subsequently found to connect with the plaintiff’s mine.
• As a result, the plaintiff’s mine was flooded and he sought compensation.

Question 3

What is the rule in Rylands and Fletcher?

Answer 3

Rylands and fletcher is a specific variation on private nuisance, it concerns damage to property, but it is distinctive on the fact that it concerns an isolated or single escape of a hazardous material.

Question 4

The case was finally resolved at House of Lords level, but the classic statement of principle was given by Blackburn J which essentially set out the rule, what is it?

Answer 4

“We think that the true rule of law is that the person who for his own purposes brings on his lands 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, is prima facie answerable for all the damage which is the natural consequence of its escape.”

This was approved by the House of Lords, although Lord Cairns added the requirement of a non-natural use of land in explaining the principle.

Question 5

What did Lord Cairns add to the rule?

Answer 5

“[I]f the Defendants […] had desired to use it for any purpose which I may term a (3) non-natural use […] then it appears that that which the defendants were doing they were doing at their own peril.”

Question 6

So, the content of the rule is pieced together from two judgements made in this case, in simplistice terms, what is the rule in rylands v fletcher?

Answer 6

So essentially,

• Someone has to bring something onto their land, collect it and keep it there, which has the potential to cause mischief.
• It has to escape.
• And it has to be a non-natural use.

Question 7

As a consequence of the Cambridge water case, what else must there be?

Answer 7

As a consequence of the Cambridge water case – have to add the requirement that the harm suffered must be a foreseeable type.

Question 8

Evolution of the rule in Rylands and Fletcher

Answer 8

Evolution of the rule in Rylands and Fletcher

Question 9

What did we learn in the case of Read v J Lyons & Co [1947] regarding escape?

Answer 9

C argued that R v F created a form of strict liability for ultra- hazardous activities and that ‘escape’ simply meant ‘escape from control’.

“’Escape’ […] 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.”

Question 10

What was stated in this case regarding personal injury by Lord McMillan?

Answer 10

“I do not think that it has ever been laid down that there is absolute liability apart from negligence where persons are injured in consequence of the use of [ultra-hazardous] things or the conduct of such operations.”

Question 11

What does this help us understand in regard to the rule in Rylands and Fletcher?

Answer 11

The rule in R v F is really about injury to land, not personal injury.

Question 12

What is the leading authority on the rule in Rylands and Fletcher?

Answer 12

Cambridge Water v Eastern Counties Leather [1994]

Question 13

What occured in Cambridge Water v Eastern Counties Leather [1994]?

Answer 13

• Leather manufacturer using industrial solvents which leaked into a well which was used to supply drinking water to the city of Cambridge.
• At the time of this conduct, the industrial solvents were believed to be safe, the EU adopted a directive which said for drinking water to be drinkable it could contain no more than trace quantities of such solvent in question.
• To fulfil this regulation, the council had to test the water supplies and they discovered it had been tainted by the solvent and was therefore unusable.

Question 14

What did Lord Goff state in Cambridge Water v Eastern Counties Leather [1994] regarding natural/ ordinary use?

Answer 14

“Over the years the concept of natural use, in the sense of ordinary use, has been extended to embrace a wide variety of uses, including not only domestic uses but also recreational uses and some industrial uses…

Question 15

What does this mean?

Answer 15

LG says (quote above) Instead of this idea of non-natural use, this has been extended to include a wide variety of uses, including not only domestic uses but recreational and industrial uses.
These may all qualify as ordinary.

Question 16

Lord Goff says however, what is ordinary will depend on the area and the nature of the thing itself, following this, what does he stat in Cambridge Water v Eastern Counties Leather?

Answer 16

“[T]he storage of substantial quantities of
chemicals on industrial premises should be regarded as an almost classic case of non-natural use.”

Question 17

What did the defendants attempt to argue in this case?

Answer 17

The defendants tried to argue that they were doing something to be regarded as a social benefit as they were providing local employment and therefore everything they were doing was ordinary to a manufacturer of their type>

Question 18

What did Lord Goff state in Cambridge Water v Eastern Counties Leather [1994] regarding the defendants argument?

Answer 18

[T]he creation of employment as such, even in a small industrial complex, is [insufficient] to establish a particular use as constituting a natural or ordinary use of land…

Question 19

What does this mean?

Answer 19

This social benefit argument was discarded, the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use and that is that.

Question 20

Lord Goff essentially added a fourth element in Cambridge Water v Eastern Counties Leather [1994] through his judgement, what did he state?

Answer 20

“[F]oreseeability of damage of the relevant type [is] a
prerequisite of liability in damages under the rule [in R v F].”

