QUESTION 2

Clean Clear Enterprise, a small-scale cleaning firm, stores a quantity of a toxic industrial
cleaning chemical on its land in an industrial estate close to a residential housing estate. The site
used by Clean Clear Enterprise has been occupied by various cleaning firms for the past ten
years. Evidence shows that a group of badly behaved teenagers has been seen in the area on
numerous occasions over the past month. Mysteriously, a container of the toxic fluid was
overturned and ruptured. Suri, a canteen assistant who worked in Clean Clear Enterprise, steps
on the spilt fluid causing serious damage to her shoes and badly burned her legs. A quantity of
the fluid seeps into an underground water supply used by Puncak Air Bhd and contaminates the
water. Puncak Air Bhd had to find an alternative source of water supply to meet its statutory
obligations to water consumers in the area.

Advise Clean Clear Enterprise of any liability it might have incurred in the above
circumstances. (20 marks)

ANSWER

ISSUE

Whether Clean Clear Enterprise can be held liable due to the ruptured the container of the
toxic industrial cleaning chemical which caused serious injury to Suri and water supply used by
Puncak Air Bhd under Strict Liability.

LAW

Strict liability is a liability that has been given or imposed to the defendant for any such
misactions or negligence or nuisance which can give an impact to the surrounding. Even if the
defendant had made such precautions to avoid any risks, the defendant still found liable under
the tort for the category of strict liability. For a further understanding, shall refer to the case of
Rylands V Fletcher. In this case, the defendant who is the mill owner employed some
independent contractors to build a reservoir. Beneath this reservoir were some iron shafts that
went through a mining area and which were connected to the plaintiff’s mine. The defendant did
not know of the existence of these shafts and the plaintiff’s mine was flooded when the reservoir
was filled with water. The court held that, although the defendant is negligent for not knowing
the presence of the shaft, the defendant may still be liable to the plaintiff due to the nuisance
present upon their dangerous actions.

The word of dangerous action is further elaborated from the judgment which Blackburn J
highlighted that “We think that the true rule of law is, that the person who for his own purposes
brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must
keep it in his peril, and, if he does not do so, is prima facie answerable for all the damage which
is the natural consequence of its escape.”

From such a judgment made by Blackburn J, it can be used as a guideline to the extent of
one to be liable under strict liability. Thus, it held to be known as the Rule in Rylands V Fletcher.
Such a rule consists of five (5) prerequisites to be achieved namely Thing likely to cause damage
if it escapes, intentional storage, escape, non-natural use of land, and foreseeability of the
damage.

The first prerequisite is the Thing likely to cause damage if it escapes. The thing brought
onto his land need not to be dangerous. However, the thing must be likely to cause damage if it
escapes. For instance if the defendant stores something involving gas, or emission of noxious
fumes, creates explosive and fire or can create flood to the surrounding if it escapes or the release
of chemical can contaminate water supply, therefore, this such prerequisite can be successfully
applied.

This can be elaborated further in the case of Ang Hock Tai V Tan Sum Lee & Anor, The
plaintiff rented a shophouse and lived on the first floor of the building. The ground floor was
sublet to the defendant, who was in the business of repairing and distributing tyres. The
defendant stored the petrol for the purposes of his business. One morning, the defendant’s
premises caught fire. The fire spread to the first floor and the plaintiff’s wife and child died in the
tragedy. The court found that The defendant was liable under the rule in Rylands v Fletcher as
petrol was a dangerous thing.

The second prerequisite is the intentional storage or accumulation. For this element, The
defendant brings something onto his or her land for his or her purposes that does not naturally
occur there. Thus, The rule does not apply to natural accumulation. To understand further upon
natural accumulation, it can be stipulated in the case of Giles V Walker. In this case, The
defendant plowed his land but thereafter left it unattended. Thistles grew on the land, which later
escaped to the plaintiff’s land and seeded. But the court held that the thistles were the natural
growth of the defendant’s land and so he could not be found liable. Additionally, this such
element would also not be applicable if the accumulation is for the use of another person or
common benefit. It has to be the benefit for the defendant alone for his own purpose.

