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Tort Law Paper: Difficulty In Operating Of The Rule Of Rylands V Fletcher In The Modern-Day Law Of Nuisance

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The tort of nuisance and the rule in Rylands v Fletcher were established in two different times, for two different proposes. The law of private nuisance is where a person substantially and unreasonably interferes with another’s use or enjoyment of land, or rights over land. It protects interest in land. Compared to the rule of Rylands v Fletcher which requires a person to bring or accumulate something on his/her land and then it escapes and cause damage to some else’s land. The defendant would be strictly liable for the physical damages caused by the escape. It was intended for nuisance to deals with ongoing interference with amenities and the rule to handle physical damages caused by one off escapes. However, throughout the years there has sometimes been a fuse of their functions. It has led to confusion and inconsistences of their applications; because of this it has led to the current position of the Court in England and Wales, insisting that the rule is now a ‘sub species’ of the law of nuisance. The English court has stopped short of absorbing the rule within the law of nuisance. Lord Bingham expressed that it is ‘premature to conclude that the principle is for practical purposes obsolete.’ The ambiguity of the rule nevertheless has led to some other jurisdictions abandoning it. In Australia, the judiciary expanded their law of negligence to capture the rule’s territory. In light of these issues, it is difficult for the rule of Rylands v Fletcher to operate in the modern-day law of nuisance because the two are quite different principles. They are different in too many ways. The Rule and its Developments The strict liability rule was first set out in the famous judgement handed down by Blackburn J in 1866, in the Court of Exchequer Chamber, when he ruled in favour of the plaintiff Mr Fletcher. Blackburn J explained what he considered to be the rule by saying ‘that a 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…the general rule, as above stated, seem on general principle just.

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The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.’ The only requirements that was necessary to bring a claim under this rule was that the defendant collected a dangerous thing for his own purpose, he done so on his own land and that it escaped and caused damage. The defendant appealed the ruling to the House of Lords and again the court ruled in the plaintiff’s behalf. In the judgement, Lord Cairns LC somewhat narrowed the rule, where he introduced the element of ‘non-natural use’ of land. This term was however never clearly defined and subsequently caused the judiciary and academics difficulty to do so throughout the years. The law of tort primarily operates in a fault base system; therefore this rule is contrary to that, as it can find a defendant liable without fault. Consequently because of this historically it has been treated with opposition by some judges. In the 1994 the House of Lords found it necessary to restrict the rule and introduce more controlling mechanisms by imposing the requirement that the damage must be foreseeable for the rule to apply. Then ten years later (still the current position) in Transco plc v Stockport MBC, Lord Bingham imposed a new test that further restricted the application; he insisted that the use of the land had to be ‘extraordinary and unusual’ for the rule to apply. Controlling Mechanisms These changes have led to an alteration and narrowing of the field, to some extent, to the likely defendants of the rule in Rylands v Fletcher. The courts now impose restrictions to control the use of the rule. The current requirements to be able to succeed in court under the rule are; that the defendant use of his/her land has to have been non-natural and that the damage had to be foreseeable to defendant. In addition, if the defendant can prove that there was no reasonable way to avoid the harm then he/she may avoid liability. Non-natural use of land This requirement was inserted into the Blackburn J rule by the House of Lords in 1968. It can be described as ‘merely an expression of the fact that the defendant has artificially introduced on the land a new and dangerous agent’. This component is sometimes compared to the ‘reasonable user’ test in nuisancebut in actual fact is quite different.

The ‘reasonable user’ refers to the give-and-take between neighbours. It determines to what extent, one neighbour can interfere with the other, in particular circumstances, without liability. It is a test that balances the interest of the defendant to use their land against the conflicting interest of the claimants to enjoy his/her land. While the ‘non-natural use’ has never been clearly identified, it is clear that the principle is broader than that of the ‘reasonable user’. The House of Lords has recognized this, Lord Bingham expressed that ‘the rule in Rylands v Fletcher is engaged only where the defendant’s use is shown to be extraordinary or unusual.’ He then continued to distinguish between the two term by saying that ‘a user may well be quite out of the ordinary but not unreasonable.’The two tests are distinct and serve two different purposes. Foreseeability In 1994 the House of Lord made it prerequisite to have had foreseeability of damage, as opposed to foreseeability of escape, to recover damages under the rule in Rylands v Fletcher. The Privy Council held that foreseeability of damages should be a requirement in all cases of nuisance and because Lord Goff was at the opinion that the rule was an extension of the law of nuisance for cases of isolated escapes, he then extended the requirements to it. He highlighted that it would be unfair to make it easier to establish liability in cases for property damage than for personal injuries. However, the offence would still be one of strict liability. Foreseeability requirements aren’t foreign to the strict liability regime, as there can be foreseeability of damage without any fault of the defendant. Defences Blackburn J himself in the Rylands v Fletcher suggested that there could be defences that the defendant could rely on to avoid liability. The defendant will have to establish that the damage was caused by an act that he/she couldn’t avoid. One defence that could be used to establish that is Act of God (first mentioned by Blackburn J). Even though the term is poorly defined in the law, in Tennent v Earl of Glassgow, the court attempted to do so. It was described as an escape that was caused directly by natural causes without human intervention. For example, where there is exceptional heavy rainfall and it causes a dam to collapse, the defendant would not be liable because it was the act of nature that caused the damage not an act of the defendant. Another defence that could be used is Act of Third Party. This is where the escape was caused by a deliberate act of a third party. In Perry v Kendricks, Singleton LJ suggested that the defence should only apply where it is ‘mischievous, deliberate and conscious act of a stranger.’ It is also the defences of Default of the Claimant – where the damage was cause due entirely some act of the claimant; Consent of the Claimant – application of volenti non fit injuria; and Statutory Authority – where there is exclusion in statue; it will afford a complete defence.

