Strict Liability - Rules in Rylands v Fletcher

A. Introduction
1. Meaning of strict liability
2. Rule in Rylands v Fletcher

B. Elements
1. Dangerous things/Thing likely to cause damage if it escapes
2. Intentional storage/Accumulation
3. Escape
4. Non-natural use of land
5. Foreseeability/Remoteness of Damage

C. Defences
a. Consent
b. Common benefit
c. Act of a stranger
d. Act of God
e. Default of the plaintiff
f. Statutory authority

D. Who may sue

E. Who may be sued

F. Claims for pure economic loss

G. Claims for physical injuries

Strict Liability Rules in in Rylands v Fletcher

A. Introduction

Originated from nuisance

The development of scope and applicability of Rylands v Fletcher is now more restricted by
HL in Cambridge Water Co v Eastern Counties Leather plc [1994] 1 All ER 53; [1994] AC
264.

1. Meaning of Strict liability

- a term used to describe liability which is imposed on D without any proof of fault on
his part.
- Irrelevant:
o D might have taken all reasonable precautions to avoid or minimize risks
arising from his activity
o Mental state of D
- can arise in a cause of action for breach of statutory duty but the ‘strictness’ of
liability depend on the wording of the relevant statutory provisions.
- “no-fault liability”

2. The rule in Rylands v Fletcher

Rylands v Fletcher [1866] LR 1 Ex 265; affirmed [1868] LR 3 HL 330

Facts: D built reservoir – iron shafst underneath – P mining land – flooded.
D was liable to the P
Blackburn J ([1866] LR 1 Ex 265 at 279-280):

‘We think that the true rule of law is, that the person who for their own purposes brings on his
lands 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 prime facie answerable for all the damage which is the
natural consequence of its escape.”

Defences: P’s own fault or by an act of God.

Lord Cairns (HL) [1868] LR 3 HL 330 aapproved this rule but further added that the rule
only applied where D had used his land for a non-natural use.
B. Elements to establish liability

Five elements required to establish liability:

i) The existence of dangerous thing/thing likely to cause damage if it escapes

ii) Intentional storage/accumulation
iii) Escape
iv) Non-natural use
v) Foreseeability of damage

1. Dangerous things/Thing likely to cause damage if it escapes

- dangerous: question of fact.

- anything that may cause damage if it escapes.
- Object or ‘thing need not be dangerous per se because there are objects which are safe
if properly kept, but are dangerous if they escape.
- Successful application in: gas, noxious fumes, explosive, fire, electricity, water and
sewage, petrol.

Whether the thing is considered dangerous in that it may cause damage if it escapes is
determined through the ordinary experience of mankind.
Ang Hock Tai v Tan Sum Lee & Anor [1957] MLJ 135
- double storey premise – P-first floor, D – ground floor (distributing & repairing tyres –
stored petrol for business purposes)
- D’s premise caught with fire – spread to the P’s – P’s wife and child died.
-H- D liable under Rylands v Fletcher – petrol – dangerous thing

This element of the thing being described as a dangerous thing is said to be no longer
accurate and practical by authors in England.
Reason: Cambridge Water case - the relevant damage must be foreseeable. Now irrelevant
whether the thing is dangerous or not.

2. Intentional storage/Accumulation

- The rule applies - an object or thing which D purposely (or authorized) keeps and collects.
- D liable – if he has accumulated the thing/has authorized the accumulation
- Not applicable to anything that is naturally on the land: Giles v Walker [1890] 24 QBD 656
(thistles)
- But an occupier of land who intentionally causes something that is naturally found on his
land to escape may still be held liable for any consequent damage that is caused to P:
Whalley v Lancashire & Yorkshire Rly Co [1884] 13 QBD 131 (rain water)
-The storing of the things must be for D’s own purposes.
-Not apply if the thing is brought onto D’s land by or for the use of another person (e.g.
licensee): Rainham Chemical Works v Belvedere Fish Guano [1921] 2 AC 465 HL.
- An occupier has a duty of care to protect the neighbours from any damage occurred
naturally in his land: Leaky v National Trust [1980] QB 485
Miles v Forest Rock Granite Co (Leicetershire) Ltd [1918] 34 TLR 500
-Rocks blasted by some explosives fell onto the land below and injured the P
D liable – accumulation of explosives which caused escape of the rocks that gave rise to
liability:

Pontardawe RDC v Moore-Gwyn [1929] 1 Ch 656.