To support this such element, it can be referred to the case of Miles v Forest Rock
Granite Co (Leicestershire) Ltd. The defendant brought some explosives onto his land and used
them to blast rocks which had already been naturally occurring on his land. As a result of this
blasting, some rock fragments flew onto nearby land below, where they hit and injured the
plaintiff. The court held that although the rocks were not purposely collected or kept on the land,
the explosives were purposely collected and kept. The defendant was liable for this deliberate
accumulation which caused the escape of the rocks, and also because the way in which the injury
was sustained, through rock-blasting, was held to be a non-natural use of land.

The third prerequisite is the escape. By referring to the judgment made by Lord Viscount
Simon from the case of Read V Lyons & Co Ltd, the judge defined the escape as “... escape from
a place where the defendant has occupation or control over land to a place which is outside his
occupation or control.” From such judgment, it implied that something that is brought onto the
defendant‘s land must escape from there onto other land. Thus, such escape will be mischief to
the others.

For instance, in the case Midwood & Co Ltd V Mayor, Aldermen, and Citizens of
Manchester. In this case, the defendants were held liable when an explosion on their property
caused inflammable gas to escape into the plaintiff’s house and consequently set fire to the
plaintiff’s property. However, if it does not escape from the defendant’s boundary or control, it
could be applicable to this element. For example, in the case of Ponting v Noakes. In this case,
The plaintiff’s horse reached its head into the defendant’s land and ate the poisonous leaves of a
yew tree which was planted on the defendant’s land. The court held that there was no escape as
the tree and its leaves did not extend beyond the defendant’s boundary and so the plaintiff failed
in his action.

The fourth prerequisite is the non natural use of land. This element focuses upon whether
such material brought by the defendant to his land is often or commonly used by everyone or not.
If the answer is that such material is only used by specific premises and is not utilized by
everyone, therefore, it will be considered as non natural use. From the judgment in the case of
Rickards v Lothian where it stated that “there must be some special use bringing with it
increased danger to others and it must not be merely be the ordinary use of land or such a use as
is proper for the general benefit of the community.”

This can be stipulated in the case of Crowhurst v Amersham Burial Board, The
defendant planted a yew tree on his land. The branches and leaves of the trees extended into the
plaintiff’s land. Yew trees are poisonous to cows. The plaintiff’s horse died upon eating the
leaves. The court held that The defendant was liable as planting a poisonous tree is not a natural
use of land.

However, for accumulating such chemicals would also be considered as non natural use.
This can be referred to the case of Cambridge Water Co Ltd v Eastern Counties Leather plc, the
Court of Appeal judge stated that such storing a chemical also be included as non natural use of
land.

The last prerequisite is the foreseeability of the damage. For such an element to be
applicable, escape and cause damage must be foreseeable or else the action under the rule will
fail. In the case of Cambridge Water Co Ltd v Eastern Counties Leather plc. The defendant who
was a leather manufacturer used a Perchloroethylene chemical, PCE, in the process of
manufacturing. The chemical had been spilled little by little on the concrete floor of their factory.
PCE was soluble in water and it had seeped through the factory floor until fifty metres below the
ground. It had then spread at the rate of eight metres per day until it reached the area the plaintiff
used to pump water for the daily supply of the residents in that area. The distance between the
defendant’s factory and the plaintiff’s borehole was 1.3 miles and it had taken nine months for
the PCE spillage to reach the borehole. The plaintiff, a statutory water company, had to spend
about 1 million in order to find and operate another borehole. The court held that the defendant’s
use of their land was not exactly a natural use of land but because the damage was not
foreseeable, they therefore could not be liable.

APPLICATION

Back to the question on Whether Clean Clear Enterprise can be held liable due to the
ruptured the container of the toxic industrial cleaning chemical which caused serious injury to
Suri and water supply used by Puncak Air Bhd under Strict Liability. The salient of the issue
commenced when Clean Clear Enterprise stored a toxic industrial cleaning chemical. But
however the container to store the chemical was ruptured which gave damage to Suri who is the
canteen assistant in Clean Clear Enterprise. Also, the chemical has seeped into Puncak Air Bhd’s
underground water supply and contaminated the water.

By answering the question for a strict liability against Clean Clear Enterprise, it has to be
referring to the prerequisites in the Rule of in Rylands V Fletcher. It could not fall under a
Private Nuisance. It is because such a situation for Clean Clear Enterprise, brought or stored
something dangerous to the surrounding if it escapes. But compared to Private Nuisance, it only
focuses upon the misaction made by the defendant that gives substantial interference to the
neighbor, and such misaction does not necessarily mean to store any mischief material.

