LD3007 Tort

Rylands v Fletcher: Lecture 14B

Objectives

To understand the requirements that need to be satisfied to establish liability in Rylands v Fletcher

To consider defences to claims in Rylands v Fletcher

To be able to advise on remedies available after establishing a claim in Rylands v Fletcher

To understand the role of Rylands v Fletcher liability in relations to private and public nuisance

Rylands v Fletcher

Rylands v Fletcher (1866) LR 1 Ex 265

The defendant employed independent contractors to construct a reservoir on his land to supply
water for the defendant’s mill. During construction the contractors discovered shafts and passages
from an old coal mine. They should have securely sealed these up, but failed to do so properly.
When the reservoir was filled water escaped through the underground shafts, which connected to
the claimant’s nearby mine, flooding it and causing £937 worth of damage.

per Blackburn J, Court of Exchequer Chamber:

‘… the person who for his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do
so, is prima facie answerable for all the damage which is the natural consequence of its
escape’.

Lord Cairns LC in the HL:

‘The defendants, treating them as the owners or occupiers of the close … [will not be liable]
if, in what I may term the natural user of that land, there had been any accumulation of
water, either on the surface or underground, and if, by the operation of the laws of nature,
that accumulation of water [escaped onto the claimant’s land]. … On the other hand if the
defendants, not stopping at the natural use of their close, had desired to use it for any
purpose which I may term a non-natural use [and it escapes], the defendants would be
liable.’

On the facts, and law as it stood in 1866:

(a) The defendant was not personally negligent

(b) The defendant was not vicariously liable for the negligence of the contractors because they
were not the defendant’s employees
(c) Nuisance at that time did not apply to a single escape / incident
(d) Trespass to land was not available because the damage was not direct and immediate, but
indirect through the escape of the water

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While the HL sought to support its finding that the defendant was liable by reference to previous
authorities, the case was soon recognised as establishing a new tort, and one of strict liability.

Dale Dyke Reservoir Disaster 11/12 March 1864

On the night of 11/12 March 1864 the Dale Dyke Dam burst causing devastating floods that hit
Sheffield the next day, killing at least 240 people. 15 bridges were swept away; 600 houses were
severely damaged or destroyed; animals were drowned. It was established there was a crack in the
earth embankment, but a full investigation concluded the company that built it was not at fault:

We are moreover of the opinion that all the arrangements made by your engineers were
such as might have been reasonably expected to have proved sufficient for the purposes for
which they were intended and that, if the ground beneath the bank had not moved, this
work would have been as safe and as perfect as the other five or six large reservoirs of the
company which have so long supplied the town of Sheffield and the rivers Rivelin, Loxley and
Don with water.

It was not the first reservoir disaster. Another one in Yorkshire in 1851 killed 81 people.

Strict liability rule

As originally formulated, the rule in Rylands v Fletcher was regarded as a tort of strict liability. A
defendant who brings something onto their land which is likely to cause damage if it escapes is
strictly liable for the damage caused if it does escape. As Lord Carnworth said in Rylands v Fletcher

“If it does escape, and cause damage, he is responsible, however careful he may have been,
and whatever precautions he may have taken to prevent the damage.”

In more modern times, elements of fault-based liability have been introduced, so the simple idea
that this is a strict liability tort is no longer quite true.

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Single escape enough

Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264, Lord Goff

“... the essential basis of liability was the collection by the defendant of such things upon his
land; and the consequence was a strict liability in the event of damage caused by their
escape, even if the escape was an isolated event.”

Requirements

(1) Usually, the defendant must control the land from which something escapes
(2) The defendant accumulated something, or brought something, onto the land
(3) The presence of that thing needs to be a non-natural use of the land
(4) The thing must be “dangerous”
(5) It must escape
(6) Resulting in damage to the claimant

(1) Who can be Sued?

Owner / Occupier

Rylands v Fletcher (1866) LR Ex 265

The purpose of the decision was to make an industrialist who causes damage when something
dangerous on their land escapes, even if they were not personally at fault. In this case the defendant
was the occupier of the land with the mill and reservoir.