The escape of a thing (rock fell) naturally on the land due to changes in the weather
-the occupier has not accumulated the rock and the escape was not caused by D’s conduct
- D not liable

- The rule is applicable if the occupier brins/collects/keeps something on his land

- When something that is naturally on the land escapes and causes damage, occupier not
liable unless he allows the escape or does nothing to prevent the escape that is foreseeable.

3. Escape

Meaning: the thing has escaped from a place over which D has control and authority to a
place over which D has no control and authority: Read v J Lyons & Co Ltd [1947] AC 156;
[1946] 2 All ER 471 HL.

Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd [1972] 1 MLJ 156
- escape must be proven before applying the rule

Ponting v Noakes
- P’s horse reached its head into D’s land and ate poisonous leaves
H- no escape

Midwood & Co Ltd v Mayor, Alderman and Citizens of Manchester

- D liable – explosion on their prop caused inflammable gas to escape into P’s house and set
fire to P’s prop

Escape includes a situation where the use of the dangerous thing causes or creates an event
from which damage is sustained: Miles v Forest Rock Granite Co (Leichestershire) Ltd
[1918] 34 TLR 500 (use of explosives)

Allowing an escape to occur from one’s own land onto another person’s property over which
one has no control is not the same as damage incurred by another person as a result of one
preventing a danger from occurring on one’s land. Liability will be imposed in the former
situation but not in the latter.

- Damage caused by the spread of fire

Common law presumption: a man is answerable for the damage that results from a fire which
began on his property.
Becquet v Mac Carthy [1831] 2 D & Ad 951

This presumption does not apply in Malaysia. P need to prove either the D himself or a
person for whose conduct he was answerable has been negligent
Leong Bee & Co v Ling Nam Rubber Works [1970] 2 MLJ 45
Sheikh Amin bin Salleh v Chop Hup Seng [1974] 125
Lembaga Tanah Kemajuan v TNB [1997] 3 AMR 3115
-When there is no escape of anything from the D’s land, the followings shall be satisfied:-
i) D had brought onto his land, things likely to catch fire, and if he ignite (light them up)
them, the fire will likely spread to P’s land
ii) D – non natural use of land
iii) things had ignited and fire spread to P’s land

Lee Kee v Gui See & Anor [1972] 1 MLJ 33

- burning of rubbish in D’s land – no precautions – fire spread onto P’s land destroying
rubber trees
- D liable

Summary:
Liability is imposed for the spread of fire if the spread was due to the default of the D’s
servant, his guest and even his independent contractor.
Balfour v Barty King [1957] 1 QB 496

Liability will be excluded where the fire spread or occurred due to an act of nature of the act
of a stranger or trespasser over whom the D has no control.

Knowledge of the fire, albeit started by a party over whom D has no control imposes a duty
on him to extinguish it within a reasonable time.
4. Non-natural use of land

Lord Cairns in Rylands v Fletcher (HL) said: “The defendant must put his land to a non-
natural use”.
Natural use : ordinary use although “artificial”
Non-natural use : extraordinary use

Meaning: (Rickards v Lothian [1913] AC 263 at 280 PC)

“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.”

Read v Lyons & Co Ltd [1947] AC 156 at 169 (Lord Porter)

All factors such as time, location and the ordinary activities of mankind must be taken into
consideration, so that what is dangerous or constitutes a non-natural use of land may differ in
different circumstances.

Public benefit can constitute natural use

Non-natural use of land has been equated with unreasonable risk in the tort of negligence.
Balance the probability of damage occurring plus the seriousness of the probable damage
compared to the social benefit derived from it.
Not conclusive test.

Factors: the quantity of the thing, the way I which it was stored and also the location of D’s
land: Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530

Examples of non-natural use (NNU) of land:

Crowhurst v Amersham Burial Board [1878] 4 Ex D 5

D’s yew leaves extended into P’s land. P’s horse died upon eating the leaves.
Planting poisonous tree - NNU

Distinguished with Ponting v Noakes [1894] 2 QB 281

Yat Yuen Hong Co Ltd v Sheridanlea & Anor [1963] MLJ 279
Highland – lowland; land developed causing some earth fell onto P’s land and damaged his
nursery.
-Piling loose earth on a steep slope ao that more flat land would be available - NNU

Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978] 1 MLJ 225
Clearing irrigation canal which went through P’s rubber estate. Bushes and weeds were
negligently set on fire and destroyed P’s rubber trees.
Escape of fire resulting from NNU

Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966] 2 MLJ 240; affirmed [1967]
2 MLJ 35 FC
Reservoir. Heavy rainfall caused water-bunds to collapse. Caused death to the deceased by
drowning
Using sand-bunds to separate ponds of water - NNU

Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia Consultants & Ors [1997] 1
AMR 637
Artificial accumulation of rainwater on higher ground, which then seeped underground,
causing increased infiltration rate and saturation of soil - NNU

natural use of land

British Celanese v AH Hunt [1969] 1 WLR 959; [1969] 2 All ER 1252
Foil strips from D’s factory caused a disruption to the electrical power and supply to that area
which in turn caused resulting damage to P’s property.

