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Case Analysis Of The 'Rule' In Rylands v. Fletcher (1868)

The case of Transco v Stockport 2003 is very important as it represents the most recent and
arguably, only attempt, to analyse the rule (the Rule) in Rylands v Fletcher (1868) LR 1
Exch 265 and consider its relevance to the modern world. Indeed, their Lordships considered
whether the rule has any applicability in todays world against the backdrop of a decision by
an Australian court to abolish the rule.


In 1860, Thomas Fletcher paid contractors to build a reservoir on his land, intending that it
should supply the Ainsworth Mill with water. Fletcher played no active role in the
construction, instead contracting out to a competent engineer. While building it, the
contractors discovered a series of old coal shafts and passages under the land filled loosely
with soil and debris, which joined up with John Rylands's adjoining mine. Rather than
blocking these shafts up, the contractors left them. On 11 December 1860, shortly after being
filled for the first time, Fletcher's reservoir burst and flooded Rylands's mine, the Red House
Colliery, causing 937 worth of damage. Fletcher pumped the water out, but on 17 April
1861 his pump burst, and the mine again began to flood. At this point a mines inspector was
brought in, and the sunken coal shafts were discovered. Rylands and the owner, Jehu
Horrocks, brought a claim against Fletcher on 4 November 1861.

The case was then heard by the House of Lords on 6 and 7 July 1868, with a judgment
delivered on 17 July. The court consisted of only two judges, Lord Cairns and Lord
Cranworth. The eventual judgment confirmed Blackburn's decision and general principle,
adding a requirement that the use be "non-natural
The defendants were held liable under the principle of strict liability which came into
existence due to this Land mark case and the principles of strict liability were that there was a
(1)Dangerous thing that (2)Escaped and there was (3)Unnatural use of land. Due to this the
defendant were held liable for the negligence.


Rylands v Fletcher is a common-law rule of strict liability in tort which stems from
judgment of Blackburn J. in the eponymous case. Liability under the rule is triggered if a
person brings onto his land and keeps there something "likely to do mischief if it escapes". In
such circumstances he is deemed to act "at his peril" and will be "answerable for all the
damage which is the natural consequences of its escape"
The essence of the rule is that the defendant must have used his land for an unusual purpose
which subjected his neighbours to the risk of substantial damage in the event of an escape.
From this it is clear that there must be something unusual and potentially hazardous about the
land use; the House of Lords judgments referred to unnatural land uses at various points.
Rylands itself concerned damage caused by water. Reservoir building is a potentially
dangerous enterprise because of the volume of water concerned. By way of contrast, in
Rickards v Lothian [1913] the storage of water for domestic purposes was deemed not to
constitute a non-natural use of land. In Transco Plc v Stockport MBC where a large water
main serving a block of flats burst and damaged the claimants main gas, the House of Lords
held that, despite the large volumes of water concerned, piping water for domestic use was
clearly a routine and ordinary use of land.

In Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] the House of Lords
cited with approval the work of Professor Newark who argued that the Rule arose as an
offshoot of nuisance. Whereas nuisance is concerned with an ongoing state of affairs,
Rylands is concerned with a sudden escape. The Rule in Rylands ensured that the strict
standard of liability applied by nuisance could be utilized in respect of certain land uses
where lasting damage could result from isolated escapes. In this respect the Rule could be
regarded as plugging a gap left by nuisance. In recent times Newark's thesis has been
strongly challenged. For example, Nolan has pointed out that nuisance was scarcely referred
to in any of the judgments in the Rylands litigation.

In Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994], the House of Lords
held that, notwithstanding the strict nature of the duty under Rylands v Fletcher, it is still
necessary to show that the harm was foreseeable. Thus, if foreseeability of harm is an element
of private nuisance it must also be an element of liability under Rylands. However, it is
important to note that, despite the inclusion of a foreseeability requirement, there remains a
clear distinction between Rylands and nuisance. In Rylands, provided that the claimant can
show that the harm was foreseeable, liability will be established notwithstanding the fact that
the defendant took all reasonable steps to prevent the escape.

The concept of non-natural user is at the heart of liability under Rylands. In the case of
Stannard v Gore [2013], it was held that the storage of large quantities of tyres by a vehicle
tyre fitting business could not be regarded as a non-natural use. In fact the Court of Appeal
took the opportunity to narrow the definition of non-natural use and proposed that the thing
brought onto the land must be "exceptionally dangerous or mischievous. Similarly, in
Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014], in which concrete escaped into a
sewer as a result of piling works, it was held that such conventional construction techniques
could not be regarded as unusual for the purposes of the rule. Thus, in Willis v Derwentside
[2013] it was held that the rule could not be applied to the escape of Stythe gas as it is a
naturally occurring phenomenon at mine workings.

A further important aspect of the Stannard case concerns the "escape" element of liability
under Rylands. The Court of Appeal held that the fire must be treated as a distinct entity from
the object which catches fire (the tyres in this case) and the spread of fire cannot be regarded
as an escape of the object itself. This narrow interpretation of escape in the context of fire
damage will greatly reduce the scope for being claims under Rylands. It also casts some
doubt on the decision of the High Court in LMS International Ltd v Styrene Packaging &
Insulation Ltd [2005] in which polystyrene ignited and the fire spread to neighbouring
property. It is notable that the High Court of Australia decided to "kill off" Rylands v Fletcher
liability in the case of Port Authority v General Jones Pty Ltd (1994). The Court held that
the tort of negligence was sufficiently flexible to deal with damage arising from hazardous
land uses. There was no need for a special rule of strict liability because the standard of care
expected of the occupier would rise in correlation with the magnitude of the risk. Thus,
extremely hazardous land uses would be subject to a form of de facto strict liability in any
case in that a very onerous duty of care would be placed on the occupier. In the UK case of
Transco Plc v Stockport MBC [2003], it was also noted that many hazardous land uses are
subject to strict liability under statute rendering the common law superfluous. Nevertheless,
the House of Lords declined to follow the Australian Courts and extinguish liability under
Rylands altogether. However, the tightening of the criteria in the Court of Appeal decision in
Stannard v Gore [2012] must now greatly reduce the scope for claims under the tort in
future. It remains to be seen whether the Supreme Court would display similar reservations
regarding the longterm viability of the tort.

Liability under Rylands is strict but it is not absolute. This means that the defendant will have
a defence in certain circumstances. The defence of Act of God or Act of Nature establishes a
defence in respect of harm caused by natural phenomena, such as extreme weather events,
which are beyond the control of the defendant and against which it is not possible to take
precautions (Nichols v Marsland). A defence may also be available where the damage is
caused by the intervention of a malevolent third party; as in the case of Perry v Kendricks
Transport. There is a specific defence applicable to Rylands known as "common benefit"
which precludes the claimant from obtaining damages in such circumstances. In Kiddle v
City Business Properties Ltd [1942] it was held that the defence would apply where damage
was caused by water supply to a building upon which the claimant also relied.

Over the years, the rule has been emasculated, as it is slowly turned into a niche area of the
tort of negligence. In light of the decisions in Transco and Stannard , there is little hope that
that the rule can be used in modern tort law