Dangerous Escapes
UK Cases
Rylands v Fletcher
RYLANDS v FLETCHER
House of Lords (1868) L.R. 3 H.L. 330; 37 L.J.Ex. 161; 19 L.T. 220; 33 J.P. 70
Action for damages for flooding of plaintiff’s mine by water from defendant’s artificial millpond
Near Ainsworth in Lancashire the defendants had a mill whose water supply they wanted to improve. They obtained permission from Lord Wilton to construct a reservoir on his land and retained reputable engineers to do it. Unknown to the defendants, the plaintiff, who had a mineral lease from Lord Wilton, had carried his workings to a point not far distant, though separated by the land of third parties. In the course of construction the engineers came across some disused mine shafts and did not seal them properly, with the result that when the completed reservoir was qlled, water flowed down those shafts and into the plaintiffs coal-mine, causing damage later agreed at £937.
The arbitrator stated a special case for the Court of Exchequer, which found for the defendants (Bramwell B. dissenting) ((1865) 3 H. & C. 774; 159 E.R. 737). The plaintiff took a writ of error to the Court of Exchequer Chamber, which gave him judgment. The defendants’ appeal to the House of Lords was dismissed.
In the House of Lords
Lord Cairns L.C.: … The reservoir of the defendants was constructed by them through the agency and inspection of an engineer and contractor. Personally, the defendants appear to have taken no part in the works, or to have been aware of any want of security connected with them. As regards the engineer and the contractor, we must take it from the case that they did not exercise, as far as they were concerned, that reasonable care and caution which they might have exercised, taking notice, as they appear to have taken notice, of the vertical shafts filled up in the manner which I have mentioned. However, my Lords, when the reservoir was constructed, and filled, or partly filled, with water, the weight of the water bearing upon the disused and imper fectly filled-up vertical shafts, broke through those shafts. The water passed down them and into the horizontal workings, and from the horizontal workings under the close of the defendants it passed on into the workings under the close of the plaintiff, and flooded his mine causing considerable damage, for which this action was brought.
The Court of Exchequer … was of opinion that the plaintiff had established no cause of action. The Court of Exchequer Chamber, before which an appeal from the judgment was argued, was of a contrary opinion, and the judges there unanimously arrived at the conclusion that there was a cause of action, and that the plaintiff was entitled to damages.
My Lords, the principles on which this case must be determined appear to me to he extremely simple. The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and 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 had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so, by leaving, or by interposing, some barrier between his close and the close of the defendants in order lo have prevented that operation of the laws of nature.
As an illustration of that principle, I may refer to a case which was cited in the argument before
your Lordships, the case of Smith v Kenrick in the Court of Common Pleas ((1849)7 C.B. 515; 137 E.R. I 05).
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, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land-and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to whichI have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff, then for the consequence of that, in my opinion, the defendants would be liable. As the case of Smith v Kenrick is an illustration of the first principle to which I have referred, so also the second principle to which I have referred is well illustrated by another
case in the same court, the case of Baird v Williamson ((1863) 15 C.B. (N.s.) 376; 143 E.R. 831), which was also cited in the argument at the Bar.
My Lords, these simple principles, if they are well founded, as it appears to me they are, really dispose of this case.
The same result is arrived at on the principles referred to by Blackburn J. in his judgment in the Court of Exchequer Chamber, where he states the opinion of that court as to the law in these words: “We think that the rule of law is, that the person who, for his own purposes, brings on his land 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. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, 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 that 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 will 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. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequence.
And upon authority this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.”
My Lords, in that opinion, I must say I entirely concur. Therefore, I have to move your
Lordships that the judgment of the Court of Exchequer Chamber be affirmed, and that the present appeal be dismissed with costs.
Lord Cranworth: My Lords, I concur with my noble and learned friend in thinking that the rule of law was correctly stated by Blackburn J. in delivering the opinion of the Exchequer Chamber. Ifa person brings, or accumulates, on his land anything which if it should escape, may cause damage to his neighbour, he does so at his peril. 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 the Court of Exchequer Chamber (1866) L.R. I Ex. 265
Blackburn J.: The plaintiff, though free from all blame on his part, must bear the loss,
unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours, but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions, in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect.