Question 21

What does this mean?

Answer 21

The damage must be of a foreseeable type in order for the defendants to be liable.

Question 22

Which authority further provides guidance on the meaning of ‘an ordinary use’?

Answer 22

Transco plc v Stockport MBC [2004]

Question 23

What occured in Transco plc v Stockport MBC [2004]?

Answer 23

• Dispute revolved around a burst water mains which undermined a gas pipe and caused the gas pipe to burst.
• Claimant sought to recover the costs of the repair.

Question 24

What was the crux of the issue in Transco?

Answer 24

The crux of the question – whether or not the water mains constituted to an ordinary and natural use.

Question 25

What did Lord Bingham say the question was in this case?

Answer 25

"The question is whether the defendant has done something which he recognises, or ought to recognise, as being quite out of the ordinary in the place and at the time when he does it..." Had the defendants done anything which they recognised or ought to have recognised that was quite out of the ordinary

Question 26

Water in quantity is usually always capable of causing damage when it escapes but what did Lord Bingham state in this particular case?

Answer 26

"[W]ater in quantity is almost always capable of causing damage if it escapes. But the piping of a water supply from the mains to the [...] block was a routine function which would not have struck anyone as raising any special hazard... The situation cannot stand comparison with the making by Mr Rylands of a substantial reservoir. Nor can the use by the council of its land be seen as in any way extraordinary or unusual. It was entirely normal and routine.”

Question 27

So, how does Cambridge Water compare to Transco?

Answer 27

So, the Cambridge water case tells us that the storage of a large quantity of chemicals is a classic case of a use which is non-natural and out of the ordinary. This case tells us is that piping a large volume of water will not satisfy the second required element, it is something ordinary. Not intrinsically hazardous. Something non-natural or not ordinary is likely to be something particularly hazardous.

Question 28

Transco added clarification, restating what the rule on remoteness requires, what was clarified?

Answer 28

It is the type of harm which needs to be foreseeable, not the escape being foreseeable.

Question 29

Which case clarified that it is the thing brought onto the land that needs to escape?

Answer 29

Gore v Stannard [2012] EWCA Civ 1248

Question 30

What occured in Gore v Stannard [2012] EWCA Civ 1248?

Answer 30

- Fire broke out at the defendant’s business, igniting a pile of carelessly stored tyres. - Fire spread to neighbour’s (claimant) property causing extensive damage.

Question 31

What did Lord Justice Ward state regarding the tyres being gathered onto the land?

Answer 31

"The ‘thing’ brought onto [the defendant’s] premises was a large stock of tyres. Tyres, as such, are not exceptionally dangerous or mischievous. There is no evidence that the defendant recognised, nor ought he reasonably recognised that there was an exceptionally high risk of danger or mischief if the tyres, as such, should escape"

Question 32

But what is the crux of the issue in Gore v Stannard [2012]?

Answer 32

It was not the tyres which escaped, it was the fire.

Question 33

What did Lord justice Ward state in regard to the fire escaping as opposed to the tyres?

Answer 33

"The tyres did not escape. What escaped was the fire... The recorder was wrong to conclude it was the escape of fire that brought the case within R v F principles. In any event, keeping a stock of tyres... was not for the time and place an extraordinary or unusual use of the land."

Question 34

How does this case illuminate the rule in Rylands v fletcher?

Answer 34

- The way in which this case illuminates the rule in Rylands v fletcher is that it sharpens our mind toward the relationship between the thing that is gathered on the land and the thing that escapes. - Gore says these have to be the same thing, the thing brought onto the Ds property was a stack of tyres, tyres as such are not exceptionally dangerous or mischvious. - There is no evidence that the D recognised nor ought to recognise that there was a high risk if the tyres were to escape. - The tyres did not escape, the fire escaped. - The thing gathered was not what escaped.

Question 35

Outline the steps to an action under the rule in Rylands v Fletcher -

Answer 35

- D brings or gathers something on their land capable of causing mischief - The thing escapes Read v Lyons: escape means moving across a property boundary Gore v Stannard: it must be the thing which was gathered that escapes. - Non-natural use “[T]he storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use” Cambridge water case. “quite out of the ordinary in the place and at the time” Transco - Harm was of a foreseeable type (Cambridge Water) not the escpae that is foreseeable (Transco).

Question 36

Defences to the rule in Rylands v Fletcher

Answer 36

Defences to the rule in Rylands v Fletcher

Question 37

What are the three potential defences to the rule in Rylands v Fletcher?