Smith v Scott [1973] Ch 314

The claimant lived next door to a house owned by a local authority which rented the house to a
“large and unruly” family, the Scotts. A term in the Scott family’s tenancy agreement prohibited
them from creating any nuisance. Of course, that is exactly what they did, through noise and anti-
social behaviour. The council took no steps to control or evict their tenants. The claimants sued,
inter alia, in Rylands v Fletcher on the basis the council had brought the Scotts onto its land.

Held: Rylands v Fletcher could not be applied against a landlord who let property to undesirable
tenants, because by parting with possession in favour of the tenant the landlord could not be
regarded as controlling the tenant on land still occupied by the landlord.

Clerk & Lindsell on Torts

The authors say liability is not restricted to defendants who keep or accumulate dangerous things on
their own land, but also covers:

(a) The owner or controller of the dangerous thing

(b) The person who brings a dangerous thing onto land or collects it there
(c) A person who brings a dangerous thing onto the highway, which escapes

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Rigby v Chief Constable of Northampton [1985] 2 All ER 985

In an attempt to arrest a psychopath the police fired a CS gas cannister into the claimant’s shop. The
fire engine that had been standing by had left to attend another emergency. The CS gas cannister
started a fire that destroyed the claimant’s shop.

Held: In principle there could be Rylands v Fletcher liability for allowing an escape of something
dangerous from the highway.

(2) Accumulation (deliberate)

LMS International v Styrene Packaging Ltd [2005] EWHC 2065 (TCC)

A fire started in the upper floor of the Defendants' factory premises at Unit D, Parkhouse Industrial
Estate, Low Moor Road, Bradford. The premises were used for the making of polystyrene blocks for
insulation purposes and polystyrene mouldings for packaging. The fire broke out while an employee
was cutting expanded polystyrene blocks with a hot wire machine. The cause of the fire was a wire
breakage on the hot wire cutting machine which created a spark. It could have been extinguished
easily if the employee using the machine had used a nearby fire extinguisher, but he ran away. The
fire spread quickly to the stored polystyrene blocks close to the machine, and engulfed not only Unit
D, but also Units B and C, which were tenanted by the claimants.

Held: the polystyrene was an accumulation of dangerous material. All the ingredients for a claim
under Rylands v Fletcher, even in its modern attenuated form, were made out.

Ellison v Ministry of Defence (1997) 81 BLR 101

The claimants were the owners and occupiers of land adjacent to Greenham Common air base. MoD
were the occupiers of the airfield and AP were contractors carrying out works for them. A severe
storm passed over the air base. Water accumulated behind an embankment, then breached the
embankment causing devastating flooding at the claimants’ property. There was damage to their
buildings; their caravan ended up on top of a hedge; and some of their belongings were found a mile
downstream. They alleged that the flood was caused by AP's interference with the natural drainage
as a result of those works, and sued the MoD for damages relying upon the rule in Rylands v
Fletcher.

Held: the water was on the MoD land as a result of the storm, which was therefore naturally there,
rather than accumulated by the defendant or its contractor. So, there could be no liability in Rylands
v Fletcher.

(3) Non-natural use

As made clear by Lord Cairns LC in Rylands v Fletcher, the tort does not apply to the escape of
dangerous things that are naturally on the defendant’s land. For example, the flood from a natural
lake. As Lord Cairns said:

“If [the claimant] had desired to guard himself against [a natural peril on the defendant’s
land], it would have lain upon him to have done so, by leaving or by interposing some barrier

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 between his close and the close of the defendants in order to have prevented that operation
of the laws of nature.”

Rickards v Lothian [1913] AC 263

The defendant was the tenant of the upper part of a building. A vandal blocked a washbasin and
turned on the tap, causing a flood in the claimant’s property below, damaging stored stock.

Held: no liability, because the plumbing in the defendant’s premises was part of an ordinary and
proper use of the premises. Hence, “non-natural” use has changed its meaning to something closer
to “ordinary” use. Lord Moulton at 280:

“It is not every use to which land is put that brings into play that principle. It must be some
special use bringing with it increased danger to others, and must not merely be the ordinary
use of the land or such use as is proper for the general benefit of the community.”