Supposing the second to be the correct view of the law, a further question arises subsidiary to the first, viz., whether the defendants are not so far identified with the contractors whom they employed, as to be responsible for the consequences of their want of care and skill in making the reservoir in fact insufficient with reference to the old shafts, of the existence of which they were aware, though they had not ascertained where the shafts went to.
We think that the true rule of law is [here follows the passage cited by Lord Cairns L.C., above, p.454]….
… But it was said by Martin B. that when damage is done to personal property, or even to the person, by collision, either upon land or at sea, there must be negligence in the party doing the damage to render him legally responsible; and this is no doubt true, and as was pointed out ‘b)i Mr Mellish during his argument before us, this is not confined to cases of collision, for there are many cases in which proof of negligence is essential, as for instance, where an unruly horse gets on the footpath of a public street and kills a passenger: Hammack v White ((1862) 11 C.B.(N.s.) 588; 142 E.R. 926); or where a person in a dock is struck by the falling of a bale of cotton which the defendant’s servants are lowering, Scott v London Dock Company ((1865) 3
H. & C. 596; 159 E.R. 665); and many other similar cases may be found. But we think these cases distinguishable from the present. Traffic on highways, whether by land or sea, cannot be conducted without exposing those whose persons or property are near it to some inevitable risk; and that being so, those who go on the highway, or have their property adjacent to it, may well be held to do so subject to their taking upon themselves the risk of injury from that inevitable danger; and persons who by the licence of the owner pass near to warehouses where goods are being raised or lowered, certainly do so subject to the inevitable risk of accident. In neither case, therefore, can they recover without proof of want of care or skill occasioning the accident; and it is believed that all the cases in which inevitable accident has been held an excuse for what prima facie was a trespass, can be explained on the same principle, viz., that the circumstances were such as to show that the plaintiff had taken that risk upon himself. But there is no ground for saying that the plaintiff here took upon himself any risk arising from the uses to which the defendants should choose to apply their land. He neither knew what these might be, nor could he in any way control the defendants, or hinder their building what reservoirs they liked, and storing up in them what water they pleased, so long as the defendants succeeded in preventing the water which they there brought from interfering with the plaintiff’s property.
The view which we take of the first point renders it unnecessary to consider whether the defendants would or would not be responsible for the want of care and skill in the persons employed by them, under the circumstances stated in the case.
We are of opinion that the plaintiff is entitled to recover, …
Rickards v Lothian
Lord Moulton: … Their Lordships are of opinion that all that is … laid down as to a case where the escape is due to “vis major or the King’s enemies” applies equally to a case where it is due to the malicious act of a third person, if indeed that case is not actually included in the above phrase … a defendant cannot in their Lordships’ opinion be properly said to have caused or allowed the water to escape if the malicious act of a third person was the real cause of its escaping without any fault on the part of the defendant.
It is remarkable that the very point involved in the present case was expressly dealt with by Bramwell B. in delivering the judgment of the Court of Exchequer in Nichols v Marsland ((1876) 2 Ex.D. 1). He says: “What has the defendant done wrong? What right of the plaintiff has she infringed? She has done nothing wrong. She has infringed no right. It is not the defendant who let loose the water and sent it to destroy the bridges. She did indeed store it, and store in in such quantities that if it was let loose it would do as it did, mischief. But suppose a stranger let it loose, would the defendant be liable? If so, then if a mischievous boy bored a hole in a cistern in any London house, and the water did mischief to a neighbour, the occupier of the house would be liable. That cannot be. Then why is the defendant liable if some agent over which she has no control lets the water out? … I admit that it is not a question of negligence. A man may use all care to keep the water in … but would be liable if through any defect, though latent, the water escaped But here the act is that of an agent he cannot control.”
Following the language of this judgment their Lordships are of opinion that no better example could be given or an agent that the defendant cannot control than that of a third party surreptitiously and by a malicious act causing the overflow….
Their Lordships are of opinion that a defendant is not liable on the principle of Fletcher
v Rylands for damage caused by the wrongful acts of third persons.
