Chapter 8. The Rule in Rylands V Fletcher

• Pages: 210-225

INTRODUCTION

Traditionally, the rule in Rylands v Fletcher1 has been regarded as a rule of strict

liability. Liability is strict in cases where the defendant is liable for damage caused

by his act, irrespective of any fault on his part, or, as it has been expressed, ‘where

a man acts at his peril and is responsible for accidental harm, independently of the

existence of either wrongful intent or negligence’.2

In Rylands, the defendants employed independent contractors to build a res-

ervoir on their land. The contractors carelessly omitted to block up some disused

shafts on the site which communicated with the claimants’ coal mine beneath the

reservoir, so that, when the reservoir was lled, water escaped down the shafts and

ooded the claimants’ mine. The defenda nts’ conduct did not appear to come within

the scope of any existing tort: they were not liable for trespass, because the damage

was not direct and immediate; nor for nuisance, because the damage was not due to

any recurrent condition or state of affairs on their la nd; nor for negligence, because

they had not been careless, and they were not liable for the negligence of their inde-

pendent contractors.3 However, they were held strictly liable for the damage on the

basis of the following rule propounded by Blackburn J, which is now known as the

rule in Rylands v Fletcher.4

The person who for his own pur poses [and in the cours e of a non-natural us er of his

land] 5 brings on his l and and collects and keeps there anything l ikely to do mischief if it

escapes, must keep it at his peril and if he do es not do so, is prima facie answerable for all

the damage which is the n atural consequence of its escape.6

The rule in Rylands v Fletcher has some af nities with nuisance, and it has been said

that ‘the law of nuisance and the rule in Rylands v Fletcher might in most cases be

invoked i ndifferently’.7 It is certainly tr ue that the same facts may easily give rise to

liability in both causes of act ion,8 but there are some fundamenta l differences:

(a) Rylands v Fletcher liability is conned to the accumulation of physical objects

which escape and do damage; nuisance is not so conned, and covers interfer-

ence caused by intangibles such as noise and smells;

1 (1866) LR 1 Exch 265, afrmed (1868) LR 3 HL 330.

2 Heuston and Buckley, Salmond and Heuston on the Law of Torts, 21st edn, 1996, London: Sweet &

Maxwell, p 307.

3 The case was decided before the emergenc e of the principle that an employer may be liable for the

negligence of his inde pendent contractor where ultra-haza rdous activities are involved. See pp .......

et seq.

4 (1866) LR 1 Exch 265, at 279, 280.

5 This requir ement was added by Lord Cairns in the House of L ords, which afrmed the deci sion of

Blackburn J in th e lower court.

6 Emphasis added.

7 Read v Lyons [1947] AC 156, at 183, per Lord Simonds.

8 See, e.g., Midwo od v Manchester Corp [1905] 2 KB 597. Cf Spicer v Smee [1946] 1 All ER 489.

CHAPTER 8

THE RULE IN RYLANDS V FLETCHER

DOI: 10.4 324/9781351065108-8

10.4324/97813 5106 5108 -8

Chapter 8: The Rule in Rylands v Fletcher 211

Chapter 8: The Rule in Rylands v Fletcher

(b) i n Rylands v Fletcher liability, there must be an accumulation of things, such

as water, gas, chemicals or explosives; in nuisance, there is no requirement of

accumu lation;

(c) in Rylands v Fletcher case s, there must be an escape of the accumulated material

from the defendant’s land to a place outside that land; in nuisance, an escape is

not necessary;

(d) a claimant who is not an occupier of adjoining land may sue under Rylands v

Fletcher, whereas such a person could not sue in private nuisance;

(e) liability under Rylands v Fletcher is conned to cases of non-natura l use of land;

there is no such limitation in nuis ance.

FORESEEABILITY

The future of the rule in Rylands v Fletcher as a form of strict liability was put

in doubt by the decision of the House of Lords in Cambridge Water Co v Eastern

Counties Leather plc,9 in which it was established that the language of Blackburn

J in Rylands v Fletcher implied that damage must be foreseeable (’the person who

for his own purposes brings on his land … anything likely to do mischief if it

escapes’).10 It was held that since Rylands was essentially an extension of nui-

sance to cases of isolated escape, the decision in The Wagon Mound (No 2),11 that

foreseeability was essential for li ability in nuis ance, should also extend to liabil-

ity under Rylands.

The facts of the Cambridge Water Co c ase illustrate the requirement of foreseeabil-

ity. The defendants in this case were leather manufacturers. Some ti me before 1971,

a chemical known as PCE was spilled on the concrete oor of the defendants’ tan-

nery. At that time, the only foreseeable harm from the spillage was that an employee

might be overcome by fumes. The chemical seeped into the ground and eventually

contaminated water in a borehole more than one mile away, from which the claim-

ants started drawing water in 1979. Following a European Community Directive in

1985, water containing PCE was declared unwholesome and could not lawfully be

supplied as drinking water. The claimants i ncurred expenditure of almost £1 mi llion

in developing a new source of water supply, and they claimed that the defendants

were liable for this amount. The House of Lords, overruling the Court of Appeal,

held that the defendants could not be liable for the loss under nuisance or Rylands v

Fletcher, as it was unforeseeable.

It remains to be seen whether courts in the Commonwealth Caribbean will fol-

low the principle in the Cambridge Water Co case. If past experience is any guide,

it is very likely that, being a House of Lords decision, it will be followed, though

no Caribbean case in which this approach has been taken has yet come to hand. It

is submitted that the introduction of a foreseeability requirement into the Rylan ds

v Fletcher rule is regrettable, as public policy on protection of the environment

would seem to demand some form of strict liability for ultra-hazardous activities.

The House of Lords concluded by suggesting that strict liability was more appro-

priately imposed by the legislature than by the courts, particularly in the area of

9 [1994] 1 All ER 53.

10 (1866) LR 1 Exch 265, at 279, 280.

11 [1966] 2 All ER 709.