British Celanese v AH Hunt [1969] 1 WLR 959

The defendant owned a factory on an industrial estate where it manufactured electrical

components. Strips of metal foil escaped from the factory site, blew onto an overhead cable, and
caused a power failure which stopped production in the claimant’s nearby factory.

Held: Given this was an industrial estate, storing the foil was not an unnatural use of the land.

Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264

The defendant operated a tanning factory. Its operations included the use of chemicals, which
frequently spilled onto the concrete floor of the factory. Over the years, this amounted to over 1,000
gallons of spilt chemicals. Over the years this seeped into the water table that the water company
used for its customers.

Lord Goff: this is a “classic case of non-natural use.”

Ellison v Ministry of Defence (1997) 81 BLR 101

Contractors were employed to build bulk fuel installations to store aviation fuel. While these were
being built (and before any fuel was placed in them), there was a rainwater flood allegedly caused by
the construction work at an airfield.

Held: the construction work was an ordinary use of the land.

Transco Plc v Stockport MBC [2004] 1 All ER 589

The defendant owned a large, high pressure, water pipe that supplied a block of 66 flats. The pipe
fractured, causing a significant flood of water that ended up running along an embankment, eroding
the earth from the embankment, and exposing a gas pipe owned by the claimant that was laid on
the embankment. The claimant sued for the cost of remedial works to support its gas pipe.

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Held: the high pressure water pipe was not an unnatural use of the defendant’s land, so there was
no liability under Rylands v Fletcher.

Lord Bingham:

“I think it clear that ordinary user is a preferable test to natural user, making it clear that the
rule in Rylands v Fletcher is engaged only where the defendant’s use is shown to be
extraordinary and unusual. … the question is whether the defendant has done something
which he recognises, or ought to recognise, as being quite out of the ordinary in the place
and at the time when he does it. In answering that question, I respectfully think that little
help is gained (and unnecessary confusion perhaps caused) by considering whether the use is
proper for the general benefit of the community.”

(4) Dangerous

The question here is whether there is likely to be a danger to others if whatever has been
accumulated on the defendant’s land escapes. That it might be perfectly safe if it does not escape is
irrelevant (Lord Carnworth in Rylands v Fletcher). Lord Bingham in Transco Plc v Stockport MBC said
the ‘dangerous’ requirement is connected with, and needs to be considered together with, non-
natural use.

Transco Plc v Stockport MBC [2004] 1 All ER 589, Lord Bingham:

“I do not think the mischief or danger test should be at all easily satisfied. It must be shown
that the defendant has done something which he recognised, or judged by the standards
appropriate at the relevant place and time, he ought reasonably to have recognised, as
giving rise to an exceptionally high risk of danger or mischief if there should be an escape,
however unlikely an escape may have been thought to be.”

Examples of dangerous accumulations include:

Rylands v Fletcher (1866) LR Ex 265

Accumulation of water in a 1.5 acre reservoir.

Crowhurst v Amersham Burial Board (1878) 4 ExD 5

Defendant with poisonous yew trees with branches overhanging the land of a neighbour, which
were eaten by the claimant’s horse, which was poisoned. But surely this is a natural use of land.

Attorney General v Cory Bros & Co Ltd [1921] 1 AC 521

500,000 tons of mineral waste tipped on a steep hillside.

Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465

Storage of chemicals used for making munitions, which “exploded with terrific violence”.

Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264

1,000 gallons plus of industrial solvents which were allowed to seep through the floor of a factory.

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(5) Escape

The dangerous thing must escape to a place outside the occupation and control of the defendant.

Ponting v Noakes [1894] 2 QB 281

The claimant’s horse died from eating poisonous yew branches from a tree on the defendant’s land
near the boundary with the claimant’s land.

Held: no escape of anything from the defendant’s land. It was the horse that entered D’s land.

Read v Lyons [1947] AC 156

The defendant operated a munitions factory. The claimant was a factory inspector who was injured
when a shell exploded.

Held: no liability, because the shell was always on the defendant’s land, and never escaped.

