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DURU Onyekachi Free Law Lecture Series: No. 11

Summary Notes on Strict Liability Tort

By
Onyekachi Wisdom Duru Esq.*

Liability is strict in those cases were the defendant is liable for damage cause by his act
irrespective of any fault on his part. Thus, liability is strict because it is not based on any
consideration of fault on the part of the defendant. However, liability is strict and not absolute,
since the latter will not admit of any exceptions or defences. The two main areas of strict
liability are liability under the rule in Rylands v. Fletcher and liability for damages caused by
animals.
Strict liability under the rule in Rylands v. Fletcher
The rule for the imposition of liability without fault was first formulated in the case of
Rylands v. Fletcher. In that case, the defendant employed an independent contractor to
construct a reservoir on their land for the collection of water for their mill. The contractor
carelessly omitted to block up some old shaft on the site which unknown to defendant
communicated with the plaintiff’s Mine beneath the reservoir. When the reservoir was full
water burst through the old shaft and flooded the plaintiff Coal Mine. It was held that the
defendant was strictly liable for the damage even though there was no fault on their part.
The liability of the defendant was based on the following rule propounded by Blackburn J.
while delivering the judgment of the Court of Exchequer as follows:
The person who for his own purpose brings on his land and collects
and keeps there anything likely to do mischief if it escapes must keep
it at his peril and if he does not do so is prima facie answerable for all
the damage which is the natural consequences for its escape. He
cannot escape himself by showing that the escape was owing to the
plaintiff’s fault, consequences or his major acts or act of God.

This tort has it origin in nuisance. In fact, the same set of facts may give rise to nuisance and
Rylands v. Fletcher. However, the following features distinguish them, object, escape,
accumulation, and non natural use. Things within the rule include anything likely to do mischief
(dangerous materials and innocent things). In America these things are refer to as hazardous or
ultra-hazardous activities.
For the rule in Rylands v. Fletcher to operate, the following elements must be present;

*
Contact: Email: onyekachiduru@gmail.com; Tel.: +234-8037707496; +234-8022148248).
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a. there must be a non natural use of the defendant’s land;

