Rylands V Fletches

Oxford Journal of Legal Studies, Vol. 24, No. 4 (2004), pp.
643–669
The Merits of Rylands v Fletcher

JOHN MURPHY*
Abstract—English and Australian judges have, over the past few decades, severely
questioned the juridical distinctiveness and utility of the rule in Rylands v Fletcher.
The popular assertion in this country has been that the rule is really only a sub-
species of the law of private nuisance. By contrast, the Australian judiciary has
abandoned the rule altogether, preferring to expand the law of negligence to capture
the rule’s former territory. This article seeks to defend the rule in Rylands v Fletcher.
In particular it asserts that, by reference to their historical origins, the rule in Rylands v
Fletcher and the law of private nuisance can be seen to be quite diVerent creatures. It
also argues that there is strong case for the rule’s continued vitality, and that it would be
a grave mistake to abandon it in favour of a yet more expansive law of negligence.
1. Introduction
In recent times, the vitality of the rule in Rylands v Fletcher has been sorely tested
not only in England, but also in Australia where the rule was in fact formally
abandoned. What is somewhat curious is that, while in England it seems to be
thought that it might, ultimately, be no more than a sub-species of the law of pri-
vate nuisance, it was the law of negligence in Australia that Wnally captured the
rule’s former territory. This naturally raises the questions of which of these two
torts shares the closest juridical connections with the rule in Rylands v Fletcher
and whether, more importantly, the rule has any sustainable claim to continued
independence. These are the two main questions with which this article is
concerned and the argument that will be advanced is that the rule is suYciently
distinct in juristic terms to maintain a claim, and a strong one at that, to contin-
ued vitality. More particularly, there will be two strands to this contention. First,
it will be argued that integration of the rule into the law of private nuisance
would involve further confusing an area of law that is already beset by consider-
able intellectual incoherence.1 Second, it will also be contended that if the rule
were to be subsumed within the law of negligence, as in Australia, this would not
only create more problems than it solved but also represent a critical loss of legal
weaponry to claimants whose actions would naturally fall within the Rylands
* School of Law, University of Manchester. Thanks are due to Roderick Bagshaw, Neil Duxbury, Anthony
Ogus, Ken Oliphant, Stephen Waddams and Christian Witting for comments on a Wrst draft. I am also grateful to
those who commented helpfully at Adelaide, Flinders and Melbourne Universities where I was fortunate enough to
present the ideas contained in this article. John Keeler and Alex Wawryck (at Adelaide), Elizabeth Handsley (at
Flinders) and Harold Luntz (at Melbourne) deserve special thanks.
1
See C. Gearty ‘The Place of Nuisance in the Modern Law of Torts” [1989] CLJ 214.
Oxford Journal of Legal Studies, Vol. 24, No. 4,  Oxford University Press 2004; all rights reserved
644 Oxford Journal of Legal Studies VOL. 24
rule, but who would now face insurmountable evidential diYculties if forced to
prove fault.
In order to substantiate these two main claims, it will be necessary initially to
sketch the distinctive function and domain of the rule in Rylands v Fletcher. Only
once the discrete nature of the rule has been exposed will it be possible to make a
strong subsequent claim that the rule should kept apart from both nuisance and
negligence. Thus, in order to distinguish the rule from the law of private nuisance,
the article will begin by considering and contrasting the original conceptions of
both nuisance and the rule in Rylands v Fletcher, for it is in the origins of both torts
that their key juridical elements can best be observed. Moreover, it is also in the
origins of the rule in Rylands v Fletcher that the peculiar legal needs that it was
designed to meet are most evident. It will further be seen that the needs to which
the rule are best adapted have in no way disappeared, but in fact arguably grown
in magnitude since the rule’s genesis in the latter part of the 19th century.
Secondarily, insofar as the article considers the relationship between the law of
private nuisance and the rule in Rylands v Fletcher, it is also a direct response to
the challenge laid down by Lord GoV in his speech in Hunter v Canary Wharf
Ltd2 where he said:
I would not wish it to be thought that I myself had not consulted the relevant academic
writings [on this matter]. I have, of course, done so, as is my usual practice . . . however,
I feel driven to say that I found in the academic works which I consulted little more
than an assertion . . . I have found no analysis of the problem; and, in circumstances
such as this, a crumb of analysis is worth a loaf of opinion.3
2. Nuisance and the Rule in Rylands v Fletcher

In recent years, in England at least, it seems to have become widely accepted
that there exists a very close relationship between the law of private nuisance and
the rule in Rylands v Fletcher.4 It is a view that has received both hefty academic
and judicial support.5 To some extent, the idea that there is a close relationship
between the two torts can be traced to Blackburn J’s famous judgment in the
2
[1997] AC 655.
3
Ibid, at 694.
4
(1866) LR 1 Exch 265.
5
As regards academic support, the allegedly close relationship between the torts was famously elaborated over
half a century ago in F.H. Newark ‘The Boundaries of Nuisance” (1945) 65 LQR 480. More recent and extensive
academic support for the closeness of the relationship can be found in G. Cross ‘Does only the Careless Polluter
Pay?—A Fresh Examination of the Nature of Private Nuisance” (1995) 111 LQR 445. In terms of weighty judicial
support, the relationship has been stressed on each of the last three occasions when the House of Lords considered
Rylands liability: see Read v J Lyons & Co Ltd [1947] AC 156, at 183 per Lord Simonds (‘so closely connected are
the two branches of the law that text-books on the law of nuisance regard cases coming under the rule in Rylands v
Fletcher’); Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] AC 264, at 304 per Lord GoV (‘the rule in
Rylands v Fletcher was essentially concerned with an extension of the law of nuisance to cases of isolated escape’);
Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, at [9] per Lord Bingham (‘[t]he rule in
Rylands v Fletcher is a sub-species of nuisance’). See also the Wrst instance decision in Marcic v Thames Water Utilities
Ltd [2002] QB 929, at 950 per Judge Richard Harvey QC (‘the Rylands v Fletcher argument . . . may be said to be a
variety of nuisance’).
WINTER 2004 The Merits of Rylands v Fletcher 645
Court of Exchequer Chamber in the case that gave its name to the rule. Explaining
what he considered to be the rule’s provenance, he said:
The general rule, as above stated, seems on general principle just. The person whose
grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is
Xooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the
Wlth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and
noisome vapours of his neighbour’s alkali works, is damniWed without any fault of his
own; and it seems but reasonable and just that the neighbour, who has brought some-
thing on his own property which was not naturally there, harmless to others so long as
it is conWned to his own property, but which he knows to be mischievous if it gets on
his neighbour’s, should be obliged to make good the damage which ensues if he does
not succeed in conWning it to his own property. 6
The example involving the alkali works is an obvious case of nuisance, and it is
one that appeared no fewer than three times in the course of his judgment.7 But
other examples in this famous passage—for example, that of escaping cattle—are
equally clearly not instances of nuisance. This section of the article therefore
explores the extent to which there is, in truth, such a close relationship between
nuisance and the rule in Rylands v Fletcher as many leading commentators and
judges clearly believe to be the case. In elaborating the argument that the link is
in fact signiWcantly weaker than is often supposed—some of the connections that
are thought to exist between the two torts are rather spurious or illusory in nature,
while another, probably more substantial, connection8 is not quite so Wrm as has
sometimes been thought9—a number of critical historical distinctions between
the two torts will be identiWed. These distinctions, as suggested earlier, reveal a
good deal not only about the extent of the diVerence between the two torts but
also about the particular kinds of legal need that the rule in Rylands v Fletcher
was intended to meet and about the basis for a rule of strict liability. We will see
in due course that while the reasons for imposing strict liability on those who are
most likely to be defendants in actions based on the rule in Rylands v Fletcher
have altered to some extent during the past hundred years or so, the ones that
apply today are no less able to justify the existence of such a rule.
A. The Land Connection