Gore v Stannard (trading as Wyvern Tyres) [2012] EWCA Civ 1248

The defendant was a tyre dealer, and kept a large stock of tyres on its premises. A fire broke out due
to faulty electrical wiring, which set fire to the tyres, and then spread to the claimant’s land. There
was no evidence of negligence on the part of the defendant.

Held: It was not the tyres that escaped, but the fire. No escape, so no liability.

Compare LMS International v Styrene Packaging Ltd [2005] EWHC 2065 (TCC) above.

(6) Who can Sue?

Rylands v Fletcher is a sub-species of nuisance

Transco Plc v Stockport MBC [2004] 1 All ER 589, Lord Bingham:

“The 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 in or enjoyment of land by another
occupier of land as such.”

Claimants with rights to the land, or rights of enjoyment over land

Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264

The claimant must have a right to occupy land affected by the escape, or (to cover servitudes), the
escape must affect the claimant’s enjoyment of rights over land.

The defendant’s tannery from which solvents escaped into the chalk aquifer was situated 1.3 miles
from the borehole used by the claimant for extracting water. The contamination made the water
unfit for human consumption.

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In the Court of Appeal it was held that the claimant had a right to extract water percolating under its
land, and had a potential claim under the rule in Rylands v Fletcher when the defendant
contaminated that water.

This was not disputed in the HL.

McKenna v British Aluminium Ltd [2002] Env LR 30

Claims were brought by houseowners and by their children against the defendant in nuisance and
Rylands v Fletcher over the operations of the defendant’s factory. The defendant sought to strike out
the claim by the children.

Held: The rule in Rylands v Fletcher can only be relied upon by a person with an interest in land, so it
could not be relied upon by the children.

However, the claim was also argued under Art 8 of the ECHR. It was further held, applying Douglas v
Hello! Ltd [2001] QB 967 that while there were powerful arguments against extending Art 8 by
reference to a property-based claim, it was nevertheless also powerfully arguable that Art 8 required
that a person who had lived in a house for some time should be able to sue if their rights were
interfered with. The court therefore refused to strike out the children’s claims.

Defences

Claimant’s fault

Ponting v Noakes [1894] 2 QB 281

The claimant’s horse died from eating poisonous yew branches from a tree on the defendant’s land
near the boundary with the claimant’s land. The defendant had no duty to fence the boundary.

Held: no liability. It was the claimant’s duty to keep their horses from going too near the tree.

Eastern and South Africa Telegraph Co v Cape Town Tramways Co [1902] AC 381

There was a minor escape of electricity.

Held: the defendant was not liable, because the claimant had extremely sensitive equipment.

Act of stranger

A “stranger” is simply someone independent of the defendant. They might well be known to the
defendant. The important thing is that they are a person for whom the defendant is not responsible.

Box v Jubb (1879) 14 Ex D 76

The defendant’s reservoir overflowed causing damage to the claimant’s land.

Held: the defendant was not liable, because the defendant’s reservoir overflowed because of
flooding caused when someone further upstream emptied their own reservoir.

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Rickards v Lothian [1913] AC 263

A vandal blocked the waste-pipe of an ordinary sink and turned the tap full on, and left it running
overnight. The flood damaged books stored by the claimant on the floor below. Lord Moulton at p
278:

“… a defendant cannot in their Lordships’ opinion be properly said to have caused or allowed
water to escape if the malicious act of the third person was the real cause of its escaping
without any fault on the part of the defendant.”

Northwestern Utilities Ltd v London Guarantee & Accident Co Ltd [1936] AC 108

The claimant’s hotel was destroyed by a fire following an escape of gas from the defendant’s high
pressure gas main. The gas main was fractured by work carried out by the City of Edmonton in
constructing a storm sewer. Was the gas company liable under the rule in Rylands v Fletcher?

Held: Yes. The gas main was carrying gas at high pressure which was very dangerous, and it had
escaped causing damage. The gas company relied on the defence of act of stranger in that it was the
City’s works that had damaged the gas main. The defence only applies if the defendant was not
negligent. Here, the sewer works were public and conspicuous in nature, and it was the duty of the
gas company to keep a watch on the construction operations given the obvious danger to the gas
main. The gas company had failed to exercise reasonable care, so could not rely on the defence.

