1.

BACKGROUND
Rylands v Fletcher [1868] UKHL 1 was a decision
by the
House of Lords which established a new area of
English
tort law. Rylands employed contractors to build a
reservoir,
playing no active role in its construction. When the
contractors discovered a series of old coal shafts
improperly
filled with debris, they chose to continue work rather
than properly blocking them up. The result was that
on
11 December 1860, shortly after being filled for the
first
time, Rylands’s reservoir burst and flooded a
neighbouring
mine, run by Fletcher, causing £937 worth of
damage.
Fletcher brought a claim under negligence, through
which
the case eventually went to the Exchequer of Pleas.
The
majority ruled in favour of Rylands; however,
Bramwell
B, dissenting, argued that the claimant had the right
to
enjoy his land free of interference from water, and
that
as a result the defendant was guilty of trespass and
the
commissioning of a nuisance. Bramwell’s argument
was
affirmed, both by the Court of Exchequer Chamber
and
the House of Lords, leading to the development of
the
“Rule in Rylands v Fletcher"; that “the person who for
his
own purpose 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”. No right “to enjoy
property”
exists in UK black-letter law, and it is this decision
upon which stare decisis in the area.

2. Facts
In 1860, John Rylands paid contractors to build a
reservoir
on his land, intending that it should supply the
Ainsworth Mill with water. Rylands 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
Thomas Fletcher’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,
Rylands’s reservoir burst and flooded Fletcher’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. Fletcher brought a claim
against John Rylands, the owner, and Jehu Horrocks,
the manager of Rylands’s reservoir on 4 November
1861.

3. ISSUES

Issue 1: Is an absolute duty imposed on a landowner

who lawfully brings something onto his land which,
while harmless while it remains there, will naturally
cause damage if it escapes?

Issue 2: Will a party be liable for damage caused by a

thing or activity that is unduly dangerous and
inappropriate in a certain place, in light of the
character of the place and its surroundings?
4. Judgment
4.1 Liverpool Assizes
The tort of trespass was inapplicable, as the flooding
was
deemed not to be “direct and immediate"; the tort of
nuisance was rejected as this was a one-off event.
The
case was first heard by Mellor J and a special jury in
September 1862 at the Liverpool Assizes; a court
order
led to an arbitrator from the Exchequer of Pleas
being
appointed in December 1864. The arbitrator decided
that the contractors were liable for negligence, since
they
had known about the old mine shafts. Rylands,
however,
had no way of knowing about the mine shafts and so
was
not.

4.2 Exchequer of Pleas

The case then went to the Exchequer of Pleas, where
it
was heard between 3 and 5 May 1865. It was heard
on
two points. Firstly, whether the defendants were
liable for
the actions of the contractors and secondly, whether
the
defendants were liable for the damage regardless of
their
lack of negligence. They decided for the first point
that
the defendants were not liable, but more split on the
second
point. Pollock CB, Martin B and Channell B held that
the defendants were not liable, as since a negligence
claim
could not be brought there was no valid case.
Bramwell
B, dissenting, argued that the claimant had the right
to enjoy
his land free of interference from water, and that as a
result the defendant was guilty of trespass and the
commissioning
of a nuisance. He stated that “the general law
in matters wholly independent of contract” should be
that
the defendants were liable, “on the plain ground that
the
defendants have caused water to flow into the
[claimant]'s
mines, which but for the defendant’s act would not
have
gone there”.
]
4.3 Court of Exchequer Chamber
Fletcher appealed to the Exchequer Chamber of six
judges. The prior decision was overturned in favour
of
the appellant Fletcher. Blackburn J spoke on behalf of
all the judges and said that:
Blackburn J’s opinion relied on the liability for
damages
to land available through the tort of chattel trespass
and
the tort of nuisance, as well as the in scienter action,
injury
by a domesticated animal known to have a
disposition to
injure.[17] Rylands appealed.
4.4 House of Lords
The House of Lords dismissed the appeal and agreed
with
the determination for Fletcher. Lord Cairns, in
speaking
for the House of Lords, stated their agreement of the
rule stated above by Justice Blackburn, but added a
further
limitation on liability, which is that the land from
which the escape occurs must have been modified in
a
way which would be considered non-natural, unusual
or
inappropriate. The case was then heard by the House
of Lords on 6 and 7 July 1868, with a judgment
delivered
on 17 July. Oddly the court consisted of only two
judges, Lord Cairns and Lord Cranworth; Lord
Colonsay
failed to attend.[19] The eventual judgment confirmed
Blackburn’s decision and general principle, adding a
requirement
that the use be “non-natural”. The judgment
of Lord Cairns LC was as follows.
the actions of the contractors and secondly, whether
the
defendants were liable for the damage regardless of
their
lack of negligence. They decided for the first point
that
the defendants were not liable, but more split on the
second
point. Pollock CB, Martin B and Channell B held that
the defendants were not liable, as since a negligence
claim
could not be brought there was no valid case.
Bramwell
B, dissenting, argued that the claimant had the right
to enjoy
his land free of interference from water, and that as a
result the defendant was guilty of trespass and the
commissioning
of a nuisance. He stated that “the general law
in matters wholly independent of contract” should be
that
the defendants were liable, “on the plain ground that
the
defendants have caused water to flow into the
[claimant]'s
mines, which but for the defendant’s act would not
have
gone there”.
.