But there is another ground upon which their Lordships are of opinion that the present case does not come within the principle laid down in Fletcher v Rylands. 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 sucha use as is proper for the general benefit of the community. To use the language of Lord Robertson in Eastern and South African Telegraph Co v Cape Town Tramways Companies ([1902] A.C. 393), the principle of Fletcher v Rylands “subjects to a high liability the owner who uses his property for purposes other than those which are natural.” This is more fully expressed by Wright J. in his judgment in Blakev Woolf ([1898] 2 Q.B. 426). In that case the plaintiff was the occupier of the lower floors of the defendant’s house, the upper floors being occupied by the defendant himself.A leak occurred in the cistern at the top of the house which without any negligence on the part of the defendant caused the plaintiff’s premises to be flooded. In giving judgment for the defendant Wright J. says: “The general rule as laid down in Rylands v Fletcher is that prima facie a person occupying land has an absolute right not to have his premises invaded by injurious matter, such as large quantities of water which his neighbour keeps upon his land. That general rule is, however, qualified by some exceptions, one of which is that, wherea person is using his land in the ordinary way and damage happens to the adjoining property without any default or negligence on his part, no liability attaches to him. The bringing of water on to such premises as these and the maintaining a cistern in the usual way seems to me to be an ordinary and
reasonable user of such premises as these were; and, therefore, if the water escapes without any negligence or default on the part of the person bringing the water in and owning the cistern,I do not think that he is liable for any damage that may ensue.” …
Their Lordships are in entire sympathy with these views. The provision ofa proper supply of
water to the various parts of a house is not only reasonable, hut has become, in accordance with modern sanitary views, an almost necessary feature of town life. It is recognised as being so desirable in the interests of the community that in some form or other it is usually made obligatory in civilised countries. Such a supply cannot he installed without causing some concurrent danger of leakage or overflow. It would be unreasonable for the law to regard those who install or maintain such a system of supply as doing so at their own peril, with an absolute liability for any damage resulting from its presence even when there has been no negligence. It would be still more \lnreasonable if, as the respondent contends, such liability were to he held to extend to the consequences of malicious acts on the part of third persons. In such matters as the domestic supply of water or gas it is essential that the mode of supply should he such as to permit ready access for the purpose of use, and hence it is impossible to guard against wilful mischief. Taps may be turned on, ball-cocks fastened open, supply pipes cut, and waste-pipes blocked. Against such acts no precaution can prevail. It would be wholly unreasonable to hold an occupier responsible for the consequences of such acts which he is powerless to prevent, when the provision of the supply is not only a reasonable act on his part but probablya duty. Sucha doctrine would, for example, make a householder liable for the consequences of an explosion caused bya burglar breaking iqto his house during the night and leavinga gas tap open. There is, in their Lordships’ opinion, no support either in reason or authority for any such view of the liability ofa landlord or occupier. In having on his premises such means of supply he is only
using those premises in an ordinary and proper manner, and, although he is bound to exercise all reasonable care, he is not responsible for damage not due to his own default, whether the damage be caused by inevitable accident or the wrongful acts of third persons….
The appeal must therefore be allowed and judgment entered for the defendant….
Read v Lyons
House of Lords [1947] A.C. 156; [1947] L.J.R. 39; 175 L.T. 413; 62 T.L.R. 646; [1946]2 All E.R. 471
Viscount Simon: My Lords, the simple question for decision is whether in these circumstances the respondents are liable, without any proof or inference that they were negligent, to the appellant in damages, which have been assessed at £575 2s. 8d. for her injuries. Cassels J. who tried the case, considered that it was governed by Rylands v Fletcher and held that the respondents were liable, on the ground that they were carrying on an ultra-hazardous activity and so were under what is called a “strict liability” to take successful care to avoid causing harm to persons whether on or off the premises.
Lord Macmillan: My Lords, nothing could be simpler than the facts in this appeal; nothing more far-reaching than the discussion of fundamental legal principles to which it has given rise….
…The doctrine of Rylands v Fletcher, as I understand it, derives from a conception of mutual duties of adjoining or neighbouring landowners and its congeners are trespass and nuisance. If its foundation is to be found in the injunction sic utere tuo ut alienum non laedas, then it is manifest that it has nothing to do with personal injuries. The duty is to refrain from injuring not alium but alienum. The two prerequisites of the doctrine are that there must be the escape of something from one man’s close to another man’s close and that that which escapes must have been brought upon the land from which it escapes in consequence of some non-natural use of that land, whatever precisely that may mean. Neither of these features exists in the present case….