One obvious reason why textbook writers and law teachers more generally often
deal with the law of private nuisance and the rule in Rylands v Fletcher side by
6
(1866) LR 1 Exch 265, at 280. It is true that the word ‘nuisance’ was not speciWcally mentioned in his judg-
ment; but some of the examples he gave make it clear that nuisance was at least part of what was in his mind.
7
Ibid, at 280, 285 and 286.
8
The overlap between the concepts of ‘non-natural use’ in Rylands and ‘reasonable user’ in nuisance.
9
In Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] AC 264 Lord GoV clearly thought there to be a
close similarity between the test of non-natural use and that of reasonable user. He said (at 299): ‘[i]t is not neces-
sary for me to identify precise diVerences which may be drawn between this principle [of natural use] and the prin-
ciple of reasonable user as applied in the law of nuisance. It is enough for present purposes that I should draw
attention to a similarity of function’.
side is that they share the obvious connection of being torts centred on land.
Indeed, it would even be fair to say that their respective spheres of operation are
frequently the same: disputes between neighbouring landowners. Yet the fact
that these remarks may be true in no way detracts from a critical land-based
distinction between the two torts. It is a diVerence that can be simply stated and
which can also be supported by reference to a large body of weighty authority.
It is that while nuisance law insists absolutely that the claimant should possess a
proprietary interest in the land aVected, there is no such equivalent requirement
under the rule in Rylands v Fletcher. Rather, the only mention of any land in
Blackburn J’s formulation refers to land owned by the defendant. And while it is
true that the stringency of this requirement was signiWcantly relaxed over the
years, it seems now to have been Wrmly re-asserted by the House of Lords in
Transco plc v Stockport Metropolitan Borough Council.10
The insistence in nuisance law that the claimant should possess a proprietary
interest can be traced to the emergence of the tort in 1166 from the assize of
novel disseisin11—an action concerned with interferences that wholly deprived a
man of ‘the opportunity of exercising his rights over land’.12 That such actions
were centred on the property (rather than the person) aVected is clear from the
fact that they fell to the royal courts (not the local courts) to decide. As Ibbetson
has explained, ‘[d]ispossession of freehold land and the closely related situation
of nuisance (interference with the enjoyment of freehold land), would have fallen
within the range of the real actions that formed the mainstay of the royal courts’
work’ since ‘it was their association with freehold property rather than simply
wrongful behaviour on the part of the defendant that activated the royal
courts’.13 And as Ibbetson further notes, ‘the fact that the remedy was in sub-
stance directed towards the protection of the freeholder’s possession’ meant that
‘the plaintiV had to be a freeholder, [and] those with lesser interests in land—for
example, leaseholders—could not make use of the assize’.14 Two important points
can be made here. First, it is apparent that nuisance is a tort of considerable
antiquity and one that historically was perpetrated against interests in land (as
10
[2003] UKHL 61, at [9] per Lord Bingham (‘[t]he rule in Rylands v Fletcher is a sub-species of nuisance, which
is itself a tort based on the interference by one occupier of land with the right [of another]’) and at [52] per Lord
Hobhouse (‘the rule is, when properly understood, still part of English law . . . It derives from the use of land and
covers the division of risk as between the owner of the land in question and other landowners’) (italics supplied).
11
Pinning down the exact date is not straightforward. Loengard notes, for example, that while there were
a ‘handful of pre-1166 cases . . . [concerning] interferences with enjoyment of real property” they had ‘an ad hoc
quality which makes categorisation diYcult’: see J.S. Loengard ‘The Assize of Nuisance: Origins of an Action at
Common Law” [1978] CLJ 144; 147 and 158.
12
See Newark, above n 5 at 481.
13
D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: OUP, 1999) 12. See also R.C. Van
Caenegen, Royal Writs in England from the Conquest to Glanvill: Studies in the Early History of the Common Law
(London: Quaritch, 1959) 444–64. Judicial recognition of the same point can be observed in the speech of Lord
Wright in Sedleigh-DenWeld v O’Callaghan [1940] AC 880, at 902–03: ‘[t]he assize of nuisance was a real action
supplementary to the assize of novel disseisin. The latter was devised to protect the plaintiV’s seisin of his land, and
the former aimed at vindicating the plaintiV’s right to the use and enjoyment of his land’.
14
Sedleigh-DenWeld v O’Callaghan [1940] AC 880 at 99.
opposed to land itself).15 Second, and in similar vein, there was never any
suggestion that the tort concerned personal injuries on the part of the freeholder.
Leaving to one side for the moment the question of whether nuisance law ought
to accommodate actions for damage to land per se, and leaving to one side, also,
the question of whether it now accommodates actions for personal injuries, it is
observable that the case-law in nuisance has consistently emphasized the centrality
of the claimant’s (not the defendant’s) proprietary interests. Take, for example,
Lord RadcliVe’s approval in Southport Corporation v Esso Petroleum Co Ltd of some-
thing that Denning LJ had said in the court below: ‘[i]n order to support an action
on the case for a private nuisance the defendant must have used his own land or
some other land in such a way as injuriously to aVect the enjoyment of the plaintiV’s
land’.16 His Lordship could not have been clearer that while the claimant’s propri-
etary rights must be aVected, the relevant disturbance to them need not emanate
from land in the defendant’s ownership. Similar judicial dicta abound and span
the whole of the last century.17 And on the last occasion on which the issue was
directly in point in the House of Lords, Lord GoV reasserted that:
an action in private nuisance will only lie at the suit of a person who has a right to the
land aVected. Ordinarily such a person can only sue if he has the right to exclusive pos-
session of the land, such as a freeholder or tenant in possession . . . But a mere licensee
on the land has no right to sue.18
This insistence that claimant be the person with the aVected proprietary interest
stands in stark contrast to the equally well-recognized principle that liability in
nuisance does not so depend upon property ownership. Or more accurately,
nuisance liability may well attach to those who neither own nor control the land
from which the disturbance emanates.19 As Devlin J once remarked, ‘I can see
no reason why the defendant . . . as a licensee or trespasser [who] misuses some-
one else’s land, . . . should not be liable for a nuisance in the same way as an
adjoining occupier would be’.20 And in the House of Lords some years earlier it
had been suggested that the key to a defendant’s nuisance liability lay not in land
ownership, but instead in ‘some degree of personal responsibility’.21
15
See further the very considerable trawl of the relevant case-law in Gearty, above n 1.
16
[1956] AC 218, at 242 (italics supplied).
17
See, e.g. Malone v Laskey [1907] 2 KB 141 (a wife’s claim failed because, among other things, she had no legal
or equitable interest in the property aVected by the vibrations caused by D); Read v J Lyons & Co Ltd [1947] AC
156, at 183 per Lord Simonds (‘he alone has a lawful claim who has suVered an invasion of some proprietary or
other interest in land’).
18
Hunter v Canary Wharf Ltd [1997] AC 655, at 692. Lord Lloyd also said (ibid, at 696): ‘the only persons enti-
tled to sue for loss in amenity value of the land are the owner or the occupier with the right to exclusive possession’.
19
See, e.g. Thomson v Gibson (1841) 7 M & W 456; Southwark London Borough Council v Tanner [2001] 1 AC 1.
Cf. the position in Australia where there is direct authority that a trespasser is not liable in nuisance: Beaudesert
Shire Council v Smith (1966) 40 ALJR 211.
20
Southport Corporation v Esso Petroleum Co Ltd [1953] 2 All ER 1204, at 1207.
21
Sedleigh-DenWeld v O’Callaghan [1940] AC 880, at 897 per Lord Atkin. For further academic recognition of the
fact that ‘while nuisance generally requires that P suVer a land-related harm, it does not always insist that D be a
land occupier’, see G.T. Schwartz, ‘Rylands v Fletcher, Negligence and Strict Liability’ in P. Cane and J. Stapleton
(eds), Essays in Celebration of John Fleming (Oxford: Clarendon Press, 1998) 212, n 20.
The rule in Rylands v Fletcher was also historically a tort centred on land. Yet
by contrast with the law of private nuisance, the emphasis in that tort is placed
squarely upon the defendant’s land.22 There is no clearer exposition of this fact
than in Blackburn J’s famous rule itself. He was insistent that the rule operated
in respect of any person ‘who for his own purposes brings on his lands and collects
and keeps there anything likely to do mischief if it escapes’.23 The contrast
between the italicized words and the principles operative within the law of
nuisance could not be more apparent.24 And while it is true that the requirement
of land-ownership on the part of the defendant was slackened somewhat over the
years, English law never insisted that the claimant should be a landowner for the
purposes of the rule in Rylands v Fletcher.25 Equally, while it is true that it was
suggested obiter in the House of Lords in the Transco case that a claim under the
rule in Rylands v Fletcher must relate to an interest in land,26 this stands in stark
contrast to the words of Lord Buckmaster in Rainham Chemical Works Ltd v
Belvedere Fish Guano Co Ltd. According to the latter, ‘the familiar doctrine estab-
lished by the case of Fletcher v Rylands . . . depends upon . . . the use of land by one
person in an exceptional manner that causes damage to another, and not
necessarily an adjacent owner’.27 Indeed, in Rylands v Fletcher itself, the claimant
was the mere lessee of the aVected land and neither the owner nor the occupier
of the land.
22
Two Wrst instance judges have suggested obiter that D need not be in control of land or something aYxed to it.
In Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, at 996, Taylor J relying on a passage in the then
current edition of Clerk and Lindsell (but not existing authority) said he could see ‘no diVerence in principle
between allowing a man-eating tiger to escape from your land onto that of another and allowing it to escape from
the back of your wagon parked on the highway’. Potter J expressed a similar view in Crown River Cruises Ltd v
Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533. But surely such cases would be better served by the law of
negligence. In any event, the House of Lords has since emphasized the centrality of D’s land occupation: see
Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, at [9] and [52] per Lords Bingham and
Hobhouse respectively.
23
(1866) LR 1 Exch 265, at 279. See also Westhoughton Coal and Cannel Co Ltd v Wigan Coal Corp Ltd [1939]
Ch 800, at 810 per Goddard LJ. Judicial endorsement of the importance of the fact that the accumulation must
be for D’s ‘own purposes’ is plentiful: see, e.g. Humphries v Cousins (1877) 2 CPD 239; Whitmores (Edenbridge)
Ltd v Stanford [1909] 1 Ch 427; Read v J Lyons & Co Ltd [1947] AC 156, at 169–70; Dunne v North Western Gas
Board [1964] 2 QB 806; Boxes Ltd v British Waterways Board [1971] 2 Lloyd’s Rep 183. Cf. the unique and
seemingly confused dictum of Upjohn J in his Wrst instance decision in Smeaton v Ilford Corp [1954] Ch 450, at
459: ‘[i]n the judgment of Blackburn J in Fletcher v Rylands there was no great signiWcance in the phrase “for his
own purposes”; the judgment was directed to contrast what was naturally on the land with what was brought on
to it’.
24
[1921] 2 AC 465, at 480. The rationale for this rule can be traced to Rylands v Fletcher itself, for there,
Blackburn J said that, ‘[b]ut for [the defendant’s] act in bringing [the thing accumulated] there, no mischief could
have accrued, and it seems but just that he should at his peril keep it there’: (1866) 1 LR 1 Exch 265, at 280.
25
In Perry v Kendricks [1956] 1 All ER 154 the Court of Appeal was happy to assume that C, a non-landowning
infant, could mount an action on the basis of the rule in Rylands v Fletcher while in British Celanese Ltd v A H Hunt
(Capacitors) Ltd [1969] 2 All ER 1252, at 1257, Lawton J said: ‘In my judgment, the plaintiVs in this case would be
entitled to damages notwithstanding that the escape was onto the premises of the electricity board’. Further
support for the idea that the rule should cover personal injuries inXicted on a non-landowning C is implicit in
Simpson’s thesis that the rule in Rylands v Fletcher was largely a judicial response to a then contemporary problem
of dam-bursting disasters—two of which killed huge numbers of people: see A.W.B. Simpson ‘Legal Liability for
Bursting Reservoirs: the Historical Context of Rylands v Fletcher” (1984) 13 J Leg Studies 209, 219–31.
26
[2003] UKHL 61, at [8] per Lord Bingham.
27
[1921] 2 AC 465, at 471.
In short, we may conclude on this point that while historically both private
nuisance and the rule in Rylands v Fletcher centred on privately owned land,
there was a hugely diVerent emphasis within the two torts as to whose land was
important. The twin requirements under the rule in Rylands v Fletcher are that
the defendant should have both collected a harmful agent for his own purposes,
and that he should have done so on his own lands.28 Despite obiter dicta in Transco
to the contrary eVect, the rule has never formally required that the claimant
should have a proprietary interest. Indeed, to a large extent, the way in which
land formerly Wgured in both torts can be explained by reference to history. It
seems unsurprising that rights over land should have been so highly regarded
and well protected by the common law at the time when nuisance law began to
emerge,29 for this was an age when land ownership was so closely associated with
the franchise and social standing more generally. By contrast, the rule in Rylands
v Fletcher arose amid the height of the industrial revolution when, for the Wrst
time, great factories emerged providing just the kinds of factual scenario that
might give rise to liability according to the rule in Rylands v Fletcher.30 Industrialists
readily engaged in risky enterprises that posed new dangers not conWned to next-
door neighbours, and for which some appropriate rule of law was needed.
Blackburn J was certainly aware of the special problem posed by the new industrial
age. Counsel for the claimant speciWcally argued before him that acts done
on land, which are lawful in themselves but which pose threats to others ought to
give rise to liability for any consequent mischief. In making this claim he empha-
sized the point that: ‘[t]his will be peculiarly the case when the act done consists in
the construction and use of artiWcial works, for the purpose of collecting and impounding
in vast quantities an element which will certainly cause mischief if it escapes’.31
And as a we have already remarked, Blackburn J made reference to the
example of an alkali works prone to the escape of chlorine—in reality the facts of