5 Significance
5.1 Enjoyment of property
The 'enjoyment of land' was primary in the reasons
of
Lord Cairns (above). This foundation stone is a
recurring
theme in the common law throughout the ages, to
wit: “It
has been well said, that the use of the law consists,
first, in
preserving men’s persons from death and violence;
next,
in securing to them the free enjoyment of their
property.”
Tindal, CJ: Charge to the Grand Jury at Bristol on the
occasion of the 1832 riots over the rejection in the
House
of Lords of the Reform Bill.
5.2 Change to the law
Early English common law had, in many instances,
imposed
liability on those who had caused harm regardless
of wrongful intent or negligence. Trespass was
considered
a remedy for all tortious wrongs, and sometimes
used
as a synonym for torts generally. Over the centuries,
however, judges focused more on the intent and
negligence
behind the actions than the nature of the actions
themselves, leading to the development of
negligence and
nuisance and the further development of trespass. At
the time of Rylands, the previous case relied upon
was
Vaughan v Menlove, decided in the Court of Common
Pleas in 1837. The case had almost identical facts to
Rylands,
but strict liability was never even considered. The
case is instead thought of as one of the best
attempts of
early 19th Century English judges to build up the law
of
negligence. The outcome of Rylands meant that
judges
would again impose strict liability on defendants who
accumulated
dangerous things on their land without any
need to prove negligence or wrongful intent. The
decision
won support for bringing the law relating to private
reservoirs up to standard with the law relating to
public
reservoirs, which contained similar statutory
provisions
thanks to a pair of private Acts of Parliament passed
in
1853 and 1864.
5.3 Assessment
The decision in Rylands initially faced little criticism
within England and Wales, although many American
scholars and judges of the time felt that judgment
was
a poor one. Doe CJ of the New Hampshire Supreme
Court wrote that it “put a clog upon natural and
reasonably
necessary uses of matter and tend to embarrass and
obstruct much of the work which it seems to be a
man’s
duty carefully to do”. The American interpretation
was
based primarily on the idea that it would cause
economic
harm. Further American criticism is based on the idea
that it is poor law. Firstly, they argue, it is not
trespass,
since the damage is not direct, and secondly, it is not
a nuisance, because there is no continuous action.
Glofcheski, writing in the Hong Kong Law Journal,
notes
that “the doctrine has not flourished... a tort
imposing
strict liability should be closely interpreted and
circumspectly
applied”. It has been argued that the decision
was never entirely accepted by the judiciary as a
whole,
and that it is difficult to justify. This is for two
reasons;
firstly, it is a case of very limited applicability, and it
has
been suggested that it be folded into a general
principle of
strict liability for “ultra-hazardous” activities.
Secondly
subsequent case law in England and Wales,
particularly
in Rickards v Lothian, has undermined the “non-
natural
use” element by introducing a cost/benefit analysis
which
severely limits the decision’s usefulness.
6. Developments
The party that can be sued in a Rylands claim is an
owner
or occupier of land, along with anyone who stores or
collects
the dangerous material, as in Rainham Chemical
Works Ltd v Belvedere Fish Guano Co Ltd. The party
suing was initially one with an interest in land, but
Perry v
Kendricks Transport Ltd confirmed that an interest in
land
was not necessary to bring a claim. Historically,
personal
injury claims have been allowed, as in Hale v
Jennings.[
54] More recent cases, however, such as the House
of Lords decision in Transco plc v Stockport
Metropolitan
Borough Council, have confirmed that Rylands is
“a remedy for damage to land or interests in land. It
must...follow that damages for personal injuries are
not
recoverable under the rule”.
In Cambridge Water Lord Goff opined that the rule in
Rylands should not further be developed, and that
rather
than being an independent tort it should be instead
considered
a sub-tort of nuisance. Statutory provisions, such
as the Environmental Protection Act 1990, were a
more
modern and appropriate way of addressing
environmental
problems which would previously have been covered
by Rylands. Subsequently, Transco disapproved of
the
Australian decision in Burnie Port Authority v General
Jones Pty Ltd to absorb Rylands into the general law
of
negligence,[57] deciding that Rylands should continue
to
exist but, as Lord Bingham said, as a “sub-species of
nuisance...
while insisting upon its essential nature and purpose;
and...restate it so as to achieve as much certainty
and clarity as is attainable”. It is now a sub-tort,
rather
than an independent tort, they have confirmed that it
will
be allowed to remain.
Donal Nolan has argued that to consider Rylands as
part
