History of Strict Liability

The rule of strict liability can also consider as the rule in Rylands v Fletcher and
it is originated from the tort of nuisance. The rule of strict liability can be explain as a
liability which is imposed on the defendant without any proof of fault on his part. 1
Rylands v Fletcher lays down a rule of strict liability for harm caused by escapes
from land applied to exceptionally hazardous purposes. Although historically it look
like have been offshoot with the torts law of nuisance, but it is sometimes said to
become quite distinct from nuisance because rule of strict liability is concerns with
the escapes from land rather than interference with land.2

Nowadays, there have many people state that the rule of strict liability can be said
that no longer any specific used and it may well be abolished because the tort of
private nuisance and negligence can capable of taking over the function of the rule.
The reason of the rule of strict liability can be replaced by private nuisance and
negligence is because in the element of strict liability, it includes the foreseeability of
damage. This element cause the rule of strict liability have the similarity to the private
nuisance and negligence. However, at first rule of strict liability is not include the
element of foreseeability of damage but this element added in when the case of
Cambridge Water v Eastern Countries Leather.

The rule of Rylands v Fletcher act as a refined law gleaned from the previous
case and situation with a purpose to let the wrongdoers strictly liable for the damage
to the plaintiff’s interest, which the damages was due to an escape of a dangerous
thing from their control. It also alert the potential wrongdoers to better keep the
dangerous things which in their control because when the mischievous thing escape,
they will be declared strictly liable even though due to no fault of theirs.

In the case of Rylands v Fletcher, the defendant who is a mill owner had employed
some of the independent contractors to build a reservoir. Under this reservoir, there
have some iron shafts that went through a mining area which were connected to the
mine belonged to the claimant. However, the defendant did not know the existence of
those iron shafts and the contractors were negligent in not blocking those iron shafts.
The water from the reservoir then escape and caused the claimant’s mine flooded. The
defendants were not liable for the negligence of the independent contractors but the
House of Lords held them liable to the claimant. The Blackburn J in this case said 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
consequences of its escape.3 This statement then is clearly known as the rule in
Rylands v Fletcher.

The issue in this case is whether a party is liable for trespass for damage
caused to another person’s land if the damage is a result of a defect in the party’s land
and the party did not know of the defect. It was held that the party cannot be liable as

1
Googlemei. (2012). Strict Liability in Rylands v Fletcher. Retrieved from
https://googlemei.wordpress.com/2012/01/16/strict-liability-in-rylands-v-fletcher/
2
Mullis A., Oliphant K. (1993) The Rule in Rylands v. Fletcher. In: Torts. Macmillan Professional
Masters. Palgrave, London
3
Rylands v Fletcher [1866] LR 1 Ex 265 at (279-280)
there must be negligence to create a liability so the defendant was not liable because
there was no trespass. However, on appeal, the House of Lords considered the issue
whether an absolute duty is imposed on a person who lawfully brings something onto
his land which while harmless while it remains there, will naturally cause damage if it
escapes. It was held that the law casts an absolute duty on a person who lawfully
brings on his land something which though harmless while it remains there will
naturally cause damage if it escapes. The defendant is liable for all the damage which
is the natural consequence of its escape, the plaintiff does not have to prove
negligence. This was later known as the strict liability rule. The second issue is
whether a party is liable for damage caused by a thing or activity that is unduly
dangerous and inappropriate in a certain place, in light of the character of the place
and its surroundings. It was held that the owner is not liable if he without wilfulness
or negligence but if he brings upon his land anything which was not naturally present,
and which is in itself dangerous, and may become mischievous if not kept under
proper control, he will be liable for any damage caused by the mischief.4

Under the case of Rylands v Fletcher, it states that there have four essential
element for defendant to liable for strict liability. The first element is dangerous things
which means the thing likely to cause damage if it escapes. The thing need not be
dangerous per se because there have some objects which are safe when they being
keep properly but are dangerous when they escape. In the case of Ang Hong Tai v
Tan Sum Lee & Anor, the defendant stored petrol in his premise for his business
purpose. The defendant’s premise caught fore and the fire spread to the first floor
which the plaintiff’s shop house and caused plaintiff’s wife and child died. The court
held defendant liable under the rule in Rylands v Fletcher because the petrol was a
dangerous thing.5 The second element is accumulation which means that the
defendant have the intention to storage. The defendant liable when he purposely keep
or collect the things. In the case of Miles v Forest Rock Granite (Leicetershire) Ltd,
the rock blasted by explosives fell onto the land below and injured the plaintiff. The
court held that defendant liable for strict liability because the accumulation of
explosive which caused escape of the rocks that gave rise to liability.6 The third
element is escape. The case of Read v J Lyons & Co Ltd states the meaning of
escape as the thing has escaped from a place which the defendant has the control and
authority to another place which the defendant did not have any control or authority.7
In the case of Ponting v Noakes, plaintiff’s horse reached its head into defendant’s
land and ate the poisonous leaves. The court held that there is no escape because the
poisonous leaves still at defendant’s land.8 The fourth element is non-natural use of
land because the Lord Cairns in the case of Rylands v Fletcher said that “the
defendant must put his land to a non-natural use”. In the case of Crowhurst v
Amersham Burial Board, the defendant’s yew leaves extended into the land which
belong to plaintiff. The plaintiff’s horse then died upon eating the yew leaves. The
court held that planting poisonous tree is a non-natural use of land.9