St Helen’s Smelting Co v Tipping 32—no fewer than three times. Such modern
concerns, as they were at the time, were clearly at the forefront of his mind.33
28
Until the House of Lords decision in Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61,
cases such as Hale v Jennings Bros [1938] 1 All ER 579, Rigby v Chief Constable of Northamptonshire [1985] 2 All ER
985 and Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533 had cast some doubt upon the
stringency of this requirement.
29
The assize of nuisance did not suddenly appear but emerged gradually from the seeds of novel disseisin.
As Loengard explains, nuisance ‘[a]t the outset was a stepchild of the law. It was not often seen and when it
appeared it was clothed in what look like hand-me-downs from novel disseisin’: Loengard, above n 11, 158. See
also Ibbetson, above n 13, 98–106.
30
While Boland’s attempt in a three-part article to explain Rylands v Fletcher in terms of a straightforward conXict
of interests between industrialists and conservative land-owners (with which latter group the judges were identiWed)
probably fails, he was none the less correct to identify the importance of the new threats posed by the industrial age:
see F.H. Boland, ‘The Rule in Rylands v Fletcher’ (1911) 59 U Pa L Rev 298, 373, 423; cf. R.T. Molloy ‘Fletcher v
Rylands—A Re-examination of Juristic Origins’, U Chi L Rev 266 (1942).
31
(1866) LR 1 Exch 265, at 269–70 (italics supplied).
32
(1865) 11 HL Cas 642.
33
For the view that the case was a more speciWc response to the then recent problem associated with bursting
dams, see Simpson, above n 25. But note that the evidence upon which Simpson’s argument is founded has been
questioned as a suitable basis for his conclusions (see Schwartz, above n 21, 236–38): it is, after all, to the facts of
the St Helen’s case, not bursting dams, that Blackburn J made his several references, notwithstanding the interests
of industrialists of this latter kind that D’s counsel speciWcally drew to Blackburn J’s attention.
That they prompted a signiWcant turning point in the law has since been accepted
judicially. In Hunter, Lord HoVmann said: ‘St Helen’s Smelting Co v Tipping was
a landmark case. It drew the line beyond which rural and landed England did
not have to accept external costs imposed upon it by industrial pollution’.34
In short, the rule has always been capable of being clearly distinguished from the
law of nuisance. In so far as it is centred on an accumulation on the defendant’s
land rather than (as in private nuisance) a proprietary interest in the land
aVected by some form of interference for which the defendant can be said to be
responsible.
B. Non-Tangible Interferences
It is clear that from its inception the tort of private nuisance provided freeholders
with a remedy in cases of wrongful annoyance—or noysance, to use the Old
English.35 ‘The essence of nuisance was’ according to Newark, ‘a tort directed
against the enjoyment of rights over land’.36 It was not, unlike the rule in Rylands v
Fletcher, a tort speciWcally concerned with physical damage to land.37 This
distinction between the two torts received clear judicial recognition in Hurdman
v The North Eastern Railway Co,38 where Cotton LJ said of private nuisance:
‘every occupier is entitled to the reasonable enjoyment [of his land]’ and ‘it is
well established that an occupier of land may protect himself by action against
any one who allows Wlth or any other noxious thing produced by him to interfere
with this enjoyment’.39 Emphasizing, the diVerent and additional protection
aVorded by the rule in Rylands v Fletcher, he then added:
We are further of the opinion that . . . if any one by artiWcial erection on his land causes
water, even though arising from natural rain-fall only, to pass into his neighbour’s land,
and thus substantially to interfere . . . he will be liable to an action at the suit of him
who is so injured . . . [subject to the condition that] no action can be maintained if
[physical damage] is the result of the natural user by a neighbour of his land . . . That
this is the principle [derives] from what is said by the Lord Chancellor in Fletcher v
Rylands.40
It is true that considerable change occurred within the law of nuisance so that it
became possible for remedies to be obtained in that tort in respect of physical
damage to land.41 Yet, whether this occurrence was at loggerheads with juridical
orthodoxy is not of central importance here. The matter has been dealt with by a
34
[1997] AC 655, at 705.
35
See Ibbetson, above n 13, 101.
36
Newark, above n 5, 482
37
See Gearty, above n 1.
38
(1878) 3 CPD 168.
39
Ibid at 173.
40
Ibid (italics supplied).
41
There are a sizeable number of reported cases premised upon a failure to support land—and thus generally
involving physical damage to property—which bear out this point.
number of scholars elsewhere,42 and in any event Lord GoV has more recently
gone some way to reconciling this development with the historical foundations
of nuisance law by insisting in the House of Lords that a nuisance is essentially
only an interference with the amenity of land (albeit one that may sometimes be
identiWed in physical damage to the land).43
As regards the rule in Rylands v Fletcher, there appears to be only one case in
which it has been suggested that an annoyance not involving the escape of a
tangible element might fall within the rule—the Wrst instance decision in Hoare
& Co v McAlpine.44 There, the claimants’ action was founded on the defendants’
pile-driving operations that had generated such heavy vibrations as to cause serious
structural damage to an old hotel belonging to the claimants with the result that
much of the building had to be taken down in compliance with a dangerous
structure notice. In a meandering judgment that Xits in the space of just a few
paragraphs between considerations not only of the rule in Rylands v Fletcher but
also nuisance and trespass, Astbury J concluded less than deWnitively: ‘[i]n my
judgment Rylands v Fletcher applies in this case, though I do not wish to be
understood as indicating that the law as to legal nuisance may not also be applic-
able’.45 In his summing up, he was also rather vague. He said no more than that
‘the plaintiVs are entitled to succeed. There will be a declaration that they have
respectively suVered damage by reason of the defendants’ operations complained
of for which the latter are liable in law, and in respect of which they are liable in
damages’.46 Unimpressed by this decision, the Ontario High Court of Justice
doubted its correctness and declined to follow it in the factually similar case of
Barrette v Franki Compressed Pile.47
In summary, then, we can conclude that the original view—and the view that
seems to be resurfacing—is that the rule in Rylands v Fletcher should properly be
conWned to physical harm caused by one-oV escapes while nuisance should be
conWned to ongoing interferences with amenities associated with land.48 What
42
For a wealth of examples, staunch criticism and the contention that the cases cited ought properly to sound in
negligence, see Gearty, above n 1. For an early view that physical damage had nothing to do with nuisance, see
Newark, above n 5, 481–82.
43
Hunter v Canary Wharf Ltd [1997] AC 655, at 688: ‘[t]he tort of nuisance is a tort directed against the plain-
tiV’s enjoyment of his rights over land’. On the other hand, by a certain measure of judicial prestidigitation, Lord
HoVmann admitted actions based on personal injuries to the person with the proprietary interest via the back door.
He said (ibid, at 706), making the matter of personal injuries one of emphasis: ‘the injury to the amenity of the land
consists in the fact that persons on it are liable to suVer inconvenience, annoyance or illness’ (italics supplied). But
for critique, see K. Oliphant ‘Un-blurring the Boundaries of Nuisance” (1998) 6 Tort L Rev 21.
44
[1923] 1 Ch 167.
45
Ibid at 175.
46
Ibid at 176.
47
[1955] 2 DLR 665.
48
In those nuisance cases in which liability has been imposed for one-oV interferences (see n 76 below) the
courts have insisted that D’s nuisance liability was contingent upon him maintaining a dangerous state of aVairs on
his land. In essence, this requires that D should have been negligent in the maintenance of his land. It thus renders
nuisance law otiose since nuisance in such cases will only supply a remedy where one would in any event be available
in negligence. And an absence of negligence on D’s part in the maintenance of his land would be fatal to any action
in nuisance. Furthermore, an injunction—a remedy closely associated with nuisance but not negligence—would
clearly be of no use in such cases.
this also begs, however, is the further question of which kinds of physical harm
are covered by the rule in Rylands v Fletcher. Does it cover all forms of tangible
harm, and thus include personal injuries and damage to chattels, or does it
simply aVord a remedy in respect of damage to real property? If the answer is
that it covers all forms of physical harm, then the demarcation between Rylands
v Fletcher and nuisance liability becomes still more pronounced.
C. Physical Harm
While instances of physical damage to land undoubtedly crept within the pur-
view of nuisance law long after its emergence as a discrete tort in the middle
ages,49 the decision of the House of Lords in Hunter went a long way to explaining
this occurrence and reconciling it with juridical orthodoxy. This point was made
without much elaboration earlier, and thus requires further explanation here. In
line with Newark’s observations that ‘[i]n true cases of nuisance the interest of the
plaintiV which is invaded is not the interest of bodily security but the interest of
liberty to exercise rights over land in the amplest manner’ and that ‘[a] sulphurous
chimney in a residential area is not a nuisance because it makes householders
cough and splutter but because it prevents them taking their ease in their garden’,50
Lord GoV remarked:
although, in the past, damages for personal injury have been recovered at least in
actions of public nuisance, there is now developing a school of thought that the appro-
priate remedy for such claims as these should lie in our now fully developed law of
negligence, and that personal injury claims should be altogether excluded from the
domain of nuisance . . . Furthermore, it is now being suggested that claims in respect of
physical damage to the land should also be excluded from private nuisance.51
In similar vein, Lord HoVmann dismissed the idea that nuisance law provided
a remedy for personal injury per se. He said: ‘[i]n the case of nuisances “produc-
tive of sensible personal discomfort”, the action is not for causing discomfort
to the person . . . [but] for causing injury to the land’. He then added: ‘[t]rue it
is that the land has not suVered “sensible” injury, but its utility has been
diminished . . . [and] it is for the diminution in such utility that he is entitled to
compensation’.52 It followed from this that the claimant must have a proprietary
interest in the land in such cases, for without such an interest, the personal
injury suVered could not be characterized in terms of a diminution in the amenity
value of the land. It also therefore followed, he averred, that in respect of claims
49
Certainly, the decision of the House of Lords in the St Helen’s case would appear to have set up physical
damage to land as a sub-species of nuisance (negligence was treated as totally irrelevant). But note that the locality
in which the parties are situated—a factor normally considered material in applying the usual give-and-take
principle in nuisance—is of no moment in such circumstances. Accordingly, if physical harm cases are truly
instances of nuisance, they are at best odd or special ones.
50
51
Hunter v Canary Wharf Ltd [1997] AC 655, at 692.
52
Ibid at 707.
for personal injury in the absence of any such link with the land on the part of
the claimant, ‘the only appropriate cause of action is negligence’.53 In short, he
could ‘see no logic in making an exception for cases in which the discomfort or
distress was suVered at home rather than somewhere else’.54
By contrast, the rule in Rylands v Fletcher is not historically restricted to founding
actions based on interferences with rights in or over land. Blackburn J’s dictum
was certainly couched in terms wide enough to cover all kinds of loss, and it can
hardly be denied, given the facts of the case, that the rule was intended to cover
physical damage to land. It can similarly be scarcely doubted that his Lordship
intended it to cover damage to chattels, for he himself later allowed a claim
based on this tort for harm caused to a haystack,55 while other cases also
followed suit.56 The more contentious point is whether the rule in Rylands v
Fletcher could be invoked to provide a remedy in cases involving personal injuries.
Such injuries per se, as we have seen, are most certainly not within the domain
of private nuisance. Thus, if it can be shown that the rule in Rylands v Fletcher is
not (or ought not to be) similarly restricted, it will be apparent that another tell-
ing distinction between the two torts has been exposed.
According to Blackburn J’s famous dictum, the person collecting the ‘dangerous’
thing ‘must keep it in at his peril’, for he will be ‘answerable for all the damage
which is the natural consequence of its escape’.57 While of course this does not
explicitly include personal injuries within the rule, nor does it rule them out.
Furthermore, only a few sentences later in his judgment, he drew a portentous
analogy with the liability imposed for escaping livestock. He said: ‘if the owner
knows that the beast has a vicious propensity to attack man, he will be answerable
for that too’.58 As such, it could certainly be argued that he envisaged that
personal injuries should fall within the rule. If not, why draw an analogy with a
case involving personal injury? This was certainly the understanding of the Privy
Council at the turn of the 20th century. For as Lord Robertson put it in Eastern &
South African Telegraph Co v Cape Town Tramways, ‘in the present case neither
person nor property was injured’ hence, ‘there is here no injury of the same genus
or species with the tangible and sensible injuries which have hitherto founded liability
on the principle in question’.59 A considerable number of other cases also support
the idea that personal injuries fall within the rule.60
53
Ibid at 707.
54
Ibid at 707–08.
55
Jones v Festiniog Railway Co (1868) LR 3 QB 733. See also Cattle v Stockton Waterworks Co (1875) L R 10 QB
453, at 457 where he also envisaged that the rule would cover damage to workmen’s clothes and tools.
56
Midwood & Co Ltd v Manchester Corporation [1905] 2 KB 597; Musgrove v Pandelis [1919] 2 KB 43; Collingwood
v Home and Colonial Stores Ltd [1936] 3 All ER 200.
57
(1866) LR 1 Exch 265, at 279.
58
Ibid at 280.
59
See [1902] AC 381, at 391 (emphasis added).
60
See Hoare & Co v McAlpine [1923] 1 Ch 167, at 174 (‘Rylands v Fletcher applies to all physical and tangible
damage to person or property’, per Astbury J); Perry v Kendricks Transport Ltd [1956] 1 All ER 154, at 157
(‘I assume for this purpose that an action for damages for personal injuries will lie in such a case’, per Singleton LJ);
Hale v Jennings [1938] 1 All ER 579; British Celanese Ltd v A H Hunt Capacitors Ltd [1969] 2 All ER 1252. See also
the Australian case of Benning v Wong (1969) 43 ALJR 467.
By contrast, various members of the House of Lords have on two occasions