Your Lordships’ task in this House is to decide particular cases between litigants and your Lordships are not called upon to rationalise the law of England. That attractive if perilous field may well be left to other hands to cultivate. It has been necessary in the present instance to examine certain general principles advanced on behalf of the appellant because it was said that consistency required that these principles should be applied to the case in hand. Arguments based on legal consistency are apt to mislead for the common law is a practical code adapted to deal with the manifold diversities of human life, and as a great American judge has reminded us, “the life of the law has not been logic; it has been experience.” For myself, I am content to say that in my opinion no authority has been quoted from case or textbook which would justify your Lordships, logically or otherwise, in giving effect to the appellant’s plea. I would accordingly dismiss the appeal.
Lord Simonds: I tum then to the first question which raises the familiar problem of strict
liability phrase which I use to express liability without proof of negligence. Here is an age-long conflict of theories which is to be found in every system of law. “A man acts at his peril,” says one theory. “A man is not liable unless he is to blame,” answers the other. It will not surprise the students of English law or of anything English to find that between these theories a middle way, a compromise, has been found. For it is beyond question that in respect of certain acts a man will be liable for the harmful consequences of those acts, be he never so careful, yet in respect of other acts he will not be liable unless he has in some way fallen short of a prescribed standard of conduct. It avails not at all to argue that because in some respects a man acts at his peril, therefore in all respects he does so. There is not one principle only which is to be applied with rigid logic to all cases. To this result both the infinite complexity of human affairs and the historical development of the forms of action contribute Yet I would venture to say that the
law is that, subject to certain specific exceptions which I will indicate, a man is not in the absence
Cambridge Water v Eastern Counties Leather plc
House of Lords [1994]2 A.C. 264; [1994] 2 W.L.R. 53; [19941 1 All E.R. 53; [
Lord Goff of Chieveley: … It is necessary to consider the question whether foreseeability of harm of the relevant type is an essential element of liability either in nuisance or under the rnlc
in Rylands v Fletcher. I shall take first the case of nuisance….
It is, of course, axiomatic that in this field we must be on our guard, when considering liability
for damages in nuisance, not to draw inapposite conclusions from cases concerned only witha claim for an injunction. This is because, where an injunction is claimed, its purpose is to restrain further action by the defendant which may interfere with the plaintiff’s enjoyment of his land, and ex hypothesi the defendant must be aware, if and when an injunction is granted, that such interference may be caused by the act which he is restrained from committing. It follows that these cases provide no guidance on the question whether foreseeability of harm of the relevant type isa prerequisite of the recovery of damages for causing such harm to the plaintiff. ln the present case, we are not concerned with liability in damages in respect ofa nuisance which has arisen through natural causes, or by the act of a person for whose actions the defendant is not responsible, in which cases the applicable principles in nuisance have become closely associated with those applicable in negligence: see Sedleigh-Denfield v O’Callaghan 1194013 All E.R. 349 and Goldmanv Hargrave [1966] 2 All E.R. 989. We are concerned with the liability ofa person wherea nuisance has been created by one for whose actions he is responsible. Herc, asI have said, it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user. But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in the past sixty years points strongly towards a requirement that such foreseeability should be a prerequisite of liability in damages for nuisince, as it is of liability in negligence. For if a plaintiff is in ordinary circumstances only able to claim damages in respect of personal injuries where he can prove such foreseeability on the part of the defendant, it is difficult to see why, in common justice, he should be in a stronger position to claim damages for interference with the enjoyment of his land where the defendant was unable to foresee such damage. Moreover, this appears to have been the conclusion of the Privy Council in The Wagon Mound (No.2) [ 1966] 2 All E.R. 709. The facts of the case are too well known to require repetition, but they gave rise to a claim for damages arising from a public nuisance caused by a spillage of oil in Sydney Harbour. Lord Reid, who delivered the advice of the Privy Council, considered that, in the class of nuisance which included the case before the Board, foreseeability is an essential element in determining liability….
It is widely accepted that this conclusion has settled the law to the effect that foreseeability of harm is indeed a prerequisite of the recovery of damages in private nuisance, as in the case of public nuisance.
Having regard to the step which this House has already taken in Read v Lyons to contain the scope of liability under the rule in Rylands v Fletcher, it appears to me to be appropriate now to take the view that foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in damages under the rule. It would moreover lead to a more coherent body of common law principles if the rule were to be regarded essentially as an extension of the law of nuisance to cases of isolated escapes from land, even though the rule as established is not limited to escapes which are in fact isolated. I wish to point out, however, that in truth the escape of the water has not been an isolated escape, but a continuing escape resulting from a state of affairs which has come into existence at the base of the chalk aquifer underneath ECL’s premises. Classically, this would have been regarded as a case of nuisance; and it would seem strange if, by characterising the case as one falling under the rule in Rylands v Fletcher, the liability should thereby be rendered more strict in the circumstances of the present case.