b. the defendant must have artificially accumulated a thing like to do mischief if it escapes on
his land;
c. there must have been an escape from the defendant’s land of a thing likely to cause
mischief; and
d. damage must result from the escape since the tort is not actionable per se.
Attempt will now be made to briefly discuss these elements one after the other.
Non Natural Use
For liability to be established under the rule in Rylands v. Fletcher, the defendant must make
a non natural use of the land. This is defined in Richard v. Lothian by Lord Multon as some
special use bringing with it increased danger to others and not merely the ordinary use of the land
or such a use as it proper for the general benefit for the community. Thus, the use must be for the
personal purpose of the person doing the act. Non natural use has been described to mean:
a) Natural as suppose to artificial use of the land
b) Novel as distinct from traditional use of the land.
Non natural use seems to be a question of fact and in deciding same all the circumstances of
the time and practice of mankind must be taken into consideration so that what must be regarded
as non natural use may vary according to circumstances. In deciding whether a particular use of
land is not natural, the courts will look not only at the thing or activity in isolation but also the
place and manner in which it is maintain and its relation to the surroundings. Thus, although in
Rainhan Chemical Works Limited v. Belvedere Fish Company, the House of Lords held in
1921 that it was a non natural use of land to build a factory in it and manufacture explosives; the
same House of Lords dramatically change its position in 1947 in the case of Read v. Lyons and
held that in these days and in an industrial community it was not a non natural use of land to build
a factory on it and conduct there the manufacture of explosives. Thus, this varies in response to
changing social conditions and needs. Against this background, some of the old authority may be
decided differently today hence, normal industrial activities properly carried out may no longer
constitute a non natural use of land.
Accumulation
The rule applies to things artificially accumulated, that is to say, brought and kept on the
defendant’s land. In Wilson v. Waddell, it was held that the defendant will not be liable under the
rule, if the water is naturally on the defendant’s land and he has done nothing to accumulate it.
Escape
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Escape for the purpose of applying the proposition in Rylands v. Fletcher means escape
from a place where the defendant has occupation or control over land to a place which is outside
his occupation or control – Lord Simon in Read v. Lyons. In that case the plaintiff an
Ammunition Inspector while carrying out her duties inside the defendant’s factory was injured by
an explosion which occurred within the factory premises. It was held that there is no escape and
that accordingly the defendant cannot be held liable. Also in Pointing v. Noakes a poisonous tree
on the defendant’s land which never extended beyond the defendant’s boundary caused the death
of a horse which ate its leaves by reaching over from the adjacent land. It was held that there was
no escape and therefore no liability.
Damages
Damages must be proved under the rule in Rylands v. Fletcher since injury under the rule is
not actionable per se. but, where damages were indirectly and remotely connected to the escape,
there will be no liability on the part of the defendant. In Weller v. Foot and Mouth Disease
Institute, the defendant’s were out of business as the result of the action of Government in
closing the cattle market. This was held to be sufficient damage to sustain the action.
Defences to Rylands v. Fletcher
1) Consent of the plaintiff: consent here may be express or implied consent. This defence is
a mere application of volenti non fit injuria. The rational behind this rule is that
accumulation is for the mutual benefit of both parties and with express or implied consent.
The only duty is one of reasonable care. Thus, in Don v. Birmingham Carnal Navigation
Company, the plaintiff was operating a Mine under the defendant’s canal which was
constructed under statutory authority. The plaintiff’s Mine was flooded by water from the
canal of the defendant and it was held that the action will not succeed because it was easily
foreseeable that flooding will occur. The defendant will be excused only if he was not
careless in failing to guard against such act.
2) Default of the Plaintiff: here there will be no liability under the rule if the escape was due
to default of the plaintiff to take action. Also the plaintiff conducts may amount to
contributory negligence. Also, there will be no liability if the damage would have occurred
but for the abnormal sensitivity of the plaintiff’s property or the use to which it is put. In
Eastern and Southern Telegraph Company v. Capetown Tramways Company Ltd.,
the plaintiff complained that an escape of electricity stored on the defendant’s premises
interfered with sending of messages by the plaintiff through their submarine cables. The
action failed since the plaintiffs in such a case has put his property to special or unusually
sensitive use.
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3) Act of God: this defense is available where the escape result from the operation of
natural forces free from human intervention. For example; storm, wind, tide, earthquake,
etc. In Nichols v. Marshland the defendant accumulated water for his special use. An
extraordinary rainfall and wind broke down the embankment causing a flooding of the
plaintiff’s premises as well as sweeping away of his bridges. It was held that the defendant
was not liable for the damage since there has been no negligence on his part and the
accident was due to an act of God.
4) Act of a stranger: here escape is caused by a deliberate act of a stranger which could
reasonably have been anticipated by the defendant. However, mere negligent act of a
stranger are not within the ambit of this defence. The act must be mischievous, deliberate
and conscious. Stranger includes a trespasser. In Rox v. Jubb the owners of a reservoir
were not liable for flooding of neighbouring land cause by the act of a third party in
emptying his own reservoir into theirs. Also, in Perry v. Kendricks Transport Limited,
the owner of a vehicle was not liable for damage cause by the act of mischievous children
in throwing a lighted match into the tank. Again, in Mandraj v. Texaco Trinidad
Incorporated, an oil company was not liable for an escape of oil and consequent damage
to the crop of neighbouring land owners which was caused by unknown trespassers
deliberately drilling a hole in the company’s oil pipe line.
5) Statutory authority: this is for the public authorities and oil companies and it is a
question of construction of the statute in question as to whether and to what extent liability
under the rule has been excluded. In Sam Ikpede v. Shell BP Development Company
Limited, the plaintiff suffered damage as a result of the escape of crude oil and chemicals
from the defendant’s pipeline and killing of fishes in his pond and rivers. It was held that
the rule does not apply because the act of the defendant fell within the statutory authority
since they have license to lay oil pipelines.
Liability for Damages Caused by Animals
By this we mean strict liability for damages caused by animals. Since animals are not part
of the human society, whoever brings animals into human society does so at his own peril and
therefore assumes the responsibility to strictly control them so as to avoid damages being caused
to other members of the human society. This is why liability for damages caused by animals is
strict in the law of torts. There are two types of strict liability for damages caused by animals,
namely: liability for cattle trespass and liability under scienter rule.
Liability for Cattle Trespass
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This is a common law tort based on the need to protect farmlands in predominantly
agricultural communities. This law of tort tries to strike a balance between the interest of the cattle
rearrers and the owners of farmland. Over the years, cattle trespass was extended not only to
cover residential properties and other types of land beyond farmlands; but also, to include other
domestic animals such as goat, sheep, pigs, horses, fowls and other animals which are normally
domesticated or have domestic disposition. But, curiously it does not include dogs and cats which
are also domestic animals with a propensity to stray beyond the control and care of their owners.
Thus, cattle includes livestock but not dogs: Tallents v. Ben and cat: Buckle v. Holmes.
In the later case, the cat strayed into the plaintiff’s garden and killed 15 birds. An action for cattle
trespass failed.
Take Notice that there is no liability where cattle which are lawfully being laid along the
high way escape thereon to adjacent land for this is regarded as a normal hazard associated with
the passage of traffic along the highway: Tillett v. Ward. But if the escape is due to carelessness
on the part of the person in control of the cattle on the highway, the latter will be liable in
negligence: Gayler & Pope v. Davies. Besides, only a person having an interest in the land
trespassed upon can sue.
Further Take Notice that liability for damages caused by dogs and cats is in negligence.
Thus, in Drapper v. Hodder, a pack of puppies dash across the premises and injured a three year
old boy. The defendants were liable because the dogs were kept at a place where it is reasonably
foreseeable that damages may result. Cattle trespass has also extended to residential property.
Liability under Scienter Rule
By Scienter, we mean knowledge that an animal is vicious/dangerous and has the
propensity to cause harm or mischief. The requisite knowledge of an animal’s vicious propensity
must relate to the particular propensity that caused the damage. In establishing Scienter, it is not
necessary to show that the animal had actually done the particular type of damage on the premises
on the previous occasion; it is sufficient to prove that it is has exhibited a tendency to do that
particular kind of harm. In proving a dog’s propensity to attack humans for instance; it is
sufficient to show that it habitually rushes out of it kennel where it was chained and attempted to
bite a passerby: Worth v. Gilling.
Knowledge of the animal vicious propensity or disposition will be imputed to the
defendant where it is acquire by someone to whom the defendant dedicated full control and
custody of the animal. It may also be inferred from knowledge gained by the wife of the keeper:
Dargani v. Njoku. Take note that the basis of liability depends prima facie on Scienter by the
person who keeps it.
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To determine whether there is scienter or knowledge of the vicious propensity of the