cast serious doubt upon the recoverability of damages for personal injuries
within the rule in Rylands v Fletcher. More speciWcally, these doubts are to be
found in the obiter dicta of three of their Lordships in Read v J Lyons & Co
Ltd,61 and in the opinions of two of their Lordships in the Transco case (again
obiter).62 Of course, the fact that various Law Lords have on two separate occa-
sions expressed misgivings about the recoverability of personal injuries under the
rule in Rylands v Fletcher casts a very signiWcant measure of doubt over the like-
lihood of their ever being recovered again. But what must be borne in mind
before such an assertion can be made with absolute conWdence are the highly
questionable premises upon which this doubt has most recently been based. In
Transco plc v Stockport Metropolitan Borough Council, Lord HoVmann thought
that since Cambridge Water ‘decided that Rylands v Fletcher is a special form of
nuisance’63 and that since Hunter v Canary Wharf Ltd ‘decided that nuisance is
a tort against land’64 it naturally followed that the rule in Rylands v Fletcher is
also a tort against land alone. But if the distinctions drawn earlier between
nuisance and the rule in Rylands v Fletcher are thought compelling, and if it is
consequently believed that nuisance and the rule in Rylands v Fletcher should
indeed be kept apart, then perhaps a brave judge (or appellate court) will have
the courage of their convictions and proceed in a manner akin to that of Parker
LJ in Perry v Kendricks Transport Ltd (where personal injuries were directly in
point):
[i]t is true that in Read v Lyons & Co Ltd, Lord Macmillan, Lord Porter and Lord
Simonds all doubted whether the rule extended to cover personal injuries, but the Wnal
decision in the matter was expressly left over and, as the matter stands at present,
I think we are bound to hold that the defendants are liable [in respect of the personal
injury suVered] in this case.65
Not only does the preponderance of authority indicate the recoverability of dam-
ages for personal injury under the rule in Rylands v Fletcher, it also sits happily
beside the point made earlier that, in Rylands v Fletcher cases, the claimant need
not have a proprietary interest since the only critical land in that tort is that
belonging to the defendant. Indeed, once the fallacy that the claimant must also
be a land-owner has been stripped away, it is clear, if the pun be forgiven, that
any objections to recovery for personal injuries under the rule have very little to
ground them.
61
[1947] AC 156, at 170–71, 178 and 180–81 per Lords Macmillan, Porter and Simonds respectively. But note
also Ward LJ’s steadfast refusal to come to any Wrm conclusion on the matter in Ribee v Norrie [2001] PIQR P8, at
[30].
62
[2003] UKHL 61, at [9] and [35] per Lords Bingham and HoVmann.
63
Ibid at [35].
64
Ibid.
65
[1956] 1 All ER 154, at 160–61 per Parker LJ.
D. Reasonable User and Non-Natural Use of Land
One of the most important judicial statements concerning the relationship between,
and the nature of, liability in nuisance and under the rule in Rylands v Fletcher is
that of Lord GoV in Cambridge Water Co Ltd v Eastern Counties Leather plc.66
Since the other four Law Lords agreed with him without supplying any full speeches
of their own, his dictum must be taken to represent the view of a unanimous
House of Lords in that case. In the course of his judgment, he pointed out that
nuisance liability had ‘been kept under control by the principle of reasonable
user’.67 He later remarked upon its similarity with the principle of non-natural
use in Rylands v Fletcher cases.68 As such, the ‘reasonable user’ test in nuisance
clearly calls for comparison with the ‘non-natural use of land’ test that the
House of Lords speciWcally inserted into the original rule in Rylands v Fletcher as
promulgated by Blackburn J.69 And the argument that will be made here is that
the two notions, though ostensibly linked, are in reality quite diVerent creatures.
Taking reasonable users Wrst, it is well established that a reasonable user of
land is not to be confused with reasonable care. The former concept relates to a
question of give-and-take between neighbours, while the latter relates to the
degree of care demanded by a given risk. There is a subjective element within
the concept of reasonable user: it determines what disturbances and interferences
this defendant may, in the particular circumstances of the case, legitimately and
without liability, inXict upon this claimant. It is, in short, a control mechanism
ultimately concerned with competing uses of land between neighbours who are
in close proximity. As Lord Hobhouse put it in the Transco case, ‘[i]t obviously is
of relevance where one or more tenants or freeholders are occupying a single
building or where neighbours are living in close proximity with each other in an
urban environment’.70
Being intricately bound up with the normal ‘give and take, live and let live’71 of
neighbouring landowners, the reasonable user test may be contrasted sharply with
the ‘non-natural use of land’ requirement under the rule in Rylands v Fletcher. The
latter has never been invoked to determine the respective land-use rights and
responsibilities of neighbours.72 And while the notion of non-natural use has never
been an especially transparent one, it has always been tolerably clear (in accordance
with logic), that the category of ‘non-natural use’ is necessarily broader than that of
‘unreasonable user’. As the House of Lords has recognized, a user of land may well
66
[1994] AC 264.
67
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] AC 264, at 299: ‘for present purposes . . . I should
draw attention to a similarity of function’.
68
Ibid.
69
(1868) LR 3 HL 330, at 337–40, per Lord Cairns.
70
Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, at [61].
71
Bamford v Turnley (1862) LR 3 B & S 62, at 84 per Bramwell B. See also, e.g. Andrae v Selfridge & Co Ltd
[1938] Ch 1 and Wildtree Hotels Ltd v Harrow LB [2001] 2 AC 1.
72
See F.H. Newark ‘Non-natural User and Rylands v Fletcher’ (1961) 24 MLR 557; A. Goodhart ‘Liability for
Things Naturally on the Land’ [1932] CLJ 13; G. Williams ‘Non-Natural Use of Land’ [1973] CLJ 310; T. Weir
‘Rylands v Fletcher Reconsidered’ [1994] CLJ 216.
be unnatural in the sense of being artiWcial without being unreasonable. This dis-
tinction is evident in the speech of Lord Bingham in the Transco case. After noting
that ‘the rule in Rylands v Fletcher is engaged only where the defendant’s use is
shown to be extraordinary or unusual’ he went on to distinguish a reasonable user,
‘since [such] a user may well be quite out of the ordinary but not unreasonable’.73
In the light of these observations, it seems appropriate to draw two conclu-
sions in this context. First, the supposedly related tests based on ‘unreasonable
user’ and ‘non-natural use’ serve quite diVerent functions within their respective
torts. Second, the two tests are in any event notionally distinct; and this is so
notwithstanding the proclamations of Lord GoV and others to the contrary.74
3. Can We Do Without Rylands V Fletcher?

