1 CITY UNIVERSITY OF HONG KONG The Rylands and Fletcher

The Rylands and Fletcher Rule
Refer to Elliott & Quinn Tort Law 7th Edition Chapters 10 & 11
The Rule in Rylands v Fletcher
Introductory Issues
It is a Strict Liability Rule
Rylands v Fletcher [1866] LR 3 HL 330
The person who for his own purposes brings on his land and keeps and collects there
anything likely to do mischief if it escapes, must keep it in at his peril and is prima facie
answerable for all the damage which is the natural consequence of its escape.
(per Blackburn J)
The rule in Rylands v Fletcher is concerned with the responsibility of a defendant who
brings on to his land and accumulates anything which is not naturally there. By this rule
if what is accumulated is likely to do harm if it escapes, the defendant will be liable if it
does escape from his land and then interferes with the use of the land of another. In such
cases, the plaintiff does not have to prove negligence.
Rylands v Fletcher - Water escaped from a reservoir on the defendant’s land causing the
flooding of a mine on neighbouring land.
In later decided cases all of the following have been held to be within the rule: electricity,
gas, petrol, sewage and caravan dwellers.
On appeal to the House of Lords, this dictum was accepted with the qualification that the
Defendant must be engaged in a “non-natural” use of his land.
That it is a tort of strict liability has been made clear by the House of Lords. There is no
need to prove negligence.
Cambridge Water Co. Ltd. v Eastern Counties Leather plc [1994] 2 AC 264
Nuisance Contrasted
In as much as Rylands and Nuisance are land-centred torts they are related.
But there are important differences.
It is far from settled that the nuisance must emanate from the Defendant’s land
(whereas in Rylands it is critical).
It is far from clear that one must possess a proprietary interest to sue in Rylands
whereas in nuisance it is critical.
Rylands only really concerns tangible interferences (cf. nuisance).
There are crucial differences between the non-natural use test in Rylands and that of
reasonable user in private nuisance.
Elements of the Rule
“Non-natural Use”
The definition of non-natural user remains elusive (difficult to grasp). The closest we
have come to a definition was in 1913.
Rickards v Lothian [1913] AC 263
[It is]some special use bringing with it increased danger to others, and must not merely be
the ordinary use of land or such use as is proper for the general benefit of the community.
Transco plc v Stockport Metropolitan BC [2003] UKHL 61
Determined as a Question of Fact
Read v Lyons [1947] AC 156
Social Utility
In Rickards, Lord Moulton in the Privy Council hinted at a connection between the social
utility of the Defendant’s enterprise and the natural nature of a particular land use.
However, this connection is apt to be overstated, notwithstanding the fact that running a
munitions factory in wartime was described as not being “non-natural” in Read v Lyons.
Cambridge Water v Eastern Counties Leather (supra)
Lord Goff said:
I myself ... do not feel able to accept that the creation of employment as such, even in a small
industrial complex, is sufficient of itself to establish a particular use as constituting a natural
or ordinary use of land.
“The Defendant Brings onto his Land and Keeps/Collects there...”
The difficulty with this element of the rule is what is meant by “brings onto his land and
keeps or collects there”.
Giles v Walker (1890) 24 QBD 656
There must be an escape from the Defendant’s land.
Read v Lyons [1947] AC 156
Crowhurst v Amersham (1878) 4 Ex D 5
Ponting v Noakes [1894] QB 281
Liable to do Mischief if it Escapes
It is clear that the thing need not be dangerous in itself: Rylands v Fletcher (supra).
Protected Interests
Being another land-based tort, we face the same question posed in the context of
nuisance: what are the interests protected by this tort?
Rylands v Fletcher itself makes clear that damage to land itself supports an action.
These, too, seem to be covered by the rule.
Jones v Festiniog Railway (1868) LR 3 QB 733
Personal Injury
This needs to be approached in two stages.
Where the Claimant has a proprietary interest
Where the Claimant is a landowner (or has a proprietary interest), the Court of Appeal
has made it clear that personal injuries are recoverable.
Hale v Jennings [1938] 1 All ER 579
Where C does not have a proprietary interest.
Here, the law is less clear.
Perry v Kendricks Transport Ltd [1956] 1 All ER 154
Cf. Read v Lyons (supra)
Pure Economic Loss
The matter is yet to be settled as to whether one can recover pure economic loss in
Rylands v Fletcher.
Weller v Foot and Mouth DRI [1966] 1 QB 569
Cf. Ryeford Homes Ltd v Sevenoakes (1989) 16 Con LR 75
Foreseeability of Harm
The House of Lords has made it clear that the Defendant is only liable for foreseeable
forms of harm.
Cambridge Water v Eastern Counties Leather (supra)
Act of God
The crux of this defence is that if human foresight and providence would not have
guarded against the danger involved, the Defendant will be able to raise Act of God as a
valid defence.
Nichols v Marsland (1876) 2 Ex D 1.
Cf . Greenock Corp. v Caledonian Railway [1917] AC 556
Act of a “Stranger”
This defence – escape caused by the unforeseeable act of a stranger over whom the
Defendant has no control – is very well rooted in the case-law and as such a valid
Perry v Kendricks [1956] 1 WLR 85
An alternative explanation is the Defendant is not at fault; but that’s negligence (recall
Smith v Littlewoods).
Consent of the Claimant
The concept here is a familiar one. But, outside straightforward cases where consent is
express, difficulties can arise where the Defendant makes the allegation that the Claimant
consented impliedly.
Kiddle v City Business Premises [1942] 2 All ER 216
Carstairs v Taylor (1871) LR 6 Ex 217
Statutory Authority
This operates in the same way as we saw in the context of nuisance.
Green v Chelsea Waterworks (1894) 70 LT 547
Charing Cross Electricity v Hydraulic Power Co. [1914] 3 KB 772
Is the distinction akin to saying “it is your fault there was burst because there was
no absolute duty to have the water pressure so high”?
Default of Claimant
Where damage is wholly or partly attributable to the Claimant’s own folly (being
foolish), the Defendant is entitled to invoke this defence.
Ponting v Noakes [1894] QB 281; Where the horse trespassed over the boundary.
Law Reform (Contributory Negligence) Act 1945 also applies to Rylands to
reduce damages.
Introductory Issues
Rylands is rarely used and it has been argued that it should be abolished, but the House of
Lords in Transco v Stockport [2003] said it still has a role to play.
Read v Lyons [1946]
The Claimant was a woman inspector of munitions, visiting the Defendants’ munitions
factory. A shell being manufactured there exploded, injuring her, and because there was
no suggestion that the Defendants had been negligent, she claimed under Rylands v
Fletcher. The Defendants were held not liable, on the grounds that although highexplosive shells clearly were dangerous things, the strict liability imposed by Rylands v
Fletcher requires an escape of the thing that caused the injury. The Court defined an
escape as occurring when something escapes to outside a place where the Defendant has
occupation and control.
Dr Eric Cheng
City University of Hong Kong
10 January 2014