animal for the purpose of liability under the rule, animals are divided into two types; namely,
Animals Ferae Naturae and Animals Mansuetae Naturae. Whereas the former relates to animals
that are dangerous by nature, whether tamed or not, and whether domesticated or not; the latter
refers to animals that are normally harmless and of a domesticated disposition and which from
time immemorial have always been kept by human beings as domestic animals.
In the case of Animals Ferae Naturae, scienter is presumed. Thus, in Behrens v. Betram
Mills Circus, a keeper of a tamed elephant in a circus was held liable when the animal without
any aggression knocked down and injured the plaintiff. On the other hand, in the case of Animals
Mansuetae Naturae the knowledge is accompanied by proof that the particular animal has a
dangerous disposition. Again, whether a specie of animal is to be classified as Ferae Naturae or
Mansuetae Naturae is a question of law for the Judge to decide either on the basis of judicial
notice or expert evidence – McQuaker v. Goddard - where the court took judicial notice of the
fact that a cat is an animal Mansuetae Naturae.
Lastly, liability rests on the keeper of the offensive animal, that is on the person who
habours or controls it. Take note that in Dargani v. Njoku, D was attacked and beaten by N’s
dog. There was evidence that on a previous occasion the dog had beaten a housemaid and that this
incident has been reported to N’s wife though not apparently to N himself. Sowemimo J. held that
notice to the wife amounted to notice to her husband. Scienter was thus established and N was
liable.
Again, where an animal attacks a person or property, the defense of necessity will avail
anyone who kills or incapacitates the animal in other to prevent further damage or injury. In
Uzoahia v. Atu, the plaintiff’s cow attack and injured one person and terrorized other inhabitants
of the village. A group of villagers lead by the defendant cornered and killed the cow. The
plaintiff’s action for trespass to chattel was dismissed because the cow’s behavior constituted
imminent danger to life.