There are two main ways in which the rule in Rylands v Fletcher could be
absorbed by alternative branches of the common law. The Wrst of these would
involve its being subsumed within the law of private nuisance. The second
would involve its absorption by its much younger cousin, the law of negligence.
Each is considered in turn.75
A. Subsuming Rylands within Nuisance

University tort exams frequently contain problems that raise mixed issues of
Rylands v Fletcher and private nuisance. Some of the better students recognize that
many of the decided cases contained alternative submissions as to an appropriate
basis of liability: either nuisance or the rule in Rylands v Fletcher. They then
proceed to consider both options. The point for present purposes, of course, is
that what the students do, and what the claimants in the case-law have done, is
to suppose that notwithstanding the juridical distinctions between the two torts,
they nonetheless serve a suYcient similarity of function for there to be a very
considerable overlap between their respective domains. For sure, there are cases
decided in nuisance that have imposed liability for isolated escapes, and others
that supply obiter conWrmation of this approach.76 Similarly, and as we have
73
Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, at [11].
74
‘It is not necessary for me to identify precise diVerences which may be drawn between this principle [of natural
use] and the principle of reasonable user as applied in the law of nuisance. It is enough for present purposes that
I should draw attention to a similarity of function’: ibid, at 299, per Lord GoV. See also Ellison v Ministry of Defence
(1996) 81 BLR 101 and Graham and Graham v ReChem International Ltd [1996] Env LR 158 (suggesting that they
are virtually interchangeable concepts).
75
The rule could also, conceivably be replaced by a statute; and this was suggested over a quarter of a century
ago: see Royal Commission on Civil Liability and Compensation for Personal Injury (Cmnd 7054, Vol I, Ch 31).
For a further (even older) objection to the common law rule, see Law Commission, Civil Liability for Dangerous
Things (Law Com No 32, 1970), para 20.
76
Midwood & Co Ltd v Manchester Corporation [1905] 2 KB 597; Spicer v Smee [1946] 1 All ER 489; Stone v Bolton
[1949] 2 All ER 851; British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 2 All ER 1252; Crown River Cruises
Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533. Cf. the earlier decisions in Vaughan v Menlove (1837) 3
Bing NC 468 and Black v The Christchurch Finance Co [1894] AC 48 and the obiter dicta of Martin B in the Court
of Exchequer in Fletcher v Rylands (1865) 3 H & C 774, at 796.
already observed, there are also nuisance cases recognizing the actionability of
both damage to real property77 and damage to chattels.78 As such, it might well
be asked whether the rule in Rylands v Fletcher, popularly (but questionably)
believed to be derived from the law of nuisance, ought now to be subsumed
within that now much expanded branch of the law and whether the Rylands rule
ought simultaneously to abandoned as a discrete tort.
There are certainly recent judicial statements predicated on the understanding
that the two torts seem to be merging. One New Zealand judge has perhaps rashly
remarked (albeit extra-judicially) that ‘[t]here will never be a case where a plaintiV
will succeed in Rylands v Fletcher without also succeeding in nuisance’.79 Some-
what more conservatively, and closer to home, Lord GoV said in the Cambridge
Water case that ‘[i]t would . . . lead to a more coherent body of common law prin-
ciple if the rule [in Rylands v Fletcher] were to be regarded essentially as an exten-
sion of the law of nuisance’.80 And in the light of this remark Neuberger J further
suggested that the reasoning of the House of Lords in the Cambridge Water case
‘leads to the conclusion that, in order for a claim to be brought in Rylands v
Fletcher, the claimant must have an interest in the land which would be suYcient
to justify him bringing a claim in nuisance’.81 This view has since been speciWcally
endorsed, obiter, by two of their Lordships in the Transco case.82 Yet, notwith-
standing any superWcial attractiveness that might be thought to inhere in these
judicial proclamations, there are at least two reasons why the rule in Rylands v
Fletcher should continue to remain separate from private nuisance.
The Wrst of these reasons is that the already intellectually impoverished law of
nuisance would be still further juridically undermined if the torts were fused, just
when there were signs (in Lord GoV’s speech in Hunter) that orthodoxy may be
about to return. Of course, such an argument resonates most obviously at the
level of legal theory. Yet the desire to maintain the separation of nuisance from
Rylands is not simply, as Megaw LJ once put it, ‘a regrettable modern instance
the forms of action successfully clanking their spectral chains’.83 There is, in
77
See, e.g. St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; Broder v Saillard (1876) 2 Ch D 692;
Hurdman v North Eastern Rly Co (1878) 3 CPD 168; Manchester Corporation v Farnworth [1930] AC 171; Wringe v
Cohen [1940] 1 KB 229; Sedleigh-DenWeld v O’Callaghan [1940] AC 880; Masters v Brent London Borough Council
[1978] QB 841; Hunter v Canary Wharf Ltd [1997] AC 695 (obiter, and subject to the proviso that the property
damage must be characterized in terms of amenity damage).
78
Midwood & Co Ltd v Manchester Corporation [1905] 2 KB 597; Moss v Christchurch Rural District Council [1925]
2 KB 750; Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683; British Celanese Ltd v A H Hunt (Capacitors) Ltd
[1969] 2 All ER 1252; Howard Electric Ltd v A J Mooney Ltd [1974] 2 NZLR 762; Hunter v Canary Wharf Ltd [1997]
AC 695 (obiter, and subject to the proviso that the chattel damage be characterized in terms of amenity damage).
79
Justice Chambers, ‘Negligence, Nuisance and Rylands v Fletcher: The Struggle for Simplicity Continues’
www.nzila.org/annualconf/docs/auckland, 2. He later said (at 7) that there is no point in having separate causes of
action pleading independently Rylands v Fletcher and nuisance.
80
[1994] 2 AC 264, at 306.
81
See McKenna v British Aluminium Ltd [2002] Env LR 30, at [21]. See also per the Court of Appeal Marcic v
Thames Water Utilities Ltd [2002] QB 929, at 950 (point not considered on appeal: [2004] 1 All ER 135).
82
Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, at [9] and [35] per Lords Bingham and
HoVmann.
83
Leakey v National Trust for Places of Historic Interest of Natural Beauty [1980] QB 485, at 514. For further arguments
defending the formulaic approach to torts, see J. Murphy, ‘Formularism and Tort Law’ [1999] Adelaide L Rev 115.
fact, a signiWcant practical reason why each tort should be conWned to its own
appointed sphere of operation. This reason stems from the point made earlier
that the two torts were born at diVerent times and were designed to serve mark-
edly diVerent purposes. Thus, while the rule in Rylands v Fletcher should quite
properly aVord a remedy in respect of personal injuries and damage to chattels,
the same cannot be said of nuisance law (at least not in the light of the prevalent
judicial conception of it as a tort to land84). Recall Lord GoV’s words in Hunter v
Canary Wharf Ltd in relation to extending the boundaries of nuisance to cover
interests other than rights in connection with land:
the extension of the tort in this way would transform it from a tort to land into a tort to
the person, in which damages could be recovered in respect of something less serious
than personal injury [and hence irrecoverable in negligence] . . . [with] criteria for
liability . . . founded not upon negligence but upon striking a balance between the interests
of neighbours in the use of their land. This is, in my opinion, not an acceptable way in
which to develop the law.85
And as Oliphant has remarked in connection with one arguably wayward speech
in Hunter:
Lord HoVmann’s willingness to countenance claims for consequential damage to
chattels threatens to blur the House of Lords’ vision of nuisance as a tort against
land. While the award of damages in respect of proWts lost as a result of the nuisance
can be justiWed on the basis that it serves merely to quantify in pecuniary terms the
injury done to the plaintiV’s interest in the land (which encompasses the right to
exploit the land for proWt), the award of damages for consequential injury to the
plaintiV’s chattels (or person) protects interests which are quite distinct from the
interest in land.86
The second reason why nuisance and the rule in Rylands v Fletcher should be
kept apart rests upon the idea that it is perfectly appropriate that there should be
a form of strict liability that operates in isolation from a principle of reasonable
give-and-take between neighbours. There is much to be said for the civilian
abuse of right principle which, were it part of the English law, might serve to place
helpful constraints on the operation of industrial enterprises sometimes laxly
granted licenses to operate by the Environment Agency or simply not adequately
84
Two further practical ramiWcations of juridical uncertainty are Wrst, that it can have a detrimental eVect on the
insurance market for those who run large industrial plants, and second that it tends to spawn proliWc litigation.
Where the rules are well-settled and clear, insurance premiums can be calculated with comparative ease and
without the need for special caution on the part of insurers. Similarly, in such circumstances there is relatively little
need to litigate. A trawl of the law reports, however, reveals a steady if not sizeable number of cases that are still
being pursued (at least at Wrst instance) on the alternative grounds of nuisance and the rule in Rylands v Fletcher.
85
[1997] AC 655, at 693. For subsequent recognition that nuisance as currently understood is a tort to land, see
Anglian Water Services Ltd v Crawshaw Robbins & Co Ltd [2001] BLR 173, at [138] per Stanley Brunton J and
McKenna v British Aluminium Ltd [2002] Env LR 30, at [49] per Neuberger J. See also the New Zealand case of
Langdon v Bailey (2000), unreported (but discussed in Chambers, above n 79).
86
Oliphant, above n 43, 28.
policed by the same. But this principle is not currently operative in this country.87
In its absence, there is a good deal to commend the contention that whoever
undertakes or authorizes potentially injurious activities should be strictly liable
for any ensuing mishaps.88 On one interpretation,89 it is precisely this principle
that grounds the imposition of vicarious liability, a very common form of strict
liability. In much the same way that an employer stands to gain from the work
undertaken by his employees and must therefore make good the losses they
inXict on others in the course of their employment, so too might it be argued
that the factory owner with deep pockets who stands to proWt from his industrial
enterprise should also be strictly liable for any mishaps occasioned by the escape
of any dangerous element stored there. And while this argument can be applied
with ease to a commercial industrial enterprise—just as it applies, mutatis
mutandis, to commercial producers of defective consumer products90—it does
not lend itself at all well to a private house-dwelling neighbour: a very common
defendant in nuisance cases.91
B. Subsuming Rylands within Negligence

Beyond its particular residual utility as a mechanism for securing environmental
protection,92 there are a number of other reasons why those seeking to establish
liability in classic Rylands circumstances may require that that the tort be kept
apart from the law of negligence. In the Wrst place, to allow the rule in Rylands v
Fletcher to be swallowed up by the law of negligence would mean that in some
87
The closest English law gets in this context is the decisions in Christie v Davey [1893] 1 Ch 316, Hollywood Silver
Fox Farm Ltd v Emmett [1936] 2 KB 468 and the obiter dictum in the dissenting speech of Lord Cooke in Hunter v
Canary Wharf Ltd [1997] AC 655. But contrast the House of Lords decision in Bradford Corporation v Pickles
[1895] AC 587. For academic discussion of the abuse of right principle, see M. Taggart, Private Property and Abuse
of Rights in Victorian England: The Story of Edward Pickles and the Bradford Water Supply (Oxford: Oxford University
Press, 2002).
88
There is nothing especially novel about strict liability torts, even if the usual tort requirement is the proof of
D’s fault. Liability is also strict, for example, in respect of the production of defective consumer products, ‘dangerous’
animals, the escape of Wre and the vicarious liability of employers. Indeed, strict liability was the norm in English
tort law from at least the 14th century until the 17th century: see Ibbetson, above n 13, 58–63; M.S. Arnold,
‘Accident, Mistake and the Rules of Liability in the Fourteenth Century Law of Torts’, 128 U Penn LR 361 (1979).
For a sustained elaboration of the idea that strict liability is far from anomalous or peculiar in the modern law of
torts, see S. Waddams, Dimensions of Private Law—Categories and Concepts in Anglo-American Legal Reasoning
(Cambridge: Cambridge University Press, 2003) ch 5, esp pp 95–100. Cf. K. Stanton, ‘The Legacy of Rylands v
Fletcher’ in N.J. Mullany and A.M. Linden (eds), Torts Tomorrow: A Tribute to John Fleming (Sydney: Law Book
Company Ltd, 1998) 84, at 101 who views strict liability within tort as an ‘unintelligible morass when compared to
the grand simplicities of negligence’. But note the fact that there have been somewhere in the region of 20 to 30
(negligence) duty of care cases heard by the House of Lords in the last 20 years or so. The confusion associated
with, and engendered by, them speak very little of ‘grand simplicities’.
89
For an interesting discussion of three distinct theoretical foundations of strict liability (including the present
one), see P. Cane, The Anatomy of Tort Law (Oxford: Hart Publishing, 1997) 45–49.
90
Consumer Protection Act 1987, Pt I. The same principle applies to defective products across Europe (European
Community Directive of 12 July 1985 (1985/374/EEC)). For further examples of this principle in operation, see
S. Waddams, above n 88, ch 5.
91
Judicial recognition of the morality of this principle was captured succinctly by Lord Hobhouse in Transco plc v
Stockport Metropolitan Borough Council [2003] UKHL 61 when he said (at [60]): ‘he who creates the risk must bear
the risk’.
92
See J. Murphy, ‘Noxious Emissions and Common Law Liability—Tort in the Shadow of Regulation’ in
J. Lowry and R. Edmunds (eds), Environmental Protection and the Common Law (Oxford: Hart Publishing, 2000).
cases claimants would face insurmountable evidentiary burdens,93 burdens,