Answer 37

* Unforseeable act of a stranger: North Western Utilities Ltd v London Guarantee Co [1936] AC 108. (Perhaps we can prove the escape was caused by the conduct of a third party and they may then be relieved) * Act of god: essentially something completely inexplicable * Statutory authority: see private nuisance

Question 38

What has started of a rule of strict liability, through the application of defences, it is essentially becoming what?

Answer 38

Unforeseeable + act of God – what has started of a rule of strict liability, through the application of defences, it is essentially becoming something akin to rule of fault.

Question 39

Rylands and Fletched (FROM THE TEXTBOOK) There may be repetition but it wont hurt xx

Answer 39

Rylands and Fletched (FROM THE TEXTBOOK) There may be repetition but it wont hurt xx

Question 40

What is the significance of Rylands v Fletcher?

Answer 40

- This has caused some controversy. - Blackburn J reasoned by analogy to existing examples of liability, such as cattle trespass and nuisance, and clearly did not believe himself to be laying down any new principle of law. - However, in the first part of the twentieth century, Rylands v Fletcher liability developed as a separate “rule” with its own requirements, which will be outlined below. - It has been suggested that the rule can be explained as a decision to impose strict liability on persons conducting ultra-hazardous activities.

Question 41

This idea was not, however, accepted in England, in what cases can this be seen?

Answer 41

The House of Lords sounded the death-knell for strict liability for ultra-hazardous activities in Read v Lyons, where their Lordships clearly rejected this as an explanation of Rylands v Fletcher liability. Lord Goff in Cambridge Water Co v Eastern Counties Leather Plc took the view that, as a general rule, strict liability for operations of high risk would be more appropriately imposed by statute than the courts and that, in any event, Read v Lyons served to preclude any such development.

Question 42

Liability under the rule in Rylands v Fletcher

Answer 42

Liability under the rule in Rylands v Fletcher

Question 42

The 2003 House of Lords ruling in Transco Plc v Stockport MBC confirmed what?

Answer 42

Transco Plc v Stockport MBC confirmed that the rule should be treated as a sub-species of private nuisance.

Question 43

There are four requirements which must be established for the claimant to sue under the rule, from where do these four requirements derive?

Answer 43

The first two derive from Blackburn J’s statement of principle. The third derives from Lord Cairns in the House of Lords. The fourth requirement, namely foreseeability of the kind of damage suffered, is of more recent origin and comes from the leading judgment of Lord Goff in Cambridge Water Co v Eastern Counties Leather Plc

Question 44

What is the first requirment for an action in Rylands v Fletcher?

Answer 44

(1) The defendant must bring on his lands for his own purposes something likely to do mischief

Question 44

What is the third requirment for an action in Rylands v Fletcher?

Answer 44

Non-natural use.

Question 45

Blackburn J in Rylands v Fletcher referred to the defendant bringing onto the property some- thing “which was not naturally there”, what did Lord Cairns interpret this?

Answer 45

Lord Cairns in the House of Lords interpreted this as a “non-natural use”.

Question 46

What does this require?

Answer 46

This requires a voluntary act of bringing something on the land. What is “likely to do mischief” is an interesting question. In Rylands itself, water was held to be within this category, and other case law has referred to electricity, oil, noxious fumes and even a flagpole or a fairground ride.

Question 47

This requirement seems to have been toughened up since Transco as what did Lord Bingham remark?

Answer 47

“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.” This again will serve to restrict the application of the rule.

Question 48

What is the second requirment for an action in Rylands v Fletcher?

Answer 48

Its escape.

Question 49

What is crucial for this requirement?

Answer 49

Proof of an actual escape of the thing brought onto land is vital. Ward LJ in Stannard v Gore remarked that at the very heart of the rule is the desire to protect against the exceptional danger or mischief that will be caused if there is an escape from the defendant’s land

Question 50

What was held in Read v Lyons regarding escape?

Answer 50

- In the case itself, an inspector of munitions had been injured by an explosion of a shell whilst inspecting the defendants’ munitions factory. - Their Lordships held that there had not been an “escape” within the rule. - An escape would only occur when the object moved from the defendant’s premises to a place which was outside his occupation or control.

Question 51

Over time, however, the “non-natural” use requirement came to be interpreted as what?

Answer 51

“Non-ordinary”.

Question 52

In Rickards v Lothian, Lord Moulton defined “non-natural” as what?

Answer 52

Lord Moulton defined “non-natural” as “some special use bringing with it increased dangers to others”

Question 53

The meaning of “non-natural user” must now be viewed in the light of Lord Goff’s comments in which cases?

Answer 53

- Cambridge Water Co v Eastern Counties Leather Plc - Transco Plc v Stockport MBC.

Question 53

Lord Goff remarked in Cambridge Water that what was a non natural use?