Turning to the facts of the present case, it is plain that, at the time when the PCE was brought onto ECL’s land, and indeed when it was used in the tanning process there, nobody at ECL could reasonably have foreseen the resultant damage which occurred at CWC’s borehole at Sawston.
In the result, since those responsible at ECL could not at the relevant time reasonably have foreseen that the damage in question might occur, the claim of CWC for damages under the rule in Rylands v Fletcher must fail.
I turn to the question whether the use by ECL of its land in the present case constituted a natural use, with the result that ECL cannot be held liable under the rule in Rylands v Fletcher. In view of my conclusion on the issue of can deal with this point shortly….
Fortunately, I do not think it is necessary for the purposes of the present case to attempt any redefinition of the concept of natural or ordinary use. This is because I am satisfied that the storage of chemicals in substantial quantities, and their use in the manner employed at ECL’s premises, cannot fall within the exception. For the purpose of testing the point, let it be assumed that ECL was well aware of the possibility that PCE, if it escaped, could indeed cause damage, for example by contaminating any water with which it became mixed so as to render that water undrinkable by human beings. I cannot think that it would be right in such circumstances to exempt ECL from liability under the rule in Rylands v Fletcher on the ground that the use was natural or ordinary. The mere fact that the use is common in the tanning industry cannot, in my opinion, be enough to bring the use within the exception, nor the fact that Sawston contains a small industrial community which is worthy of encouragement or support. Indeed I feel bound to say that the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use; and I find it very difficult to think that it should be thought objectionable to impose strict liability for damage caused in the event of their escape. It may well be that, now that it is recognised that foreseeability of harm of the relevant type is a prerequisite of liability in damages under the rule, the courts may feel less pressure to extend the concept of natural use to circumstances such as those in the present case; and in due course it may become easier to control this exception, …..
….For these reasons, I would not hold that ECL should be exempt from liability on the basis of the exception of natural use.
However, for the reasons I have already given, I would allow ECL’s appeal with costs before your Lordships’ House and in the courts below.
Transco plc v Stockport Metropolitan BC
Lord Bingham of Cornhill: In this appeal the House is called upon to review the scope and application, in modern conditions, of the rule of law laid down by the Court of Exchequer Chamber, affirmed by the House of Lords, in Rylands v Fletcher (I 866) L.R.I Exch 265;( 1868) LR3 HL 330 Few cases in the law of tort or perhaps any other field are more familiar, or
have attracted more academic and judicial discussion, than Rylandsv Fletcher.
In the course of his excellent argument for the council, Mr Mark Turner Q.C. canvassed various ways in which the rule in Rylands v Fletcher might be applied and developed in future, without however judging it necessary to press the House to accept any one of them. The boldest of these courses was to follow the trail blazed by a majority of the High Court of Australia in Burnie Port Authority v General Jones Property Ltd (1994) 120 A.LR. 42 by treating the rule in Rylandsv Fletcher as absorbed by the principles of ordinary negligence. In reaching this decision the majority were influenced by the difficulties of interpretation and application to which the rule has undoubtedly given rise (pp.52-55), by the progressive weakening of the rule by judicial decision (pp.54-55), by recognition that the law of negligence has been very greatly developed and expanded since Rylands v Fletcher was decided (pp.55-65) and bya belief that most claimants entitled to succeed under the rule would succeed ina claim for negligence anyway (pp. 65-67).
Coming from such a quarter these comments of course command respect, and they are matched by expressions of opinion here. There is a theoretical attraction in bringing this somewhat anomalous ground of liability within the broad and familiar rules governing liability in negligence. This would have the incidental advantage of bringing the law of England and Wales more closely into line with what I understand to be the law of Scotland. Consideration of the reported English case law over the past 60 years suggests that few if any claimants have succeeded in reliance on the rule in Rylands v Fletcher alone.