indeed, that may be thought inappropriate as a matter of policy and justice.94
If we assume, not unreasonably, that large factories and other industrial enter-
prises are the most likely sources of escapes that would be caught by the Rylands
v Fletcher principle,95 it is highly improbable that a relatively impecunious claimant
would be able to establish the necessary lack of reasonable care for the purposes of
a negligence action . On the one hand, the factory owner may well respond to any
threat of potential litigation in fairly recondite terms like ‘The factory complies
with BATNEEC principles, how can it possibly be acting unreasonably?’.96 This
may well be perceived as a suYciently oV-putting, esoteric contention on the
defendant’s part to dissuade the claimant from advancing the far from straight-
forward normative argument that BATNEEC compliance should not amount to
a defence in a negligence suit. Alternatively, the defendant may simply challenge
the claimant to establish his lack of reasonable care according to ordinary negli-
gence principles.97 But this would, on ordinary analysis, be an almost impossible
task in relation to the activities of a specialist industrial enterprise.
Both responses would be likely to appear daunting and unmanageable to a
relative man of straw. As such, it can be seen that the rule in Rylands v Fletcher pro-
vides a viable option for redress where a necessarily fault-based law of negligence
would not.98 Equally, given that many factories—even carefully run ones—tend
93
Liability under the rule in Rylands v Fletcher has certainly been imposed in cases where negligence could not be
proved: see, e.g. Humphries v Cousins (1877) 2 CPD 239 and Snow v Whitehead (1884) Ch D 588. It is true that in
many instances it might be possible to apply the res ipsa loquitur principle to Rylands-type cases (see M.F. Grady,
‘Res Ipsa Loquitur and Compliance Error’, 142 U Pa L Rev 887 (1994)), but that principle only raises a rebuttable
presumption of fault and does not reverse the burden of proof. As such it does not guarantee that C will ultimately
avoid the problem of, what is for him, an impossible evidentiary burden.
94
For an example of a signiWcant judicial recognition of the need to do practical justice in cases in which C faces
evidentiary uncertainty, see Fairchild v Glenhaven Funeral Services Ltd [2002] 3 All ER 305, at [39] per Lord
Nicholls. Note also that the res ipsa loquitur principle is founded on similar concerns. For further comparative exam-
ples of the courts seeking to do justice to C in spite of the evidential diYculties he faces, see A. Porat and A. Stein,
Tort Liability Under Uncertainty (Oxford: Oxford University Press, 2001).
95
In Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, the House of Lords stressed the
special hazards necessary to substantiate the non-natural use of land requirement and recognized that such hazards
were seldom to be equated with accumulations at private dwellings. Furthermore, while it is true that there was
once a sizeable amount of litigation based on domestic water supplies leaking—see Carstairs v Taylor (1868) LR 3
QB 733; Ross v Fedden (1872) LR 7 QB 661; Anderson v Oppenheimer (1880) 5 QBD 602; Blake v Land & House
Property Corporation Ltd (1887) 3 TLR 667; Blake v Woolf [1898] 2 QB 426; Rickards v Lothian [1913] 263—the
Xow of cases involving this kind of problem, as the list indicates, more or less dried up by early the 20th century.
96
Under s 7 of the Environmental Protection Act 1990, authorizations to undertake various industrial processes
will frequently impose a duty to prevent or reduce emissions by employing the best available techniques not entailing
excessive cost (BATNEEC). For a suggested legal interpretation of this phrase, and for discussion of other condi-
tions that might be imposed under the Act, see M. Purdue, ‘Integrated Pollution Control in the Environmental
Protection Act 1990: A Coming of Age of Environmental Law?’ (1991) 54 MLR 534, 540–45.
97
See, e.g. Ilford Urban District Council v Beale and Judd [1925] 1 KB 671 in which the source of the harm was
not discoverable by reasonable care, hence there could not have been an actionable negligent breach of duty.
98
There is no particular reason to suppose that the res ipsa loquitur principle would be of much use here. Even if
it applied, and even if demonstration of BATNEEC compliance did not amount to a defence for D, it would none
the less be enough to force C to have to prove negligence; for res ipsa does no more than raise a rebuttable presump-
tion of negligence (see Ng Chun Pui v Lee Chuen Tat [1988] RTR 298), and BATNEEC compliance would almost
certainly suYce to rebut the presumption.
to cause pollution, the fact that there is a tort of strict liability99 available to indi-
vidual citizens who suVer the eVects of harmful escapes or emissions means that
a useful residuary mechanism100 for ensuring environmental protection exists.101
As Lord Cooke said in Hunter:
My Lords, the lineaments of the law of nuisance were established before the age of . . . a
‘crowded island’, and a heightened public consciousness of the need to protect the
environment. All these are now among the factors falling to be taken into account in
evolving the law.102
By themselves, these are very strong reasons for rejecting a merger of the rule in
Rylands v Fletcher with the common law of negligence. Yet we cannot aVord to
be so dismissive. Strong though the above reasons are in terms of rejecting the
absorption of the Rylands rule within the law of negligence, they do not begin to
meet the several objections to its retention identiWed by the High Court of
Australia in the landmark case of Burnie Port Authority v General Jones Pty Ltd.103
There, of course, tortious liability founded upon the rule in Rylands v Fletcher
was formally abandoned in favour of it being subsumed within the law of negli-
gence. In essence, the various criticisms voiced were reducible to the simple
proposition that the rule in Rylands v Fletcher had so dreadfully lost its way that it
ought decently to be conWned to the graveyard of legal history. It should be
replaced, so the majority thought, by a non-delegable duty in negligence owed
by those in control of premises.104 It is worth setting out at length just what was
said in that case.
Notwithstanding the many accolades which have been, and continue to be, lavished on
Blackburn J’s judgment that brief exposition of ‘the true rule of law’ is largely bereft of
current authority or validity if it be viewed, as it ordinarily is, as a statement of a
comprehensive rule. Indeed, it has been all but obliterated by subsequent judicial
explanations and qualiWcations. Thus, the phrase ‘for his own purposes’ has been
99
Liability under the rule in Rylands v Fletcher is not perfectly strict. In Cambridge Water Co Ltd v Eastern Counties
Leather Plc [1994] AC 264, at 304 per Lord GoV it was made clear that foreseeability of harm was a precondition of
liability. And as Eekelaar has pointed out, ‘if liability is dependent upon establishing that the defendant was, or
should have been, aware of the likelihood of the events complained of, then we are outside strict liability’: J. Eekelaar,
‘Nuisance and Strict Liability’ (1973) 8 Irish Jurist 191, 192.
100
Notably, the Environment Agency is not always very eVective at imposing legislative standards. This
argument and other related arguments are made at length in Murphy, above n 92.
101
But note the worrying conclusion of Schiemann LJ in the Court of Appeal in British Gas Plc v Stockport
Metropolitan Borough Council [2001] Env LR 44, at [34], that ‘strict liability does not arise where the
defendant . . . is acting reasonably’.
102
[1997] AC 655, at 711.
103
(1994) 179 CLR 520. For commentary on the case, see J. Swanton, ‘Another Conquest in the Imperial
Expansion of the Law of Negligence: Burnie Port Authority v General Jones Pty Ltd’ (1994) 2 Torts LJ 101.
104
Ibid at 551. This was seen as having the advantage that it would cover C where he or she was injured while on
D’s premises. But there is an irony associated with the court’s rejection of the strict liability principle. Since Burnie
Port was a case involving D’s liability for a Wre begun on D’s premises by an employee of D’s independent contractor,
it will be noticed that, as Schwartz puts it, ‘it automatically imputes one person’s act to a non-negligent defendant—
[and is thus] itself an important form of strict liability’: see Schwartz, above n 21 at 214. Further criticism associ-
ated with the preference for a non-delegable duty approach centres on the inherent diYculty in applying the court’s
criteria for such a duty to exist: that there must be a peculiar risk posed to a particular claimant.
largely discarded as a general qualiWcation. While it occasionally re-emerges in general