Views of the rule and it uses The rule of Rylands v Fletcher was first established in the height of the industrial revolution in the nineteenth century, where there was public concern about the issues of loss of life, injury and property damage brought on because of the activities of that time. It was believed that the Blackburn J’s judgement was solely policy based. It was done so in an effort to address the issues of the increased risks that were brought on because of Industrialism. The rule focuses upon distributive justice and correcting inequities within society. It was said that the ruling was ‘constructed in the traditional common law style of deducing principle from precedent without reference to questions of social policy’. The rule was looked at as a doctrine of strict liability for failing to contain dangerous things on one’s land. Blackburn J relied and shared the view of Holt CJ, that ‘every one must so use his own, as not to do damage to another’. The defendant’s intention was made to be irrelevant in actions of damage but it was suggested in the case, that it would be a defence to show that there was no reasonable chance to avoid the harm; vis major or Act of God. With that being said, it may be best to say that the rule isn’t a truly one of strict liability but one of strict liability qualified by justificatory defences and question of causation. Throughout the years the true nature of the rule and its application has been inconsistent. The ambiguity led to judges having different opinions and approaches to the rule. For example in Hale v Jennings Brothers, the rule was referred to as a broad principle ‘that the liability attaches because of the occupier of the land bringing onto the land something which is likely to do damage if it escapes’. Then on the contrary in Read v Lyons it was said to ‘derive from a conception of mutual duties of adjoining landowners and its congeners are trespass and nuisance’. In more modern times, the courts in England and Wales has taken the position that the rule is ‘essentially concerned with an extension of the law of nuisance to cases of isolated escape’, a ‘sub-species of nuisance’. The rule was accepted in cases that involved things like poison, electricity and fire.

However, it found to not apply in incidents like in the case of Pontardawe RDC v Moore-Guyn, where it involved uncollected rainwater flowing by gravity onto land or in the case were water pipes to a building busted and caused damage. More Distinctions between Rylands v Fletcher and Nuisance As mentioned before, in England and Wales, the court has recently taken the position that the rule is a ‘sub-species’ of the law of private nuisance. However, the kinds of legal need that the rule intended to meet and those of nuisance are quite different. The two share an obvious connection of being torts concern with land but they serve different and important roles within the common law. The principle of nuisance is ‘a tort directed against the enjoyment of rights over land’; unlike the rule in Rylands v Fletcher which is a tort precisely concerned with physical damage to land. In nuisance the claimant does not have to show any accumulation or non-natural use of land but in the rule they do. Another key distinction between the two is the way the handle acts of third parties. Nuisance generally will not find a defendant liable for damages for acts of an independent party, whilst Rylands v Fletcher will do so for contractors and lawful visitors. Conclusion The two tort, do have some similar function and the law of nuisance have changed over the year that it is now possible for a claim to be successful for physical damage of land. However, it is not it purpose. Lord Hoffman explained just that by saying, ‘in the case of nuisance “productive of sensible personal discomfort”, the action is not for causing discomfort to the person…for causing injury to the land…true it is that the land has suffered “sensible” injury, but utility has been diminished’. He then added, ‘it is for the diminution in such utility that he is entitled to compensation’. By contrast, the intention for the rule in Rylands v Fletcher is to cover physical damage to land. The needs to which the rule was established to meet have not disappeared. There are still perilous activities where it would be considered just to have creator strictly liable for all ensuing damages, rather that imposing the costs upon the injured party or society. There is still a need for distributive justice; to hold persons that carry out or authorise dangerous activities, which in the end cause damage to another’s property, be held strictly liable for the physical damages. The rule ‘ensure and upholding of standards within society and will lead to extra precautions being taken to ensure risks placed upon another are proportional.’ In conclusion it is clear that the rule of Rylands v Fletcher will continue to find it difficult to operate in the law of nuisance because the two tort s serves different purposes. To be able to operate with consistency, the rule should properly be confined to physical harm caused by one-off escapes while nuisance should be confined to ongoing interferences with amenities.


John Cooke, Law of Tort, 13th edition, Pearson, 2017 Mark Lunney, Donal Nolan & Ken Oliphant, Tort Law Text and Materials, 6th edition, Oxford University Press, 2017 D.J. Ibbetson, A Historical Introduction to the Law of Obligations, Oxford University Press, 1999

A.J. Waite, Deconstructing the rule in Rylands v Fletcher, Journal of Envirnmental Law (2006) Vol 18 No 3, 423-442 Liam Rose, Untangling the Rule in Rylands v Fletcher from Nuisance, (2016) 4 N.E.L Rev. 127

Clarence Moss, Hazardous Enterprises and Risk-Bearing Capscity, (1952) 61 Yale LJ 1172, 1172 John Murphy, The Merits of Rylands v Fletcher, Oxford Journal of Legal Studies, Vol. 24, No. 4 (2004), p. 643-669 F.H Newark, Non-natural User and Rylands v Flecher (1961) 24 MLR 557 Donal Nolan, The Distinctiveness of Rylands v Flecher (2005) 121 LQR 421, 444

F.H. Newark, The Boundaries of Nuisance, (1945) 65 LQR 480 C. Gearty, The Place of Nuisance in the Modern Law of Tort [1989] CLJ 48(2), 214-42 David Williams, Non-Natural Use of Land (1973) 32 CLJ 310 Clarence Moss, Hazardous Enterprises and Risk-Bearing Capscity, (1952) 61 Yale LJ 1172

01 February 2021

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