LAWS1003A Lecture Notes - Lecture 13: Wwe Network, Telstra, Nuisance
2 Jul 2018
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4. Rylands v Fletcher (1866) LR 1 Ex 265 (Blackburn J), (1868) LR 3 HL
330 (House of Lords).
It established a principle that came to be recognised as one of strict liability of an occupier of land
for the escape of a dangerous object or substance from that land causing harm to the plaintiff.
It is not directly binding in Australia.
a) The Decision
Fletcher owned a coal mine, which was flooded by the escape of water from a reservoir which had
been built on adjacent land by the owner of that land, Rylands. Fletcher claimed damages for the
loss he suffered by his mines being flooded (water came into the mine through series of abandoned
mine workings that stretched from under reservoir into current mines)
Blackburn J in the Exchequer Chamber, which was accepted by the House of Lords:
“We think that the true rule of law is, that the person who for his pwn purposes brings on his lands
and collects and keeps 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 damages which is the natural consequence of its
escape. [(1866) LR 1 Ex 265, 279].
Subsequent refinement of the principles in this case included:
A requirement that the use of land made by the defendant must be a “non-natural” use of
the land (for example, he would not have been liable if he had simply had a natural occurring
lake on his land which overflowed due to heavy rain.
Key element that it did not depend on the escape or the damage being foreseeable; if the
escape occurred and resulted in damage, the liability was strict.
Over the years, multiple limits came to be imposed on a liability, noted by Lord Hoffmann in Transco
at paras [30] are:
There would be no liability if the relevant danger had been created under authority of the
parliament.
There would be no liability if damage resulted from an act of god, or from a trespass by a
stranger.
Liability was limited to the so-called ‘natural’ and ‘foreseeable’ consequences of the escape;
There needed to be an actual escape of something from the land- an explosion merely
occurring on the land would not create liability under this tort;
House of Lords established that damages for personal injury could not be recovered under
this tort, it being a tort the essence of which was damage to the land- Cambridge Water Co v
Eastern Counties Leather plc [1994] AC 264.
Liability would only exist where the use of land was ‘non-natural’- some special use bringing
increased danger. This last restriction led to the failure of the claim in Transco v Stockport
MBC; in this case the overflow of a large water dank in the roof of a block of flats owned by
the Council had caused the subsidence of a gas pipe owned by the plaintiff gas company.
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HOL held that while the water tank was much larger than normal, it was by no means ‘non-
natural’ or especially dangerous, and hence the action failed.
Some debate whether decision of HOL in Cambridge Water Co v Eastern Counties Leather plc [1994]
AC 264 establishes that not only can only foreseeable damage be recovered, but that liability will
only exist where the harm is foreseeable. The better view is that it may not be necessary to show
that escape was foreseeable, only that the harm that followed the escape was foreseeable.
UK: Applied in LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065:
Defendant SPI leased Unit D in industrial estate; in course of cutting some polystyrene blocks with
hot wire one of its employees started a rapidly spreading fire, which caused extensive damage to
units b and c, occupied by LMS.
Judge Coulson held that Rylands v Fletcher liability had been established.
SPI brought onto their premises things that were likely to be dangerous.
This was kept in such a condition that if it caught alight the fire would spread outside
the premises. Chemical kept not far from hot wire cutting machine, and blocks were
stacked together which would likely burn fiercely.
This storage was a recognisable risk. SPI had even been warned by fire authorities
and didn’t fix this.
Storage of these chemicals was non-natural use of land.
Defendants were liable without need to prove nuisance or negligence.
Colour Quest Ltd v Total Downstream UK plc [2009] EWHC 540 (Comm), litigation arising out of
massive explosion at Buncefield Oil Refinery in the UK, where at [395]. Steel J noted that “total
accepts that it is liable to claimants outside perimeter of fence of Buncefield site in Rylands v
Fletcher.” Thus, negligence was not needed to be explored.
Lambert v Barratt Homes Ltd (Manchester Division) [2009] EWHC 744 (QB); [2009] Env. L. R. D14
claim for damages under Rylands in relation to water flowing from housing development was
rejected, as building houses was not a non-natural use of land.
Willis v Derwentside DC [2013] EWHC 738 (Ch) Mines are not ‘non-natural’ use of the land.