I would be willing to suppress an instinctive resistance to treating a nuisance-based tort as if ii were governed by the law of negligence if I were persuaded that it would serve the interests of justice to discard the rule in Rylands v Fletcher and treat the cases in which it might have been relied on as governed by the ordinary rules of negligence. But I hesitate to adopt that solution for four main reasons. First, there is in my opinion a category of case, however small it may be, in which it seems just to impose liability even in the absence of fault. In the context of then recent catastrophes Rylands v Fletcher itself was understandably seen as such a case. With memories of the tragedy at Aberfan still green, the same view might now be taken of Attorney General v Cory Brothers and Co Ltd [1921] I A.C. 521 even if the claimants had failed to prove negligence, as on the facts they were able to do. I would regard Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 A.C. 465, and Cambridge Water Co v Eastern Counties Leather pie [1994] 2 A.C. 264 (had there been foreseeability of damage), as similarly falling within that category. Second, it must be remembered that common law rules do not exist in a vacuum, least of all rules which have stood for over a century during which there has been detailed statutory regulation of matters to which they might potentially relate. With reference to water, s.209 of the Water Industry Act 1991 imposes strict liability (subject to certain exemp tions) on water undertakers and Sch.2 to the Reservoirs Act 1975 appears to assume that on facts such as those of Rylands v Fletcher strict liability would attach. Third, although in Cambridge Water [1994 j 2 A.C. 264, 283-285, the possibility was ventilated that the House might depart from Rylands v Fletcher in its entirety, it is plain that this suggestion was not accepted. Instead, the House looked forward to a more principled and better controlled application of the existing rule. Fourth, while replacement of strict Rylands v Fletcher liability by a fault-based rule would tend to assimilate the law of England and Wales with that of Scotland, it would tend to increase the disparity between it and the laws of France and Germany. Having reviewed comparable provisions of French and German law, van Gerven, Lever and Larouche (Cases, Materials and Text on National, Supranational and International Tort Law (2000), p.205) observe: “Even if the contours of the respective regimes may differ, all systems studied here therefore afford a form of strict liability protection in disputes between neighbouring landowners.” The authors indeed suggest (p.205) that the English rule as laid down in Rylands v Fletcher is “the most developed of these regimes”.
There remains a third option, which I would myself favour: to retain the rule, while insisting upon its essential nature and purpose; and to restate it so as to achieve as much certainty and clarity as is attainable, recognising that new factual situations are bound to arise posing difficult questions on the boundary of the rule, wherever that is drawn.
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. From this simple proposition two consequences at once flow. First, as very clearly decided by the House in Read v J Lyons & Co Ltd [1947] A.C. 156, no claim in nuisance or under the rule can arise if the events complained of take place wholly on the land of a single occupier. There must, in other words, be an escape from one tenement to another. Second, 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.
It has from the beginning been a necessary condition of liability under the rule in Rylands v Fletcher that the thing which the defendant has brought on his land should be “something which … will naturally do mischief if it escape out of his land” ((1865) L.R. I Exch 265, 279 per Blackburn J) The practical problem is of course to decide whether in any given case the
thing which has escaped satisfies this mischief or danger test, a problem exacerbated by the fact that many things not ordinarily regarded as sources of mischief or danger may nonetheless be capable of proving to be such if they escape. I do not think this condition can be viewed in complete isolation from the non-natural user condition to which I shall shortly tum, butI think the cases decided by the House give a valuable pointer. In Rylands v Fletcher itself the courts were dealing with what Lord Cranworth ((1868) L.R. 3 H.L. 330, 342) called “a large accumu lated mass of water” stored up in a reservoir, and I have touched on the historical context of the decision above. Rainham Chemical Works [1921] 2 A.C. 465, 471, involved the storage of chemicals, for the purpose of making munitions, which “exploded with terrific violence”. In Attorney Generalv Cory Brothers and Co Ltd [1921] 1 A.C. 521, 525, 530, 534, 536, the landslide in question was of what counsel described as an “enormous mass of rubbish”, some 500,000 tons of mineral waste tipped on a steep hillside. In Cambridge Water [1994]2 A.C. 264 the industrial solvents being used by the tannery were bound to cause mischief in the event, unforeseen on the facts, that they percolated down to the water table. These cases are in sharp contrast with those arising out of escape from a domestic water supply (such as Carstairsv Taylor (1871) L.R.6 Exch 217, Ross v Fedden (1872) 26 L.T. 966 or Andersonv Oppenheimer (1880)5 Q.B.D. 602) which, although decided on other grounds, would seem to me to fail the mischief or danger test. Bearing in mind the historical origin of the rule, and also that its effect is to impose liability in the absence of negligence for an isolated occurrence,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.