“Things naturally on the land”

- “Only if accumulation on the land is deliberate, the court need to consider whether
the defendant’s use is non-natural”.
- “No liability under the rule for permitting a spontaneous accumulation”.
Pontardawe RDC v Moore-Gwyn [1929] 1 Ch 656 (rocks fell – not liable)
Crowhurst v Amersham Burial Board [1878] 4 Ex D 5
Miles v Forest Rock Granite Co (Leicetershire) Ltd [1918] 34 TLR 500

5. Remoteness/Foreseeability of damage

A defendant will not be liable for all consequential damage that results from an escape. Type
of damage must be foreseeable

The concept of ‘reasonable and foreseeable damage’ as laid down in Wagon Mound [1961]
AC 388 at 173-174 is applicable in the tort of strict liability.
See The Wagon Mound (No 2) [1967] 1 AC 617

Confirmed by Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53
-D not liable – it was unforeseeable that the spillage would spread and cause damage to the P

See article by Naeem, M, “Strict Liability Under Attack: The Need to Protect it” [1994] 4
CJC ci

It is now more difficult for the P to succeed in action for strict liability

? – foreseeability of damage or escape or both?

If foreseeability of escape is required, it undermines the strictness of no-fault liability

C. Defences

1. Consent of the plaintiff

Express or implied consent

2. Common benefit
If the dangerous thing is allowed to exist for the common benefit of both the P and D.
The scope of activities that may be regarded as giving rise to common benefit is rather
unclear.
3. Act of a third party
Test: whether that person acts outside D’s control [unforeseeable act]

4. Act of God
Limited application.
When the escape occurs thru natural causes which is unforeseeable and without human
intervention

5. The plaintiff’s default

If the damage is caused by P’s own action or wrongdoing, he will not be compensated.
Contributory negligence – s 12(1) Civil Law Act 1956.

6. Statutory authority
Liability will not be imposed on a defendant who acts under the authority of a statute which
excludes liability for such acts.

D. Who may sue

- anyone (not necessary confined to person having an interest in land)

- a person who has an interest in land (having suffered damage to his land or other
property).

E. Who may be sued

- may or may not be owner of land on which the dangerous thing is accumulated.
- Test: who is responsible for the accumulation of the dangerous thing and has
control over it at the time of the escape.
- Accumulation could be the direct act of the D himself, or indirect such as where
he authorises another to accumulate the dangerous thing.

F. Claims for pure economic loss

- Damage to land (Milik Perusahaan Sdn Bhd v Kembang Masyur Sdn Bhd [2003] 1
MLJ 6; [2002] 4 AMR 4890 CA) and property (chattels) are clearly recoverable under
the rule.
- Economic loss arising from damage to land and chattels are accordingly
recoverable.
- Pure economic loss? - recoverable if it is a direct consequence of the escape and is
foreseeable. Recoverability of pure economic is not inconsistent with Blackburn J’s
judgment in Rylands, where his Lordship stated that there would be liability in respect
of ‘all the damage’ which is the natural consequence of its escape. ([1866] LR 1 Exch
265 at 279)

G. Claims for personal injuries

Personal injuries recoverable though P has no interest in the land.
Hale v Jennings Bros [1938] 1 All ER 579
P (occupier of land) claimed for compensation for personal injuries sustained as a result of an
escape of D’s chair-o-plane.

Malaysia:
Claim for personal injuries are recoverable under this rule but it is unclear whether the
claimant must at the material time have interest in land although this seems to be the position.
Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966] 2 MLJ 240 at 339-340.

Dato’ Dr Harnam Singh v Renal Link (KL) Sdn Bhd [1996] 1 AMR 1157 (injury to P’s health
due to escape of noxious gas).

Claim of personal injuries under this rule should be allowed not matter whether the P has
interest on the land or not
Rationale of this rule – to ensure the accountability of an occupier for dangerous or hazardous
activities on his land.