statements of the rule, its current role would seem to be conWned to that of a bolster of
the requirement of ‘natural use’ in cases involving the use of premises for public or
patriotic purposes. The possessive ‘his’ before ‘lands’, apparently used to denote owner-
ship, must be expanded to include the non-owning occupier. Arguably, it should be
further expanded to the stage where it would include any person in control. On the
other hand, it is arguable that it should be conWned to exclude the non-occupying
owner. The word ‘lands’, used in conjunction with ‘escapes’, is too narrow. The precise
extent to which it should be extended is, however, a matter of complete uncertainty.
The conjunctive ‘and’ before ‘collects’ and ‘keeps’ should be read as the disjunctive
‘or’. The phrase ‘anything likely to do mischief if it escapes’ has, in a process
commenced by Blackburn J himself, largely been supplanted by the word ‘dangerous’.
The reference to ‘all the damage which is the natural consequence of its escape’ is too
wide. The statement that it was ‘unnecessary to inquire what excuse would be
suYcient’ has inevitably been overlaid by decisions identifying such excuses.105
It will be observed that there are eight separate criticisms of the rule in Rylands v
Fletcher within this excerpt. First, there is the contention that it lacks ‘current
authority’. It is true that prior to the Cambridge Water case there had not been a
House of Lords or Privy Council decision dealing with liability founded upon
the rule in Rylands v Fletcher since Read v J Lyons & Co Ltd, nearly 50 years earlier.
But this absence of authority could have been attributable to any number of
factors. It could, for example, have been thought by would-be litigants in the
wake of Read v J Lyons & Co Ltd that the law was so unclear that it would be
much better to try one’s luck with the ever-expanding law of negligence that did
not seriously begin to get reined in until the mid 1980s.106 If this were the reason
for leaving Rylands alone, it could plausibly be argued that the rule’s lack of
attraction was squarely the fault of the judiciary who failed to elucidate satisfac-
torily the relevant touchstones of liability. That being the case, it would follow
that any abandonment of Rylands liability on this basis would be a case of a poor
workman blaming his home-made tools. Alternatively, the expansion in the law
of nuisance to cases of isolated escapes could equally well be the explanation for
the paucity of reported Rylands litigation, as could widespread insurance of
premises by both commercial and private owners.107 But at all events, the fact
that a rule is seldom tested in court is as often a good sign—that the rule is
sound and clear—as it is a bad one.
Second, the criticism predicated on the assertion that the requirement that the
‘dangerous’ element should have been brought onto the defendant’s land for ‘his
own purposes’ had lapsed into desuetude is simply not borne out by the English case
105
Ibid at [18] per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ (references and parenthesis omitted).
106
This period in the history of the law of negligence is charted at length in J. Murphy (ed), Street on Torts
(London: Butterworths, 2003) 179–86.
107
So, too, could the explanation inhere in a paucity of the right kinds of factual accident, progressively restrictive
entitlements to claim legal aid and, indeed, any number of other possibilities. Proving why things do not happen is self-
evidently a much more substantial task than proving how or why they do happen. As such, the assumption—as it would
appear to be—that the problem lies with the terms in which the rule in Rylands v Fletcher is couched is a bold one indeed.
law.108 As was we have seen, this element of Blackburn J’s rule has played a crucial
role in distinguishing the rule in Rylands v Fletcher from the law of private nuisance,
and it is absolutely fundamental to the justiWcation for imposing strict liability under
the former. With these points in mind, if that element of the rule had lost its import-
ance as a matter of Australian law, it could well be argued that it would have been
preferable to revitalize the rule in this respect rather than to abandon it altogether.
Third, and more substantially, the majority in Burnie were critical on account
of the fact that ‘[t]he possessive “his” before “lands”, [is] apparently used to
denote ownership’ yet while the rule should ‘include any person in control . . . it
is arguable that it should be conWned to exclude the non-occupying owner’.
There is some force in this point.109 But if the rule had been modiWed to accom-
modate it, it would have done relatively little violence to the principle under-
pinning Blackburn J’s original proposition. Certainly, it would have involved less
of a change to the rule than has occurred to nuisance law by the incorporation of
chattel damage, personal injuries and isolated escapes; and no-one suggests that
the tort of nuisance should be abandoned. Furthermore, and perhaps more impor-
tantly, such modiWcation would in no way detract from the critical emphasis in
the Rylands rule on the centrality of the defendant’s land (however construed). It
would also sit harmoniously beside one of the bases for strict liability argued for
here: that those whose gain-seeking conduct creates the risk, should stand to
bear the consequences of any resulting loss or damage.
Fourth, there is the suggestion that the term ‘lands’, used to connote the place
from which the escape must emanate, is ‘a matter of complete uncertainty’. This
is simply untrue. While the term ‘lands’ has received an admittedly broad (perhaps
even stretched) interpretation in the case-law—and one in fact endorsed by
Blackburn J himself110—it has never strayed beyond the conWnes of what are
uncritically (and unproblematically) regarded as falling within the description of
the defendant’s premises for the purposes of the Occupiers’ Liability Act 1957.111
Fifth, the objection that the rule contains ‘[t]he conjunctive “and” before
“collects” and “keeps” [and] should be read as the disjunctive “or” ’ seems
semantic, not substantial, in nature. And even if it is not, a careless choice of
conjunction would hardly seem to be a suitable basis on which to abandon
a much-vaunted rule of the common law. Sixth, and in similar semantic vein, is
the highly contestable criticism that ‘[t]he phrase “anything likely to do mischief
if it escapes” has, in a process commenced by Blackburn J himself, largely been
108
See, e.g. Humphries v Cousins (1877) 2 CPD 239; Whitmores (Edenbridge) Ltd v Stanford [1909] 1 Ch 427;
Read v J Lyons & Co Ltd [1947] AC 156, at 169–70; Dunne v North Western Gas Board [1964] 2 QB 806; Boxes Ltd
v British Waterways Board [1971] 2 Lloyd’s Rep 183.
109
Stanton (above n 88, 86–87) is also particularly critical of the fact that the rule in Rylands v Fletcher is conWned
to harm that occurs beyond the boundaries of D’s land. He is equally critical of the American alternative—a general
rule of rule of strict liability in respect of ultra-hazardous activities (ibid, 88–91). But he seems to overlook the fact
that the Occupiers’ Liability Acts will normally ensure that C has a remedy (whether he be a visitor or a trespasser)
where C is injured on D’s premises.
110
See Jones v Festiniog Railway Co (1868) LR 3 QB 733 (sparks caused by a train passing over a railway line).
111
Under s 1(3) of that Act, D’s premises include ‘any Wxed or movable structure, including any vessel, vehicle
or aircraft’.
supplanted by the word “dangerous” ’. In Read v J Lyons & Co Ltd the House of
Lords emphatically ruled out the idea that the rule in Rylands v Fletcher was
a form of liability for ultra-hazardous activities.112
Seventh, the criticism based essentially on the test for remoteness of damage
in Rylands cases—the suggestion that ‘[t]he reference to “all the damage which is
the natural consequence of its escape” is too wide’—is similarly contestable. There
are cases suggesting that pure economic loss is generally irrecoverable under the
rule.113 This is perfectly consistent with the approach to such loss within the law
of tort generally, and negligence in particular. Indeed, there would appear to be
no diVerence between the test for remoteness in Rylands cases and the test
applicable under the law of negligence. For as Lord GoV said in the Cambridge
Water Case, ‘foreseeability of damage of the relevant type should be regarded as
a prerequisite of liability in damages under the rule’.114 In other words, ‘all the
damage’ recoverable under the rule in Rylands v Fletcher would appear to be no
diVerent to that which is recoverable under negligence law. As such, there is no
basis for preferring the latter tort to the former on grounds associated with a
supposedly inappropriate test for remoteness of damage.
Finally, the majority in Burnie were critical of Blackburn J’s Xeeting and dis-
missive discussion of possible defences to liability under the rule. His Lordship
had said that it was ‘unnecessary to inquire what excuse would be suYcient’,
and the Australian High Court considered that this remark had ‘inevitably been
overlaid by decisions identifying such excuses’. While it is true that the possible
defences to which Blackburn J was referring—the unforeseeable act of a third
party and an act of God—are open to the objection that they assimilate Rylands v
Fletcher liability with negligence liability,115 the fact that a judge over 100 years
ago resisted the temptation to reach a settled conclusion on these possible
112
For further analysis betraying the falsity of the assumption that Rylands v Fletcher liability turns on the control
of dangerous things, see D. Wilkinson, ‘Cambridge Water Company v Eastern Counties Leather plc: Diluting Liability
for Continuing Escapes’ (1994) 57 MLR 799. Contrast the rejection of the rule in Rylands v Fletcher in the USA, in
preference for a general rule of strict liability concerning ultra-hazardous activities. But for the argument that the
two approaches tend to merge in practice, see J.G. Fleming, The Law of Torts (Sydney: Law Book Company Ltd,
9th edn, 1998) ch 7.
113
Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569; Cattle v Stockton Waterworks Co
(1875) LR 10 QB 453; Ryeford Homes v Sevenoaks District Council [1989] 2 EGLR 281.
114
[1994] AC 264, at 306. See, to like eVect, the decision of the Privy Council in Hamilton v Papakura District
Council [2002] UKPC 9 and the obiter interpretation of the Cambridge Water case in Ellison v Ministry of Defence
(1996) 81 BLR 101.
115
This argument rests upon the idea that such cases have nothing to do with Rylands v Fletcher. That is to say,
they do not involve a failure to control (or, rather, keep in) a dangerous thing (Rylands), but centre, instead, upon
the question of whether there was a wrongful failure by D to control the unforeseeable harmful acts of third parties
or the weather. The distinction between these two classes of negligent omission was Wrmly made by the House of
Lords in Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710. For the suggestion that these defences are cent-
ral to liability for all ultra-hazardous activities (because they enable such liability to be reconciled with the dictates
of corrective justice) see E.J. Weinrib, The Idea of Private Law (Cambridge, Massachusetts: Harvard University
Press, 1995) 188–89. From a historical perspective, it is conceivable that Blackburn J raised these possible defences
because they had been traditionally recognized as being available to negate the liability of a Marshall of the King’s
Bench when prisoners in his charge escaped because of the interventions of enemies of the King (YB H33 Hen VI
f1 pl3) and a landowner from whose land thorns had been blown onto the land of a neighbour (Hulle v Orynge (The
Case of Thorns) YB M6 Edw IV f7 pl18). There is, however, no indication one way or the other in his judgment that
he was in fact thinking of these (or any similar) cases.
exceptions to his general rule is hardly a basis on which a 20th century court
(still less a 21st century court) should abandon the mainstay of that rule.
But even if the sceptic accepts that the reasons for abandoning the rule in
Rylands v Fletcher are weak, or at least not wholly compelling, it is altogether
another thing to convince that person that the rule is positively a good thing.
At this point we must recall the argument made earlier that those who create
risks by means of activities undertaken with a view to personal gain should, on
principle, be held strictly accountable for any harm thereby caused. In addition
to this consideration, however, there are several further arguments that may be
advanced to support a rule of strict liability in this context; arguments, indeed,
that go beyond the simple contention that he who stands to gain, should also be
prepared to pay.
To begin with, while it is true that the 19th century saw a general move
towards fault-based tortious liability, it is none the less also true that the growth
of large-scale industry during the latter part of that century, coupled with its
ability to distribute the cost of accidents via insurance and higher prices, weak-
ened the kinds of laissez-faire arguments that were being advanced in favour of
an increasingly pervasive fault principle.116 Put bluntly, strict liability for such
actors was neither immoral117 nor enterprise-inhibiting.118 Indeed, mindful of
the fact that society is nowadays more environmentally conscious than it ever has
been, it could just as well be argued that the common spin-oV of environmental
protection is a more important gain than the further generation of consumer prod-
ucts and wealth that can only really be measured in terms of their luxury value.
At the very least, the terms in which we now measure the losses caused by escapes
of noxious substances would lead those sympathetic to a strict cost-beneWt
approach to rethink whether the fault principle really does lead to an aggregate
growth in wealth.119
116
Fleming, above n 112 at 368.
117
Weinrib rejects the idea that the rule in Rylands v Fletcher (or rather its American counterpart, the rule
dealing with ultra-hazardous activities) really amounts to strict liability, but he nonetheless considers it to be a
moral rule. He contends that ‘[t]he singling out of abnormally dangerous activities for a more stringent rule of lia-
bility’ is moral because ‘[it] carries on the negligence idea that that the requisite degree of care is proportionate to
the magnitude of the risk’: Weinrib, above n 115 at 189. For further support for the morality of imposing liability
on those who create abnormal risks, see G.P. Fletcher, ‘Fairness and Utility in Tort Theory’, 85 Harv L Rev 537
(1972).
118
This is even truer now than it was at the rule’s inception. As Windeyer J astutely observed in the second half
of the 20th century: ‘[i]n an age when insurance against all forms of liability is commonplace, it is surely not
surprising or unjust if the law makes persons who carry on some kinds of hazardous undertakings liable for the
harm they do’: Benning v Wong (1969) 122 CLR 249, at 304. Stanton (above n 88, n 28) has suggested that ‘[t]his
argument assumes that the defendant is the least-cost avoider’ and ignores the empirical evidence as to the low
success rate in accident compensation claims which means that, in practice, the injured party usually bears the cost
of the activity. While he is correct to identify the assumption that is made, he oVers nothing to counter that
assumption. And given the observation made earlier that it is most likely to be an industrialist who will Wnd himself
defending a lawsuit based on the Rylands rule, there would seem to be a good deal to support that assumption. His
point about the low success rate of accident compensation claims is not so much ignored as largely irrelevant. The
generality of accident compensation claims are framed in negligence. Thus, it might be argued that if the statistic is
relevant at all, it is relevant in the sense that it strengthens the argument against negligence.
119
Evaluations of cost and beneWt are far from straightforward. As a crude example, noxious emissions from
A’s land may cause B’s livestock to die (which loss is easily quantiWed) but it may also cause environmental dam-
age (for example, the death of a protected species, such as badgers—protected under the Protection of Badgers
Even beyond abstract considerations of the virtues of free enterprise and