No ingredient of Rylands v Fletcher liability has provoked more discussion than the require-ment of Blackburn J. ((1866) L.R. 1 Exch 265, 280) that the thing brought on to the defendant’s land should be something “not naturally there”, an expression elaborated by Lord Cairns ((1868)
L.R.3 H.L. 330, 339) when he referred to the putting of land to a “non-natural use”. Read literally, the expressions used by Blackburn J. and Lord Cairns might be thought to exclude nothing whlCTl has reached the land otherwise than through operation of the laws of nature. But such an interpretation has been fairly described as “redolent of a different age”, and in Readv
J Lyons& Co Ltd [1947] A.C. 156, 169, 176, 187 and Cambridge Water at p 308 the House gave its imprimatur to Lord Moulton’s statement in Rickards v Lothian (1913] A.C. 263, 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 a use as is proper for the general benefit of the community.”
I think it clear that ordinary user is a preferable test to natural user, making it clear that the rule in Rylandsv Fletcher is engaged only where the defendant’s use is shown to be extraordinary and unusual. This is noat test to be inflexibly applied: a use may be extraordinary and unusual at one time or in one place but not so at another time or in another place I also doubt whethera test of reasonable user is helpful, since a user may well be quite out of the ordinary but not unreason able, as was that of Rylands, Rainham Chemical Works or the tannery in Cambridge Water. Again, as it seems to me, 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. An occupier of land who can show that another occupier of land has brought or kept on his land an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances is in my opinion entitled to recover compensation from that occupier for any damage caused to his property interest by the escape of that thing, subject to defences of Act of
God or of a stranger, without the need to prove negligence.
By the end of the hearing before the House, the dispute between the parties had narrowed
down to two questions: had the council brought on to its land at Hollow End Towers something likely to cause danger or mischief if it escaped? and was that an ordinary user of its land’/ Applying the principles I have tried to outline, I think it quite clear that the first question must be answered negatively and the second affirmatively, as the Court of Appeal did: I20011 EWCA
Civ 212.
It is of course true that water in quantity is almost always capable of causing damage if it escapes. But the piping of a water supply from the mains to the storage tanks in the block was a routine function which would not have struck anyone as raising any special hazard. In truth, the council did not accumulate any water, it merely arranged a supply adequate to meet the residents’ needs. The situation cannot stand comparison with the making by Mr Rylands of a suhstuntial reservoir. Nor can the use by the council of its land be seen as in any way extraordinary or unusual. It was entirely normal and routine. I am satisfied that the conditions to he met hefore strict liability could be imposed on the council were far from being met on the facts here.
Lord Hoffmann: Liability in nuisance is strict in the sense that one has no right to carry on an activity which unreasonably interferes with a neighbour’s use of land merely because one is doing it with all reasonable care. If it cannot be done without causing an unreasonable interference, it cannot be done at all. But liability to pay damages is limited to damage which was reasonably foreseeable.
It is tempting to see, beneath the surface of the rule, a policy of requiring the costs of a commercial enterprise to be internalised; to require the entrepreneur to provide, by insurance or otherwise, for the risks to others which his enterprise creates. That was certainly the opinion of Bramwell B, who was in favour of liability when the case was before the Court of Exchequer: (1865) 3 H. & C. 774. He had a clear and consistent view on the matter: see Bamford v Turnley [above, p.423]. But others thought differently. They considered that the public interest in promoting economic development made it unreasonable to hold an entrepreneur liable when he had not been negligent. On the whole, it was the latter view-no liability without fault-which gained the ascendancy. With hindsight, Rylands v Fletcher can be seen as an isolated victory for the internalisers. The following century saw a steady refusal to treat it as laying down any broad principle of liability.
To summarise the very limited circumstances to which the rule has been confined: First, it 1s a remedy for damage to land or interests in land. As there can be few properties in the country, commercial or domestic, which are not insured against damage by flood and the like, this means that disputes over the application of the rule will tend to be between property insurers and liability insurers. Secondly, it does not apply to works or enterprises authorised by statute. That means that it will usually have no application to really high risk activities. As Professor Simpson points out ([I 984] 13 J Leg Stud 225) the Bradfield Reservoir was built under statutory powers. In the absence of negligence, the occupiers whose lands had been inundated would have had no remedy. Thirdly, it is not particularly strict because it excludes liability when the escape is for the most common reasons, namely vandalism or unusual natural events. Fourthly, the cases in which there is an escape which is not attributable to an unusual natural event or the act of a third party will, by the same token, usually give rise to an inference of negligence. Fifthly, there is a broad and ill-defined exception for “natural” uses of land. It is perhaps not surprising that counsel could not find a reported case since the Second World War in which anyone had succeeded in a claim under the rule. It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse.