To begin with, shall started with the element of Thing likely to cause damage if it
escapes. The material brought or stored by Clean Clear Enterprise can be considered as mischief
material. The reason is because such material indeed does not give any impact if it has been
properly stored, but gives substantial damages if it escapes. As a similar to the interpretation of
this element which “...must be likely to cause damage if it escapes.” Such elaboration above can
be referred to with the case of Ang Hock Tai V Tan Sum Lee & Anor, where the defendant had
stored petrol under his premise but it became mischief when such petrol escaped. Which it does
escape and catches fire that impacts the plaintiff’s premise that leads to the death of a plaintiff's
wife and child. Because of this, this element can be applicable.

The second prerequisite is the intentional storage or accumulation. For Clean Clear
Enterprises, such chemicals could not be considered as natural accumulation as such enterprises
indeed accumulate those chemicals for their own purposes or objectives. This is similar to the
case of Miles V Forest Rock Granite Co (Leicestershire) Ltd, in which the defendant brought
some explosives onto his land and used them to blast rocks. Furthermore, this element also
touched upon such an element would not be applicable if such accumulation is for the common
or public benefit. For the Clean Clear Enterprises situation, it does not mention that such
chemical is usable for other industrial sites. Therefore, this element is applicable.

The third prerequisite is the escape. For the chemical accumulated by Clean Clear
Enterprises, such a chemical has escaped due to the container of storing the chemical has
overturned and ruptured. Effectively such an escape would be difficult for Clean Clear
Enterprises to control as it has already seeped into Puncak Air Bhd’s underground water supply.
From that point of view, it is already “...outside of his occupation or control.” as mentioned by
Lord Viscount Simon in the case of Read V Lyons & Co Ltd. A similar situation in the case of
Midwood & Co Ltd V Mayor, Aldermen, and Citizens of Manchester, whereby the defendant
accumulated an explosive material which exploded causing the plaintiff’s house and property to
catch fire.

However, for the Sari’s situation, this element will not be applicable towards Sari. This is
because, as stated in the case of Read V Lyons & Co Ltd and Midwood & Co Ltd V Mayor,
Aldermen, and Citizens of Manchester, such escape has to be outside of the defendant
occupation or control. But for Sari’s situation, she was in the Clean Clear Enterprises, as the
damages occurred when she split upon those chemicals. This is similar to the case of Ponting v
Noakes that the yew tree was not outside the boundary of the defendant but the plaintiff’s horse
went into such a boundary. Therefore the defendant is not liable. Because of that this element
could not be satisfied towards Sari.

The fourth prerequisite is the non natural use of land. By referring to the case of
Cambridge Water Co Ltd v Eastern Counties Leather plc, the judge has allowed for
accumulating such chemical would be the non natural use of land. By means is that since Clean
Clear Enterprises accumulated toxic industrial cleaning chemicals. But however, it also has to
be read together with the judgment in the case of Rickards V Lothian. For this particular issue,
the chemical itself is considered as “some special” that it will be dangerous to others and this
chemical is not an ordinary use as not everyone uses it.
 Lastly is the foreseeability of the damage. This such element would be focused upon the
causes of the damage and the escape of the chemical. The causes of damage are considered to be
unforeseeable. This is because the cause of such escape is “overturned” and ruptured. For such a
container to be overturned by itself would deem to be illogical. However, there was a group of
badly behaved teenagers in such defendants over the past months. For such a present the group is
not under the knowledge or awareness of the Clean Clear Enterprises. Because of that, it would
be difficult to apply this element. Indeed it does escape which gives substantial impact to the
surrounding and the employee of the firm but the causes of the damage is beyond the vision of
the premise. Thus, the evidence spotted the teenagers groups over the past month and for
damages to happen is one month gap. Which for the damages that happened is considered as too
remote as for chemical to escape from its container is unknowingly takes time. For that reason,
this element could not be applicable.

Similar situation to the case of Cambridge Water Co Ltd v Eastern Counties Leather
plc, the facts of the case are not similar but the escape is frankly the same as in this case related
to the escape of Perchloroethylene chemical. But because the damage was unforeseeable and too
remote, the defendant is not liable under the tort.

CONCLUSION

In conclusion, Clean Clear Enterprises is not held liable under the strict liability due to
the reason that both plaintiffs namely Suri and Puncak Air Bhd could not satisfy all the elements.