Rylands v Fletcher – An Analysis
By:
Rizwan Ahmad Khan Gondal.
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Rylands v Fletcher has become what may be termed a ‘pivotal’ case on a number
of topics in tort law: strict liability, trespass, negligence; just to name a few. However,
some academicians have termed the case as describing a novel form of liability all its
own. Hence, in certain cases, claimants have solely relied upon Rylands v Fletcher to
plead for damages.
The case itself is simple and based upon simple legal arguments. However, the
case went from the Court of Exchequer to the Court of Exchequer Chamber to the House
of Lords. In the court of first instance, the complaint was dismissed citing failure to plead
a cause of action. In the Exchequer Chamber, the court reversed the lower court’s
decision and the House of Lords, affirmed the Exchequer Chamber’s decision in turn.
The defendants in this case employed ‘competent’ engineers and contractors and
constructed a water reservoir on their land. Unbeknownst to them, and allegedly not
discovered by the engineers and the contractors either, underneath the reservoir there
existed tunnels and passageways which lead to a neighbour’s coal mine. After the
reservoir was completed, the weight of the water caused the shafts underneath to burst
causing the water to flood the neighbour’s coal mine by way of the underground tunnels
and passageways. As a result, the plaintiff for some time, could not use his mines to
extract coal and thus sued the defendants for the ensuing damage.
The court of first instance relied upon Leame v Bray to define trespass as an act
doing the damage to be an immediate act rather than the damage to be mediate or
consequential. Applying this definition to the facts of the case, Martin B did not hold the
claim to be in trespass. Martin B for the majority held for a cause of action in nuisance.
Nuisance was defined to be as ordinarily and generally understood to mean ‘something
hurtful or injurious to the senses’ and ‘a pond for holding water’ to be not a nuisance to
anyone. For a duty of care in negligence to exist, in reliance upon the facts and law
discussed in Trower v Chadwick where the defendant demolished his vaults and walls not
knowing that the neighbour’s wall underneath his own would be consequently damaged
and where the court dismissed the action holding ‘knowledge’ to be a prerequisite for
imposing liability in negligence, it was held that a duty of care cannot exist when
someone is ignorant of the circumstance.
The Exchequer Chambers however reversed the lower court’s decision and held
the act of the defendants to be a trespass. The court cited the case of Tenant v. Goldwin as
representing the correct applicable law. The court held that the defendants were under a
duty such that they were to keep the material they brought upon their land from escaping
and perpetrating a trespass upon their neighbours. Drawing an analogy, the court further
held that in this respect there was no difference between chlorine and water even though
one will do damage by ‘scorching’ and the other by ‘drowning’.
The Court also found that the persons employed by the defendants became aware
of the existing shafts while working on the reservoir but that they did not know where
those shafts lead to. In this respect even when they did not exercise proper skill and
expertise as was expected of them, this point was considered moot in light of the trespass
argument and was hence not ruled upon.
In taking a similar position as the Exchequer Chamber, but extending the fault
principle, the House of Lords relied upon such cases as Lambert v Bessey and Baird v
Williamson in holding that the question was not whether the Defendant acted skilfully or
in negligence, but whether his act caused the damage. And that the defendant’s use of
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their land was not its ‘natural’ use in the sense that they knowingly brought upon it
something which they knew could escape if not kept under proper control and cause
mischief. Hence, as a principle it could be held that when a person causes damage to
another, however innocently or unknowingly he acted, it is ‘obviously only just that he
should be the party to suffer’.
Nolan, (2005) LQR, discussed the case at length and stated that over the course of
time, Rylands v Fletcher rule has transformed into a general principle of strict liability for
ultra-hazardous activity. However, the court in Read v Lyons put limitations on this
gradual transformation and denied the existence of any such rule. More recently, this rule
was referred to as an off-shoot of the tort of private nuisance applicable to isolated
escapes in Cambridge Water Co Ltd v Eastern Counties Leather Plc and was so endorsed
in Transco Plc v Stockport MBC. In yet another twist, the High Court of Australia in
Burnie Port Authority v General Jones Pty Ltd held the rule to be one in ordinary
negligence.
Prosser, in his writings in the 1940s, on the other hand termed this rule to be one
in strict liability ‘disguised as absolute nuisance’. Newark, (1949) LQR, in agreeing with
Prosser wrote that ‘negligence is not an element in the tort of nuisance’ and that this was
an example of the first time the law of nuisance had been applied to a case of isolated
escape. He further wrote that the rule was misconceived as applying to cases of strict
liability because of the dangerous nature of the defendant’s activity. This is the reason
why the application of the rule was expanded to cases of personal injury.
Newark’s opinion was ‘adopted’ by Lord Goff in Cambridge Water. In this case
the defendants were a tannery who used a chemical solvent which seeped into the ground
and contaminated the water of the plaintiff. The plaintiff sued for negligence, private
nuisance and the rule under Rylands v Fletcher. In the court of first instance, the judge
dismissed the claims in negligence and private nuisance holding that the contamination of
the water was not reasonably foreseeable. The cause of action under the rule in Rylands v
Fletcher was dismissed because the defendant’s tannery was not a ‘non-natural’ use of
the land. In the House of Lords, Lord Goff, in agreement with the lower court, held that
‘foreseeability’ of damage should be regarded as a ‘prerequisite of liability under the
rule’.
The line of reasoning adopted by Lord Goff in Cambridge Water was expanded in
the case of Ellison v Ministry of Defence. In that case Judge Bowsher equated liability
under the rule and nuisance and further held that Lord Goff in the Cambridge Water case
had held strict liability and nuisance to be the same cause of action. Similarly in Marcic v
Thames Water Utilities, Judge Harvey held the rule to be a variety of nuisance. In the
Transco case, an escape of water from a service pipe caused damage to a block of flats.
The plaintiff sought to recover the costs of the repairs under the rule. The House of Lords
held that the supply of water was a natural use of the land an act that did not attract strict
liability and held the rule to be a sub-species of nuisance. The Court further held that
since the rule applied to ‘damage to land or interests in land’, personal injuries were not
actionable under the rule.
In conclusion, from the discussion above it may seem that liability under the rule
and private nuisance are the same causes of action. However, many academicians
including Winfield (1931) CLJ and Judges like Lord Wright in Northwestern Utilities Ltd
v London Guarantee (1936) have held the rule and private nuisance to be still two
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separate causes of action. I have to agree with such assertions because of the fault
principle referred to in the case at the House of Lords in 1868 and the fact that a chemical
solvent and water are two different things and cause damage in their own distinct ways.
Hence, nuisance and the rule should be distinct in their character as well. However, the
two are still both capable of causing trespass in the same way.
Word Count: 1,360.
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