wealth generation, there is a strong practical objection to bringing situations
naturally caught by the rule in Rylands v Fletcher within the remit of negligence
law. Why should the victim (or perhaps society in the case of physical injury120)
bear the cost an escape from X’s factory? For the victim to bear this cost
amounts to little more than a subsidy for the defendant’s risky enterprise; and it
is a subsidy that cannot easily be justiWed when it is diYcult to be sure that the
defendant’s works are, on balance, wealth-creating. It seems preferable, as
Fleming has argued, ‘to tolerate the activity on condition that it pay its way
regardless of whether it is carried on carelessly or not’.121 It could, of course, be
argued that the defendant’s enterprise ought to be tolerated not because he is
prepared to meet the cost of accidents on a strict liability basis, but because the
activity concerned is one that is caught by the web of regulation that now
extends to most polluting or potentially polluting processes. In other words, the
accumulation of a dangerous substance should be tolerated because it is in
compliance with a system of licensing, inspection and penalties that is already in
place, and which seeks to strike the appropriate balance between encouraging
enterprise and avoiding accidents.
Yet while this approach may appear Wne in theory, regulation in this area
seems not to be an adequate answer in practice. The most obvious problem with
the regulatory web (in England, at least) is that it only provides a means of
controlling pollution generated by those engaged in one of the listed prescribed
processes. Where escapes occur from other industrial sources, the relevant legis-
lation is of no use.122 Second, even where an individual does operate a
prescribed process, and does so without having acquired prior authorization,123
the relevant inspectorate must become aware of this fact before it can take
measures to secure compliance. Any expectation that this information will come
to the knowledge of inspectorate may well be ungrounded, for there is ample
evidence to suggest the relevant oYcers are more concerned with ensuring that
the terms of authorization are being met at existing recognized sites than with
discovering unlicensed sites.124 A third problem with regulation in this area is
Act 1992—which B may regard as a pest). A further diYculty arises from the fact that an environmentalist’s notion
of remedying the damage does not normally mirror the common lawyer’s. In the present example, the environmen-
talist would be seeking, were it possible, to restore a badger population. The common lawyer, by contrast, would be
concerned simply to make A liable to B in respect of the loss of his livestock. Further unquantiWable environmental
damage might take the form of damage to the ozone layer. See further J. Steele, ‘Remedies and Remediation-
Foundational Issues in Environmental Liability’ (1995) 58 MLR 615.
120
This presupposes that the victim does not seek private medical treatment but rather treatment paid for out of
the public purse, as would normally be the case in England.
121
Fleming, above n 112, 368.
122
For details of the various statutes that apply in the English context, see Murphy, above n 92.
123
Authorizations are typically granted subject to conditions: Environmental Protection Act 1990, s 7.
124
See Murphy, above n 92. The problem is not conWned to an absence of notiWcation, but stretches to an inability
to garner suYcient detailed information to substantiate claims made about polluting activities. During 1996–97,
for example, only 852 out of 1,952 reported incidents were substantiated by the Agency: Environment Agency
Annual Report and Accounts 1996–97 (Bristol: Environment Agency, 1997) 45.
that, while legislation provides powerful machinery to eVect pollution control, it
generally grinds along rather slowly.125 In simple terms, there is frequently a
signiWcant time lag between the relevant enforcement agency learning of a
prescribed process being operated contrary to the conditions of authorization (or
simply without authorization) and it taking steps to deal with it.
A further argument based upon legislation runs in the opposite direction.
After pointing out the tendency in modern legislation to impose strict liability on
large-scale industrial enterprises that engage in activities that run the risk of haz-
ardous escapes,126 Lord Bingham opined in Transco plc v Stockport Metropolitan
Borough Council that
[i]f the law were changed so as to require proof of negligence by those previously thought
to be entitled to recover under the rule in Rylands v Fletcher without proving negligence,
the eVect might be . . . to falsify the assumption on which Parliament has legislated.127
In other words, if Parliament has taken the view that strict liability is apt in cer-
tain circumstances, it would be odd if the courts did not continue to impose strict
liability in clearly analogous circumstances.
At the level of tort theory, it might be objected that strict liability torts cannot
be justiWed because they cannot be reconciled with a system of tort law based
upon corrective justice.128 This, however, presupposes a commitment to the idea
that tort law, properly understood, is restricted to considerations of corrective
justice rather than broader, instrumentalist concerns. The foundations for such a
presupposition are highly contentious. But to explore this matter further would
be to engage in a debate about which a good deal has already been written and
which also is not central to the analysis put forward here. It suYces to note that
the arguments in favour of corrective justice are far from universally accepted
and that even among those who support the idea that it should be the guiding
principle behind tort law, there appears to be no consistent understanding of just
what corrective justice entails. As such, any argument against Rylands v Fletcher
based on any given notion of corrective justice could expect to have only a rela-
tively small number of supporters.
In sum, then, the assertion that the rule in Rylands v Fletcher has either lost its
way (or, at least, lost touch with its roots) is only half true. In some of the
instances in which it can be said to have gone astray, it might be applauded for
doing so in the way that it has. In others, there seems no reason why a return to
125
C. Abbot, The Scope and Impact of the Waste Management Licensing Regime (Unpublished PhD thesis, University
of Manchester); Friends of the Earth, Friends of the Earth Fingers Filthy Factory (London: Friends of the Earth,
1998) (Press release of 1 April 1998).
126
In England, see the Water Industry Act 1991, s 209; Environmental Protection Act 1990, s 73(6); Nuclear
Installations Act 1965, s 7. In Australia, see, e.g. Environment Protection Act 1993 (SA), s 104; Protection of the
Environment Operations Act 1997 (NSW) ss 232, 246, 247. And see further G. Bates, Environmental Law in
Australia (Chatswood, NSW: Butterworths, 2002) ch 7.
127
[2003] UKHL 61, at 7.
128
See Weinrib, above n 115, ch 7. Cf. R.A. Epstein, ‘A Theory of Strict Liability’ (1973) 2 J Leg Studies 151.
the straight and narrow of Rylands orthodoxy would be either objectionable or

diYcult to achieve.
4. Conclusion
During the course of the 20th century, the law of private nuisance departed
considerably from its juridical foundations. The resulting uncertainty about its
proper boundaries—in particular the suppositions that it can be used to deal
with one-oV interferences and physical damage to land—helped to produce a
knock-on confusion concerning the origins and legal distinctiveness of the rule
in Rylands v Fletcher. This knock-on confusion, stemming in large part from
Newark’s famous contention that the rule in Rylands v Fletcher was derived from
the law of private nuisance,129 has now found its way into probably the most
authoritative current judicial statement on the juridical foundations of the
principle.130 What seems to have been overlooked, however, is the partial (but not
insigniWcant) inaccuracy of what Newark had to say. He claimed that ‘in 1866
there were a number of cases in the reports suggesting that persons who controlled
dangerous things were under a strict duty to take care, but as none of these cases
had anything to do with nuisance Blackburn J did not refer to them’.131
While it is true that Blackburn J did not make explicit reference to Piggott v
Eastern Counties Railway,132 Potter v Faulkener133 or Farrant v Barnes134—the
cases Newark had in mind—his Lordship did derive much from the earlier case
of Tenant v Goldwin.135 He said:
there does not appear to be any diVerence in principle, between the extent of the duty
cast on him who brings cattle on his land to keep them in, and the extent of the duty
imposed on him who brings on his land, water, Wlth, or stenches, or any other thing
which will, if it escape, naturally do damage, to prevent their escaping and injuring his
neighbour, and the case of Tenant v Goldwin is an express authority that the duty is the
same, and is, to keep them in at his peril.136
129
130
In his speech in Cambridge Water v Easter Counties Leather plc [1994] AC 264—subsequently wholeheartedly
endorsed in the Transco case—Lord GoV made reference to Newark’s article no fewer than Wve times. Anecdotally,
we should not perhaps be so surprised that Lord GoV, generally unimpressed with the academic literature in
Hunter v Canary Wharf Ltd, should have made an exception of, and been impressed by, Newark’s article. It is a
matter of record (albeit inviting speculation) both that Newark published his famous ‘Boundaries’ article the year
before Lord GoV took his Wnals and that, on the Wnals paper that he took so successfully, there was a question
concerning the inter-relationship between nuisance and Rylands v Fletcher. (I am grateful to Roderick Bagshaw of
Magdalen College, Oxford for this snippet.)
131
Newark, above n 5, 488 (references omitted).
132
(1846) 3 CB 229.
133
(1861) 1 B & S 800.
134
(1862) 11 CB 553.
135
(1794) 2 Ld Raym 1089. In the later case of Ross v Fedden (1872) LR 7 QB 661, Blackburn J was directly
questioned by C’s counsel whether his decision in Rylands v Fletcher had been based upon Tenant. He acknowledged
openly that it had. Interestingly, this is acknowledged by Newark in his later article: Newark, above n 72, 564.
136
Rylands v Fletcher (1866) LR 1 Exch 265, at 282.
And in Tenant v Goldwin, Holt CJ had speciWcally envisaged a tort of strict liability
associated with the escape of harmful elements causing tangible damage. He
averred that ‘every one must so use his own [land] as not to do damage to
another’ and further, ‘as every man is bound so to look to his cattle as to keep
them out of his neighbour’s ground, that so he may receive no damage; so he
must keep in the Wlth of his house or oYce that it may not Xow in upon and
damnify his neighbour’.137 As such, it is clear that Blackburn J was by no means
only inXuenced by nuisance cases.
What this article has attempted to do is expose some of the misunderstandings
associated with Rylands v Fletcher liability that have twice been asserted in the
House of Lords. It has endeavoured also to paint a picture of the juridical
distinctiveness of the rule and something of its utility as a discrete tort. Then,
building on these foundations, it has additionaly pointed out that the continued
vitality of the rule in Rylands v Fletcher forms a useful residual mechanism for
securing environmental protection by individuals aVected by harmful escapes
from polluting heavyweight industrialists.138
Finally, this article has also been written as a response to Lord GoV’s clear
challenge in Hunter to produce at least ‘a crumb of analysis’. If it has gone some
way towards meeting any or all of these objectives, it will not have been totally in
vain even if, as seems likely,139 the courts continue to blur the contours of the
two torts and drive onwards towards assimilation.
137
(1794) 2 Ld Raym 1089, at 1092.
138
It is true that the number of occasions on which it now needs to be invoked have reduced in number, but as
Lord Hobhouse pointed out in Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, at [56]: ‘that
is not to say it has ceased to be a valid part of English law. The only way it could be rendered obsolete is by a
compulsory strict public liability insurance scheme for all persons using their land for dangerous purposes’. In sim-
ilar vein, Lord Walker said of the rule: ‘[i]ts scope for operation has no doubt been restricted . . . by the growth of
statutory regulation of hazardous activities, on the one hand, and the continuing development of the law of negli-
gence, on the other. But it would be premature to conclude that the principle is for practical purposes obsolete’:
ibid at [99].
139
In addition to the earlier examples which have hinted at a merger between the rule in Rylands v Fletcher and
private nuisance, it seems possible that a further point of distinction—the requirement of a proprietary interest to
sue in nuisance—may also not withstand the fact that Art 8 of the European Convention of Human Rights grants
all citizens (not just home-owners) equal respect for their private lives. For judicial intimations that the proprietary
locus standi rule in nuisance may be incompatible with the Convention, see Marcic v Thames Water Utilities Ltd
[2002] QB 929 (per Court of Appeal; point not considered on appeal [2004] 1 All ER 135) and Hatton v United
Kingdom [2002] 1 FCR 732. But for other judicial suggestions that it may also apply to cases based on the rule in
Rylands v Fletcher, see Transco plc v Stockport Metroploitan Borough Council [2003] UKHL 61.

Rylands V Fletches

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Oxford Journal of Legal Studies, Vol. 24, No. 4 (2004), pp.

The Merits of Rylands v Fletcher

2. Nuisance and the Rule in Rylands v Fletcher

A. The Land Connection

By contrast, various members of the House of Lords have on two occasions

3. Can We Do Without Rylands V Fletcher?

A. Subsuming Rylands within Nuisance

B. Subsuming Rylands within Negligence

cases claimants would face insurmountable evidentiary burdens,93 burdens,

largely discarded as a general qualiWcation. While it occasionally re-emerges in general

Even beyond abstract considerations of the virtues of free enterprise and

the straight and narrow of Rylands orthodoxy would be either objectionable or

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