Act of God

Tennent v Earl of Glasgow (1864) 2 M (HL) 22, Lord Westbury

Act of God is a defence where the escape is caused directly by natural causes without human
intervention:

“… in circumstances which no human foresight can provide against and of which human
prudence is not bound to recognise the possibility.”

Nichols v Marsland (1876) 2 Ex D 1

There were artificial lakes on the defendant’s land, which were formed by a dam across a stream. An
extraordinary rainfall, greater and more violent than any within the memory of the witnesses, broke
down the dam, releasing the water in the lakes, which swept away 4 bridges on the claimant’s land.

Held: the defendant could not be liable for what was an extraordinary act of nature. The court
(Cockburn CJ etc) said:

“A defendant cannot, in our opinion, be properly said to have caused or allowed the water to
escape, if the act of God or the Queen’s enemies was the real cause of its escaping without
any fault on the part of the defendant.”

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Necessity

Rigby v Chief Constable of Northampton [1985] 2 All ER 985

CS gas fired into the claimant’s shop setting it on fire.

Held: the police had a complete defence of necessity, provided there was no negligence in creating
or contributing to the necessity. It was necessary to make the arrest, and they needed to use the CS
gas.

Consent (volenti non fit injuria)

A claimant may give an express consent to the presence of the dangerous thing on the defendant’s
property.

There may be an implied consent where the dangerous thing confers some benefit on the claimant.
This is sometimes called “common benefit”.

Carstairs v Taylor (1871) LR 6 Exch 217

Water escaped from a box which was part of the water drainage system in a warehouse. The box
was located in the defendant’s premises, and a hole was gnawed in it by a rat, causing water to spoil
the rice being stored on the floor below which was let to the claimant.

Different reasons for refusing liability were given by the judges, but two (Bramwell B and Pigott B)
said the reason was the drainage was for the joint benefit of the defendant and the claimant, so the
claimant must be taken to have consented to the collection of the water in the box.

Statutory authority

While it is possible for a statute to make express reference to disapplying the rule in Rylands v
Fletcher, this is almost unheard of. Arguments based on implied statutory authority are more likely.

Green v Chelsea Waterworks Co (1894) 70 LT 547

A statute imposed a duty on the defendant to maintain a water supply. For that purpose the
defendant installed water mains. The claimant sued when a water main burst.

Held: The defendant had a defence of statutory authority, because it was obliged to install the water
main, and occasional pipe failures were inevitable.

Charing Cross Electricity Co v Hydraulic Co [1914] 3 KB 772

On similar facts, but the statute only gave the defendant a power to install water mains.

Held: No defence of statutory authority in this case.

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Remedies

Damages – main remedy

The damages will be based on the financial impact on the claimant’s interest in the land. This might
be the cost of repairs.

Not damages for personal injuries

Transco Plc v Stockport MBC [2004] 1 All ER 589

One consequence of the principle that the 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 in or enjoyment
of land by another occupier of land, is that, per Lord Bingham:

“… the claim cannot include a claim for death or personal injury, since such a claim does not
relate to any right in or enjoyment of land.”

Therefore, the following cases, which held that damages for personal injuries could be recovered,
are no longer good law:

Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) 34 TLR 500

Shiffman v Venerable Order of the Hospital of St John of Jerusalem [1936] 1 All ER 557

Damage must be foreseeable

Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264

Chemicals from the defendant’s tanning factory leaked into the water table. When this was
discovered the claimant had to move their pumping station to a safe location at a cost of about £1
million.

Held: On the facts, up to 1976, when the solvent stopped being used by the defendant’s employees,
the only damage that was foreseeable was that someone might be overcome from the fumes from
the chemical. It was only in 1985 that water contaminated with the particular chemical was regarded
as dangerous to health. Contamination of the water supply, the type of damage suffered by the
water company, was not reasonably foreseeable, and so was not recoverable being too remote.

Injunction – depends on whether the wrong is likely to be repeated. Often, Rylands v Fletcher is used
for one-off events, so damages are more appropriate.

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