of private nuisance is unsound. Private nuisance
requires
the claimant to have an interest in land, while
Rylands
does not; although exceptions to this rule have
occasionally
been made in private nuisance, in Hunter v Canary
Wharf Ltd, the House of Lords ruled that to
make exceptions would transform nuisance from a
tort
against land to a tort against the person, and should
not be
permitted. John Murphy, Professor of Common Law
at the University of Manchester, agrees with Nolan,
and makes the additional point that nuisance is
focused
on a loss of enjoyment to land, not physical damage
as
Rylands is. It has also been concerned that the
reasonable
use test, which appears in nuisance, is not applicable
to cases brought under Rylands.
6.1 Brings, collects and keeps
The first requirement under Rylands is that the
defendant
“for his own purposes brings onto land and collects
and
keeps there”. In Rylands, this was the keeping of
water
in a reservoir; other cases in England and Wales have
illustrated
what sort of material is considered. In British
Celanese v AH Hunt, the accumulation was of metal
foil strips. “for his own purpose” is not understood to
be
“for his benefit”, although that was what Blackburn
was
referring to at the time; in Smeaton v Ilford Corp,[66]
Rylands
was held to apply to a local authority accumulating
sewage on its land, although there was no benefit to
the
local authority from doing this.
6.2 Mischief and escape
The next element of Rylands is that the thing be
something
“likely to do mischief if it escapes”. Before Transco
plc v Stockport Metropolitan Borough Council this did
not
have to be a dangerous item (see below); the risk
was instead
in its behaviour if it escapes. In Rylands the “thing”
was water. Other examples are fire, as in Jones v
Festiniog
Railway,[67] gas, as in Batchellor v Tunbridge Wells
Gas
Co,[68] fumes, as in West v Bristol Tramways Co, and
electricity, as in Hillier v Air Ministry. The extent of
the “thing"'s accumulation can also be considered, as
in
Mason v Levy, where it was not just the type of thing
kept but the sheer amount which created the danger.
It
is essential for a Rylands claim that there be an
escape
of a dangerous thing “from a place where the
defendant
has occupation of or control over land to a place
which is
outside his occupation or control”. In Read v J Lyons
&
Co Ltd, an explosion in a munitions factory killed an
inspector on the property. Rylands was held not to
apply,
because there was no escape. The dangerous thing
that
escapes does not always have to be the thing which
was
accumulated, but there must be a causal link. In
Miles v
Forest Rock Granite Co (Leicestershire) Ltd,
explosives
stored on the defendant’s land led to the escape of
rocks
in a blast, and the defendant was found liable.
In Transco plc v Stockport Metropolitan Borough
Council,
Lord Bingham stated obiter that “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.”
6.3 Non-natural use
The requirement of “non-natural use”, which was
created
when the case went to the House of Lords, was
described
by Lord Moulton, in Rickards v Lothian, as “some
special
use bringing with it increased danger to others”.
Because
the idea of something being “non-natural” is a
subjective
one, the interpretation of this principle has varied
over the years. In Musgrove v Pandelis, a car filled
with
petrol was considered “non-natural”, while in
Rainham
Chemical Works Ltd v Belvedere Fish Guano Co Ltd,
so was the operation of a munitions factory during
wartime.[
There is no single concrete test to define what
is “non-natural”, for reasons given by Lord Bingham
in
Transco plc v Stockport Metropolitan Borough
Council;
"[non-natural use] is not a 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 whether a test of reasonable user is
helpful,
since a user may well by quite out of the ordinary but
not
unreasonable”.
6.4 Defences
There are several defences in England and Wales to a
claim under Rylands v Fletcher; act of an unknown
third
party, contributory negligence, consent and statutory
authority.
An act of an unknown third party will absolve the
defendant of liability, as in Perry v Kendricks
Transport
Ltd. In Northwestern Utilities Ltd v London Guarantee
and Accident Co Ltd, the principle was established
that if a claimant knows of the unknown third party
and
their actions, the defendant is additionally likely to
be able
to deny liability. As Rylands requires strict liability,
any
contributory negligence voids most of the claim.
Initially
it was sufficient to offset the case itself; with the Law
Reform
(Contributory Negligence) Act 1945, courts instead
apportion damages, taking into account how much of
the
harm was contributed by the claimant. Nevertheless,
contributory
negligence is still a viable partial defence to
a Rylands claim. Other valid defences are where the
claimant has consented, expressly or impliedly, to
the accumulation
of the “thing”, and where there is statutory authority
for the accumulation.

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