In Burnie Port Authority v General Jones Pty Ltd (I 994) 179 C.L.R. 520 a majority of the High Court of Australia lost patience with the pretensions and uncertainties of the rule and decided that it had been “absorbed” into the law of negligence. Your Lordships have been invited by the respondents to kill off the rule in England in similar fashion. It is said, first, that in its present attenuated form it serves little practical purpose; secondly, that its application is unacceptably vague (“an essentially unprincipled and ad hoc subjective determination” said the High Court (at p.540) in the Burnie case) and thirdly, that strict liability on social grounds is better left to statutory intervention.
There is considerable force in each of these points. It is hard to find any rational principle which explains the rule and its exceptions. In Read v J Lyons & Co Ltd [ 1947] A.C. 156, 175 Lord Macmillan said with Scottish detachment “your Lordships are not called upon to rationalise the law of England” but in RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985
S.C. (HL) 17, 41 Lord Fraser of Tullybelton described the suggestion that the rule formed part of the law of Scotland as “a heresy which ought to be extirpated”. And the proposition that strict liability is best left to statute receives support from the speech of Lord Goff of Chieveley in the Cambridge Water case [1994] 2 A.C. 264, 305: “Like the judge in the present case, I incline to the opinion that, as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament than by the courts. If such liability is imposed by statute, the relevant activities can be identified and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establishing the incidenceand scope of such liability.”
An example of statutory strict liability close to home is s.209 of the Water Industry Act 1991:
“(l) Where an escape of water, however caused, from a pipe vested in a water undertaker causes loss or damage, the undertaker shall be liable, except as otherwise provided in this section, for the loss or damage (3) A water undertaker shall not incur any liability under subs.(1) above
in respect of any loss or damage for which the undertaker would not be liable apart from that subsection and which is sustained (b) by any public gas supplier within the meaning of Pt.I
of the Gas Act 1986 ”
This provision is designed to avoid all argument over which insurers should bear the loss.
Liability is far stricter than under the rule in Rylands v Fletcher. There is no exception for acts of third parties or natural events. The undertaker is liable for an escape “however caused” and must insure accordingly. On the other hand, certain potential claimants like public gas suppliers (now called public gas transporters) must insure themselves. The irony of the present case is that if the leak had been from a high pressure water main, belonging to the North West Water Authority,a much more plausible high-risk activity, there could have been no dispute. Section 209(3)(b) would have excluded a statutory claim and the authority’s statutory powers would have
excluded the rule in Rylands v Fletcher.
But despite the strength of these arguments, l do not think it would be consistent with the
judicial function of your Lordships’ House to abolish the rule. It has been part of English law for nearly 150 years and despite a searching examination by Lord Goff of Chieveley in the Cambridge Water case [1994] 2 A.C. 264, 308, there was no suggestion in his speech that it could or should be abolished. I think that would be too radical a step to take.
It remains, however, if not to rationalise the Jaw of England, at least to introduce greater
certainty into the concept of natural user which is in issue in this case.
In myopinion the Court of Appeal was right to say that it was not a “non-natural” user of land.I am influenced by two matters. First, there is no evidence that it created a greater risk than is normally associated with domestic or commercial plumbing. True, the pipe was larger. But whether that involved greater risk depends upon its specification. One cannot simply assume that the larger the pipe, the greater the risk of fracture or the greater the quantity of water likely to be discharged. I agree with my noble and learned friend Lord Bingham of Comhill that the criterion of exceptional risk must be taken seriously and creates a high threshold for a claimant to surmount. Secondly, I think that the risk of damage to property caused by leaking water is one against which most people can and do commonly insure. This is, as I have said, particularly true of Transco, which can be expected to have insured against any form of damage to its pipe. It would bea very strange result if Transco were entitled to recover against the council when it would not have been entitled to recover against the Water Authority for similar damage
emanating from its high pressure main.