Answer 53

Lord Goff remarked in Cambridge Water that “the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use”

Question 54

What occured and what was held in Transco?

Answer 54

- The case itself was concerned with whether the storage of water in pipes was a “non-natural” use of the land. Stockport MBC were the owners of a block of flats and an adjacent disused railway embankment. - A water pipe serving the flats had leaked and the water had percolated to the surface and onward into the embankment through a crack in the ground. - There was no evidence that this was due to negligence. - The embankment collapsed as a result of having become saturated with water, and the void left by the collapse exposed a high pressure gas main owned by British Gas (now Transco). - The claimants wisely acted promptly to prevent a potential fracture of the pipe, incurring costs of around £94,000. - The House of Lords agreed with the Court of Appeal that the provision of a water supply to a block of flats by means of a connecting pipe was a natural/ordinary use of land. - This is consistent with prior authority and indeed it would have been odd to regard having a water supply as raising any special hazard. - All five judges argued that Rylands v Fletcher would only apply to some use which was extraordinary and unusual according to contemporary standards. - This clearly did not exist on the facts.

Question 54

The House of Lords in Transco approved Lord Goff’s judgment, while restating the test again. The rule should, in the words of Lord Bingham, be confined to cases where the defendant’s use of the land is what?

Answer 54

Shown to be extraordinary and unusual. On this basis, his Lordship believed that the term “ordinary use” might be clearer than “natural use”.

Question 55

This requirement comes from the review of the rule undertaken in which case?

Answer 55

Cambridge Water Co v Eastern Counties Leather Plc

Question 55

Lord Hoffmann suggested what in this case?

Answer 55

“A useful guide in deciding whether the risk has been created by a ‘non-natural’ user of land is therefore to ask whether the damage which eventuated was something against which the occupier could reasonably be expected to have insured himself.” While this can only be a rule of thumb, it offers at least some assistance in determining this aspect of the test.

Question 55

What occured and what was held in this case?

Answer 55

- In this case, the defendants had used a chemical called perchloroethene (PCE) for degreasing pelts at their tannery. - There were regular spillages, which gradually seeped into and built up under the land. - The chemical seepage was such that it contaminated the plaintiffs’ water supply 1.3 miles away, forcing them to find another source at a cost of nearly £1 million. The plaintiffs sued in negligence, nuisance and under the rule in Rylands v Fletcher. - By the time the case reached the House of Lords, only liability under the latter head was in issue. - The House of Lords held that the defendants were not liable. - It was not foreseeable to the skilled person that quantities of chemical would cause damage to the plaintiffs’ water, and foreseeability of damage was a requirement of liability under the rule in Rylands v Fletcher. - Lord Goff justified his conclusion by analogy to nuisance, and by reference to Blackburn J’s statement of principle in Rylands itself, namely that the rule referred to “anything likely to do mischief if it escapes”.

Question 55

What is the fourth requirment for an action in Rylands v Fletcher?

Answer 55

Foreseeability of damage of the relevant type

Question 56

Lord Hoffmann in Transco confirmed that Rylands v Fletcher established that, in a case to which the rule applies, the defendant will be liable even if he could not reasonably have foreseen the escape, what does this tell us?

Answer 56

It is not the escape that needs to be foreseeable it is the type of harm which must be foreseeable.

Question 57

Who can sue in Rylands and Fletcher?

Answer 57

- Before the House of Lords’ decision in Transco, it had been unclear in light of Cambridge Water and Hunter whether it was necessary to have an interest in land or exclusive possession to sue, as required for private nuisance. - Non-occupiers had in the past recovered damages under this head; although this line of authority had been criticised in the leading case of Read v Lyons. - Yet, in view of Lord Goff’s comment in Cambridge Water that the focus of both torts is the same—namely the protection of rights to land—logically, only claimants with a right to land should be able to sue. - Transco confirms the force of Lord Goff’s logic: only parties with rights over land may bring an action under the rule in Rylands v Fletcher.

Question 58

In what cases has unforeseeable acts of stranger been followed as a defence?

Answer 58

Box v Jubb Rickards v Lothian

Question 59

In what case has an act of God been followed as a defence?

Answer 59

Nichols v Marsland

Question 60

In what case has statutory authority been followed as a defence?

Answer 60

Green v Chelsea Waterworks Co

Question 61

There are three main remedies in Ryland and Fletcher, what are they?

Answer 61

▪Injunctions. ▪Abatement. ▪Damages. The main remedy for nuisance is the injunction. Where liability lies under the rule in Rylands v Fletcher, the escape has usually occurred, and the damage has already been caused, so the claimant will be seeking damages.