4
Rylands v Fletcher [1868] LR 3 HL 330
5
Ang Hock Tai v Tan Sum Lee & Anor [1957] MLJ 135
6
Miles v Forest Rock Granite Co (Leicetershire) Ltd [1918] 34 TLR 500
7
Read v J Lyons & Co Ltd [1947] AC 156
8
Ponting v Noakes (1849) 2 QB 281
9
Crowhurst v Amersham Burial Board [1878] 4 Ex D 5
 This rule of strict liability was then further used and developed by the English
courts. It made an immediate impact on the law because before the case of Rylands,
the English courts did not have any similar cases can be based for cases on strict
liability. Besides, this rule of Rylands v Fletcher had imposed liability on those found
detrimental in such a fashion without having to prove a duty of care or negligence.
The tort of strict liability under the rule of Rylands v Fletcher even though is
originated from the tort of private nuisance but it still have the distinct and difference
from tort of nuisance. First, the strict liability imposes when a thing is likely to cause
mischief escapes from defendant’s land to plaintiff’s land but in the action of nuisance,
it is not necessarily so. Next, under the tort of nuisance, the interference generally
must be continuous however under the rule in Rylands v Fletcher, a single act of
interference is enough. Third, the rule of strict liability under Rylands v Fletcher
apply only to cases where there has been some special use or non-natural use of land,
bringing with it increased dangers to others so it does not extend to damage caused to
adjoining owners as the result of ordinary use of land.

However, the rule in Rylands v Fletcher has been disclaimed in some country
such as Scotland and Australia. The rule of strict liability then had also arise some
argument. One of the argument for those who against retaining this rule is the
threshold for liability is too high for those industrial activities as the danger has to be
extraordinary and unusual. In the case of Transco Pls v. Stockport MBC, the Lord
Hoffman states that it is inconsistent with modern industrial norms to allow liability
for an industrial activity simply because it is non-natural or dangerous.10 So, it would
be more easier to establish the liability under private nuisance and negligence because
the test is simply that of reasonableness. However, today under the rule in Rylands v
Fletcher liability is now fault-based. This means that the defendant is liable only if the
damage suffered by the plaintiff was reasonably foreseeable, as laid down in the case
of Cambridge Water Co Ltd v Eastern Countries Leather Plc.11

In the case of Cambridge Water Co Ltd v Eastern Countries Leather Plc, the
defendant, a leather manufacturer used a chemical in the process of manufacturing.
The chemical had been spilled on the floor of the factory and then seeped through the
factory’s floor which eventually meant that they contaminated the claimant’s borehole.
The borehole was used to supply water to the local residents. This caused the water
could not be safely used by the claimants. The claimants then brought a claim against
the defendant on the ground of nuisance, negligence and the rule in Rylands v
Fletcher. In High Court of Justice, Kennedy J dismissed the claims under nuisance,
negligence and Rylands v Fletcher because the damage suffered by plaintiff was not
foreseeable and too remote. It is impossible for the defendants to reasonably foresee a
chemical which would eventually lead to a pollution of a water borehole so far away.
This decision was then reversed by the Court of Appeal of England and Wales. The
case then went to the House of Lords, the Lord Goff countered the Court of Appeal
decision and restoring Kennedy’s dismissal of the case. Lord Goff argued that the
foreseeability of harm need to be a factor and stated that Rylands was arguably a

10
Transco plc v Stockport MBC [2004] 2 AC 1
11
StuDocu. (2017). Rylands v Fletcher-Summary Tort I. Retrieved from
https://www.studocu.com/en/document/universiti-malaya/tort-i/summaries/rylands-v-fletcher-summary
-tort-i/2314381/view
sub-set of nuisance and not an independent tort. This then led him to including the test
of foreseeability of damage in Rylands case.12

This shows how the test for ‘reasonable and foreseeable damage’ in the case of
Wagon Mound is applicable under the rule in Rylands v Fletcher.13 So, a new
element which is foreseeability of damage had added into the rule of Rylands v
Fletcher. The plaintiff must prove that there have the dangerous thing, the defendant
had actively accumulated that thing, the escape of that thing occurred, defendant use
his land for non-natural purpose and the type of damage incurred by plaintiff is
reasonably foresee. It is now more difficult for the plaintiff succeed to take action
under strict liability.

Hence, the rule of strict liability is now fault based and there is no different from
negligence and private nuisance because the test of remoteness must also be satisfied
in order to obtain the damages for the injury or damage. It is clearly shows that the
strict liability is no longer an independent tort, but instead a sub-tort of nuisance. The
development of the scope and applicability of Rylands v Fletcher is now more
restricted.

12
Cambridge Water Co. v Eastern Countries Leather Plc [1994] 2 AC 264
13
The Wagon Mound (No 2) [1967] 1 AC 617