Mark Stannard (T/A Wyvern Tyres) v Gore [2012] EWCA Civ 1248, [2013] Env LR 10- tyre shop was
not strictly liable for fire that caused damage to plaintiff’s adjacent premises, as tyres did not escape
which had caught fire.
This rule is also applied in Canada; Brooks v Canadian Pacific Rly (2007) 283 DLR (4TH) 540 at [95]-
[107], and NZ- Autex Industries Ltd v Auckland City Council [2000] NZAR 324 (CA).
b) the High Court over-rules
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520:
Port Authority owned a warehouse in which highly flammable material was stored near the
roof. Contractor engaged by Authority was doing some welding near this material, which
caught alight. Resulting fire destroyed frozen food which belonged to General Jones, being
stored in another part of the warehouse.
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Claim under Rylands v Fletcher based on escape of the fire. Technically, there was no escape
as Port Authority owned the whole premises, but there was no need to address this
problem.
Majority of High Court (Mason CJ, Deane, Dawson, Toohey & Gaudron JJ) firstly rejected a
claim based on a very old English rule called ignis suus rule (meaning ‘his fire’), which
imposed strict liability on a landowner where fire escaped from his premises, unless the fire
had occurred due to “act of god” (ie. lightning) or an act of a trespasser.
Majority went further and ruled that the rule in Rylands v Fletcher had been so qualified and
changed over the years, that hardly any cases arise under it where the ordinary law of
negligence would not apply. As a result, they held that for the purposes of Australian law,
the rule should be abolished. Instead, in cases of “dangerous-substances” which escaped
from land, the law should recognise a “non-delegable duty of care”, which would be applied
under the rules of negligence.
[T]he rule in Rylands v. Fletcher, with all its difficulties, uncertainties, qualifications and
exceptions, should now be seen, for the purposes of the common law of this country, as
absorbed by the principles of ordinary negligence. Under those principles, a person who
takes advantage of his or her control of premises to introduce a dangerous substance, to
carry on a dangerous activity, or to allow another to do one of those things, owes a duty
of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the
person or property of another. In a case where the person or property of the other person
is lawfully in a place outside the premises that duty of care both varies in degree
according to the magnitude of the risk involved and extends to ensuring that such care is
taken. (179 CLR at 556)
There is no doubt that we have to consider Rylands effectively overruled in Australia.
c) Any remaining impact?
The only qualification noted by the Majority of the Court is as follows:
The qualification mentioned in the preceding paragraph is that there may remain cases in which it
is preferable to see a defendant's liability in a Rylands v. Fletcher situation as lying in nuisance (or
even trespass) and not in negligence ( See, e.g., Northwestern Utilities Ltd. v. London Guarantee
and Accident Co. (1936) AC at 119; Cambridge Water Co. v. Eastern Counties Leather Plc.
(1994) 2 WLR 53; and, generally, Newark, op.cit.).
This qualification does not seem to involve preservation of the rule in Rylands v Fletcher, simply an
acknowledgement that not all cases where liability would previously be found under that rule, can
be dealt with under the law of negligence, and that some may be best resolved under the law of
nuisance or trespass (eg. Cambridge Water Co case, where toxic chemicals from leather working had
crossed into a water catchment area operated by the water supplier. Presumably the law of trespass
might apply because there had been a crossing of the boundary by some substance).
It seems clear that a claim of Rylands v Fletcher cannot be made today. It is instead generally under
negligence, which may create difficulty for small individuals to make cases against big corporations.
Still available in NZ- Hamilton v Papakura District Council [2000] 1 NZLR 265 (CA). It can still
provide a remedy in NZ for landowners whose water supply is contaminated by Coal Seam
Gas production for example.
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Document Summary
Rylands v fletcher (1866) lr 1 ex 265 (blackburn j), (1868) lr 3 hl. It established a principle that came to be recognised as one of strict liability of an occupier of land for the escape of a dangerous object or substance from that land causing harm to the plaintiff. It is not directly binding in australia: the decision. Fletcher owned a coal mine, which was flooded by the escape of water from a reservoir which had been built on adjacent land by the owner of that land, rylands. Fletcher claimed damages for the loss he suffered by his mines being flooded (water came into the mine through series of abandoned mine workings that stretched from under reservoir into current mines) Blackburn j in the exchequer chamber, which was accepted by the house of lords: Subsequent refinement of the principles in this case included:
