Chapter 13

CHAPTER 13
DANGEROUS THINGS: RYLANDS v FLETCHER
PARA.
1. Principles of liability .................................................................................................. 13–01

A. Introduction ........................................................................................................... 13–01
B. Principles of liability............................................................................................. 13–04
2. Defences ...................................................................................................................... 13–34
A. Act of God ........................................................................................................... 13–35
B. Default of the claimant ........................................................................................ 13–40
C. Consent of the claimant ....................................................................................... 13–42
D. Independent act of third party .............................................................................. 13–47
E. Statutory authority ................................................................................................ 13–53
3. Water ........................................................................................................................... 13–57
4. Fire .............................................................................................................................. 13–102
5. Gas .............................................................................................................................. 13–129
6. Electricity ................................................................................................................... 13–153
7. Explosions and explosives ......................................................................................... 13–165
8. Firearms ...................................................................................................................... 13–178
9. Poison and pollution .................................................................................................. 13–192
10. Nuclear installations ................................................................................................... 13–201
11. Aircraft and spacecraft ............................................................................................... 13–213
1.—PRINCIPLES OF LIABILITY
(A) Introduction
The rule in Rylands v Fletcher.1 The origin of the rule of liability for the 13–01
escape of dangerous things collected or accumulated upon land is the case of
Rylands v Fletcher. The case arose as a result of an escape of water into the
claimant’s mine from a reservoir constructed by the defendant upon his land.
On appeal in the Court of Exchequer Chamber, the defendant was held liable 13–02
by Blackburn J. In identifying the crux of the case, he said:
‘‘The question of law therefore arises, what is the obligation which the law casts on a
person who, like the defendant, lawfully brings on his land something which though
harmless whilst it remains there, will naturally do mischief if it escape out of his land.
It is agreed on all hands that he must take care to keep in that which he has brought on
the land and keeps there, in order that it may not escape and damage his neighbours, but
the question arises whether the duty which the law casts upon him, under such
circumstances, is an absolute duty to keep it in if at his peril, or is, as the majority of
1
(1866) L.R. 1 Ex. 265 (first instance), (1868) L.R. 3 H.L. 330 (on appeal).
[973]
13–02 CHAPTER 13—DANGEROUS THINGS
the Court of Exchequer have thought, merely a duty to take all reasonable and prudent
precautions, in order to keep it in, but no more. If the first be the law, the person who
has brought on his land and kept there something dangerous, and failed to keep it in, is
responsible for all the natural consequences of its escape. If the second be the limit of
his duty, he would not be answerable except on proof of negligence, and consequently
would not be answerable for escape arising from any latent defect which ordinary
prudence and skill could not detect.’’2
13–03 In words that have been quoted many times subsequently, Blackburn J.
added:
‘‘We think that the true rule of law is, that the person who for his own purposes 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. He can excuse himself by
showing that the escape was owing to the plaintiff’s default; or perhaps that the escape
was the consequence of vis major, or the act of God.’’3
After an appeal to the House of Lords, the decision was upheld.
(B) Principles of liability
13–04 Relationship to nuisance. It has been pointed out that the judges in Rylands
v Fletcher probably did not regard themselves as enunciating any new principle.
The tort of nuisance was already well developed, but generally such cases
reflected a course of conduct rather than an isolated occurrence. What the
Rylands case did was to set out the circumstances in which nuisance liability
would attach for damage which arose to the claimant’s land upon a single
‘‘escape’’.4 Provided the damage arose from the accumulation by the defendant
on his land of something which fulfilled a particular criterion of dangerousness,
it mattered not that the escape could not have been prevented by the exercise of
reasonable care. Thus the liability was described as absolute or strict.5
13–05 Given its relationship with nuisance, the Rylands rule shares a number of
features with that tort. The object of both is to protect the claimant from and
compensate for, injury to his enjoyment of land.6 The extent of damage that may
be recovered is the same in both: the defendant is liable for that which was
2
(1866) L.R. 1 Ex. 265 at 279.
3
(1866) L.R. 1 Ex. 265 at 279–280.
4
See per Lord Bingham in Transco Plc v Stockport MBC [2004] 2 A.C. 1 at 7: ‘‘It seems likely, as
persuasively contended by Professor Newark (‘‘The Boundaries of Nuisance’’ (1949) 65 L.Q.R. 480
and 487–488), that those who decided the case regarded it as one of nuisance, novel only to the extent
that it sanctioned recovery where the interference by one occupier of land with the right or enjoyment
of another was isolated and not persistent.’’
5
Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 A.C. 264; also Hamilton v
Papakura District Council [2004] UKPC 9, Ch.2, para.2–31, above (no foreseeability of damage
from herbicide which contaminated water in a lake which was collected and sold to the claimants who
used it in their business of growing tomatoes).
6
See per Lord Hoffmann in Transco above n.4 at 19 ‘‘a remedy for damage to land or interests in
land.’’
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PRINCIPLES OF LIABILITY 13–08
reasonably foreseeable as resulting from the escape complained of.7 The

distinguishing feature of Rylands liability is the absence of need to prove that the
escape, classically a single unanticipated event, was itself reasonably foresee-
able. That consideration does not usually arise when considering liability in
nuisance for what is generally a course of conduct over time.8
Although it has attracted much interest and academic comment, the rule of 13–06
strict liability is successfully invoked in only rare cases in recent times.9 In fact,
the strictness of the liability has been mitigated by the emphasis given to the
concept of reasonable forseeability in determining ‘‘dangerousness’’ and the
extent of damage for which the defendant may be liable if a breach of duty is
established. Because of the developing nature of the rules, what might be
described as ‘‘historic’’ examples given in the discussion below, should be
approached with discretion. The decided cases may not always be consistent with
the way Rylands v Fletcher would be applied today.
Definition of dangerous things. Blackburn J. spoke in terms of a liability 13–07

which attached as a result of the accumulation upon land of anything ‘‘likely to
do mischief’’ if it escaped. The shorthand came to be liability for ‘‘dangerous
things’’, but the approach to what is dangerous, naturally enough, developed over
time. Some things were always likely to be regarded as dangerous, such as fire,
explosives, gas and electricity, but others might only be dangerous in particular
times or circumstances; and the perception of dangerousness might also reflect
advances in scientific knowledge, or increased technical expertise.
In Transco Plc v Stockport Metropolitan Borough Council10 the difficulty in 13–08

formulating a comprehensive test of dangerousness was aknowledged but it was
suggested that attention should be concentrated on foreseeability of danger:
‘‘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.’’11
7
See e.g. Arscott v The Coal Authority [2005] Env. L.R. 6, para.13–69, below. See also Wright and
Clarke, ‘‘Nuisance: Proteus begins to rise’’ 154 N.L.J. 1282.
8
per Lord Hoffmann in Transco, above, at 15: ‘‘It is the single escape which raises the question of
whether or not it was reasonably foreseeable and, if not, whether the defendant should nevertheless
be liable. Rylands v Fletcher decided that he should.’’ See also the speech of Lord Walker at 35 where
he discusses the territories respectively of negligence, nuisance, and the Rylands principle.
9
per Lord Hoffmann in Transco, above, at 19 (after summarising the exceptions and qualifications
to the rule) ‘‘It is perhaps not surprising that counsel could not find a reported case since the second
world war in which anyone had succeeded in a claim under the rule. It is hard to escape the
conclusion that the intellectual effort devoted to the rule by judges and writers over many years has
brought forth a mouse.’’ However, the House of Lords declined to follow the Australian courts and
subsume Rylands v Fletcher liability within the law of negligence.
10
n.4 above.
11
ibid. per Lord Bingham of Cornhill at 11. In Rylands v Fletcher itself, Lord Cranworth’s
formulation, in particular, had been generous: ‘‘anything which, if it should escape, may cause
damage to his neighbour’’ (L.R. 3 H.L. 330, 340).
[975]
13–09 Given the considerations already mentioned, a list of things which have been
categorised as dangerous in the past has its limitations, but is nonetheless given,
since it may be of some value in analogous cases, to know what dangers have
been regarded as within, and without, the rule.
ILLUSTRATIONS
13–10 The following have been held to be dangerous things for purposes of the strict
liability rule: water, artificially accumulated12; sewage13; fire14; gas15; elec-
tricity16; poison17; explosives18; creosote-soaked wood blocks, which emitted
harmful fumes19; a chemical giving off poisonous fumes20; jars containing
sulphuric acid21; phosphorus22; poisonous paint, left in a field23; yew tree
leaves24; poisonous berries, growing on a shrub in a public park25; a loaded
gun26; underpants containing sulphites27; dangerous animals28; petrol29; oil30;
paraffin31; airborne oily smuts, containing sulphur compounds32; a noxious hair
dye33; a fairground roundabout, known as a chair-o-plane34; a cleaning fluid,
which generated an explosive gas on coming into contact with cast-iron35; a
12
Rylands v Fletcher (1866) L.R. 3 H.L. 330. Charing Cross Electricity Supply Co v Hydraulic
Power Co [1914] 3 K.B. 442. Human ingenuity being what it is, the list of dangerous things is not
closed. See e.g. ‘‘Legal liability for GM crops’’ Fam. Law 2003, 87, 23.
13
Humphries v Cousins (1877) 2 C.P.D. 239; Smeaton v Ilford Corp [1954] Ch. 450.
14
Jones v Festiniog Ry (1868) L.R. 3 Q.B. 733. This includes fire from a flame-bearing instrument
such as an ignited blowlamp: Balfour v Barty-King [1956] 1 W.L.R. 779 (affirmed [1957] 1 Q.B.
496). See generally, Deacon, ‘‘Opening the floodgates to stop the fire?’’ 155 N.L.J. 1720.
15
Northwestern Utilities v London Guarantee and Accident Co [1936] A.C. 108; Hanson v
Wearmouth Coal Co [1939] 3 All E.R. 47; Federic v Perpetual Investments (1968) 2 D.L.R. (3d)
50.
16
National Telephone Co v Baker [1893] 2 Ch. 186.
17
Dell v Chesham UDC [1921] 3 K.B. 427.
18
Rainham Chemical Works v Belvedere Fish Guano Co [1921] 2 A.C. 465.
19
West v Bristol Tramways [1908] 2 K.B. 14.
20
Bamfield v Goole and Sheffield Transport Co [1910] 2 K.B. 94.
21
Adelaide Chemical Co Ltd v Carlyle (1940) 64 C.L.R. 514.
22
Williams v Eady (1893) 10 T.L.R. 41.
23
Stewart v Adams, 1920 S.C. 129.
24
Crowhurst v Amersham Burial Board (1878) 4 Ex.D. 5.
25
Glasgow Corp v Taylor [1922] 1 A.C. 44.
26
Sullivan v Creed [1904] 2 Ir.R. 317.
27
Grant v Australian Knitting Mills Ltd [1936] A.C. 85.
28
Filburn v People’s Palace and Aquarium Co (1890) 25 Q.B.D. 258.
29
Jefferson v Derbyshire Farmers [1921] 2 K.B. 281 at 290, per Atkin L.J.; Marshall v Russian Oil
Products, 1938 S.C. 773, 796. Also a motor vehicle with petrol in its tank, although the vehicle itself
is not dangerous, Musgrove v Pandelis [1919] 2 K.B. 43; and petrol fumes in an otherwise empty tank
of a vehicle, Perry v Kendricks Transport Ltd [1956] 1 W.L.R. 85.
30
Smith v G.W. Ry (1926) 135 L.T. 112. See Ingram, ‘‘Oil Pollution—Rylands v Fletcher’’, 121 N.L.J.
183.
31
Mulholland & Tedd Ltd v Baker [1939] 3 All E.R. 253.
32
Halsey v Esso Petroleum Co Ltd [1961] 1 W.L.R. 683.
33
Parker v Oloxo Ltd [1937] 3 All E.R. 524; Watson v Buckley Osborne Garrett & Co [1940] 1 All
E.R. 174; Holmes v Ashford [1950] 2 All E.R. 76.
34
Hale v Jennings Bros [1938] 1 All E.R. 579. It is difficult to see why this is a dangerous thing when
an aeroplane is not, as in Fosbroke-Hobbes v Airwork Ltd [1937] 1 All E.R. 108, 110.
35
Anglo-Celtic Shipping Co Ltd v Elliott & Jeffrey (1926) 42 T.L.R. 297.
[976]
chemical, which reacted violently on coming in contact with water36; an electric

space heater37; a blowlamp.38
In other cases, vibrations from pile-driving operations, which caused damage 13–11
to a neighbouring building were held to fall within the Rylands principle39; as
were caravan dwellers who left their site and trespassed on adjoining land40; also
a rusted wire fence, a piece of which broke off and was eaten by a cow.41 A flag-
pole was held to be a dangerous thing where it was erected near a casualty tent
in Hyde Park, London, for the day of a jubilee celebration42; also a mass of spoil
tipped on to the side of a hill, in consequence of which a landslide occurred.43
The following have been held not to be dangerous things: a steam roller44; a 13–12
person who had recovered from scarlet fever and was discharged from hospital,
whilst in an infectious condition45; an oil can46; a brazing lamp47; a tree with a
branch, in a condition rendering it liable to fall, overhanging the highway48; a
motorcar49; a stationary unhorsed van in a highway50; an aeroplane51; a domestic
boiler without a safety valve52; an air rifle53; a catapult54; a cricket ball55; the
operation of shooting ‘‘swarf’’ into barges.56 The Court of Appeal has said that
36
Vacwell Engineering Co Ltd v B.D.H. Chemicals Ltd [1971] 1 Q.B. 88.
37
Robinson v Technico Ltd (1953), unreported decision of the Sup. Ct in Eire. See 70 L.Q.R. 170.
38
Balfour v Barty-King [1957] 1 Q.B. 496.
39
Hoare & Co v McAlpine [1923] 1 Ch. 167. Damage caused by vibrations would seem to be
actionable as a nuisance or, possibly, as negligence, but to have no relation to Rylands v Fletcher.
Further, see Sir F. Pollock’s comment on this case (Torts (15th edn), p.377), which he described as
a ‘‘fallacious extension’’ of the rule, and 39 L.Q.R. 145. Indeed, it was disapproved in Barrette v
Franki Compressed Pile Co of Canada (1955) 2 D.L.R. 665.
40
Attorney General v Corke [1933] Ch. 89. See the criticism by Holdsworth in 49 L.Q.R. 158.
Pennycuick V.C. in Smith v Scott [1973] Ch. 314 at 321, 322 said that the case ‘‘could at least equally
well have been decided on the basis that the landowner there was in possession of the property and
was himself liable in nuisance for the acts of his licensees.’’
41
Firth v Bowling-Iron Co (1878) 3 C.P.D. 254, which would seem to be a case of trespass or
negligence.
42
Shiffman v Order of St John [1936] 1 All E.R. 557. A tentative suggestion only: the basis of liability
seems to be the same as that in respect of dangers adjoining the highway generally (i.e. negligence).
See Ch.10, paras 10–52–10–74, above
43
Attorney General v Cory Bros [1921] 1 A.C. 521: the company was liable both in negligence and
under the rule of strict liability. The decision on the latter point was on the basis ‘‘of liability for not
keeping under control an artificial structure in its character dangerous’’ (per Lord Haldane at 537).
44
Chichester Corp v Foster [1906] 1 K.B. 167.
45
Evans v Liverpool Corp [1906] 1 K.B. 160.
46
Wray v Essex CC [1936] 3 All E.R. 97.
47
Blacker v Lake and Elliott Ltd (1912) 106 L.T. 533.
48
Noble v Harrison [1926] 2 K.B. 332.
49
Ruoff v Long & Co [1916] 1 K.B. 148.
50
Donovan v Union Cartage Co Ltd [1933] 2 K.B. 71.
51
Fosbroke-Hobbes v Airwork Ltd [1937] 1 All E.R. 108 at 110.
52
Bail v London County Council [1949] 2 K.B. 159 (overruled by A.C. Billings v Riden [1958] A.C.
240 in so far as it was based on Malone v Laskey [1907] 2 K.B. 141).
53
Donaldson v McNiven [1952] 1 All E.R. 1213, affirmed [1952] 2 All E.R. 691.
54
Smith v Leurs (1945) 70 C.L.R. 256.
55
Bolton v Stone [1951] A.C. 850.
56
Burley v Stepney Corp [1947] 1 All E.R. 507.
[977]
water, gas and electricity in domestic premises for ordinary domestic purposes
are not to be regarded as dangerous things in the present context.57
13–13 Escape. Before liability can be established under the Rylands principle there
must be an escape from a place under the defendant’s control to some other place
not under his control.58 So, there was no liability, because there was no escape,
where a horse reached across a fence and consumed the poisonous leaves of a
tree on the other side of the boundary59; nor where a government inspector was
injured in an explosion in the shell-finishing shop of the defendant’s factory.60
However, liability may well attach where the products of an explosion, such as
shattered rock, are forcibly thrown from the defendant’s land and cause damage
elsewhere.61
13–14 Natural and non natural user. In Rylands v Fletcher it was said that the rule
applied only to something on the land which was not naturally there.62 Lord
Cairns said that the defendant was only liable if, in bringing the danger on to the
land, he was making a non-natural use of the land.63 The latter test in particular
has over time allowed courts to bring contemporary circumstances into
account.64 But the test has never been precise. It was said in one case that the
distinction between natural and non-natural use of land was one which it was
impossible to draw with any accuracy.65 The test for distinguishing one from the
other was said to await authoritative determination.66
13–15 Guidance on the nature of the use contemplated by the expression ‘‘non-
natural’’ was given in Cambridge Water Co Ltd v Eastern Counties Leather Plc.67
Whilst not attempting to create a new definition of natural or ordinary use, the
57
Collingwood v Home and Colonial Stores [1936] 3 All E.R. 200. See para.13–100, below.
58
Read v J. Lyons & Co Ltd [1947] A.C. 156 at 168, per Viscount Simon. See also Howard v Furness
Lines Ltd [1936] 2 All E.R. 781. In British Celanese Ltd v A.H. Hunt (Capacitors) Ltd [1969] 1
W.L.R. 959 it was held that, once an escape had occurred and the damage complained of was a direct
result of it, there was no need for the claimant to be the occupier of adjoining or any land for that
matter, to maintain a cause of action. The authority of this aspect of the case must now be regarded
as doubtful, see para.13–29, below.
59
Ponting v Noakes [1894] 2 Q.B. 281.
60
n.58, above.
61
See Miles v Forest Rock Granite Co (1918) 34 T.L.R. 500 (man injured on the highway by rocks
thrown there during blasting operations on the land nearby was entitled to recover damages).
62
See Williams, ‘‘Non-Natural Use of Land’’ (1973) Camb. L.J. 310.
63
(1866) L.R. 3 H.L. 330 at 339.
64
Read v J. Lyons & Co Ltd [1947] A.C. 156 at 176 per Lord Porter. See British Celanese Ltd v A.H.
Hunt (Capacitors) Ltd [1969] 1 W.L.R. 959 for an example of this in practice: metal foil used by
defendant electrical component manufacturers blew from their land into neighbouring electricity sub-
station causing a power cut. Defendant held not liable because it was not a ‘‘special use, bringing with
it increased danger to others’’. In LMS International Ltd v Styrene Packaging & Insulation Ltd [2006]
T.C.L.R. 6, a non natural use of land involving a foreseeable risk of harm was established where the
process within the defendant’s factory involved cutting flammable polystyrene blocks with a hot wire
machine, which caused a fire, damaging adjacent premises and their contents.
65
The creation of the distinction was characterised as ‘‘unconscious’’ and criticised by Salmond &
Heuston, Law of Torts, (21st edn, 1996) p.312.
66
Upjohn J. in Smeaton v Ilford Corp [1954] Ch. 450 at 474.
67
[1994] 2 A.C. 264: chemical store in tanning business ‘‘an almost classic case of non-natural
use’’.
[978]
House of Lords considered that the concept had been extended to an unreason-
able extent in attempts to avoid the imposition of liability. Given that liability
was restricted by the need to establish that harm of the relevant type was
foreseeable, Lord Goff expressed the hope that, in future, courts would not feel
obliged to extend the concept of natural use.68
In Transco Plc v Stockport Metropolitan Borough Council69 the close 13–16
relationship between what is meant by non-natural use and the dangerous
character of the accumulation by the defendant was stressed.70 In Transco,
without negligence, there was an escape from a pipe carrying water within a
block of flats owned by the defendant authority. The water percolated into an
embankment which supported the claimant’s 16 inch high pressure gas main,
causing the embankment to collapse and leaving the gas main exposed and
unsupported. There was an immediate and serious risk that the main might crack
and the claimant was put to expense in taking effective remedial measures. It was
held that the cost could not be recovered under the rule in Rylands v Fletcher. In
piping a water supply from the mains to the storage tanks in the flats the local
authority was carrying out a routine function which did not raise any special
hazard, and constituted a natural use of the land. The question of what was a
natural use of land had to be judged by contemporary standards. The test was
‘‘whether the defendant has done something which he recognises or ought to
recognise, as being quite out of the ordinary in the place and at the time when he
does it.’’71 The criterion of exceptional risk created a high threshold for a
claimant to surmount. Lord Hoffmann, in particular, observed that a useful guide
in deciding whether the risk had been created by a non-natural user of land was
to ask whether the ultimate damage was something against which the occupier
could reasonably be expected to have insured himself.72 On the facts, there was
no evidence that the local authority’s use of the land had created a greater risk
than was normally associated with domestic or commercial plumbing. Moreover,
the risk of damage to property caused by leaking water was one against which
most people could and did commonly insure.
Although the keeping of animals on land is likely to be a natural use of land, 13–17
the straying of livestock can attract strict liability by virtue of the provisions of
s.4 of the Animals Act 1971.73 Burning corn stubble in the normal course of
agriculture has been held not to be a non-natural use of land and the emission
of smoke therefrom was said not to be analogous to the escape of fire or
sparks.74
Things naturally on the land. The rule in Rylands v Fletcher has tradition- 13–18
ally had no application to things, whether dangerous or not, naturally present on
the land.
68
Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 A.C. 264 at 309.
69
[2004] 2 A.C. 1. See Shilton, ‘‘Flooding-who bears the brunt?’’ P.L.J. 2003, 110, 13; also McIntosh,
‘‘Ryands v Fletcher re-stated’’ 147 S.J. 1413.
70
n.69, above, at 11.
71
per Lord Bingham of Cornhill in Transco, n.69, above, at 12.
72
ibid., per Lord Hoffmann at 21, 22.
73
See Ch.14, paras 14–58–14–83, below.
74
Perkins v Glyn [1976] R.T.R. ix (Note in April issue).
[979]
ILLUSTRATIONS
13–19 Where previously cultivated land had been neglected, thistles sprang up and
their seeds were blown onto the adjoining land, causing damage, but the
landowner was held not liable for the natural growth of the soil.75 Nor was the
defendant liable where wild rabbits escaped from his land onto adjoining land
and damaged crops, even where he had not done all that he could to control
them.76 Likewise, when an overhanging branch of a beech tree broke off and fell,
damaging a vehicle on the highway beneath, the landowner was held not liable,77
although if the branch had been in such a condition ‘‘that anyone could see that
it might fall at any moment, and probably would fall very soon’’, there would
probably have been be liability for negligence.78 Similarly, where rocks over-
hanging a steep slope, broke away as a result of the action of the elements, and
crashed into the claimant’s house, the landowner was not liable.79 Where a
quarry filled with water as a result of both rain and percolation, the quarry owner
was not liable for erosion of the adjoining land by the water, it being ‘‘impossible
to say that the defendants . . . are responsible for water which they have not
themselves brought on to the land, but which is there naturally’’.80
13–20 Landowners interference with something naturally on the land. While the
defendant is not normally liable for the escape of something naturally on his land,
he can become liable in ordinary negligence where he has interfered with a
dangerous thing in a way that has contributed to its escape. He may have dug a
ditch, altering the course of a stream or cut into an embankment, where it had
served as a protection against the natural flow of flood-water on to adjacent
land.81
13–21 There is a distinction, however, between taking some active step which causes
an escape of existing water on to a neighbour’s land, and taking protective
measures against water that has yet to arrive. In the absence of some contractual
obligation, grant or prescriptive right, an occupier is not bound to maintain on his
75
Giles v Walker (1890) 24 Q.B.D. 656 a decision the correctness of which was questioned in Davey
v Harrow Corp [1958] 1 Q.B. 60, CA. In Morgan v Khyatt [1964] 1 W.L.R. 475, PC, it was said that
Davey had been correctly decided. For the possibility of criminal proceedings where damage is cased
by injurious weeds, see the Weeds Act 1959.
76
Hall v Dart Valley Light Railway [1998] C.L.Y. 3993.
77
Noble v Harrison [1926] 2 K.B. 332.
78
Mackie v Dumbartonshire CC [1927] W.N. 247. cf. Bruce v Caulfield (1918) 34 T.L.R. 204 (tree
on defendant’s land blown down on to claimant’s stable—held, defendant not liable as no evidence
that the tree was dangerous); Shirvell v Hackwood Estates [1938] 2 K.B. 577; Cunliffe v Banks [1945]
1 All E.R. 459 (in each of these cases damage was caused by the fall of a tree, but the defendant’s
negligence was not established). However, negligence was established in Paterson v Humberside CC,
The Times, April 19, 1995, CA where damage to a house from the roots of trees caused by subsidence
where the soil had dried out was held foreseeable.
79
Pontardawe RDC v Moore-Gwyn [1929] 1 Ch. 656. On the other hand, if the fall of the rocks had
been caused by the removal of their natural support so as to render their dangerous condition both
patent and imminent, the landowner would have been liable on the ground of negligence.
80
Rouse v Gravelworks Ltd [1940] 1 K.B. 489 at 505, per Goddard L.J. Similarly see Bartlett v
Tottenham [1932] 1 Ch. 114 at 131, per Lawrence L.J. and per Goddard L.C.J. in Neath RDC v
Williams [1951] 1 K.B. 115 at 123. See also Ellison v Ministry of Defence, 81 B.L.R. 101.
81
Whalley v L. & Y. Ry (1884) 13 Q.B.D. 131.
[980]
land something which effectively gives protection to his neighbour against the
entry of flood-water.82 Further, an occupier is entitled to take preventive
measures with impunity against something coming on to his land, even if the
effect of such will be to cast that something upon his neighbour’s land instead.83
It follows that, in the case of some measure such as raising an embankment,
where its purpose is to prevent the flow of flood-water entering his land, it makes
no difference at all to the absence of liability, whether it is situated inside or on
the boundary line between the land of the defendant and a neighbour.84
The wider application of the principle. As the Rylands rule developed, it 13–22
became clear that it was not confined simply to the rights of adjacent landowners
as between themselves. Lord Sumner said:
‘‘I am satisfied that Rylands v Fletcher is not limited to the case of adjacent freeholders.
I shall not attempt to show how far it extends. It extends as far as this case [which dealt
with the position of an electricity supply company and a hydraulic power company both
laying their mains in the streets], and that is enough for the present purpose,’’
adding that in Rylands v Fletcher, ‘‘both courts however show that they have no
intention of confining the principle to the case of adjacent freeholders.’’85
Who is liable for an escape? The positions separately of the owner of the 13–23
danger in question, the occupier of the land from which it escapes and the owner
of that land, should be considered. So far as the owner of the danger is concerned,
he or she is the person primarily liable, whether or not also having an interest in
the land from which the escape occurs.86 If the danger is brought on to another
person’s land, the owners of the danger are liable even though ‘‘they have no
tenancy or independent occupation of the land, but use it thus by permission of
the tenants or occupiers,’’87 and a fortiori, if they have no such permission. Under
normal principles, the owner is vicariously liable for the actions of employees,
agents and in some cases even independent contractors.88 In the case of an
explosion, liability attaches to the person who was carrying on the operations
resulting in the explosion.89
The occupier of the land onto which the danger has been brought is liable if 13–24
the danger arrived with his knowledge and consent. Accordingly, when a
company manufactured explosives on land, occupied by the defendants, and an
82
Mid-Rhondda Co-operative Society [1941] 1 K.B. 381.
83
Greyvensteyn v Hattingh [1911] A.C. 355 swarm of locusts; Lagan Navigation Co v Lambeg
Bleaching Co [1927] A.C. 226, (the height of the river banks was raised against entry of flood water).
See further, para.13–71, below.
84
Marriage v East Norfolk Rivers Catchment Board [1949] 2 K.B. 456. See also Arscott v The Coal
Authority [2005] Env. L.R. 6, CA, para.13–69, below.
85
Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 K.B. 772 at 779, 780. See
also per Atkinson J. in Shiffman v Order of St John [1936] 1 All E.R. 557 at 561.
86
Rainham Chemical Works v Belvedere Fish Guano Co [1921] 2 A.C. 465 at 479.
87
Rainham Chemical Works v Belvedere Fish Guano Co [1912] 2 A.C. 465 at 479, per Lord
Sumner.
88
Black v Christchurch Finance Co [1894] A.C. 48. See also Ch.3, above, paras 3–98–3–203.
89
Rainham Chemical Works v Belvedere Fish Guano Co [1921] 2 A.C. 465.
[981]
explosion occurred, the defendants were liable on the ground that they had
knowingly permitted the company to carry on its dangerous operations.90 A little
strangely, an occupier who gave a licence to caravan dwellers to park on his land,
was liable when they caused damage in the neighbourhood.91 Where oil leaked
from an oil company’s tank, which was standing in a railway siding, the railway
company was not liable, but only because it could avail itself of a defence that
the escape was the result of the wrongful act of third parties, the tank owners,
who sent it out in a leaky condition.92
13–25 In Rylands v Fletcher, Blackburn J. spoke of a person who collected ‘‘for his
own purposes’’ anything likely to do mischief if it escapes. Although these words
were appropriate to the decision in which they were used, they have not been
taken as limiting liability to those cases in which the defendant has obtained
some financial or other advantage from collecting the dangerous thing. The
purpose for which it is collected is immaterial.93 When an owner/occupier is
bound by contract or prescription or statutory duty to collect a dangerous thing
on his land for the purposes of another, while he may be relieved from liability
to that other if the dangerous thing were to escape and damage him, he is not
thereby relieved from liability to third parties. Accordingly, a local authority
which receives sewage into its sewers, in pursuance of its statutory obligations,
may well be liable for any escape.94 The occupier is liable because the dangerous
thing was on his land with his knowledge and consent.
13–26 The owner of the land, who is not in occupation, is not the owner of or
exercising control over the dangerous thing, and has not expressly or impliedly
authorised its presence on the land, is under no liability for an escape. He is only
liable, under the ordinary principles of the law of nuisance, if he has let the land
for a purpose from which damage is bound to result, without negligence on the
part of his tenant.95 Where the landowner is also the owner of the dangerous
thing, the question arises whether he is liable for damage done when the land and
the dangerous thing is let to a tenant. Because an occupier of the land cannot
escape liability by employing an independent contractor to perform his obliga-
tion,96 in principle, it would seem that an owner is in the same position. This was
the view of Atkin L.J. who, saying that the principle of Pickard v Smith97 and
Penny v Wimbledon Urban District Council98 applied to persons who brought
90
Rainham Chemical Works v Belvedere Fish Guano Co [1921] 2 A.C. 465 at 479 and 480.
91
Attorney General v Corke [1933] Ch. 89.
92
Smith v G.W. Ry (1926) 42 T.L.R. 391.
93
‘‘It scarcely seems accurate to hold that the nationalised gas industry collects and distributes gas
for its ‘own purposes’ ’’ within the rule in Rylands v Fletcher: per Sellers L.J. in Dunne v North
Western Gas Board [1964] 2 Q.B. 806.
94
Smeaton v Ilford Corp [1954] Ch. 450. See per Upjohn J. at 469, 472. cf. Dunne v North Western
Gas Board [1964] 2 Q.B. 806.
95
See Harris v James (1876) 45 L.J.Q.B. 545; Jenkins v Jackson (1888) 40 Ch.D. 71. In St Anne’s
Well Brewery Co v Roberts (1928) 140 L.T. 1, the CA expressed the opinion that a landowner not in
occupation of the land was never liable under Rylands v Fletcher. This would require at least the
limitation that he is not also the owner of the dangerous thing on the land.
96
Rainham Chemical Works v Belvedere Fish Guano Co [1921] 2 A.C. 465, per Lord Sumner.
97
(1861) 10 C.B.(N.S.) 470.
98
[1899] 2 Q.B. 72.
[982]
dangerous materials onto land, added: ‘‘Can the person who has acquired a tiger,
so long as he remains its owner, relieve himself of responsibility by contracting
with a third person for its custody?’’99
Who may sue. The older authorities speak in terms of anyone suffering 13–27
damage from an escape having the right to sue. It was not thought necessary that
the claimant be the occupier of adjacent land, or indeed any land at all.100
Blackburn J. himself commented that, on the facts of Rylands v Fletcher, the
workmen in the drowned mine would have been entitled to recover the value of
lost tools,101 and in cases involving gas explosions102 and escapes of water from
mains,103 members of the public who were passing along the highway at the time
and suffered injury, have been held entitled to sue. It was said that the rule did
not deal only with liability of landowners to each other, but made the owner of
a dangerous thing liable ‘‘‘for any mischief thereby occasioned,’ that is to say, not
mischief necessarily occasioned to the owner of the adjoining land, but any
mischief thereby occasioned.’’104 So where a claimant’s motorcar, left out on the
highway, and washing, hung out to dry, were damaged by sulphuric acid smuts
or oily drops escaping from the defendant’s chimneys at their oil distribution
depot, the claimant was entitled to recover damages.105
More recently, the origins of the Rylands rule in nuisance have been 13–28
emphasised.106 A claim for nuisance can only be maintained by someone having
an interest in the land affected,107 and logically the same should apply to a
Rylands claim. In Transco Plc v Stockport Metropolitan Borough Council108 it
was said that the Rylands rule exists ‘‘as a remedy for damage to land or interests
in land’’.109 It would seem likely, given this approach, that earlier cases in which
it was contemplated that the action might extend to groups without an interest in
the land affected should no longer be regarded as authoritative.110
What damage may be recovered. In the leading case itself, Blackburn J. said 13–29
that the defendant was ‘‘prima facie answerable for all the damage which is the
99
Belvedere Fish Guano Co v Rainham Chemical Works [1920] 2 K.B. 487 at 504. cf. Lord Wright
in Brackenborough v Spalding Urban District Council [1942] A.C. 310 at 324: ‘‘In the case of
dangerous animals, a transfer of actual possession and control would not necessarily terminate his
[the owner’s] responsibility.’’
100
See British Celanese v A.H. Hunt (Capacitors) Ltd [1969] 1 W.L.R. 959.
101
Cattle v Stockton Waterworks Co (1875) L.R. 10 Q.B. 453.
102
Price v South Metropolitan Gas Co (1895) 65 L.J.Q.B. 126.
103
Markland v Manchester Corp [1936] A.C. 360.
104
Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 K.B. 772 at 785, per Bray
J.
105
Halsey v Esso Petroleum Co Ltd [1961] 1 W.L.R. 683. See ‘‘Wild Beasts in Fulham’’, 105 S.J. 579,
cf. Vaughn v Halifax-Dartmouth Bridge Commission (1961) 29 D.L.R. (2d) 523: damage caused to
a car by paint blown from painting process of bridge did not arise out of the use and occupation of
land and the painting was a natural user of land.
106
See above, para.13–04.
107
Hunter v Canary Wharf Ltd [1997] A.C. 655.
108
[2004] 2 A.C. 1.
109
See per Lord Hoffmann at 19.
110
In McKenna v British Aluminium Ltd, The Times, April 25, 2002 a judge at first instance refused
an application to strike out claims by persons without an interest in land on the basis that it was
arguable that such a restrictive rule should not survive the Human Rights Act 1998.
[983]
natural consequence’’ of the dangerous thing’s escape.111 In light of the House of

Lords’ decision in Cambridge Water Co v Eastern Counties Leather Plc112 that
is too wide a statement to represent the modern law. Foreseeability of damage of
the relevant type is required.113 Even then, not all types of damage are recov-
erable.
13–30 Personal injury. There were long-standing doubts whether the rule encom-
passed claims for personal injury,114 but in Cambridge Water Lord Goff quoted
with approval a passage from a ‘‘seminal article’’115 which described as ‘‘rash’’
the conclusion that a remedy for personal injury was given.116 Thereafter, two
members of the House of Lords indicated that damages for personal injuries
should not be recoverable in Rylands v Fletcher although a contrary view was
expressed by a dissenting member.117 Taking into account further expressions of
opinion in the House of Lords in Transco,118 it had been felt that the balance of
opinion was heavily against the rule having application to cases of personal
injury.119 Yet in an interlocutory appeal to the Court of Appeal against a refusal
to strike out as an abuse of process a claim for personal injury arising out of an
alleged public nuisance in Group Claimants v Corby Borough Council,120 the
submission that observations in Hunter v Canary Wharf Ltd121 and Transco Plc
v Stockport MBC122 had the effect of overruling cases in which damages had
been awarded for personal injury in cases of public nuisance was emphatically
rejected. Dyson L.J. referred to the ‘‘long-established principle that damages for
personal injury can be recovered in public nuisance’’123 and added:
‘‘In the circumstances, it is difficult to see why a person whose life, safety or health has
been endangered and adversely affected by an unlawful act or omission and who suffers
personal injuries as a result should not be able to recover damages. The purpose of the
law which makes it a crime and a tort to do an unlawful act which endangers the life,
safety or health of the public is surely to protect the public against the consequences of
acts or omissions which do endanger their lives, safety or health. One obvious
consequence of such an act or omission is personal injury. The purpose of this law is
not to protect the property interest of the public. It is true that the same conduct can
111
(1866) L.R. 1 Ex. 265 at 279.
112
[1994] 2 A.C. 264.
113
See per Lord Goff at 306.
114
For cases on both sides of the question, see earlier editions of this work.
115
Newark, ‘‘The Boundaries of Nuisance’’ (1949) 65 L.Q.R. 480.
116
[1994] 2 A.C. 264 at 297, 298.
117
Hunter v Canary Wharf Ltd [1997] A.C. 655 per Lord Goff at 692 and per Lord Lloyd at 696, but
per Lord Cooke, dissenting, at 718.
118
[2004] 2 A.C. 1.
119
n.118, above e.g. per Lord Bingham of Cornhill at para.[9] and per Lord Hoffmann at par-
a.[35].
120
[2008] P.I.Q.R. P16 CA, claims by persons born with upper limb deformities who allege that their
disabilities arose as a result of exposure of their mothers to toxic materials from a site controlled by
the defendant during the embryonic stage of pregnancy. See also Pawlowski, ‘‘More than a nuisance:
personal injury under Rylands’’, 153 S.J. 11 which suggests that Rylands v Fletcher may still give a
remedy to someone claiming to have suffered personal injury as a result of a relevant escape.
121
n.117, above.
122
n.118, above.
123
[2008] P.I.Q.R. P16 at para.[22].
[984]
amount to a private nuisance and a public nuisance. But the two torts are distinct and
the rights protected by them are different.’’124
Loss125 arising from damage to chattels has in the past been recovered under 13–31
the Rylands rule.126 Indeed a claimant in nuisance may recover for consequential
damage to chattels, provided always that land has also been affected in which he
has an interest.127 It seems likely however that purely economic loss will be
regarded as too remote.128 In Weller v Foot and Mouth Disease Research
Institute129 an action was brought by auctioneers, claiming the loss of business
which arose when two markets at which cattle were sold by auction were closed
after an outbreak of foot and mouth disease in the vicinity. On the assumption
that the defendants had imported on their premises an African virus which had
escaped and caused the outbreak of the disease it was held, inter alia, that the
claimants were not entitled to recover their loss of profits under the Rylands rule.
One basis of the judgment was expressed to be their lack of any proprietary
interest in land on to which the virus could have escaped,130 but the case is more
satisfactorily regarded as an example of the type of loss which will be regarded
as too remote.
Highway cases. The requirement that the dangerous thing must have escaped 13–32
from land in the defendants’ occupation or control has one exception in the case
of the user of a highway. The Rylands v Fletcher rule has been held to cover cases
where the dangerous thing is brought or carried along the highway.131 So, when
a person brings on or interferes with any dangerous thing upon the highway, as
a result of which adjoining property132 suffers damage, he will be liable without
proof of negligence.133 Where a person sent on to the highway a traction engine
and sparks emitted from it caused a fire, he was held liable.134 Likewise, where
an inflammable gas was created by the volatilisation of bitumen, surrounding the
defendants’ defective underground electricity cable laid in the street, whence it
124
Corby Group Litigation Claimants v Corby BC n.123 above at para.[30]. The contrary view
advanced by the defendant based on ‘‘The Boundaries of Nuisance’’, Newark, (1949) 65 L.Q.R. 480,
was acknowledged by Dyson L.J. to be a ‘‘powerful argument’’, para.[31] but a matter for the House
of Lords. The defendant, at the subsequent trial, accepted that it was bound by the decision of the CA
but reserved its position for any further appeal: [2009] EWHC 1944 (TCC) para.[685].
125
For economic loss generally, see Ch.2, paras 2–207–2–237.
126
See para.13–27, above.
127
Hunter v Canary Wharf Ltd [1997] A.C. 655 at 706.
128
Cattle v Stockton Waterworks (1875) L.R. 10 Q.B. 453 (claimants failed to recover increased cost
of constructing a tunnel after an escape of water from defendants’ pipes).
129
[1966] 1 Q.B. 569.
130
British Celanese v A.H. Hunt (Capacitors) Ltd [1969] 1 W.L.R. 959.
131
Jones v Festiniog Ry (1868) L.R. 3 Q.B. 733; Powell and Fall (1880) 5 Q.B.D. 597; Halsey v Esso
Petroleum Co [1961] 1 W.L.R. 683 (where the dangerous thing escapes onto the public highway and
damages a personal chattel such as a motorcar parked outside by the roadside).
132
Which does not include other users of the highway. Such persons must still prove negligence:
Mitchell v Mason (1966) 10 W.I.R. 26.
133
‘‘A tiger may neither trespass off the highway nor do damage on the highway without liability to
the owner’’: per Atkin L.J. in Manton v Brocklebank [1923] 2 K.B. 212 at 231. Nevertheless, there
would be defences open to him by proving either that the accident was the result of an act of God or
of a stranger.
134
Powell v Fall (1880) 5 Q.B.D. 597; West v Bristol Tramways [1908] 2 K.B. 14.
[985]
escaped into the claimant’s dwelling-house and caused damage by an explosion

and fire, the corporation was held liable.135
13–33 Shipping cases. The principle has been held not to be applicable where there
was an escape from a ship.136 However, it has been said that, given the extension
of the Rylands principle to accumulations upon the highway, there are strong
arguments to extend it to accumulations in or on a vessel in a navigable
river.137
2.—DEFENCES
13–34 Generally. In giving judgment in Rylands v Fletcher,138 Blackburn J. indi-

cated that there were certain exceptions to the principle of strict liability and,
because these will afford a defence to an action based on the rule, each should be
considered. They fall under the heads of: (a) act of God; (b) default of the
claimant; (c) consent of the claimant; (d) independent act of third party; and (e)
statutory authority.
(A) Act of God
13–35 Although the question was reserved in Rylands v Fletcher, whether act of God
might not have afforded a defence, this question was answered in the affirmative
in Nichols v Marsland.139 Strictly the position remains that it has not been
established by any decisions of the House of Lords that act of God is a
defence.140 However, for an escape of a danger to fall within the description of
‘‘act of God’’ would be a very rare event.
13–36 It has been said that act of God arises as a defence in ‘‘circumstances which
no human foresight can provide against, and of which human prudence is not
bound to recognise the possibility . . . which when they do occur . . . are
calamities that do not involve the obligation of paying for the consequences that
may result from them.’’141 Accordingly, to qualify, the occurrence in question
must be the result of natural causes and not human agency.142 If a ship on the high
135
Midwood v Manchester Corp [1905] 2 K.B. 597; followed in Charing Cross Electricity Supply Co
v Hydraulic Power Co [1914] 3 K.B. 772.
136
Miller Steamship Co v Overseas Tank Ship (UK) Ltd; The Wagon Mound (No.2) [1963] 1 Lloyd’s
Rep. 402, which point did not fall to be considered by the PC [1967] 1 A.C. 617.
137
per Potter J. in Crown River Cruisers Ltd v Kimbolton Fireworks Ltd, The Times, March 6,
1996.
138
(1866) L.R. 1 Ex. 265, 279–280.
139
(1876) 2 Ex.D. 1. It is to be observed that Lord Parker in Greenock Corp v Caledonian Ry [1917]
A.C. 556 at 581 expressed doubts that the finding of fact was correct. See also Barrett, ‘‘Common
Law Liability for Flood Damage Caused by Storms’’, 142 New L.J. 1608.
140
Greenock Corp v Caledonian Ry [1917] A.C. 556; Attorney General v Cory Bros [1921] 1 A.C.
521.
141
per Lord Westbury defining the Scottish equivalent (damnum fatale) in Tennent v Earl of Glasgow
(1864) 2 M. (H.L.) 22, approved by the HL in Greenock Corp v Caledonian Ry [1917] A.C. 556.
142
Forward v Pittard (1785) 1 T.R. 27, per Lord Mansfield: ‘‘Now what is the act of God? I consider
it to mean something in opposition to the act of man.’’
[986]
DEFENCES 13–39
seas were to be overwhelmed by some abnormal wave, this would be an act of

God; but if it ran aground during a thick fog as a result of careless navigation, this
would be an act of man.143 To be an act of God an occurrence must be: (a)
exclusively the consequence of natural causes; (b) of an extraordinary nature; and
(c) such that it could not be anticipated or provided against by the defendant.
In some old cases there was debate whether an act of God was something 13–37
which could not be anticipated or guarded against (adopted by the House of
Lords)144; or alternatively, something which could not reasonably be anticipated
or guarded against.145 The difference is of little practical significance. A man
must anticipate as likely to occur, such natural phenomena as have already
occurred in the United Kingdom and the margin of safety must be based not on
the average but on the extreme. Even when extremes have been ascertained, it is
not beyond contemplation that they may be exceeded. There is ‘‘no clear-cut
choice in law’’ between the two views and the determination as to whether an
occurrence was an act of God ‘‘always comes to a question of fact’’.146
Thus, it will be insufficient for the defendant merely to establish that it was not 13–38
reasonably possible either to anticipate the occurrence or to guard effectively
against it. In order for the defence to succeed it must be proved that neither was
possible. So, the defence was not established where there had been an
exceptional storm147; a rainfall of extraordinary violence148; an exceptionally
heavy snow storm149; a very high wind150; an extraordinarily high tide151; an
action of a rat gnawing a hole, thereby allowing water to penetrate.152
While it is not possible to anticipate every natural catastrophe, it is suggested 13–39

that the only circumstances in which the defence would be likely to succeed in
143
Liver Alkali Co v Johnson (1874) L.R. 9 Ex. 338.
144
Nugent v Smith (1875) 1 C.P.D. 19 at 34, per Brett J.; Hamilton v Pandorf (1886) 17 Q.B.D. 670
at 675, per Lord Esher; R. v Commrs of Sewers for Essex (1885) 14 Q.B.D. 561 at 574, per Coleridge
C.J. and Cave J. cf. G.W. Ry v Owners of S.S. Mostyn [1928] A.C. 57 at 105, where Lord Blanesburgh
refers to an act of God as something which had taken a ship out of control ‘‘by an irresistible and
unsearchable providence nullifying all human effort’’.
145
Nugent v Smith (1876) 1 C.P.D. 423, per Cockburn C.J. (at 426) and James L.J. (at 444); Nichols
v Marsland [1917] A.C. 556; Nitro-Phosphate and Odam’s Manure Co v London and St Katherine
Docks (1878) 9 Ch.D. 503, per Fry J.; Baldwin’s Ltd v Halifax Corp (1916) 85 L.J.K.B. 1769, per
Atkin J.
146
per Lord Dunedin in Greenock Corp v Caledonian Ry [1917] A.C. 556 at 577.
147
Ruck v Williams (1858) 3 H. & n.308. See per Bramwell B. at 318.
148
Greenock Corp v Caledonian Ry [1917] A.C. 556 and criticising the finding of fact by the jury in
Nichols v Marsland (1876) 2 Ex.D. 1; G.W. Ry of Canada v Braid (1863) 1 Moo. P.C. (N.S.) 101 at
121; City of Montreal v Watt & Scott Ltd [1922] 2 A.C. 555.
149
Fenwick v Schmalz (1868) L.R. 3 C.P. 313 at 316; Slater v Worthington’s Cash Stores [1941] 1
K.B. 488; Makin v L.N.E.R. [1943] K.B. 467 at 478, per Goddard L.J.
150
Cushing v Peter Walker & Son [1941] 2 All E.R. 693 at 695, per Hallett J.; Legacy v Chaleur
Country Club (1975) 53 D.L.R. (3d) 725.
151
R. v Commrs of Sewers for Essex (1885) 14 Q.B.D. 561 at 574, affirmed (1886) 11 App.Cas. 449;
Greenwood Tileries Ltd v Clapson [1937] 1 All E.R. 765.
152
Pandorf v Hamilton (1887) 12 App.Cas. 518. cf. Bishop v Consolidated London Properties (1933)
102 L.J.K.B. 257 (a pigeon blocked an open gutter and caused an overflow but the landlord of the
property was held liable. In any event the action of a rat both could be foreseen and guarded against
by the defendant). Also see Northwestern Utilities v London Guarantee and Accident Co [1936] A.C.
108 (a comparable situation dealing with the act of a stranger).
[987]
the United Kingdom would be an event such as an earthquake, volcanic eruption

or unusual tidal wave. Lightning is one of the more usual illustrations of an act
of God,153 although there is no decided case in England. But in Western
Australia, where a fire was caused by lightning, it was held that it had not been
caused by the defendant but ‘‘it came there from the skies’’.154 The sudden death
from heart failure of the driver of a motor vehicle while at the wheel, has been
held to be an act of God.155 It should be otherwise if a driver had reason to
suspect that he was suffering from heart disease which was capable of affecting
his ability to drive safely.
(B) Default of the claimant
13–40 In Rylands v Fletcher, Blackburn J. said that the defendant ‘‘can excuse
himself by showing that the escape was due to the plaintiff’s default’’.156 In
effect, if the sole cause of the damage is the act or default of the claimant himself,
his action cannot succeed.157 Thus, where the Postmaster-General negligently
laid telegraph lines close to electric cables belonging to a local authority and the
lines were thereby exposed to unnecessary danger, which it had been the duty of
the person laying them to avoid, it was held that damages were not recoverable.
This was in spite of the fact that under the Telegraph Act 1878 s.8, the local
authority was made absolutely liable for damage to the lines caused by their
cables.158 An alternative solution to a similar claim was found in Post Office v
Hampshire County Council,159 where the claimant’s action was dismissed on the
grounds of circuity of action because, although the cause of the rupture to its
underground cable was the voluntary act of the defendant council’s workmen, the
local authority had a good claim in damages, based on the negligence of the
claimant for its misinformation, for whatever sum the defendant was held to be
liable absolutely under the Act.
13–41 Where electricity leaked from the defendants’ tram-lines circuit and damaged
a very sensitive piece of apparatus on the claimants’ premises, an action for
153
See Carstairs v Taylor (1871) L.R. 6 Ex. 217; Nichols v Marsland (1875) L.R. 10 Ex. 255 at 260,
per Bramwell B.; Anon. (1538) Dyer 33, Case (10).
154
Hargrave v Goldman [1965] A.L.R. 377 at 386.
155
Ryan v Youngs [1938] 1 All E.R. 522. See J. Constantine S.S. Line Ltd v Imperial Smelting Corp
Ltd [1942] A.C. 154 at 202; also cf. The Saint Angus [1938] P. 225 (a case of illness).
156
(1868) L.R. 1 Ex. 265 at 279–280.
157
If the damage is only partly the result of the claimant’s act or default, the damages will be
apportioned under the Law Reform (Contributory Negligence) Act 1945, above, Ch.4, above, paras
4–03–4–72.
158
Postmaster-General v Liverpool Corp [1923] A.C. 587, distinguished in Post Office v Mears
Construction Ltd [1979] 2 All E.R. 813, where it was held that the Post Office was under a duty to
do nothing more than supply a plan, indicating approximately where its cables lay, so that the
contractors of the local authority were held liable for the damage caused to these cables by virtue of
s.8 of the Telegraph Act 1878, irrespective of the disclaimer as to the plan’s accuracy. See also
Postmaster-General v Beck and Pollitzer [1924] 2 Q.B. 308. cf. Bell Can v Cope (Sarnia) [1980] 11
C.C.L.T. 170, where liability was apportioned one-third against the defendant contractors and two-
thirds against the claimants, who were primarily to blame because of the carelessness in giving
information about their cables so that the defendants had been lulled into a false sense of security,
from which they had never extricated themselves.
159
[1980] Q.B. 124.
[988]
DEFENCES 13–43
damages failed, because it was held that a person cannot increase his neighbours’
liabilities by applying some special use to his own property.160 Likewise, where
the claimants worked a mine beneath the defendants’ canal, they failed in an
action to recover for damage caused when water from the canal escaped into and
flooded the mine.161 Since a person is entitled to assume that others will perform
that which is their legal duty, he may regulate his actions in that expectation, so
that it is not usually negligence to omit to take precautions against the
consequences of another’s failure to perform his duty under Rylands v
Fletcher.162
Persons who meddle with dangerous animals cannot recover damages if they
are injured.163
(C) Consent of the claimant
If an injured person has agreed to run the risk of damage from a dangerous 13–42
thing, he cannot succeed in an action based upon its escape, unless it can be
shown that the damage was caused by the omission to use reasonable care, that
is, negligence, on the part of the defendant. So, when the owners of land gave
permission to their lessees to tip colliery spoil on the side of the hill, they could
not recover for damage caused by the spoil sliding down the hill into the valley
below, except on proof of negligence on the part of the lessees.164 Again, a
person, who enters into occupation of premises, ‘‘takes the premises as they are,
and, accordingly, consents to the presence there of the installed water system
with all its advantages and disadvantages’’.165
The defence of consent to a claim based on Rylands v Fletcher was not 13–43
available to a negligent defendant in Colour Quest Ltd v Total Downstream UK
Plc166 which concerned a large number of claims arising out of explosions on
December 11, 2005 at the Buncefield Oil Storage Depot at Hemel Hempstead,
Hertfordshire. A large amount of petrol vapour accumulated after the failure of
employees of one of the companies responsible for the storage of oil at the depot
to notice that an oil tank gauge was stuck, as a result of which the amount of
space within the tank for further oil to be added was incorrectly displayed. That
and other systemic negligence defeated the defendants’ contention that the
160
Eastern & South African Telegraph Co Ltd v Cape Town Tramways [1902] A.C. 381.
161
Dunn v Birmingham Canal Co (1872) L.R. 7 Q.B. 244.
162
See Miles v Forest Rock Granite Co Ltd (1918) 34 T.L.R. 500, where the claimant, who was
injured while passing along the highway, owing to the failure of the defendants to keep the results of
their blasting operations on their own land, was not prevented from recovering by the fact that he
disregarded the warnings of men and red flags posted by the defendants on the highway; also Daniel
v Metropolitan Ry (1871) L.R. 5 H.L. 45.
163
See Ch.14, paras 14–42–14–49, below.
164
Attorney General v Cory Bros [1921] A.C. 521 at 539 per Lord Finlay: ‘‘A plaintiff who is himself
a consenting party to the accumulation cannot rely simply upon the escape of the accumulated
material; he must further establish that the escape was due to want of reasonable care on the part of
the person who made the deposit.’’
165
Peters v Prince of Wales Theatre [1943] K.B. 73 at 79, per Lord Goddard C.J.
166
[2009] EWHC 540 (Comm), David Steel J., Ch.3, para.3–153, above.
[989]
claimants had consented to the bringing of oil product onto the site and its
accumulation there.
13–44 Whether or not the claimant has agreed, expressly167 or by implication, to take
upon himself the risk of injury from the dangerous thing is a question of fact, but
the mere fact that he occupies premises near to a gasworks or a munitions factory,
does not mean that he has necessarily agreed to bear the risk of an explosion,
except where he can prove negligence. It would be otherwise if he were the
owner of the land and had let it to a tenant for that purpose.
13–45 Common benefit. If the dangerous thing has been brought upon premises for
the common benefit of the claimant and the defendant, there is an implied
agreement to run the risk of damage, unless negligence on the part of the
defendant can be proved. A typical example of this is to be found in cases where
water is collected from the spouts of a building, or a cistern is maintained for the
common use of the occupiers of different floors in the same building.168 These
cases are considered in further detail, later.169 There is no common benefit or
common interest for this purpose between a statutory supplier of gas, water or
electricity and the individual consumer.170
13–46 In addition to these cases, there is a tendency to hold that damage caused by
the ordinary domestic installation of gas, water and electricity is never actionable
except on proof of negligence.171
(D) Independent act of third party
13–47 The rule in Rylands v Fletcher does not apply where the damage has been
caused by the independent act of a third party, which could not reasonably have
been foreseen and guarded against. The basis for the exception172 is that the
defendant has fulfilled his duty of keeping the dangerous thing harmless and that
the cause of the damage was ‘‘the conscious act of another volition’’.173 In
considering the escape of water from a reservoir, this question was posed174:
167
Although an exemption clause is not subject to control so far as it excludes or restricts liability
under the rule in Rylands v Fletcher, where the facts also give rise to liability in negligence, any such
exemption clause then will fall to be controlled under Pt 1 of the Unfair Contract Terms Act 1977,
which came into force on February 1, 1978. For a summary of its provisions see Ch.4, paras
4–84–4–86, above.
168
Carstairs v Taylor (1871) L.R. 6 Ex. 217; Rickards v Lothian [1913] A.C. 263; Anderson v
Oppenheimer (1880) 5 Q.B.D. 602; Blake v Woolf [1898] 2 Q.B. 426; Kiddle v City Business
Properties Ltd [1942] 1 K.B. 269.
169
paras 13–95–13–101, below (water).
170
Northwestern Utilities Ltd v London Guarantee and Accident Co [1936] A.C. 108 at 120; A.
Prosser & Son Ltd v Levy [1955] 1 W.L.R. 1224 (it was held that the claimant did not impliedly
consent to the presence of a water pipe which, unknown to him, was defective).
171
Collingwood v Home and Colonial Stores [1936] 3 All E.R. 200; Tilley v Stevenson [1939] 4 All
E.R. 207.
172
This exception was first recognised in Box v Jubb (1879) 4 Ex.D. 76 at 79, per Kelly C.B.
173
Lord Dunedin in Dominion Natural Gas Co v Collins [1909] A.C. 640 at 647. See also
Northwestern Utilities v London Guarantee and Accident Co [1936] A.C. 108 at 120.
174
per Bramwell B. in Nichols v Marsland (1875) L.R. 10 Ex. 255 at 259, affirmed (1876) 2 Ex.D.
1.
[990]
DEFENCES 13–49
‘‘Suppose a stranger let it loose, would the defendant be liable? If so, then if a
mischievous boy bored a hole in a cistern in any London house, and the water did
mischief to a neighbour, the occupier of the house would be liable. That cannot be.’’
In a later case: ‘‘if the mischievous, deliberate and conscious act of a stranger
causes the damage, the occupier can escape liability; he is absolved.’’175
Accordingly, when damage was caused to the occupier of the lower floor of a 13–48
building by an overflow of water from the lavatory basin in the upper floor, and
it was proved that the overflow was caused by the malicious act of a third person
in turning the tap fully on and plugging the wastepipe, the occupier of the upper
floor was held not liable.176 The defendant could not be said ‘‘to have caused or
allowed the water to escape if the malicious act of a third person was the real
cause of its escaping without any fault on the part of the defendant’’.177 Further,
where a coach with an empty petrol tank was in a car park and some boys threw
a lighted match into the petrol tank, which caused petrol fumes within to explode
and injure the 10-year-old claimant, standing nearby, the owners of the coach
were held not liable. The explosion was caused by the act of strangers, which
could not reasonably have been anticipated and guarded against by the owners.178
The exception does not apply in the case of damage caused by an animal in
circumstances where liability attaches to the keeper under the Animals Act
1971.
Meaning of ‘‘third party’’. There has been no definition of ‘‘third party’’ (or 13–49
the alternative expression ‘‘stranger’’) for these purposes, although the reported
examples do provide a guide. Under the usual principles the defendant is liable
for the acts of his employees or agents acting within the scope of their
employment or authority.179 Thereafter the starting point is control. Was the
interfering third party one over whose activity the defendant had control?180 He
can be liable for the actions of an independent contractor where he has control
over him, in the sense of having invited him upon the land and given a
permission to work there which could at any time be withdrawn.181 The liability
goes beyond independent contractors to embrace anyone to whom he gives
authority to interfere with the dangerous thing.182 The defendant’s licensee may
or may not be a stranger depending upon whether his activities can be
175
per Singleton L.J. in Perry v Kendricks Transport Ltd [1956] 1 W.L.R. 85 at 87.
176
Rickards v Lothian [1913] A.C. 263; A. Prosser & Son Ltd v Levy [1955] 1 W.L.R. 1224.
177
per Lord Moulton in Rickards v Lothian [1913] A.C. 263 at 278.
178
Perry v Kendricks Transport Ltd [1956] 1 W.L.R. 85.
179
Baker v Snell [1908] 2 K.B. 825 (CA ordered new trial to determine whether the defendant’s
employee was acting within the course of his employment when he incited a dog to attack a maid);
Stevens v Woodward (1881) 6 Q.B.D. 318 at 321 (no liability for employee going where he was
forbidden to go).
180
181
Rylands v Fletcher (1866) L.R. 1 Ex. 265; Balfour v Barty-King [1957] 1 Q.B. 496 at 505.
182
Hardaker v Idle District Council [1896] 1 Q.B. 335; Black v Christchurch Finance Co [1894] A.C.
48.
[991]
controlled.183 There will be few cases in which a trespasser is not a stranger

within the present meaning. A stranger is one over whom the defendant had no
control and whose act was unforeseeable and without permission.184
13–50 Test of negligence. Even where the damage has been caused by the act of a
third party, the owner of the dangerous thing is liable if there has been negligence
on his part. Negligence, in this context, means failing to guard against that which
the owner ought reasonably to have foreseen. For example, in Box v Jubb185 the
defendants were not liable, when the act of a stranger was one which they ‘‘ . . .
could not possibly have been expected to anticipate’’ and which they had no
means of preventing. In a later case,186 Lord Wright said: ‘‘Though the act of a
third party may be relied on by way of defence in cases of this type, the defendant
may still be held liable in negligence if he failed in foreseeing and guarding
against the consequences to his works of that third party’s act.’’ Accordingly,
where a gas main was broken, in consequence of the removal of support by a
local authority constructing a sewer, it was held that, although the cause of the
fracture was the act of a third party (that is, the local authority), the gas company
was liable for the consequent explosion in failing to guard against possible
damage to its mains from the local authority’s excavation.187
13–51 The exception only applies when the act of the third party is a fresh,
independent act.188 In Rickards v Lothian,189 the act of a third party was
described as ‘‘malicious,’’ later interpreted as meaning a deliberate or conscious
act.190 In Philco v J. Spurling Ltd,191 carriers erroneously delivered highly
inflammable film scrap to the wrong address. No proper warning of its dangerous
character was given and when it was on the claimant’s premises one of the
claimant’s typists set it on fire with her cigarette. An explosion occurred, causing
serious damage. The defendants were held liable, because the evidence did not
183
Smith v G.W. Ry (1926) 42 T.L.R. 391 (railway company not liable for leakage of oil from a truck
into claimant’s watercourse where the truck was owned by ‘‘third party’’ oil company); Holderness
v Goslin [1975] 2 N.Z.L.R. 46 (defendant liable for fire damage to claimant’s fences where the fire
was started by the son of his farm manager, who burned gorse during the closed fire season).
184
Perry v Kendricks Transport Ltd [1956] 1 W.L.R. 85, per Parker L.J. at 92 and applied in H. &
N. Emanuel v Greater London Council [1971] 2 All E.R. 835, CA; see also Hale v Jennings Bros
[1938] 1 All E.R. 579, CA.
185
(1879) 4 Ex.D. 76. The same test was applied in Smith v G.W. Ry (1926) 42 T.L.R. 391. In
Rickards v Lothian [1913] A.C. 263 at 274 it was held that the omission to ask the jury the question
whether the defendant ought reasonably to have anticipated the act of the third party, was fatal to any
attempt to render him liable, when the damage was in fact caused by the third party’s act.
186
Northwestern Utilities v London Guarantee and Accident Co [1936] A.C. 108 at 125. See also to
the same effect, per Atkinson J. in Shiffman v Order of St John [1936] 1 All E.R. 557.
187
Northwestern Utilities Ltd v London Guarantee and Accident Co, above. The failure to make
proper inspections of a spillway so as to keep it clear of logs and boulders, even although such
obstructions were caused partly by the act of another in diverting a small stream, amounted to
negligence, since it ought to have been foreseen: Lewis v District of North Vancouver (1963) 40
D.L.R. (2d) 182.
188
per Lord Dunedin in Dominion Natural Gas Co v Collins [1909] A.C. 640 at 646, quoted above
at para.13–47.
189
[1913] A.C. 263.
190
per Lord Wright in Northwestern Utilities Ltd v London Guarantee and Accident Co n.186 above
at 119.
191
[1949] 2 All E.R. 882. See also Prosser & Son Ltd v Levy [1955] 1 W.L.R. 1224.
[992]
DEFENCES 13–53
establish that the fire was caused by the deliberate act of the typist. Had it been
so caused, the majority of the court would have held that the defendants were not
liable.
Burden of proof. The burden of proving the defence of a third party’s 13–52
independent act is on the defendant. On proof by the claimant that a dangerous
thing, for which the defendant is responsible, caused the damage in question, the
defendant is liable, unless it is shown: (a) that the damage was caused by the
independent act of a third party; and (b) that the act could not reasonably have
been anticipated and guarded against. These two elements, combined, form the
defence. It is insufficient merely for the defendant to prove (a) and then to
attempt to throw the burden of proving (b) on the claimant. So, in Rylands v
Fletcher, Blackburn J. said: ‘‘He [the defendant] can excuse himself by showing
that the escape was owing to the plaintiff’s default; or perhaps that the escape
was the consequence of vis major, or the act of God.’’192 In a later case it was put
as follows:
‘‘A person who brings a dangerous thing onto his land and allows it to escape, thereby
causing damage to another, is liable to that other unless he can show that the escape was
due to the conscious act of a third party, and without negligence on his own part.
Obviously, the burden of showing that there was no negligence is not the defendants,
and it is not for the plaintiff to prove negligence affirmatively.’’193
(E) Statutory Authority
If a danger has been created or maintained under statutory authority, there is 13–53
no liability under the rule in Rylands v Fletcher. Usually in such a case liability
will only be established if negligence is proved. It ‘‘is now thoroughly well
established that no action will lie for doing that which the legislature has
authorised, if it be done without negligence, although it does occasion damage to
anyone; but an action does lie for doing that which the legislature has authorised,
if it be done negligently.’’194 Accordingly, in actions against gas, water and
electricity undertakings, which operate under statutory powers, the rule in
Rylands v Fletcher is not applicable.195 Of course, the statutory authorisation
may preserve the liability of the statutory undertaker for nuisance196 and, in such
192
(1868) L.R. 1 Ex. 265 at 279, 280. See further per Lord Wright in Northwestern Utilities Ltd v
London Guarantee and Accident Co [1936] A.C. 108, at 120.
193
per Goddard L.J. in Hanson v Wearmouth Coal Co [1939] 3 All E.R. 47, 53.
194
Geddis v Proprietors of Bann Reservoir (1878) 3 App.Cas. 430 at 455, per Lord Blackburn. See
also Dunne v North Western Gas Board [1964] 2 Q.B. 806.
195
Green v Chelsea Waterworks Co (1894) 70 L.T. 547; Northwestern Utilities Ltd v London
Guarantee and Accident Co [1936] A.C. 108. See further para.13–129 (gas), 13–57 (water) and
13–153 (electricity), below.
196
In Department of Transport v North West Water Authority [1984] A.C. 336, it was held that the
Public Utilities Street Works Act 1950 s.18(2), did not alter the existing law that a body was not liable
for a nuisance, which was attributable to its performance of a statutory duty, albeit the statute
expressly preserved liability in nuisance (applying Stretton’s Derby Brewery Co v Mayor of Derby
[1894] 1 Ch. 431 and Smeaton v Ilford Corp [1954] Ch. 450).
[993]
a case, it is unnecessary to prove negligence.197 To be a defence, the statute must

authorise the creation or maintenance of the dangerous thing expressly or by
necessary implication198; it is not enough merely to permit it to be used.199 The
exact position depends on the construction of the statute in question.
13–54 In considering whether the statutory authority has been exercised without
negligence, the degree of care to be taken must be proportionate to the degree of
risk involved.200 When dealing with any dangerous things, a very high degree of
care is required. The statutory undertakers must use all reasonable care in the
erection and maintenance of their works. They are not bound ‘‘to ransack science
in the hope of discovering some scientific specific against possible accident,’’ but
are bound ‘‘to use well-known scientific means’’.201 This may involve their
consulting outside experts in addition to the technical and scientific members of
their own staffs.202 Whilst they must use reasonable care to maintain their works
in a state of efficiency, they are not liable solely because they have not ‘‘adopted
the last inventions of ever-changing, ever-advancing scientific discovery.’’203 At
the same time,
‘‘ . . . the authority to erect and work the plant and the obligation in both respects to use
reasonable care and precautions are correlative, and erection cannot be so severed from
use and maintenance as to entitle the undertakers to go on permanently using a plant
with all its original imperfections unremedied, merely on the ground that original faults
in construction must be deemed to be irremediable in subsequent use. Reasonableness
applies not merely to construction but to improvement.’’204
Inevitably what amounts to negligence will depend on the circumstances of the

particular case.205
13–55 Burden of proof. The burden of proof is on the statutory undertaker to prove
that it has statutory authority to create, maintain or use the dangerous thing, and
that it is exercising its powers without negligence.206
13–56 Statutes imposing strict liability. Some statutes impose strict liability for the
escape of a dangerous thing, for example, the Reservoirs Act 1975.207 Likewise
197
Midwood v Manchester Corp [1905] 2 K.B. 597; Charing Cross Electricity Supply Co v Hydraulic
Power Co [1914] 3 K.B. 772.
198
West v Bristol Tramways [1908] 2 K.B. 14.
199
Jones v Festiniog Ry (1868) L.R. 3 Q.B. 733.
200
Northwestern Utilities Ltd v London Guarantee and Accident Co n.195, above at 126, per Lord
Wright.
201
Snook v Grand Junction Waterworks (1886) 2 T.L.R. 308.
202
Manchester Corp v Farnworth [1930] A.C. 171.
203
National Telephone Co v Baker [1893] 2 Ch. 186 at 205.
204
Manchester Corp v Farnworth [1930] A.C. 171, per Lord Sumner, at 202.
205
In addition to the cases already quoted, the following may be referred to: Midwood v Manchester
Corp [1905] 2 K.B. 597 at 608; Quebec Ry v Vandry [1920] A.C. 662; Eastern and South African
Telephone Co v Cape Town Tramways [1902] A.C. 381.
206
Manchester Corp v Farnworth, n.204, above.
207
Which, by s.28 has repealed and re-enacted the Reservoirs (Safety Provisions) Act 1930. See
para.13–84, below.
[994]
WATER 13–59
strict liability is imposed in relation to the escape of ionising radiations208 oil

pollution209 and the dumping of very long-life toxic waste materials.210
3.—WATER
Liability for accumulating water. Someone who, as a non-natural user, 13–57

accumulates water on land does so at their peril.211 It matters not whether the
water is accumulated in a reservoir,212 a tank,213 a mound of earth,214 a cellar215
or even a drain which has become blocked through neglect.216
On the other hand, if a person who is a natural user of land accumulates water 13–58
on it, for example in a pond or a stream, there is no liability under Rylands v
Fletcher for damage caused by its overflow.217 The same applies where a
landowner does something on his own land, such as digging a trench to lay a
pipe,218 which causes water naturally on the land to flow more quickly onto his
neighbour’s land, provided that he does not collect it in any way. But if he causes
more water to be discharged from his land onto his neighbour’s land than would
normally be the case, or collects the drainage of his land into one place and
discharges it onto his neighbour’s land, he will be liable.219
Water on the highway. A highway authority is not entitled to discharge water 13–59
from the highway onto the lands of adjoining occupiers, or to construct roads
which are so inadequately drained that water is caused to flow onto the adjoining
land. Where a local authority built a road on the side of a hill, so that it acted as
a catch-water for rain-water from the upper slopes and also caught loose shale
brought down by the rain, with the result that, in a heavy rain, vast quantities of
208
Nuclear Installations Acts 1965–1969. See para.13–198, below, and Lloyd, ‘‘Liability for
Radiation Injuries’’ [1959] C.L.P. 33.
209
Prevention of Oil Pollution Act 1971. See paras 13–192–13–200, below.
210
Deposit of Poisonous Waste Act 1972, which was repealed by the Control of Pollution Act 1974
Sch.4, and re-enacted in s.88.
211
Rylands v Fletcher (1868) L.R. 3 H.L. 330.
212
Rylands v Fletcher n.211, above.
213
Western Engraving Co v Film Laboratories Ltd [1936] 1 All E.R. 106: closed apparatus, a boiler,
a sink and other containers used in the cinematographic business.
214
Hurdman v North Eastern Ry (1878) 3 C.P.D. 168. To the same effect is Maberley v Peabody &
Co [1946] 2 All E.R. 192, and see Broder v Saillard (1876) 2 Ch.D. 692 (the defendant was liable
where water from his broken soil pipe discharged into an artificial mound of earth made by him
against the claimant’s wall).
215
Snow v Whitehead (1884) 27 Ch.D. 588.
216
Sedleigh-Denfield v O’Callaghan [1940] A.C. 880.
217
The decision that there had been a natural user of land in Rouse v Gravelworks Ltd [1940] 1 K.B.
489 where water had accumulated in a quarry was criticised in Leakey v National Trust [1980] Q.B.
485, the CA preferring Davey v Harrow Corporation [1958] 1 Q.B. 60 where the encroachment of
roots and branches onto a neighbour’s land causing damage gave the neighbour an action in nui-
sance.
218
Barlett v Tottenham [1932] 1 Ch. 114: an underground spring was tapped with the result that water
was discharged on to the claimant’s land.
219
Hurdman v North Eastern Ry (1878) 3 C.P.D. 168, Whalley v L. & Y. Ry (1884) 13 Q.B.D.
131.
[995]
water and shale were caught and overflowed onto property in the valley below,
the authority was liable for failing to provide against what occurred.220 A
highway authority was also liable where it raised the level of a footpath, so that
a wooden fence adjoining the path decayed, through the percolation of dampness
from the adjoining soil.221
13–60 Natural streams: diversions. A person who diverts the course of a natural
stream is liable for any reasonably foreseeable222 damage caused by the water
escaping from the channel, even if not negligent,223 because:
‘‘it is the duty of any one who interferes with the course of a stream to see that the works
which he substitutes for the channel provided by nature are adequate to carry off the
water brought down even by extraordinary rainfall, and if damage results from the
deficiency of the substitute which he has provided for the natural channel he will be
liable.’’224
13–61 Other than the defences described above,225 the defendant can escape liability
by proving that a diversion has been established by prescription, in the sense that
‘‘the existence of a state of things for the period of the long prescription may
serve to prevent any person alleging that another state of things was the true state
of nature.’’226 Notwithstanding prescription, where a culvert, built by the
predecessor of the defendant highway authority to take a stream under the
highway, ceased to be adequate for its purpose and caused flooding, it was held
that there was a duty imposed on the defendant to do what was reasonable to
abate what was causing or might become a nuisance.227 There was a high
obligation on the defendant to ensure that the stream continued to flow under the
highway and the means existed to prevent flooding without great difficulty, albeit
at some cost. A defendant may, of course, be able to establish that even if the
diversion had not occurred the claimant’s damage would have been the
same.228
220
Baldwins Ltd v Halifax Corp (1916) 85 L.J.K.B. 1769. See also Thomas v Gower RDC [1922] 2
K.B. 76 (highway authority held liable when it diverted two streams to one culvert and thereby
flooded the claimant’s land—s.67 of the Highway Act 1835 no defence.) But cf. Ely Brewery Co v
Pontypridd UDC (1903) 68 J.P. 3 (retaining wall built across street—no interference with ordinary
flow of surface water—diverted unusual flow caused by wrongful act of third parties onto claimant’s
land—highway authority not liable).
221
Rochford v Essex CC (1915) 85 L.J. Ch. 281.
222
Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 A.C. 264 and para.13–15,
above.
223
See R. v Southern Canada Power Co Ltd [1937] 3 All E.R. 923.
224
per Lord Finlay in Greenock Corp v Caledonian Ry [1917] A.C. 556 at 572, (the course of a
natural stream was diverted to make a children’s paddling pool which burst its banks during heavy
rain and damaged railway property). See also Fletcher v Smith (1877) 2 App.Cas. 781 at 787, per
Lord Penzance and Workman v G.N. Ry (1863) 32 L.J.Q.B. 279: diversion of a flood channel may be
the quivalent of diverting the stream itself.
225
paras 13–34–13–61, above.
226
Greenock Corp v Caledonian Ry [1917] A.C. 556, per Lord Dunedin at 578.
227
Bybrook Barn Centre Ltd v Kent County Council, The Times, January 5, 2001, CA.
228
Bybrook Barn Centre Ltd v Kent County Council, The Times, January 5, 2001, CA. See further,
Nitro-Phosphate & Odam’s Chemical Manure Co v London & St Katharine Docks (1878) 9 Ch.D.
503; Baldwins Ltd v Halifax Corp (1916) 85 L.J.K.B. 1769 at 1774.
[996]
WATER 13–67
Natural streams: overflowing. In contrast to the above, an owner was not 13–62
liable where there had been no diversion of a natural stream but it overflowed and
water accumulated against a wall, which failed to withstand the pressure and
burst, flooding adjacent land.229
Natural streams: damming. A dam built across a stream which gave way in 13–63
a time of flood and caused damage to a neighbouring mill rendered the land
owner liable because his damming created the danger in the first place.230
Natural streams: bridging. If a bridge is built over a stream in such a way 13–64
that it becomes choked in time of flood, the person responsible for building it is
liable for any damage which is caused by such flooding.231
Natural streams: culverting. If a stream is enclosed in a culvert and, owing 13–65

either to its inadequacy to cope with the volume of water flowing at any one
time232 or to its bad state of repair233 it breaks through the culvert in time of flood
and damages neighbouring property, the owner of the culvert is liable on the
principle of Rylands v Fletcher.234 Where an artificial watercourse was culverted
and became blocked, so that adjoining land was flooded, the occupier of the
watercourse was held liable in nuisance.235
Watercourse. A person who constructs a watercourse on his land will be 13–66

liable, in the event of water escaping from it and doing damage, in the same
manner as was the owner of the reservoir in Rylands v Fletcher. Where a
landowner, in order to bring water from a river to his mill, made a watercourse
with a shuttle at its head to control the flow of the water from the river into the
watercourse, his successors in title were held liable for damage caused to
neighbouring owners by flooding owing to their failure to keep the shuttle in
repair.236 Had a watercourse been constructed for the mutual benefit of the
claimant and the defendant, no liability for damage caused by an overflow would
arise unless there was negligence on the part of the defendant.237
Natural streams: silting up. While it was formerly held that the owner of the 13–67
bed of a stream was not liable the growth of weeds caused the stream to silt up
229
Tennent v Earl of Glasgow (1864) 2 M. 22, HL.
230
Kerr v Earl of Orkney (1857) 20 D. 298, approved in Greenock Corp v Caledonian Ry [1917] A.C.
556. But cf. Nichols v Marsland (1876) 2 Ex.D. 1, where the defence of act of God succeeded,
although the finding was criticised in the Greenock Corp case.
231
Ferrand v Midland Ry (1901) 17 T.L.R. 427.
232
Greenock Corp v Caledonian Ry [1917] A.C. 556.
233
Booth v Thomas [1926] Ch. 109, per Russell J.; affirmed on other grounds [1926] Ch. 397.
Pemberton v Bright and the Devon County Council [1960] 1 W.L.R. 436.
234
(1866) L.R. 1 Ex. 265.
235
Sedleigh-Denfield v O’Callaghan [1940] A.C. 880. See also Bybrook Barn Centre Ltd v Kent
County Council, The Times, January 5, 2001, CA.
236
R. H. Buckley & Sons Ltd v n.Buckle & Sons [1898] 2 Q.B. 608 at 614.
237
Whitmores Ltd v Stanford [1909] 1 Ch. 427.
[997]
so that flooding occurred,238 it is doubtful after Leakey v National Trust whether

that remains the position.239 In extending the duty explained in Goldman v
Hargarve,240 Megaw L.J. recognised the potential for injustice to a neighbour
who might be affected by an overflow due to flooding: ‘‘If the risk is one which
can readily be overcome or lessened, for example by reasonable steps on the part
of the landowner to keep the stream free from blockage by flotsam or silt carried
down, he will be in breach of duty if he does nothing or does too little.’’ The case
would be largely241 indistinguishable from a situation where the owners of a
reservoir had power to discharge surplus water into a river, via a little stream,
and, owing to the channel of the stream being silted up, the water overflowed the
banks of the stream and caused damage. The owners were held liable because of
their negligence in discharging water into a stream, a channel of which was silted
up.242
13–68 Discharging accumulated water onto land of another. The proprietor of

higher land has a natural right to have the water, which naturally falls on his land,
discharge onto the contiguous lower land of another proprietor243; but if water
has accumulated naturally on a person’s land he must not interfere with it, so as
to discharge it onto his neighbour’s land. If the water goes onto his neighbour’s
land in the ordinary course of nature, without assistance from him, he is not liable
for the resultant damage244; but, if he digs a drain or does any other act, which
causes it to go into his neighbour’s land, he is liable. Where a quantity of
rainwater accumulated against a railway embankment and, to prevent the
embankment from giving way, the railway company made cuttings which caused
the water to go on to the neighbouring land, the company was liable.245
13–69 Barriers against floods. A landowner can erect a barrier to prevent flood
water from coming onto his own land, although the natural consequence of his
doing so is to cause more water to flow onto his neighbour’s land.246 It has been
said that the application of such a rule would not give rise to a breach of art.8 of
the European Convention on Human Rights as it met the balance between the
demands of the general interest of the community and the need for the protection
238
Hodgson v York Corp (1873) 28 L.T. 836; Cracknell v Thetford Corp (1869) L.R. 4 C.P. 629;
Mason v Shrewsbury and Hereford Ry (1871) L.R. 6 Q.B. 578; Neath Rural District Council v
Williams [1951] 1 K.B. 115 at 121, per Goddard L.J. who said: ‘‘I think that the common law of
England has never imposed liabilities upon landowners for anything which happens to their land in
the natural course of affairs if the land is used naturally.’’
239
[1980] Q.B. 485, CA.
240
Goldman v Hargrave [1967] 1 A.C. 645, PC.
241
Megaw L.J. suggested that what was reasonable might turn on obvious discrepancies of financial
resources.
242
Geddis v Proprietors of Bann Reservoir (1878) 3 App.Cas. 430.
243
Gibbons v Lenfestey (1915) 84 L.J.P.C. 158.
244
Rouse v Gravelworks Ltd [1940] 1 K.B. 489.
245
Whalley v L. & Y. Ry (1884) 13 Q.B.D. 131.
246
Nield v L. & N.W. Ry (1874) L.R. 10 Ex. 4: canal owners placed planks in the canal to keep off
flood water from a neighbouring river with the result that the claimant’s land was damaged. The
owners were acquitted of blame because they ‘‘had the right to protect themselves against it and the
plaintiffs cannot complain although what the defendants did in so protecting themselves augmented
the damage to them’’: at p.8, per Bramwell B. See also Maxey Drainage Board v G.N. Ry (1912) 106
L.T. 429.
[998]
WATER 13–71
of the fundamental rights of the individual.247 In one catastrophic case, the

defendant tipped spoil onto its land, raising its level by some ten feet and,
thereafter, following exceptionally heavy rainfall the River Taff burst its banks
and water, which would otherwise have flowed onto the defendant’s land, flooded
the homes of 32 claimants to a depth of one metre. The defendant was not liable
for the damage. A landowner was permitted to erect defences, the effect of which
would be to discharge elsewhere water which would otherwise have flowed onto
his land, subject to two limitations: (i) interference with an established water-
course was prohibited; and (ii) the landowner would not be permitted to take
measures so as to cause water which had already or would in any event come
onto his land to flow from it onto that of his neighbour. On the facts of the case,
those two limitations had been met.248
Where, in order to carry out residential development, the occupier of lower 13–70
land filled in disused clay pits on his land in which the higher occupier’s water
accumulated, the latter had no cause of action against the former.249 The words
of Windeyer J. in an Australian case were adopted:
‘‘Although he has no action against a higher proprietor because of a natural
unconcentrated flow of water from his land, he is not bound to receive it. He may put
up barriers and pen it back, notwithstanding that doing so damages the upper
proprietor’s land, at all events if he uses reasonable care and skill and does no more than
is reasonably necessary to protect his enjoyment of his own land. But he must not act
for the purpose of injuring his neighbour. It is not possible to define what is reasonable
or unreasonable in the abstract. Each case depends upon its own circumstances.’’250
Thus, if the steps taken by the lower occupier to prevent water entering his land
involve unreasonable user by that occupier, such that the land of the higher
occupier is damaged, the lower occupier will be liable in nuisance. Accordingly,
since in the same case the lower occupier also filled in an osier-bed into which
water had accumulated and this had the effect of squeezing out temporarily, over
a five-year period, the water that was already present in the bed, thereby causing
reasonably foreseeable additional flooding, he was liable in nuisance or trespass
for the damage foreseeably caused to the higher occupier’s land, limited to the
five-year period during which the water was squeezed out.251
A landowner is not obliged to erect on the boundary of his land a barrier to 13–71
keep off floods and, if he erects it some distance within the boundary, he is not
responsible for so much of the flood-water as comes onto his land and is diverted
by the barrier onto the adjoining land.252 There seems to be no doubt that, as long
as there is no defined course which flood-water was accustomed to take, a
riparian owner can keep off flood-water by raising the height of the river
247
Arscott v The Coal Authority [2005] Env. L.R. 6, CA.
248
Arscott v The Coal Authority [2005] Env. L.R. 6, CA. See generally, Lamont, ‘‘As the flood water
recedes who pays for the damage?’’ 152 S.J. 12
249
Home Brewery Plc v William Davis & Co (Loughborough) Ltd [1987] 1 All E.R. 637.
250
Gartner v Kidman (1962) 108 C.L.R. 12 at 49, applied in Home Brewery Plc v William Davis &
Co (Loughborough) Ltd n.45, above.
251
Home Brewery Plc v William Davis & Co (Loughborough) Ltd n.249, above.
252
Gerrard v Crowe [1921] 1 A.C. 395.
[999]
banks.253 A landowner is not obliged, apart from contract or statute, to maintain

a barrier against floods for the benefit of neighbouring owners.254 If, therefore, a
riparian owner, who maintains a river wall for the protection of his own property,
pulls down the wall, as a result of which his neighbour’s land is flooded, he is not
liable for the damage.255
13–72 Erecting and maintaining barriers against sea and floods. At common law
a landowner is not bound to maintain on his own land a barrier against the sea
for the benefit of inland owners256 but is entitled to protect his land from the
incursions of the sea by building a groyne or sea wall, even though the effect of
his doing so is to cause the sea to flow with greater violence against adjoining
land.257
13–73 Removal or interference with natural barriers. Nevertheless, a landowner

cannot remove a natural barrier against the sea, even when it is on his own land,
if the removal causes damage to the adjoining land.258 The same applies if the
removal will cause damage to a sea wall and drainage system maintained as
protective works.259
13–74 Interference with barriers erected against sea and floods. If a wall is
maintained by statutory authority to prevent flooding from the sea or a river,
anyone who interferes with the wall is liable for damage by any flooding which
results from such interference. Where a river wall was maintained along the side
of the Thames and a dock company, acting under statutory powers, constructed
a dock which communicated with the river by an artificial channel, it was held
that they were under a common law duty to maintain the sides of their dock at
the same height as that of the wall. As a result of their failure to do so they were
liable for damage caused by an overflow from their dock.260 Where a river bank
was maintained under statutory powers and a landowner built a wall to replace
a portion of the bank, but, during a particularly high tide, water broke through the
wall, although not through the bank alongside, and flooded the neighbouring
land, the landowner was held liable.261
253
Gerrard v Crowe [1921] 1 A.C. 395. See also Lagan Navigation Co v Lambeg Bleaching Co
[1927] A.C. 226.
254
Mason v Shrewsbury and Hereford Ry (1871) L.R. 6 Q.B. 578; Nield v L. & N.W. Ry (1874) L.R.
10 Ex. 4.
255
Thomas & Evans Ltd v Mid-Rhondda Co-operative Society [1941] 1 K.B. 381.
256
Hudson v Tabor (1877) 2 Q.B.D. 290.
257
R. v Pagham Commrs (1828) 8 B. & C. 355.
258
Crossman v Bristol and South Wales Union Ry (1863) 11 W.R. 981; Attorney General v Tomline
(1880) 14 Ch.D. 58.
259
Canvey Island Commissioners v Preedy [1922] 1 Ch. 179.
260
Nitro-Phosphate and Odam’s Chemical Manure Co v London and St Katherine Docks Co (1878)
9 Ch.D. 503.
261
Greenwood Tileries Ltd v Clapson [1937] 1 All E.R. 765 at 770, 771: Branson J. said of the
defendant’s case: ‘‘As soon as the wall fails it seems to me that their position is the same as the
position of one who has cut through the bank and left a gap through which the sea enters. It seems
to me that their position is really analogous to the position of the defendant in Rylands v Fletcher.
They have created a danger which they must guard at all events.’’
[1000]
WATER 13–78
Mining. In Smith v Kenrick,262 it was held that if, in carrying on mining 13–75
operations in accordance with good mining practice and without negligence, a
mine owner causes naturally accumulated water to penetrate by natural gravity
into a neighbour’s mine, the neighbour has no remedy against him. The working
of a seam of coal caused the water to escape. In such a case, it was held, the
claimant must protect himself by erecting a barrier in his own mine. However,
whether the decision survives Leakey v National Trust263 has been doubted.264
On the other hand, the mine owner will be liable ‘‘if he conducts the water 13–76
from his mine to the lower mine or mines by means of some opening made or
other work executed with the express purpose of so conducting the water and not
for the purpose of getting minerals’’.265 Accordingly, if an artificial channel is
made whereby water is conducted to a place in another mine, which it would not
otherwise have reached, liability depends on the answer to the question: ‘‘Has the
conducting of the water through the artificial channel increased the burden on the
owner of the lower mine or not?’’ The material time for answering it is when the
channel was made.266 A mine owner must not pump water occurring naturally in
his mine, into the mine of another.267
If the working of a mine causes a subsidence on the surface and, through the 13–77
resultant cracks, the surface water comes down into the mine, thence gravitating
into an adjoining mine, the mine owner is under no greater liability than if the
water had been naturally present in the mine all the time.268 On the other hand,
if the water which gravitates into the adjoining mine has come through holes in
the surface, because of the diversion of a natural stream, the mine owner
responsible for diverting the stream is liable.269 If mine workings cause a
subsidence in the bed of a natural stream, as a result of which water comes into
a mine and gravitates into the adjoining mine, the liability of the mine owner
depends on whether he is working his mine in an ordinary, reasonable and proper
way. So it was held that defendants had no absolute right to work a mine where
they could only do so by letting in river water thus flooding their own and their
neighbour’s mine. What was ordinary, reasonable or proper was a question of
evidence.270
ILLUSTRATIONS
There is no liability on the part of a mine owner who stops up an opening 13–78
through which water had flowed into a neighbouring mine if, as a result of the
consequent accumulation, the water then overflows via another opening into the
262
(1849) 7 C.B. 515 at 566 per Cresswell J.
263
[1980] Q.B. 485, CA.
264
Home Brewery Plc v William Davis & Co (Loughborough) Ltd n.249, above.
265
Westhoughton Coal and Cannel Co v Wigan Coal Corp [1939] Ch. 393 at 405, per Luxmoore
L.J.
266
Westhoughton Coal and Channel Co v Wigan Coal Corp [1939] Ch. 393 at 405 affirmed on other
grounds [1939] Ch. 800.
267
Baird v Williamson (1863) 15 C.B.(N.S.) 376, per Erle C.J. at 391, 392.
268
Wilson v Waddell (1876) 2 App.Cas. 95.
269
Fletcher v Smith (1877) 2 App.Cas. 781.
270
Crompton v Lea (1874) L.R. 19 Eq. 115.
[1001]
neighbour’s mine.271 However, the same mine owner would be liable if he used
a pipe to send the water to his neighbour’s mine.272 There is no liability if the
outcome of an altered system of working results in an increase in the amount of
water flowing to a neighbour’s mine.273
13–79 Liability will attach if a mine owner: conducts water in his mine to a weakness
in his neighbour’s boundary with the purpose of discharging it from his mine
through that weakness into the neighbouring mine274; pumps up water from the
lower part of his mine so that it flows into his neighbour’s mine.275 alters the
natural flow of water within his mine so as to cause more water than would
naturally do so to flow into the adjoining mine.276 An alteration of the flow of
water within his own mine, which does not increase the burden on the adjoining
mine, is not actionable.277
13–80 Canals. Because canals are always constructed under statutory authority,
canal companies are not liable for damage caused by an escape of water from
their canals, unless it can be proved that they have acted negligently in the
exercise of their powers. Thus, where a mine was worked and caused the surface
of the land to crack, as a result of which water from the defendants’ canal poured
through the cracks into the claimant’s mine, it was held that the defendants were
not liable, since there was no negligence on their part.278 On the other hand,
where the defendants were liable to maintain a cut, to carry off water, but its
banks were insufficient to cope, it was held that they were liable for an overflow
caused by the stoppage of the outlet, which third parties had neglected to
clear.279
13–81 Where a mill, built on the banks of a canal, was damaged by the leakage of
water from the canal into the mill, as a result of mine-working by third parties,
the owners of the canal were held liable in negligence for failing to prevent the
damage.280 But where, following exceptionally heavy rainfall, the sluices of a
canal were opened with the result that the claimant’s premises were flooded, on
proof that the opening of the sluices had been necessary to prevent the failure of
the canal banks, the canal company were held not liable.281
13–82 Since the owners of a canal are entitled to erect a barricade or to raise the
banks of the canal in order to prevent its flooding, it has been held that no liability
attaches to them if a secondary consequence is to cause damage by flooding
271
Lomax v Scott (1870) 39 L.J. Ch. 834.
272
Lomax v Scott (1870) 39 L.J. Ch. 834.
273
Scots Mines Co v Leadhills Mines Co (1859) 34 L.T. (O.S.) 34.
274
Westminster Brymbo Coal and Coke Co v Clayton (1867) 36 L.J.Ch. 476.
275
Baird v Williamson (1863) 15 C.B.(N.S.) 376 at 391.
276
West Cumberland Iron and Steel Co v Kenyon (1879) 11 Ch.D. 782.
277
West Cumberland Iron and Steel Co v Kenyon (1879) 11 Ch.D. 782.
278
Dunn v Birmingham Canal Co (1872) L.R. 8 A.B. 42.
279
Harrison v G.N. Ry (1864) 3 H. & C. 231. Note that there was negligence both for failing to
maintain the banks and for sending water through an outlet known to be blocked; also Boughton v
G.W. Ry of Ireland (1873) I.R. 7 C.L. 178.
280
Evans v Manchester, Sheffield and Lincolnshire Ry (1887) 36 Ch.D. 626.
281
Thomas v Birmingham Canal Co (1879) 49 L.J.Q.B. 851.
[1002]
WATER 13–85
elsewhere.282 If they raise the banks of their canal causing flood-water to

accumulate on the land of an adjoining owner, the latter is not entitled to cut
through the banks of the canal in order to drain the floodwater from his own
land.283
Where canal barges were frequently tied up against a wall abutting the 13–83
claimant’s factory, despite the display by the defendants of a notice forbidding
this practice, and, over the year, the banging of barges against this wall had
caused water to seep through, as a result of which the wall’s base collapsed and
damaged the foundations of the factory, it was held that the defendants were
liable because of their failure to take reasonable steps to prevent both heavy
congestion at this point of the canal and collisions with the claimant’s wall.284
Water undertakers’ liability for reservoirs. Water undertakers operate 13–84

under statutory authority and are only liable on proof of negligence, unless the
statute provides for the contrary.
‘‘It is now thoroughly well established that no action will lie for doing that which the
legislature has authorised, if it be done without negligence, although it does occasion
damage to anyone; but an action does lie for doing that which the legislature has
authorised, if it be done negligently.’’285
Having regard to the serious damage likely to result from a burst reservoir, the
degree of care required is a very high one286 and, in the case of a reservoir
constructed after January 1, 1931, the fact that it was constructed under statutory
authority does not exonerate the persons for the time being having its manage-
ment and control from any legal action and liability.287 Thus the full liability of
Rylands v Fletcher, is imposed.
Water undertakers’ liability for escapes from pipes. At common law the 13–85
liability of a statutory water undertaker for escapes of water from its pipes
depended on whether or not there had been negligence.288 However, by s.209 of
the Water Industry Act 1991 strict liability is imposed where loss or damage289
arises from an escape of water, however caused, from a pipe vested in a water
undertaker.290 There are defences that the escape was entirely the fault of the
282
Nield v L. & N.W. Ry (1874) L.R. 10 Ex. 4; Lagan Navigation Co v Lambeg Bleaching Co [1927]
A.C. 226.
283
Lagan Navigation Co v Lambeg Bleaching Co [1927] A.C. 226.
284
Boxes v British Waterways Board [1971] 2 Lloyd’s Rep. 183.
285
Geddis v Proprietors of the Bann Reservoir (1878) 3 App.Cas. 430 at 455, 456, per Lord
Blackburn.
286
See Northwestern Utilities v London Guarantee and Accident Co [1936] A.C. 108 (a gas case).
287
Applying to reservoirs constructed pursuant to powers granted after August 1, 1930. See the
Reservoirs Act 1975 s.28 and Sch.2, replacing s.7 of the Reservoirs (Safety Provisions) Act 1930.
The Act still preserves strict liability for a reservoir’s construction.
288
For the position at common law, see earlier editions of Charlesworth on Negligence, e.g. 6th edn,
1977, paras 499, 500.
289
Damage is defined in s.219(1) as including, in relation to individuals, death and any personal
injury, including any disease or impairment of physical or mental condition.
290
s.209(1). The Water Resources Act 1991 applies an identical liability to the National Rivers
Authority.
[1003]
claimant himself, or his employee, agent or contractor291 and the right to raise
contributory negligence is preserved292; but neither act of God nor independent
act of a third party are available as defences. Thus, Parliament has created a
liability even stricter than that attaching under Rylands v Fletcher.293
13–86 Case study. An example of a claim for such damage is provided by Aerospace
Publishing Ltd v Thames Water Utilities294 in which the defendant admitted
liability for an escape of water into the premises of the claimant, a publishing
company specialising in aviation matters, but denied the alleged quantum of loss.
One argument was in relation to an archive of reference material which the
claimant said it wished to reinstate: damages were awarded by reference to the
cost of replacement rather than the market value. Another argument related to the
value to be attributed to an alleged diversion of staff time to deal with the
consequences of the flood. It was held that such a claim required proof that a
diversion of staff had indeed caused significant disruption to business. Even
though strictly the claim should be cast in terms of a loss of revenue attributable
to the diversion of staff time, nevertheless in the ordinary case, and unless the
defendant could establish the contrary, it was reasonable to infer that, had their
time not been diverted, the staff would have applied it to activities which would,
directly or indirectly, have generated revenue in an amount at least equal to the
costs for employing them during that time.295
13–87 Water undertakers breaking up streets. The Water Industry Act 1991296
empowers water undertakers to break up streets for laying and repairing their
pipes. When they do break up a street, they are required by s.66 of the New
Roads and Street Works Act 1991 to carry on and complete the works with such
dispatch as is reasonably practicable, at penalty of a fine. General requirements
as to the safety measures required not simply of water undertakers but all
statutory undertakers executing street works are set out in s.65. Because the Act
imposes a criminal sanction for breach of these provisions it is unlikely that any
action would lie for breach of statutory duty on behalf of someone injured by a
failure to carry out the work to the standards required.297 Liability for common
law negligence is, however, preserved.298 The duty of care extends to the
291
s.209(2).
292
s.209(4). The Fatal Accidents Act 1976 and the Limitation Act 1980 also apply in relation to any
loss or damage for which a statutory undertaker is liable under the section.
293
s.209(5). The undertaker’s rights under the Civil Liability (Contribution) Act 1978 are preserved.
Nor does liability under the 1991 Act apply to loss or damage sustained by the National Rivers
Authority or certain other statutory undertakers, public gas or electricity suppliers, highway
authorities or persons with an entitlement to compensation under s.82 of the New Roads and Street
Works Act 1991.
294
(2007) 110 Con. L.R. 1, CA.
295
See further, McIntosh, ‘‘Litigation: claiming it back’’ Legal Week, 2007, 9 (17), 12.
296
s.158(1). There is a similar power for the National Rivers Authority in s.159(1) of the Water
Resources Act 1991.
297
See Keating v Elvan Reinforced Concrete Co [1968] 1 W.L.R. 722, where it was held, in relation
to the similar duty under s.8 of the Public Utilities Street Works Act 1950, that no action for breach
of statutory duty arose.
298
s.95 of the Act states that any provision imposing criminal liability in respect of any matter is
without prejudice to civil liability in respect of the same matter. See Ch.10, paras 10–23–10–25 for
further examples.
[1004]
WATER 13–91
apparatus of other statutory undertakers beneath the street, which for example
must not be deprived of support so as to cause it to fracture.299
Quality of water supplied by water undertakers. Apart from liability for 13–88
the escape of water, a water undertaker must give notice to consumers of
anything in the quality of water, which is likely to render it unfit for any ordinary
use in the conditions that are likely to prevail in the consumer’s premises. Where
water was of such a quality that it was likely to become poisonous if it passed
through lead pipes, the water supplier was held liable for its failure to warn
consumers, whom it should have foreseen had lead pipes, of the necessary
precautions to take.300
Water undertakers must take reasonable care to supply water fit for human 13–89
consumption. Thus, when they supplied water, which, as a result of their
negligence, contained typhoid germs, they were held liable.301 Likewise, there is
a mandatory obligation for an employer to provide his workers with an adequate
supply of wholesome drinking water at their workplace.302
Sewers and drains. Liability for sewage is the same as liability for water.303 13–90
Where a drain from the defendant’s house, after receiving the drainage of several
other houses, turned back under the defendant’s house and, because such drain
was in a rotten condition, sewage escaped and got into the claimant’s cellar, the
defendant was held liable304 despite the fact that there was no negligence on his
part, he being unaware of the existence of the return drain. Similarly, when a
drain on the defendant’s land became choked up causing adjoining land to be
flooded, nuisance was established.305
Certain statutory undertakers are empowered to construct and maintain 13–91

drainage works for the benefit of a particular area. When damage is caused in
consequence of those works, liability depends on the terms of the particular
statutory provisions. As a general rule, they are only liable on proof of
negligence306 but the statute may impose a strict obligation upon them.307 If
299
Huyton & Roby Gas Co v Liverpool Corp [1926] 1 K.B. 146.
300
Barnes v Irwell Valley Water Board [1938] 2 All E.R. 650.
301
Read v Croydon Corp [1938] 4 All E.R. 631. The Water Industry Act 1991 s.68(1), imposes a duty
upon a water undertaker to provide water for domestic or food production purposes which is
wholesome at the time of supply. The duty is enforceable by the Secretary of State, pursuant to s.18
of the Act. A water undertaker who fails to supply water that is ‘‘wholesome’’ may also be strictly
liable under the Consumer Protection Act 1987, for which generally see Ch.15.
302
Workplace (Health, Safety and Welfare) Regulations 1992 reg.22(1).
303
Jones v Llanrwst-UDC [1911] 1 Ch. 393 at 405, which was cited with approval in Pride of Derby
and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch. 149 at 173, 174 by
Evershed M.R.
304
Humphries v Cousins (1877) 2 C.P.D. 239. He clearly must have known there was a drain, and so
his knowledge of the precise course it took was immaterial. If he had had no reason to suppose there
was a drain he would not have been liable: Ilford Urban District Council v Beal [1925] 1 K.B. 671,
per Branson J.
305
Sedleigh-Denfield v O’Callaghan [1940] A.C. 880; Pemberton v Bright and the Devon County
Council [1960] 1 W.L.R. 436.
306
Collins v Middle Level Commrs (1869) L.R. 4 C.P. 279; Boynton v Ancholme Drainage and
Navigation Commrs [1921] 2 K.B. 213; Sephton v Lancashire River Board [1962] 1 All E.R. 183.
307
R. v Marshland Smeeth and Fen District Commrs [1920] 1 K.B. 155.
[1005]
flooding is caused because of the opening of water gates in a time of heavy

rainfall, the defendants, although prima facie liable for the damage on the
principle of Rylands v Fletcher, are protected by their statutory powers because
the gates were constructed expressly to be opened in times of flood.308 If a sewer
is constructed in such a way that it causes adjoining land to subside, the person
constructing it is liable for the resulting damage.309
13–92 In a claim against a sanitary authority in respect of the death of one of their
workmen from sewer gas, it was held that its only potential liability was in
negligence. Since no sewerage authority was proved to have the knowledge
necessary to anticipate such an occurrence, no negligence was established.310
13–93 Overflows from sewers. An escape of sewage from a private sewer would, on
the face of it, attract strict liability within the principle in Rylands v Fletcher,311
although doubt has been expressed whether this would be correct of sewage on
a domestic scale.312 It is otherwise with public sewerage undertakers whose
duties and standards of performance are governed by the Water Industry Act
1991.313 They have a general duty to provide an adequate system of public
sewers, enforceable under a statutory scheme.314 There is no direct remedy under
the scheme for a person who sustains loss or damage as a result of the statutory
undertaker’s failure to comply with its duties. It is unlikely that Ryland v Fletcher
applies to cases where sewers have been constructed under statutory authority
and then overflow, since the use of the land for drainage purposes is a use proper
for the general benefit of the community.315 But negligence liability can arise, for
instance in relation to the original construction of the sewer or its maintenance
thereafter,316 or in diverting sewage from one sewer to another which is already
overcharged.317 Failure to enlarge a sewer to meet the growing demands of a
district is not negligent, nor is there a claim in nuisance, in the event of an escape
of sewage caused by the inadequacy of the system to meet the demands upon
it.318 One important purpose in Parliament providing a statutory scheme was to
308
Dixon v Metropolitan Board of Works (1881) 7 Q.B.D. 418.
309
London General Omnibus Co v Tilbury Contracting Co (1907) 71 J.P. 534.
310
Digby v West Ham Urban District Council (1896) 13 T.L.R. 11.
311
(1868) L.R. 3 H.L. 330; Humphries v Cousins (1877) 2 C.P.D. 239. See also Parker J. in Jones v
Llanrwst Urban District Council [1911] 1 Ch. 393 at 405, quoted with approval by Evershed M.R.
in Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch. 149.
312
See Clerk & Lindsell on Torts (19th edn 2006), p.1256, n.84.
313
s.94(1).
314
For a summary of the scheme see the speech of Lord Nicholls of Birkenhead in Marcic v Thames
Water Utilities Ltd [2004] 2 A.C. 42 at 54.
315
per Denning L.J. in Pride of Derby n.311, above.
316
Fleming v Manchester Corp (1881) 44 L.T. 517; Brown v Sargent (1858) 1 F. & F. 112, Dixon v
Metropolitan Board of Works (1881) 7 Q.B.D. 418.
317
Dent v Bournemouth Corp (1897) 66 L.J.Q.B. 395.
318
Hesketh v Birmingham Corp [1924] 1 K.B. 260; Stretton’s Derby Brewery Co v Derby Corp
[1894] 1 Ch. 431; Robinson v Workington Corp [1897] 1 Q.B. 619. For the criticism see Denning L.J.
in Pride of Derby n.6, above at 190: the remedy of an aggrieved party is by way of complaint to the
Minister by virtue of the provisions of s.322 of the Public Health Act 1936.
[1006]
WATER 13–96
prevent individual householders who have suffered sewer flooding from bringing
proceedings, in effect, in respect of the failure to build more sewers.319
Nuisance. The Water Industry Act 1991 specifically requires sewerage 13–94
undertakers so to carry out their functions under the Act as not to create a
nuisance.320 A nuisance is created if sewage is discharged upon, or caused to flow
over, another’s land,321 although not where, as already said, the problem arises as
a result of increased demands upon the sewerage system.322
Escape of water collected on roofs and in buildings. If water, which has 13–95
been collected on a roof to be conducted by gutters and pipes into drains, escapes
onto adjoining premises this will fall within the principle in Rylands v
Fletcher.323 By contrast, if a claimant who suffers loss as a result of such an
escape, is one of the persons for whose benefit the water has been collected, the
defendant will only be held liable on proof of negligence because ‘‘a plaintiff
who is himself a consenting party to the accumulation cannot rely simply upon
the escape of the accumulated material; he must further establish that the escape
was due to want of reasonable care on the part of the person,’’324 who had
collected the material.
Thus, when water is collected with the consent of the claimant or in a situation
where it is for the common benefit of the claimant and the defendant, it comes
within the scope of one of the exceptions to liability under the rule in Rylands v
Fletcher.325 Common benefit is only evidence of consent and the principle is that
when a person enters into occupation of premises, whether business or resi-
dential, he ‘‘takes the premises as they are, and, accordingly, consents to the
presence there of the installed water system with all its advantages and disad-
vantages.’’326
ILLUSTRATIONS
The defendants’ liability was not established in the following cases: where the 13–96
rainwater from the roof of a warehouse was collected by gutters into a box, from
which it was normally discharged by a pipe into the drains, but due to a hole
made by a rat, the water escaped into the ground floor where it damaged goods
319
Marcic v Thames Water Utilities Ltd n.9, above, per Lord Nicholls at 58. While the case itself
concerned a claim in nuisance, what he said should be equally applicable to a negligence claim. See
also the similar remarks of Denning L.J. in Pride of Derby n.311, above at 190. See also Kimblin,
‘‘Intolerable nuisance’’ 148 S.J. 86.
320
s.117 of the Water Industry Act 1991.
321
Glossop v Heston & Isleworth London Borough (1879) 12 Ch.D. 102; Attorney General v Dorking
Union (1882) 20 Ch.D. 595; Smeaton v Ilford Corp [1954] Ch. 450.
322
See n.318, above. See also Marcic v Thames Water Utilities Ltd n.319, above.
323
See Cockburn v Smith [1924] 2 K.B. 119 at 132, per Scrutton L.J. See Transco Plc v Stockport
MBC [2004] 2 A.C. 1, para.13–97, below.
324
per Lord Finlay in Attorney General v Cory Bros & Co Ltd [1921] 1 A.C. 521 at 539. See also
A. Prosser & Son Ltd v Levy [1955] 1 W.L.R. 1224 at 1230 for remarks to like effect and a review
of the authorities.
325
See paras 13–42–13–56, above.
326
Peters v Prince of Wales Theatre (Birmingham) Ltd [1943] K.B. 73 at 79, per Goddard L.J.,
criticising the passage at p.252 in the 1st edn of Charlesworth’s Law of Negligence.
[1007]
stored by the claimants327; where water from the roofs of both the claimants’ and
the defendants’ buildings discharged via the defendants’ flat roof through a
gulley into drains and the gulley had unexpectedly become blocked, resulting a
leakage into the claimants’ premises328; where the goods of the tenant of a shop
were damaged by an overflow of rainwater from a blocked gutter, which was
under the control of his landlords329; where the water from the water closet of one
tenant on the upper floor percolated to the lower floor of the same building,
occupied by another tenant, and damaging his stock330; where some unknown
person plugged the waste pipe of a wash basin and left the tap running on the top
floor of a building, occupied by the defendant landlord, so that the water
overflowed and damaged the claimant’s goods on the floor below331; where the
claimants occupied a shop, immediately above which was the defendant’s flat,
and, owing to a burst in the flat’s rising main, the water escaped and flooded the
shop.332
13–97 Also: where a landlord let a house, each tenant occupying a separate floor, and
supplied the different floors with water from a cistern at the top of the house but
the branch pipe supplying the first floor burst, with the result that the claimants’
goods on the ground floor were damaged333; where the claimant occupied the
ground floor of a building and the defendants were the owners of the house above
and the defendants’ cistern, which was not used to supply the claimant’s
premises, overflowed334; where the claimant had leased the shop part of a
building, containing a theatre fitted with a sprinkler system and, during a severe
327
Carstairs v Taylor (1971) L.R. 6 Ex. 217.
328
Gill v Edouin (1895) 71 L.T. 762; 72 L.T. 579. cf. Bishop v Consolidated London Properties
(1933) 102 L.J.K.B. 257 (dead pigeon blocked open gutter—an overflow occurred—landlord held
liable for failure to clean gutter despite having had no notice of blockage); Heintzmann & Co v
Hashman Construction (1973) 32 D.L.R. (3d) 622 (building debris fell on to claimant’s flat
roof—defendant failed to inspect and remove—defendant held liable in negligence, nuisance and
Rylands v Fletcher for subsequent flooding).
329
Kiddle v City Business Properties Ltd [1942] 1 K.B. 269. The contrary would be the case if there
was no relationship of landlord and tenant, so that the adjoining owners were quite independent of
one another, and the defendant owner of the blocked drawn would be liable.
330
Ross v Fedden (1872) L.R. 7 Q.B. 611 (the claimant, in taking the ground floor, must be deemed
to have accepted risk of such damage happening).
331
Rickards v Lothian [1913] A.C. 263, Lord Moulton saying, at 281, 282:‘‘The provision of a proper
supply of water to the various parts of a house is not only reasonable, but has become, in accordance
with modern sanitary views, an almost necessary feature of town life. It is recognised as being so
desirable in the interests of the community that in some form or other it is usually made obligatory
in civilised countries. Such a supply cannot be installed without causing some concurrent danger of
leakage or overflow. It would be unreasonable for the law to regard those who install or maintain such
a system of supply as doing so at their own peril, with an absolute liability for any damage resulting
from its presence even when there has been no negligence.’’
332
Irish Linen Manufacturing Co v Lowe (1956) 106 L.J. 828: (main embedded entirely in
plaster—no duty to inspect in absence of warning that it was defective—as soon as burst discovered
mains turned off—no duty to warn claimants in absence of indication of risk of water damage
below).
333
Anderson v Oppenheimer (1880) 5 Q.B.D. 602. N.B. Majority decision on basis that supply
maintained for benefit of claimants and other tenants. Thesiger L.J. decided case on ground that,
having taken a lease with the benefit of a water supply ‘‘they took the benefit and must take the
burden’’.
334
Blake v Land and House Property Corp (1887) 3 T.L.R. 667.
[1008]
WATER 13–98
frost, it burst damaging the claimant’s goods335; where the defendant’s clerk
went into his employer’s private lavatory, which he was forbidden to use, and
forgot to turn off the tap, flooding the claimant’s premises on the floor336; where
the owner of premises employed a plumber, who was an independent contractor,
to mend a leaking cistern but the repairs were carried out negligently and water
overflowed damaging the claimant’s goods on the ground floor337; where the
tenant did not go into occupation of an upper flat for some days and, meanwhile,
a water pipe burst during a severe frost and damaged the property of the tenant
in the flat beneath338; where, without negligence, there was an escape from a pipe
carrying water within a block of local authority owned flats and the escaping
water caused the collapse of an embankment which supported the claimant’s gas
main, the rule in Rylands v Fletcher did not apply. It was accepted that an
immediate and serious risk had arisen which, at some expense, the claimant had
to remedy but, judged by the prevailing standards of the day, there was no non-
natural use of land.339
On the other hand, the defendant was liable in the following cases: where there 13–98
was a failure to replace the windows of the top storey of a multi-storey building
blown out during an air raid and, as a result, a radiator pipe burst following a
severe frost, flooding the claimant’s floor below340; where the defendant’s
servant, in going to wash his hands, turned on the tap but, as no water flowed,
forgot to turn it off again with the result that when the water came on it damaged
the claimant’s premises on the floor below341; similarly, when the defendant’s
servant had blocked up the waste pipe of a sink by emptying tea leaves into it342;
where the ground floor building was let to the claimants, the first, second and
third floors to the second defendants and the landlords, the first defendants,
keeping the staircases and passages under their own control, and a tap on the
second floor landing, which had been placed only three-and-a-half inches above
floor level, was turned on by some unknown person343; where a rain-water gutter
335
Peters v Prince of Wales Theatre (Birmingham) Ltd [1943] K.B. 73 (on the ground that he had
impliedly consented to the presence of the sprinklers).
336
Stevens v Woodward (1881) 6 Q.B.D. 318 (on the ground that the act of the clerk was outside the
scope of his employment). But cf. Abelson v Brockman (1890) 54 J.P. 119 where the defendant was
held liable for the negligence of his servant in blocking the waste pipe by emptying tea leaves into
the sink.
337
Blake v Woolf [1898] 2 Q.B. 426.
338
Tilley v Stevenson [1939] 4 All E.R. 207 (unless it could be proved that he knew or ought to have
known that the water had been turned on before his occupation had begun, liability could not be
established).
339
Transco Plc v Stockport MBC [2004] 2 A.C. 1.
340
George Frensham Ltd v Shorn & Sons Ltd [1950] W.N. 406 (the landlords were liable for failing
to keep the boiler fires lit or, if they could not keep them lit, for not warning the claimants).
341
Ruddiman v Smith (1889) 60 L.T. 708.
342
Abelson v Brockman (1890) 54 J.P. 119. But cf. Stevens v Woodward (1881) 6 Q.B.D. 318 see
n.336 above.
343
A. Prosser & Son Ltd v Levy [1955] 1 W.L.R. 1224 (it was held that the claimant did not impliedly
consent to the presence of a water pipe, which, unknown to him, was defective; further, it was held
that the landlords were liable, unless they could prove that it had been turned on by the deliberate and
mischievous act of a third party, because the negligent act of a third party was no defence. The second
defendants were not liable as they were not in possession or control of the tap).
[1009]
in the roof, in the possession and control the defendants, remained blocked
despite notice of the blockage having been given with the result that water
penetrated part of the claimant’s premises344; where the water was conducted
from a building by means of open gutters through a box room, in which pigeons
were in the habit of nesting, and one of the gutters was blocked by the body of
a dead pigeon345; the cost of repairs to a common roof was equally divided where
the freehold owner of the upper two floors of a property allowed the roof to fall
into disrepair with the result that water leaked through her flat into premises on
the ground floor which were damaged.346
13–99 Water not collected for the common benefit. In all the cases cited in the
preceding paragraphs the parties either were the occupiers of different parts of
the same building or else derived a common benefit, albeit they were in adjacent
buildings. If the parties occupied different buildings and the water was not
maintained for their common benefit, then the defence of consent would not
apply.347
13–100 In contrast, the principle laid down in Rickards v Lothian348 would cover
damage done to adjoining premises by the escape of water from the domestic
water supply and, in Collingwood v Home and Colonial Stores,349 the Court of
Appeal said that the doctrine of Rylands v Fletcher did not apply to the use of
water, gas or electricity for ordinary domestic purposes, as distinguished from the
handling of them in bulk in mains or reservoirs. Thus if water stored in a building
for use in connection with the provision of meals and the supply of domestic
sanitary ware in that building, escapes to another building, liability will only
devolve on the owner or occupier on proof of negligence. By contrast, water
stored in a building for manufacturing purposes which escapes to another
building gives rise to Rylands v Fletcher liability, irrespective of negli-
gence.350
13–101 Whether the mere escape of water from the defendant’s premises is evidence
of negligence has not been decided, but it would seem to be within the principle
of res ipsa loquitur,351 because it would be more consistent with negligence on
the part of the defendant than with any other cause.
344
Hargroves, Aronson & Co v Hartopp [1905] 1 K.B. 472; Cockburn v Smith [1942] 2 K.B. 119.
345
Bishop v Consolidated London Properties (1933) 102 L.J.K.B. 257 see n.328 above. But cf. Gill
v Edouin (1895) 71 L.T. 762.
346
Abbahall v Smee [2003] 1 All E.R. 465, CA.
347
Anderson v Oppenheimer (1880) 5 Q.B.D. 602 (water supply); Humphries v Cousins (1877) 2
C.P.D. 239 (domestic sewage): result dependent ‘‘simply on those principles of law which regulate the
rights and duties of occupiers of adjacent pieces of land’’ per Denman J. at 246.
348
[1913] A.C. 263 per Lord Moulton: see n.331, above.
349
[1936] 3 All E.R. 200. See also to the same effect, Miller v Robert Addie & Sons (Collieries) Ltd,
1934 S.C. 150 (gas).
350
Western Engraving Co v Film Laboratories Ltd [1936] 1 All E.R. 106; Peters v Prince of Wales
Theatre (Birmingham) Ltd [1943] K.B. 73 at 79.
351
Ch.6, above, para.6–100.
[1010]
FIRE 13–104
4.—FIRE
Common law liability. Liability for fire is based on the rule of Rylands v 13–102
Fletcher.352 It follows that, save where the Fires Prevention (Metropolis) Act
1774 applies,353 it is not necessary to prove negligence in an action for damage
by fire.
The common law was stated long ago in Rolle’s Abridgment: ‘‘If fire (I know 13–103
nothing of it) suddenly break out in my house and burn my goods, and also the
house of my neighbour he shall have an action on the case against me.’’354 It
matters not whether fire occurs in buildings or in fields.355 Likewise, the
defendants were held liable for sparks from a railway engine which ignited the
claimant’s haystack.356
The only defences available to a defendant were those falling within the 13–104
exceptions to Rylands v Fletcher357 namely fire started by an unforeseeable act
of God358 or an independent third party.359 A guest in a house is not an
independent third party for this purpose.360 An occupier was held not be liable in
352
Jones v Festiniog Ry (1868) L.R. 3 Q.B. 733; Power v Fall (1880) 5 Q.B.D. 597; Gunter v James
(1908) 24 T.L.R. 868. See Ogus, ‘‘Vagaries in Liability for the Escape of Fire’’ 27 C.L.J. 104.
353
354
Action sur Case (B) pur fewe, 2; Beaulieu v Fingham (1401) Y.B. 2 Hen. 4, 18, pl. 6, per Markham
J: ‘‘But if a man outside my household against my will sets fire to the thatch of my house or does
otherwise per quod my house is burned and also the houses of my neighbours, I shall not be held to
answer to them, because this cannot be said to be ill on my part, but against my will.’’ See also
Crogate v Morris (1617) 1 Brownl. 197; Anon. (1582) Cro.Eliz. 10; and Collingwood v Home and
Colonial Stores [1936] 3 All E.R. 200 per Lord Wright at 204: ‘‘Before [the Fires Prevention
(Metropolis) Act 1774] if a fire spread from a man’s premises and did damage to adjoining premises,
he was liable in damage on the broad ground that it was his duty at his own peril to keep any fire that
originated on his premises from spreading to and damaging his neighbour’s premises.’’
355
Turberville v Stampe (1697) 1 Ld.Raym. 264 where Holt C.J. said: ‘‘Every man must so use his
own as not to injure another. The law is general; the fire which a man makes in his fields is as much
his fire as his fire in his house; it is made on his ground, with his materials, and by his order; and he
must at his peril take care that it does not, through his negligence, injure his neighbour; if he kindle
it at a proper time and place, and the violence of the wind carry it into his neighbour’s ground and
prejudice him, this is fit to be given in evidence.’’ See also Canterbury v Attorney General (1842) 1
Phillips 306; Vaughan v Menlove (1837) 3 Bing N.C. 468; H. & N. Emanuel Ltd v G.L.C. [1971] 2
All E.R. 835.
356
Jones v Festiniog Ry (1868) L.R. 3 A.B. 733 at 736, Blackburn J., after stating the rule in Rylands
v Fletcher, said: ‘‘Here the defendants were using a locomotive engine with no express parliamentary
powers making lawful that use, and they are therefore at common law bound to keep the engines from
doing injury, and if the sparks escape and cause damage, the defendants are liable for the
consequences though no actual negligence be shewn on their part.’’
357
See, further, paras 13–34–13–56, above. Rylands v Fletcher has been held not to apply to a fire
in a domestic fireplace: Johnson (t/a Johnson Butchers) v BJW Property Developments Ltd [2002] 3
All E.R. 574. See paras 13–107 and 13–114, below.
358
See generally paras 13–35–13–39, above. Hargreave v Goldman (1964) 110 C.L.R. 24 at 56,
affirmed [1967] 1 A.C. 645.
359
Turberville v Stampe n.355, above, per Holt C.J., ‘‘If a stranger set fire to my house, and it burns
my neighbour’s, no action will lie against me.’’ See para.13–103, above.
360
Crogate v Morris (1617) 1 Brownl. 197: ‘‘If my friend come and lie in my house and set my
neighbour’s house on fire, the action will lie against me.’’ See Allen v Stephenson (1700) 1 Lut. 90,
to the contrary.
[1011]
the case of an employee who started a fire whilst cleaning his chimney because
he was acting outside the scope of his employment.361 Nor, in New Zealand, was
an owner vicariously liable for fire caused by the son of his farm manager, left
in charge of the farm whilst his father was on holiday, who burnt gorse in drought
conditions.362
13–105 The burning of corn stubble during the normal course of agriculture is not a
non-natural use of land, nor is the emission of smoke from it analogous to the
escape of fire or sparks. So, there was no liability under Rylands v Fletcher where
smoke from a field obscured visibility on an adjacent road and caused a
collision.363 On the other hand there is, at least potentially, liability for the act of
an independent contractor364 and so where owners of land gave instructions to
their contractor to burn brushwood upon the land, they were liable when the wind
carried the fire to adjoining land, where it did damage. Lighting the fire was an
operation attended with so much danger that it imposed a duty on the person at
whose behest it was undertaken to see that all proper precautions were taken.365
Similar reasoning was applied where the owner of premises engaged a contractor
to replace a fireplace in a party wall. The work was done negligently and when
the fire was lit it caused damage to the adjoining property. The owner was
vicariously liable for the negligence of the contractor in view of the hazardous
nature of the work for which he had employed him.366
13–106 Fires Prevention (Metropolis) Act 1774. Common law liability for fire
spreading from the defendant’s land was modified by the Fires Prevention
(Metropolis) Act 1774.367 This provided: ‘‘No action, suit or process whatever,
shall be had, maintained or prosecuted against any person in whose house,
chamber, stable, barn or other building, or on whose estate any fire shall . . .
accidentally begin.’’ The operation of this enactment is not confined to the
metropolis but extends to the whole of England.368 Its effect is to protect the
occupier of land from being liable for damage caused by fire accidentally369
beginning on his land, the terms of the Act being comprehensive and the word
‘‘estate’’ applying ‘‘to land not built upon’’.370
361
M’Kenzie v M’Leod (1834) 10 Bing. 385.
362
Holderness v Goslin [1975] 2 N.Z.L.R. 46.
363
Perkins v Glyn [1976] R.T.R. ix (note in April issue).
364
Balfour v Barty-King [1957] 1 Q.B. 496 (independent contractor invited into house to thaw frozen
pipes, did so negligently, and set the house on fire). See note on this case by T. Ellis Lewis in [1957]
C.L.J. 132.
365
Black v Christchurch Finance Co [1894] A.C. 48.
366
Johnson v BJW Property Developments Ltd [2002] 3 All E.R. 574, Q.B.D.
367
s.60, re-enacting Apprehension of Housebreakers Acts 1707, s.6, which only applied to a ‘‘house
or chamber’’. For the effect of this, see Blackstone, Commentaries 1, 431.
368
Filliter v Phippard (1847) 11 Q.B. 347; Richards v Easto (1846) 15 M. & W. 244, per Parke B.,
but not to Scotland: Westminster Fire Officer v Glasgow Provident Society (1888) 13 App.Cas.
699.
369
‘‘a term which has been construed to mean ‘without negligence’ ’’ per Asquith J. in Mulholland
& Tedd Ltd v Baker [1939] 3 All E.R. 253 at 255. See further Ch.1, para.1–08, above.
370
per Denman C.J. in Filliter v Phippard (1847) 11 Q.B. 347, at 355.
[1012]
FIRE 13–109
The statute affords no protection in the case of fires which have been started 13–107
intentionally371; or caused or continued by negligence372; or caused by a
nuisance.373 Further, a defendant is liable not only in respect of his own acts or
omissions, but those of his employees, agents and independent contractors,
also.374 It applies to fires ‘‘produced by mere chance or incapable of being traced
to any cause’’,375 and even to fires which can be traced to a cause if there was no
negligence.376
ILLUSTRATIONS
Liability in negligence was established: when hay stacked in a damp condition 13–108
overheated, burst into flames and the fire spread to the adjoining property of the
claimant377; where insufficient space was left between stacked bales of jute,
which overheated and caught fire378; when, on a beam of wood igniting, an hotel
caught fire due to a defective scheme for conveying smoke and burning soot from
the kitchen chimney379; when paper was lit in a yard in order to smoke out a rat
in a drain pipe and the fire spread to a packing case and exploded a drum of
paraffin380; where highly combustible articles had been stored in conditions such
that, should they catch fire, it would be likely to spread, which risk materialised
and fire spread to the claimant’s garden, causing damage381; when a fire was
caused by the use of a blowlamp, during an attempt to thaw a frozen pipe in a
roof.382
Liability in negligence was not established and it was held that the fire was 13–109
‘‘accidental’’: when owing to an unknown electrical wiring defect a fire broke out
in the basement of grocery store383; where an electrical short circuit caused a fire
behind panelling near a ventilator on a landing on which materials were stored,384
when a fire broke out from some unknown cause in a tip385 and in a garage386;
where a tractor, which was constructing a firebreak, emitted a spark and started
a fire.387
371
But for the effect of lighting a fire in a domestic fire grate, see Johnson v BJW Property
Developments Ltd [2002] 3 All E.R. 574, and para.13–114, below.
372
See paras 13–110 and 13–113, below.
373
Spicer v Smee [1946] 1 All E.R. 489 (defective electric wiring caused fire, owner liable).
374
Black v Christchurch Finance Co [1894] A.C. 48. See Ch.3, paras 3–98–3–203, above.
375
Filliter v Phippard (1847) 11 Q.B. 347, per Denman C.J.
376
For an example of this, see Solomons v R. Gertzenstein Ltd [1954] 1 Q.B. 565, reversed on other
grounds [1954] 2 Q.B. 243.
377
Vaughan v Menlove (1837) 3 Bing. N.C. 468.
378
H. & A. Scott v MacKenzie, J. Stewart & Co, 1972 S.L.T. (notes) 69.
379
Maclenan v Segar [1917] 2 K.B. 325.
380
381
Mason v Levy Auto Parts of England [1967] 2 Q.B. 530.
382
Balfour v Barty-King [1957] 1 Q.B. 496.
383
Collingwood v Home and Colonial Stores [1936] 3 All E.R. 200.
384
Solomons v R. Gertzenstein Ltd [1954] 1 Q.B. 565.
385
Job Edwards Ltd v Birmingham Navigations [1924] 1 K.B. 341.
386
Williams v Owen [1955] 1 W.L.R. 1293.
387
Mackenzie v Sloss [1959] N.Z.L.R. 533.
[1013]
13–110 Accidental fire continued by negligence. A fire which started by accident,

may be continued by negligence, thus depriving a defendant of the protection of
the 1774 Act. In Musgrove v Pandelis,388 the defendant occupied a garage
beneath the claimant’s rooms. Without negligence, the petrol in the carburettor of
the defendant’s motor car ignited. The defendant’s chauffeur failed to turn off the
tap from the petrol tank which permitted a spread of the fire, with the result that
the claimant’s rooms were burnt. The defendant was held liable for the
destruction of the claimant’s property because of the negligence of his employee
in failing to turn off the tap.
13–111 The duty to abate. Subsequently, the Court of Appeal considered the duty
which may arise where an owner becomes aware of a fire, accidentally begun,
which he could, without difficulty, extinguish. Scrutton L.J. said389:
‘‘He is then aware of a dangerous thing on his land which may damage his neighbour,
and which by reasonable care he can prevent from damaging his neighbour, and he does
nothing. I agree he is not an absolute insurer of that dangerous thing, for he did not
himself create it, but I think on principle he is bound to take reasonable care of a
dangerous thing which he knows to exist.’’390
This view was approved and adopted by the Judicial Committee in Goldman v
Hargrave.391 So, when a fire broke out in a redgum tree on the defendant’s land,
after it had been struck by lightning, and, in due course, the fire spread to the
claimant’s properties causing damage, the defendant was liable in negligence for
failing to extinguish it properly after felling the tree. He owed a duty of care,
notwithstanding that the hazard initially had arisen accidentally, and failed to
discharge it when the fire revived through his neglect and spread.
13–112 Dangerous things. An alternative ground for the decision in Musgrove v

Pandelis392 was that the 1774 Act was no defence when the fire originated from
a dangerous thing.393 This proposition has been criticised,394 but it was adopted
and followed in Mulholland & Tedd Ltd v Baker.395 Since it is the fire which is
the dangerous thing, whether it is caused by petrol, paraffin or anything else, and
the object of the statute is to give protection against accidental fires, it is difficult
to understand why the statute should not protect as much in one case as in the
other. The presence of inflammable matter on premises is important when the
388
[1919] 2 K.B. 43.
389
Job Edwards Ltd v Birmingham Navigations [1924] 1 K.B. 341, at 361. Scrutton L.J. dissented,
but his judgment was preferred by the HL in Sedleigh-Denfield v O’Callaghan [1940] A.C. 880. The
effect of the statute was not discussed by the other members of the court.
390
Job Edwards Ltd v Birmingham Navigations [1924] 1 K.B. 341 at 361. See also per Lush J. in
Musgrove v Pandelis [1919] 1 K.B. 314 at 318.
391
[1967] A.C. 645, see also Leakey v National Trust [1980] Q.B. 485, CA.
392
[1919] 2 K.B. 43.
393
‘‘If this motorcar with the petrol in its tank was potentially dangerous, such as a man’s own fire,
then it was the defendant’s duty to see that the potential danger did not become an actual danger
causing damage to his neighbour. The Act [of 1774] is no protection against that liability.’’ Musgrove
v Pandelis [1919] 2 K.B. 43 at 49, per Warrington L.J. The other members of the court expressed
themselves to the same effect.
394
Collingwood v Home and Colonial Stores [1936] 3 All E.R. 200 at 209.
395
[1939] 3 All E.R. 253.
[1014]
FIRE 13–115
question of negligence is being considered,396 so that if there is no negligence

and it is found that the fire is accidental, it is submitted that the statute is a
defence to the occupier of the land on which it begins, whatever may be the
origin of the fire.
Fire caused intentionally or negligently. If the fire has been started 13–113
intentionally or negligently397 by the occupier, the statute affords him no
protection. Accordingly, in Filliter v Phippard,398 where the defendant lit a fire
on his land to burn weeds and the fire spread so that it destroyed hedges and
fences on the claimant’s land, the statute did not provide a defence. This was not
only because of the words of the Act itself but also because the fire had been lit
deliberately.399 Where the defendant occupier of a flat lit a paraffin-soaked rag
and negligently applied it to a sparrow’s nest built between a cornice and some
wire netting, positioned to keep out house-martins and thus set alight to the roof,
so that the whole house was burned down, he was liable both for the intentional
lighting of the fire which escaped from his premises and for his negligent act in
lighting the fire.400 The rule in Rylands v Fletcher applies to the occupier, who
intentionally kindles fires, which he is bound at his peril to keep from causing
damage to other persons, subject to the exceptions.401
Ordinary domestic fire grate. Judicial differences of opinion as to the 13–114

application of the 1774 Act402 to domestic fire grates were resolved in Johnson
v BJW Property Developments Ltd.403 It was held that, for the purposes of s.86
of the Act, the critical question was not whether the original fire started
accidentally but whether the escape of fire was an accident. So, if the escape of
fire from a grate is accidental, the Act affords the defendant from whose grate the
fire had escaped a defence. By contrast, if the cause of the escape was negligence
on the part of the defendant, the Act affords him no defence. The Act was of no
relevance and was inapplicable to a fire started deliberately in a grate since the
mere ignition of that fire gave rise to no liability either before or after the Act.
Furthermore, the defendant was not provided with any defence under the Act to
a claim based on the escape of fire as a result of negligence.
ILLUSTRATIONS
Liability was established against the defendant: where, owing to negligent 13–115
alterations to a fireplace, fire escaped from the grate causing damage to the
396
See para.13–121, below.
397
See Robertson, ‘‘Duty of Care and the Negligent Fire-raiser’’, 1980 S.L.T. 13.
398
(1847) 11 Q.B. 347, decision approved by the Judicial Committee in Goldman v Hargrave [1967]
1 A.C. 645.
399
Filliter v Phippard (1847) 11 Q.B. 347, at 358, per Lord Denman C.J.
400
Sturge v Hackett [1962] 1 W.L.R. 1257.
401
Black v Christchurch Finance Co [1894] A.C. 48, Mulholland & Tedd Ltd v Baker [1939] 3 All
E.R. 253; Emanual v G.L.C., The Times, July 21, 1970 (contractor lit bonfire—sparks spread to
claimant’s land damaging property). The exceptions to liability are set out paras 13–34–13–56,
above.
402
Musgrove v Pandelis [1919] 1 K.B. 314 per Duke L.J. at 51 and Job Edwards Ltd v Birmingham
Navigations [1924] I K.B. 341 per Scrutton L.J. at 361.
403
[2002] 3 All E.R. 574.
[1015]
claimant’s premises.404 If a burning coal were accidentally to fall from the grate
and ignite the carpet, a failure to take steps to extinguish the fire thus caused
would be characterised as negligent thus depriving the defendant of a defence
under the Act.405
13–116 Liability was not established against the defendant: where a lodger left
unguarded, for two or three hours, the fire which he had lit and a spark set the
room alight, with fire spreading to adjoining rooms, his landlady was afforded no
remedy in the absence of evidence that the fire, thus left, had been exces-
sive.406
13–117 Where the Act provides no defence. The statute has been held to afford no
defence to contractual liability.407 Further, the Act only affords protection to the
occupier of the land on which the fire begins accidentally: a third party starting
the fire would be exposed to Rylands v Fletcher liability and not protected by the
statute. The statute affords no defence where the fire starts from the high-
way.408
13–118 Burden of proof. The burden of proving that the origin of the fire was caused
by the negligence of the occupier, or his employees, agents or independent
contractors, for whose acts or omissions he would be vicariously liable, rests
firmly on the claimant.409 It is not for the defendant to prove that the fire was
either accidental in its origin410 or, invoking the protection of the Act, to disprove
negligence.411 This is the reverse of the position where there is a bailment. In
Hyman (Sales) Ltd v Benedyke & Co Ltd412 it was held that, at common law, the
onus of proof lay on the defendants, as bailees, to prove the absence of
negligence on their part and that in those circumstances, even where they had
pleaded the provisions of this Act, it was still for them to prove the defence relied
upon, namely that the fire was accidental. This they had failed to do. It is to be
observed that the Act expressly provides another exception, that is, the case of
landlord and tenant.
404
Johnson v BJW Property Developments Ltd, n.403 above.
405
per Lush J. in Musgrove v Pandelis [1919] 1 K.B. 314 at 318; and per Scrutton L.J. in Job
Edwards Ltd v Birmingham Navigations [1924] 1 K.B. 341 at 361.
406
Sochacki v Sas [1947] 1 All E.R. 344. See also Doltis v Braithwaite & Sons [1957] 1 Lloyd’s Rep.
522 (newspaper lit by defendant’s employee to test chimney—unknown to the claimants and the
defendant contractor, chimney inter-connected with another unused chimney. Sparks entered unused
chimney causing damage to stored materials: held to be a natural use of the chimney).
407
Shaw & Co v Symmons & Sons [1917] 1 K.B. 799: the claimant entrusted books to the defendant,
a bookbinder, to be bound and he failed to deliver them within a reasonable time following which
they were destroyed by accidental fire on his premises, rendering the defendant liable because ‘‘the
breach of contract had been committed before the fire occurred’’.
408
See para.13–120, below.
409
See, in more detail, Ch.6, above.
410
See Becquet v MacCarthy (1831) 2 B. & Ad. 951 at 958, per Tenterden C.J.; Musgrove v Pandelis
[1919] 1 K.B. 314 at 317, per Lush J.; Collingwood v Home and Colonial Stores [1936] 3 All E.R.
200; Williams v Owen [1955] 1 W.L.R. 1293.
411
Mason v Levy Auto Parts of England Ltd [1967] 2 Q.B. 530 at 539, per MacKenna J.
412
[1957] 2 Lloyd’s Rep. 601; Smith v Taylor [1966] 2 Lloyd’s Rep. 231, where Blain J. held that
although the claimant had not shown the probable cause of the fire, the onus was on the defendant,
as a bailee, to prove that he was not negligent.
[1016]
FIRE 13–121
Other statututory provision. By way of example, the Fire Precautions Act 13–119
1971413 and regulations made thereunder and pursuant to the Framework and
Workplace Directives414 require factories to be provided with means of escape in
case of fire and also to have certain safety provisions in case of fire. Failure to
comply with these provisions, which results in injury to any person employed in
the factory, will render the owner liable in damages for breach of statutory duty,
despite the fire having been accidental in its origin.415 A similar result would
follow where there has been a breach of the provisions of the London Building
Acts 1930 to 1939, dealing with the provision of fire escapes.416 The byelaws of
local authorities usually require the provision of a fire escape for a building,
exceeding a certain height, used as a hotel, restaurant, hospital, boarding-house,
common lodging-house, or school, and in shops of the same height where
sleeping accommodation is provided for the persons employed. Any failure to
comply with the byelaws may be evidence of negligence against the occupier of
the building in an action by either a visitor to or a person employed in the
building.417
Sparks from railways or on the highway.418 Special provision was also 13–120
made in respect of sparks from steam locomotives419 and, in the absence of
statutory authority for the running of the railway, absolute liability at common
law remains.420 Similarly, owners of steam powered vehicles who cause damage
by the emission of sparks on the highway are subject to Rylands v Fletcher.421
Doing acts likely to result in damage by fire. Persons who do acts which are 13–121
likely to cause a fire or to result in damage by fire, such as by handling objects
that are likely to burn persons or property, by placing combustible material where
it is likely to catch fire or by maintaining fires in stoves or braziers, are bound to
take a high degree of care to prevent damage. In this connection, they are liable
for the negligence not only of their employees or agents but also of their
independent contractors.422
413
By virtue of the Health and Safety at Work, etc. Act 1974 s.78 and Sch.8, replacing the Factories
Act 1961 ss.40–47.
414
Framework Directive 89/391/EEC, Workplace Directive 89/654/EEC, Management of Health and
Safety at Work Regulations 1999, Workplace (Health, Safety and Welfare) Regulations 1992 and the
Fire Precautions (Workplace) Regulations 1997.
415
Groves v Lord Wimborne [1898] 2 Q.B. 402; Solomon v R. Gertzenstein Ltd [1954] 2 Q.B.
243.
416
Solomons v R. Gertzenstein Ltd [1954] 2 Q.B. 243.
417
In Maclenan v Segar [1917] 2 K.B. 325 the jury found no negligence on the part of the hotel
proprietor in omitting to provide a fire escape. It does not appear from the report whether the omission
was a breach of the byelaws.
418
Detailed discussion is now beyond the scope of this work in view of the passing of steam
locomotion. The reader is referred to Charlesworth on Negligence (4th edn, 1962), paras
610–613.
419
e.g. Railway Fires Acts 1905 and 1923.
420
Jones v Festiniog Ry (1868) L.R. 3 Q.B. 733.
421
Powell v Fall (1880) 5 Q.B.D. 597; Gunter v James (1908) 24 T.L.R. 868; Mansell v Webb (1918)
88 L.J.K.B. 323.
422
Honeywill & Stein Ltd v Larkin Bros Ltd [1934] 1 K.B. 191; Black v Christchurch Finance Co
[1894] A.C. 48; Brooke v Bool [1928] 2 K.B. 578. See also Ch.3, paras 3–98–3–203, above.
[1017]
ILLUSTRATIONS
13–122 Liability was established: where a ship repairer, who was working on a ship
with red-hot rivets close to an open hatchway, dropped such a rivet into the hatch
and ignited its cargo423; where an acetylene flame was being used to cut away a
ventilator on a ship leading to a hold containing an inflammable cargo and there
was a failure to plug the ventilator with the result that the cargo was set on fire424;
where gas pipes were examined with a naked flame425; where large quantities of
combustible materials were stored in a yard in connection with the defendant’s
business and were kept in such conditions that, were they to catch fire, it would
be likely to spread to the claimant’s land, which event materialised426; where an
attempt was made to kill a rat, believed to be in a drain pipe, by burning paper
in the pipe which, in turn, caused a 20 gallon drum of paraffin to ignite and
explode427; where highly combustible material was placed near a boiler in
circumstances where sparks on the boiler firing were liable to set the material
alight428; where, mistakenly, highly inflammable celluloid scrap was delivered by
carrier to the claimant’s premises, without warning of its dangerous nature,
where it was carelessly lit and fire spread rapidly destroying the premises, the
carrier was held liable.429
13–123 Risks to children from fire or fire-making materials. School teachers must
take particular care to prevent children under their charge from coming into
contact with fire. Both teacher and education authority were held liable to a
14-year-old girl who was burnt whilst poking the fire in the teacher’s room at the
latter’s request.430 An education authority was held liable when a girl of 11 was
injured on her apron catching fire during a cookery class due to contact with an
unguarded gas cooker.431
13–124 Highly combustible materials. Highly combustible materials, including

petrol, must not be placed in the control of a child too young to appreciate the
nature of the danger it poses. Thus, when petrol was sold to a boy of nine, who
was severely burnt while trying to light it in order to make a torch, the seller was
423
Ellerman Lines Ltd v H. & G. Grayson Ltd [1920] A.C. 466, where Lord Birkenhead expressly
approved the judgment of Atkin L.J. [1919] 2 K.B. 514 at 534: ‘‘anyone using such a dangerous
element as fire is under an obligation to take special care, lest he injure his neighbour or his
neighbour’s property’’.
424
Nautilus S.S. Co v Henderson, 1919 S.C. 605.
425
Brooke v Bool [1928] 2 K.B. 578, per Talbot J. The position with regard to gas is now substantially
regulated by statute: see the Gas Safety (Installation and Use) Regulations 1994, paras
13–129–13–152, below.
426
Mason v Levy Auto Parts of England [1966] 2 Q.B. 530.
427
Mulholland & Tedd Ltd v Baker [1939] 3 All E.R. 253. See also Balfour v Barty-King [1957] 1
Q.B. 496 (independent contractor employed to thaw frozen pipes in second defendant’s loft—loft
contained combustible material—application of blowlamp to lagged pipes caused fire which spread
to claimant’s neighbouring house).
428
D’Urso v Sanson [1939] 4 All E.R. 26. See also Honeywill & Stein Ltd v Larkin Bros Ltd [1934]
1 K.B. 191 (where a photographer used the then usual method of igniting magnesium powder in a tray
to take a flashlight photograph but, in addition, caused a fire).
429
Philco Radio Ltd v Spurling Ltd [1949] 2 All E.R. 882.
430
Smith v Martin and Hull Corp [1911] 2 K.B. 775.
431
Fryer v Salford Corp [1937] 1 All E.R. 617.
[1018]
FIRE 13–125
held liable because ‘‘to put a highly inflammable substance into the hands of a
small boy is to subject him to temptation and the risk of injury, and this is no less
true if the boy has resorted to deceit in order to overcome the supplier’s
scruples’’.432 This was equally so when the defendant sold petrol to two 13-year-
old boys who purchased it to sniff it. One was seriously injured when petrol,
spilled on his clothes, ignited after the other threw down a match whilst smoking
cigarettes. The claimant was not proved to have done anything unlawful himself
and, although his conduct was blameworthy, the defence of ex turpi causa did not
succeed, still less volenti non fit injuria, because the claimant did not assent to the
foolish conduct of his friend.433 The defendant was in breach of his common law
duty of care to prevent a person under 16 years from having control over pet-
rol.
Handling petrol. The handling of petrol or other highly inflammable liquids 13–125
is an act which requires special precautions to guard against fire. The occupier of
a garage was held liable for a fire which was caused as a result of one of his
employees lighting a cigarette and throwing the match on the garage floor, while
drawing petrol from a drum into a tin.434 Likewise, where petrol was being
transferred from a lorry to a tank at a garage and while the petrol was flowing
from the lorry to the tank, the lorry driver lit a cigarette and threw the lighted
match away, as a result of which a fire was caused, resulting in an explosion. The
driver’s employers were held liable.435 When petrol is being delivered through a
pipe or other container, there is a duty to watch and control the flow of the petrol.
Any failure to do this, which results in a fire or an explosion, renders the person
in charge of the operation liable in damages.436 When petrol is delivered in bulk
in barrels or other containers, there is a duty to deliver it in containers which are
fit to withstand the ordinary risks incident to delivery. Thus, where petrol was
delivered in a barrel, which burst on being rolled down a skid in the buyer’s yard,
the sellers were held liable.437
The keeping and transport of petrol is governed by the Petroleum (Consolida-
tion) Act 1928 and the regulations made thereunder.438
432
Yachuk v Oliver Blais Co Ltd [1949] A.C. 386.
433
Evans v Souls Garages Ltd, The Times, January 23, 2001. The claimant was found one-third to
blame.
434
Jefferson v Derbyshire Farmers Ltd [1921] 2 K.B. 281. See also Ayoub v Beaupre & Bense (1964)
45 D.L.R. (2d) 411, both mechanic and his employers found liable. In Jefferson v Derbyshire Farmers
Ltd, above at 289, Atkin L.J. explained his duty as follows: ‘‘In dealing with these and like substances
there is a special duty to take precautions that no damage shall accrue either to bystanders or to
adjoining property by reason of explosion, fire, or other injury.’’
435
Century Insurance Co v Northern Ireland Road Transport Board [1942] A.C. 509.
436
Kennedy v Nascar [1941] 3 D.L.R. 755.
437
Marshall v Russian Oil Products Ltd, 1938 S.C. 773.
438
Although the claimant’s employers were found guilty of negligence in Heffer v Rover Car Co, The
Times, November 26, 1964, in permitting petrol to be kept in an open tin, the claimant was found
equally to blame, because he had accidentally caused the lighting of the petrol by ‘‘larking about’’
during the lunch time at his place of employment. See Hardy Ivamy, ‘‘Petrol Delivery and Explosion
Risks’’, 105 L.J. 163. The current regulations are the Dangerous Substances and Explosive
Atmospheres Regulations 2002.
[1019]
13–126 Firemen.439 Where a fireman has been called to attend a fire at premises and
has been injured in the performance of his duty, he does not thereby become
entitled to recover damages from the occupier of the premises. The risk of injury,
which is inherent in the work of fire fighting, must be taken as having been
accepted by him.440
13–127 However, in Salmon v Seafarer Restaurants Ltd,441 it was held that a fireman,
who was attending the scene of a fire and was injured in the course of fighting
the flames, was entitled to sue the person whose negligence started the fire. The
fact of his having his own professional skills did not debar him from claiming
damages. Further, a fireman may well become entitled to succeed in a claim
against an occupier of premises, if it was known or ought to have been known
that a serious risk of fire at the premises was being created or maintained. Where
the occupiers of a factory had allowed the accumulation of thick deposits of dust,
containing aluminium and carbon particles in combustible proportions, they
knew or ought to have known of the exceptional risks of fire and explosion
thereby arising. Accordingly, they were liable when a fireman, called with the fire
brigade to put out a fire in the factory, was injured by a fire and explosion caused
by that dust.442 Similarly, the occupiers of a railway station, which caught fire as
a result of negligence in leaving premises unattended with a lit but unguarded
stove, were held liable for exposing a fireman to an unnecessary hazard when he
was injured after entering the roof space in order to search for a supposed missing
railway employee.443 There is no duty on an occupier to provide an exit route,
which would remain safe whenever firemen are dealing with a fire on the
premises.444 A fireman, who was seriously injured while fighting a fire in a
factory, was held to be outside the ambit of the provisions of s.29(1) of the
Factories Act 1961445 in a claim for damages made against the occupiers.446
13–128 Where a volunteer intervenes in an attempt to rescue life or property of a third

party endangered by a fire for which the defendant was responsible, he may be
owed the duty of care already discussed in relation to the ‘‘rescue’’ cases,447 and
succeed in an action for breach of that duty.448
5.—GAS
13–129 General rule of liability at common law. Because gas is a dangerous thing
anyone who makes, supplies or uses it is, on the face of it, subject to the rule in
Rylands v Fletcher. As Lord Wright said:
439
See further in relation to the fire service, Ch.2, para.2–312.
440
See the Occupiers’ Liability Act 1957 s.2(3) and, further, Ch.8, above.
441
[1983] 1 W.L.R. 1264, approved in Ogwo v Taylor [1988] A.C. 431. Per curiam, ‘‘The American
‘fireman’s rule’ has no place in English law.’’ See Arnheim, ‘‘Playing with Fire’’, 132 S.J. 1319.
442
Merrington v Iron Bridge Metal Works Ltd (1952) 117 J.P. 23.
443
Hartley v British Railways Board (1981) 125 S.J. 169.
444
Sibbald v Sher Brothers, The Times, February 1, 1980.
445
See generally the 9th edn of this work, Ch.11, para.11–138, above.
446
Flannigan v British Dyewood Co, 1969 S.L.T. (O.H.) 223.
447
See, Ch.2, paras 2–60–2–94 and above, paras 2–254–2–260.
448
Russell v McCabe [1962] N.Z.L.R. 392.
[1020]
GAS 13–130
‘‘That gas is a dangerous thing within the rules applicable to things dangerous in
themselves is beyond question. Thus the appellants who are carrying in their mains the
inflammable and explosive gas are prima facie within the principle of Rylands v
Fletcher449 affirming Fletcher v Rylands450; that is to say, that though they are doing
nothing wrongful in carrying the dangerous thing so long as they keep it in their pipes,
they come prima facie within the rule of strict liability if the gas escapes: the gas
constituted an extraordinary danger created by the appellants for their own purposes,
and the rule established by Rylands v Fletcher requires that they act at their peril and
must pay for damage caused by the gas if it escapes, even without any negligence on
their part.’’451
Public supply of gas. Gas undertakings were nationalised by the Gas Act 13–130
1948, which established Area Gas Boards to provide and regulate the public
supply of gas, and thus modified the rule of strict liability by the introduction of
the defence that, save in a case of negligence, the supply was provided pursuant
to statutory powers.452 The burden of proving that there was no negligence in the
exercise of the statutory powers lay on the Area Boards, and there was no
obligation to the party suffering damage to prove negligence of their part.453 Area
Boards, accordingly, were held liable in negligence for the escape of gas from
their pipes and they were also liable for nuisance.454 By virtue of the provisions
of the Gas Act 1972,455 the Area Boards established under the 1948 Act were
dissolved and replaced by the British Gas Corporation.456
By the provisions for re-privatisation of the industry contained in the Gas Act
1986, the British Gas Corporation was dissolved and its property, rights and
liabilities were transferred, according to the statute, to British Gas Plc, an
authorised ‘‘public gas supplier’’.457
The 1986 Act has, in turn, been amended by the Gas Act 1996458 which
provides for an altered licensing framework for the gas industry. The ‘‘public gas
supplier’’ of the 1986 Act has been replaced by ‘‘public gas transporters’’, ‘‘gas
suppliers’’ and ‘‘gas shippers’’.
449
(1868) L.R. 3 H.L. 330.
450
(1866) L.R. 1 Ex. 265.
451
Northwestern Utilities Ltd v London Guarantee and Accident Co [1936] A.C. 108 at 118.
452
[1936] A.C. 108 at 119. In Price v South Metropolitan Gas Co (1895) 65 L.J.Q.B. 126, Russell
C.J. said: ‘‘Where a gas company such as this, having statutory powers to lay pipes does so in the
exercise of its statutory powers, the ‘wild beast’ theory referred to in the well known case of Rylands
v Fletcher is inapplicable’’; Dunne v North Western Gas Board [1964] 2 Q.B. 806. However, see the
doubts expressed about this decision by Rees J. in Pearson v North Western Gas Board [1968] 2 All
E.R. 669 at 672.
453
Northwestern Utilities Ltd v London Guarantee & Accident Co [1936] A.C. 108; Manchester
Corp v Farnworth [1930] A.C. 171.
454
455
Which came into force on August 9, 1972.
456
Gas Act 1972 (Appointed Day) Order 1972 (SI 1972/1440 (c.35)) which came into force on
January 1, 1973.
457
Gas Act 1986 s.7. But a new s.7 has been substituted by the Gas Act 1995 s.5, for which see
below. In addition to the framework legislation there is much detailed regulation by statutory
instrument, e.g. the Gas Safety (Installation and Use) Regulations (SI 1994/1886); the Gas Safety
(Installation and Use) (Amendment) Regulations (SI 1996/550); and the Gas Safety (Management)
Regulations (SI 1996/551); the Gas Safety (Management) Regulations (SI 1996/51); and the Gas
Safety (Installation and Use Regulations 1998 (SI 1998/2451). See Crowther, ‘‘Keep the pilot light
lit: the dangers of carbon monoxide’’ (2003) H. & S.L. 3(1), 2.
458
The 1995 Act came into force on March 1, 1996, by virtue of SI 1996/218.
[1021]
Public gas transporters have the function of operating the pipeline system
through which gas is delivered to consumers. Gas suppliers sell the piped gas to
customers and gas shippers are responsible for making available appropriate
amounts of gas for movement through the pipeline system. In the discussion
which follows the ‘‘old’’ terminology is for the time being retained, but the new
arrangements will have to be kept in mind if it is necessary to establish the
responsibility of a licensee for a particular gas escape.459
13–131 Liability in negligence of a public gas supplier for gas escapes. Because
public gas suppliers,460 like their predecessors, keep gas under pressure in mains
and pipes, a very high degree of care is exacted of them. In considering the
examples which follow, it should be noted that many of the old common law
decisions cannot stand, given the modern statutory regime governing gas.461
ILLUSTRATIONS
13–132 Liability was established against the gas undertaker: where an hotel was
damaged by fire owing to an escape from the gas main operated under statutory
authority. The main had fractured due to operations of the local authority
constructing a storm sewer but the undertaker should have been vigilant to ensure
that the local authority’s work did not affect the main and, in particular, should
not have assumed that the authority would fulfil its duty properly to support the
pipe462; where a gas pipe laid ten and a half inches below the surface of a road
cracked under the weight of traffic after a sewer authority had recently excavated
the ground but failed to leave proper support for the pipe463; where an explosion
occurred in a house due to escape of gas following a fracture of the main caused
by colliery subsidence, there having been a failure to take precautions to guard
against the known risk of subsidence464; where an explosion occurred on gas
escaping from the main into a house where lights were burning.465
13–133 Liability was not established against the undertaker: following an escape and
explosion where a gas pipe rusted owing to a leakage of water from an adjacent
water pipe.466
459
In the vast majority of cases it will be the public gas transporter which is responsible for an escape
of gas: see n.470 below.
460
See n.459, above.
461
See n.457, above.
462
Northwestern Utilities Ltd v London Guarantee & Accident Co [1936] A.C. 108, PC. Lord Wright
said, at 126, that the undertakers owed: ‘‘ . . . a duty to the respondents’ [hotel] even though the case
falls outside the rule of strict or absolute liability to exercise all care and skill that these [hotel] owners
shall not be damaged. The degree of care which that duty involves must be proportioned to the degree
of risk involved in that duty should not be fulfilled.’’
463
Price v South Metropolitan Gas Co (1895) 65 L.J.Q.B. 126. Russell C.J. said that the gas company
‘‘should be vigilant in seeing that when any other body had reason to excavate near their pipes the
pipes were left in a safe condition’’, and that they were negligent because they ought ‘‘to have known
that the ground under the pipe had been disturbed and had not been properly replaced’’. See also to
the like effect Shell-Mex Ltd v Belfast Corp [1952] N.I. 72.
464
Hanson v Wearmouth Coal Co [1939] 3 All E.R. 47.
465
Blenkiron v Great Central Gas Consumer’s Co (1860) 2 F. & F. 437.
466
Stacey v Metropolitan Water Board (1910) 9 L.G.R. 174.
[1022]
GAS 13–136
Unexplained escape of gas. The unexplained escape of gas from the mains of 13–134
pipes is prima facie evidence of negligence on the part of the gas undertaker. If
the escape was through a crack in the pipe, it is for the undertaker to prove that
the crack was caused without any negligence on his part. Even if there is no
crack, but the pipe leaks in some way, the burden still rests on him to prove that
the leak is not a consequence of his negligence.
‘‘A person who brings a dangerous thing on his land,467 and allows it to escape, thereby
causing damage to another, is liable to that other unless he can show that the escape was
due to the conscious act of a third party, and without negligence on his own part.
Obviously the burden of proving that there was no negligence is on the defendants, and
it is not for the plaintiff to prove negligence affirmatively.’’468
It follows that the law offers no remedy to a victim of a gas explosion if it

occurred without negligence on the part of the undertaker. Where an explosion
killed the claimant’s husband, seriously injured her and destroyed their home, the
claim failed on proof that the gas had escaped from a main which had fractured
instantaneously in an exceptionally severe frost.469
Detection of gas escapes. A public gas company is bound to take all 13–135
reasonable precautions to detect escapes of gas470 within the system and to deal
promptly with them. So, the gas company was liable where, having found the
source of an escape from the main, its employee left the scene to obtain repair
equipment only for an explosion to occur before he returned.471 Liability also
followed where the combined effect of the removal of support below and the
weight of traffic above, caused a pipe to crack and escaped gas accumulated for
two or three days before an explosion occurred.472
Liability devolved on the occupier rather than the gas company where a visitor 13–136
to premises was injured by a gas explosion which was preceded by a strong smell
467
The rule is not limited to cases where the defendant has been carrying or accumulating the
dangerous thing on his own land. ‘‘It applies equally . . . where the appellants were carrying gas in
mains laid in the property of the city (that is, in the subsoil) in the exercise of a franchise to do so’’:
Lord Wright in Northwestern Utilities Ltd v London Guarantee & Accident Co [1936] A.C. 108.
468
Hanson v Wearmouth Coal Co [1939] 3 All E.R. 47 at 53 per Goddard L.J. See also Lloyde v West
Midland Gas Board [1971] 1 W.L.R. 749.
469
Pearson v North Western Gas Board [1968] 2 All E.R. 669.
470
By the Gas Act 1986 Sch.5, para.13, a public gas supplier was under a duty, immediately after
being informed of the escape, to prevent the gas from escaping, and should he fail to do such within
12 hours of being so informed, was liable to be fined. Sch.5 has been repealed by the Gas Act 1995,
for which see above para.13–130 and n.457. Duties where gas escapes from pipes are now set out in
para.20 et seq. of Sch.2 to the 1995 Act and fall upon the public gas transporter who owns them. The
transporter is under the like duties where gas escapes from a pipe or gas fitting used by a consumer
to whose premises he has conveyed gas. By the new s.9 to the 1986 Act the transporter is placed
under a general duty to maintain an efficient and economical pipeline system (see para.3 of Sch.3 to
the 1995 Act); and to carry out any necessary work of maintenance, repair or renewal of any gas
service pipe by which gas is conveyed by him to the consumer’s premises (para.15 of Sch.2).
471
Mose v Hastings and St Leonards Gas Co (1864) 4 F. & F. 324. See also Manchester Corp v
Markland [1936] A.C. 360, dealing with the detection of escapes from water mains, and para.13–85,
above, dealing with water companies.
472
Price v South Metropolitan Gas Co (1895) 65 L.J.Q.B. 126; Shell-Mex Ltd v Belfast Corp [1952]
N.I. 72.
[1023]
of gas for about eight hours without any report by the occupier to the gas
company.473 On the other hand, where, after a deliberate escape of gas by a
suicide and following a report of a strong smell of gas to the gas company, an
investigation occurred which found no fault, the company was held vicariously
liable for an explosion which damaged three houses because its employee left the
scene without taking any action.474
13–137 If the claimant himself causes the escape of gas, the gas supplier is not liable
for damage arising, if there is no concurrent negligence on his part. No liability
attached to the supplier where an explosion occurred after the claimant failed to
turn off a gas stop-cock before leaving the house unoccupied.475
13–138 Liability for nuisance. The escape of gas is itself a nuisance476 but, if it is
caused by a public gas supplier,477 it is not actionable without proof of
negligence.478 If an escape has not been caused by a public gas supplier but,
rather, by the actions of another agency479 or in any other case where the escape
has been caused by another person, the public gas supplier is only liable for
negligently allowing the gas to escape when the taking of prompt action could
have prevented either the escape480 or its continuance.481 To be a nuisance it is
not necessary that the escape of gas should have been going on for any prolonged
period of time.482
13–139 Strict liability for gas escapes from underground storage. An exception to
the need for proof of negligence, arises in the case of damage caused by gas in
an underground gas storage or in the boreholes connected with an underground
gas storage or by gas, which is escaping or has so escaped from any such storage
or boreholes. By the Gas Act 1965483 a gas authority, now the public gas
transporter, is absolutely liable in civil proceedings for any such damage so
473
Glennister v Condon & Eastern Gas Board [1951] 2 Lloyd’s Rep. 115.
474
Smith v South Eastern Gas Board (1964) 108 S.J. 337.
475
Holden v Liverpool New Gas & Coke Co (1846) 3 C.B. 1.
476
Preserved by the Gas Act 1972 Sch.4, para.33.
477
This phrase is no longer used in the new licensing regime established by the Gas Act 1995: see
para.13–130 and n.457, above.
478
The CA has held that the gas board be liable either on a basis of strict liability under the Rylands
v Fletcher rule or in nuisance, if the board had done what the statute had imposed upon it, without
negligence, since it had been recognised that gas might escape as an incident of its statutory
operations: Dunne v North Western Gas Board [1964] 2 Q.B. 806, distinguishing Midwood v
Manchester Corp [1905] 2 K.B. 597 and Charing Cross Electricity Supply Co v Hydraulic Power Co
[1914] 3 K.B. 772; Manchester Corp v Farnworth [1930] A.C. 171.
479
e.g. Stacey v Metropolitan Water Board (1916) 9 L.G.R. 126 (a water pipe, for which the authority
was not responsible, and a gas pipe were laid close together but, as a result of the water pipe leaking,
the gas pipe rusted away and gas escaped; and Pearson v North West Gas Board [1968] 2 All E.R.
669 (a gas pipe was fractured by severe frost, a risk which could not have been ‘‘avoided by the
exercise of reasonable care on the part of the defendants’’, at 672).
480
Hanson v Wearmouth Coal Co [1939] 3 All E.R. 47, 55; Smeaton v Ilford Corp [1954] Ch. 450
at 472; approved in Dunne v North Western Gas Board [1964] 2 Q.B. 806.
481
Dunne v North Western Gas Board [1964] 2 Q.B. 806.
482
Midwood v Manchester Corp [1905] 2 K.B. 597.
483
Which came into force on August 5, 1965.
[1024]
GAS 13–144
caused484 ‘‘Damage’’ includes loss of life, personal injury and damage to

property.485 The partial defence of contributory negligence is specifically
retained.486
Breaking up streets, bridges, etc. The Gas Act 1986487 contains provisions 13–140
which empower public gas suppliers to break up streets or bridges for the purpose
of placing and from time to time repairing, altering, or removing pipes and other
supply equipment. It imposes an obligation to do as little damage as possible and
make compensation for any damage done in exercising these powers.488
Liability to highway users. When exercising their powers, they must take 13–141
reasonable care for the protection of people passing along the highway.
ILLUSTRATIONS
Gas companies were held liable to passers by: when, while laying pipes, their 13–142
workmen projected a piece of metal which struck and injured the claimant489;
where, during a repair of a main, a fire pail with a ladle containing molten lead
was placed on unenclosed land adjacent to the highway and a child was injured
when a passer-by accidentally knocked over the pail, it being negligent to leave
apparatus unattended and unguarded on land adjoining the highway without steps
being taken to protect highway users.490
Gas meters. The Gas Act 1995491 imposes duties as to the provision and 13–143
maintenance of any meters which public gas suppliers require their customers to
use. If they are negligent in doing so, they are liable to any person injured.492
Installing or disconnecting gas in premises. In installing493 or disconnecting 13–144

a supply of gas,494 the person carrying out the work is only liable on proof of
484
By s.14(1). Para.7(1) of Sch.4 to the Gas Act 1995 substitutes the words ‘‘public gas transporter’’
for the reference to a public gas supplier in s.14(1): see para.13–130, above.
485
Defined in s.14(4).
486
By s.14(3).
487
Sch.4 as amended by para.57 of Sch.3 to the Gas Act 1995, which substitutes the words ‘‘public
gas transporter’’ for the reference to a public gas supplier: see para.13–130 and n.457, above.
488
Goodson v Sunbury Gas Co (1896) 75 L.T. 251; Brame v Commercial Gas Co [1914] 3 K.B.
1181.
489
Scott v Manchester Corp (1857) 2 H. & n.204.
490
Crane v South Suburban Gas Co [1916] 1 K.B. 33.
491
Sch.2.
492
Clavett v Pontypridd Urban District Council [1918] 1 K.B. 219. However, where an inspector left
his open pen penknife in a house where he was investigating a defective meter and a four year old
child picked it up and injured his eye, the gas company was held not liable: Forsyth v Manchester
Corp (1912) 29 T.L.R. 15, on a jury finding that the inspector reasonably ought not to have
anticipated danger arising from the knife left where it was.
493
See also para.13–165, below, for the comparable position as regards the installation of elec-
tricity.
494
For the provisions of the Defective Premises Act 1972, which are relevant as regards the duties
owed where gas apparatus has been installed by an owner of a dwelling-house or its builders and,
subsequently, the property is let or sold, see para.13–149, below.
[1025]
negligence.495 The degree of care and skill required is a very high one, because
of the great danger which results from an escape of gas, and of the skill and
experience which the statutory undertakers may be presumed to have in matters
relating to the supply of gas.496
ILLUSTRATIONS
13–145 Liability was established against the gas company: where, following the
disconnection of the gas supply to a meter, a long piece of pipe, properly stopped
but still connected to the main, was left projecting in a cellar and third parties
broke the pipe in attempting to take away the meter with the result that gas filled
the cellar and caused an explosion497; where a defective pipe was supplied to
convey gas from the main to the meter and, on gas escaping, the company’s
employee carried a lighted candle to find the source of the escape498; where the
deceased died from carbon monoxide poisoning due to the escape of gas from a
faulty and inadequately ventilated water heater. The company had negligently (i)
failed to fit a larger airbrick following conversion to natural gas which required
more oxygen to operate safely and (ii) advised the deceased that the heater was
not dangerous to use499; where a safety valve, in a regulator fitted to apparatus
designed to receive natural gas at very high pressure, was negligently installed so
that it discharged gas indoors, instead of outdoors, resulting in a fatal explo-
sion.500
13–146 Liability of persons other than a public gas supplier. The liability of
persons, other than a public gas supplier or others, operating under statutory
authority, who own, control or accumulate gas, is that laid down in Rylands v
Fletcher. Where one municipality disposed of organic matter on the land of
another, by way of a land-fill project, the resultant decomposition produced
methane gas that escaped and seeped into adjoining lands upon which houses
were built. On the claimant starting the engine of his motor car in the garage of
his home, the gas exploded, destroying the building, damaging the vehicle and
injuring him. Both municipalities were held strictly liable for the escaping
methane gas, since land-fill with rubbish is a non-natural user of land in a heavily
populated residential district. In addition, the defendants were negligent in that,
inter alia, they knew or ought to have known that decomposition would produce
appreciable quantities of a dangerous gas.501 On the other hand, where gas
escapes from an ordinary domestic supply, the owner is not liable except on proof
495
But a claimant may well be able to argue that the facts speak for themselves, e.g. as in Lloyde v
West Midlands Gas Board [1971] 1 W.L.R. 749. Further see Ch.6, para.6–100, above.
496
See per Lopes J. in Parry v Smith (1879) 4 C.P.D. 325 at 327.
497
Paterson v Blackburn Corp (1829) 9 T.L.R. 55.
498
Burrows v March Gas and Coke Co (1870) L.R. 5 Ex. 67, affirmed (1872) L.R. 7 Ex. 96. The
company was held liable both in negligence and for breach of contract.
499
Pusey v Peters, The Times, October 26, 1974.
500
Dominion Natural Gas Co v Collins [1909] A.C. 640. Lord Dunedin said:‘‘In the case of articles
dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem
generis, there is a peculiar duty to take precaution imposed upon those who send forth or instal such
articles when it is necessarily the case that other parties will come within their proximity.’’ See also
Parry v Smith (1879) 4 C.P.D. 325.
501
Gertsen v Municipality of Metropolitan Toronto (1973) 41 D.L.R. (3d) 646.
[1026]
GAS 13–148
of negligence.502 Thus, where gas escaped from an outside service pipe

belonging to the owner of several houses and caused an explosion in the house
of one of his tenants, it was held that, in the absence of negligence on the owner’s
part in the maintenance of the service pipe, there was no liability to the persons
injured.503
Doing acts likely to cause gas to escape. A person doing an act likely to 13–147
cause an escape of gas or a gas explosion is under a duty to take a very high
degree of care to prevent damage from being caused. When gas pipes become
cracked, owing to the removal of proper support by persons working near to the
pipes, those responsible for removing the support are liable.504 Where a local
authority employed an independent contractor to construct a sewer in a street
and, in doing so, the contractor left a gas main unsupported with the result that
the main broke and an explosion ensued in an adjoining house, both contractor
and local authority were held liable.505 Where damage was caused to a gas
undertaker’s pipes due to the activities of water, sewer and other authorities,
which had removed the support for its pipes in the course of fulfilling their
statutory duties, the latter were held liable.506
Negligence of a third party. When a person would otherwise be liable for an 13–148
escape of gas, it is no defence for him to show, for example, that the immediate
cause of the explosion was the act of a third person using a naked light in an
attempt to detect the place of the escape, because such an escape will almost
inevitably cause an explosion and, thus, the precise circumstances in which it
occurs are irrelevant. Accordingly, where a gas company was negligent in
providing a defective service pipe, then supplying gas through it, and a gas
fitter’s employee caused an explosion negligently by using a naked light, it was
held that the gas company was liable for the damage so suffered and that the
negligence of the gas fitter’s employee was no defence.507 If necessary the gas
fitter would also have been liable for the negligence of his employee.508 Because
the owner of a lock-up shop, which was let to a tenant, had suspected that gas was
escaping in the premises after the tenant had left for the night, he entered the shop
with a friend to investigate. With his approval, the friend examined the gas pipe,
using a naked light for the purpose, whereupon an explosion occurred, which
502
Bleach v Blue Gate Products, The Times, January 26, 1960 (defective tap on a gas cooker);
Collingwood v Home and Colonial Stores [1936] 3 All E.R. 200, CA and para.13–100, above. See
paras 13–95–13–101, above, dealing with the escape of water.
503
Miller v Robert Addie & Sons (Collieries), 1934 S.C. 150. Quaere whether this case does not go
too far. cf. Peters v Prince of Wales Theatre (Birmingham) Ltd [1943] K.B. 73; Tilley v Stevenson
[1939] 4 All E.R. 207; Western Engraving Co v Film Laboratories Ltd [1936] 1 All E.R. 106 (water
cases).
504
If the gas company has no right of support for its pipes, the person removing support will not be
liable for any escape of gas: Hanson v Wearmouth Coal Co [1939] 3 All E.R. 47.
505
Hardaker v Idle District Council [1896] 1 Q.B. 335. For cases where the gas main was fractured
during road repairs and after it had been subjected to heavy pressures from the use of road rollers,
see Gas Light & Coke Co v St Mary Abbott’s, Kensington (1885) 15 Q.B.D. 1 and Driscoll v Poplar
Board of Works (1897) 14 T.L.R. 99.
506
Ilford Gas Co v Ilford UDC (1903) 67 J.P. 365; Huyton & Roby Gas Co v Liverpool Corp [1926]
1 K.B. 146.
507
Burrows v March Gas & Coke Co (1872) L.R. 7 Ex. 96; Parry v Smith (1879) 4 C.P.D. 325.
508
Brooke v Bool [1928] 2 K.B. 578.
[1027]
damaged the goods in the shop. The owner was nevertheless held liable to the
tenant.509 The search for a gas escape was highly dangerous unless proper
precautions were taken and a necessary precaution was to avoid the use of a
naked light. Since the defendant had undertaken the examination he was under a
duty to take reasonable care to avoid danger resulting from it. He was unable to
escape the consequences of a failure to discharge this duty by getting another to
make the examination, even if that other was a mere voluntary helper. A person
dealing with a dangerous thing is liable not only for his own negligence, but also
for the negligence of any independent contractor whom he may employ to deal
with it.510
13–149 Liability of landlord, seller or builder of real property. At common law511

there was no liability on the part of a landlord to a tenant or of a seller to a buyer
for negligence in the installation of gas or any other dangerous thing512 in the
premises, either before or after the commencement of the tenancy513 or before the
completion of the purchase.514 His immunity covered not only nonfeasance, for
example his negligent failure to carry out necessary repairs, but also malfeasance,
for example his negligent installation of an unventilated gas geyser in a
bathroom515 and his negligent removal of a gas fire from a bedroom,516 each of
which resulted in the death of an occupant from carbon monoxide poisoning. The
landlord’s immunity, in the absence of express contractual conditions, was
abolished by s.3 of the Defective Premises Act 1972,517 which imposes a duty of
care. However, neither s.3 nor s.4 of the 1972 Act appears to cover the situation
where a landlord lets business premises and has failed to carry out repairs. If such
a tenant is injured as a result of some defect in the in defective premises, the
immunity at common law could well apply still, because s.3 does not apply to
work omitted to be done, only to work done, and under s.4, where the obligation
to repair only exists if the landlord has expressly undertaken it.518 A similar
509
510
Hardaker v Idle District Council [1896] 1 Q.B. 335; Honeywill & Stein Ltd v Larkin Bros Ltd
[1934] 1 K.B. 191; Black v Christchurch Finance Co [1894] A.C. 48; Brooke v Bool [1928] 2 K.B.
57; Johnson (t/a Johnson Butchers) v BJW Property Developments Ltd [2002] 3 All E.R. 574, Q.B.D.
The rule imposing liability has been said not to apply to an intermediary in a contractual chain
between the ultimate employer and the party at fault: M.T.M. Construction Ltd v William Reid
Engineering Ltd, The Times, April 22, 1997, OH, above Ch.3, para.3–195.
511
For the situation at common law in fuller detail, see Charlesworth on Negligence (5th edn, 1971),
Ch.9.
512
See para.13–07 et seq., above.
513
Malone v Laskey [1907] 2 K.B. 141; Ball v London County Council [1949] 2 K.B. 159. However,
it was suggested strongly in A.C. Billings & Sons Ltd v Riden [1958] A.C. 240 that a landlord would
be liable in respect of things done after the commencement of the demise.
514
Bottomley v Bannister [1932] 1 K.B. 458; Otto v Bolton & Norris [1936] 2 K.B. 46.
515
Travers v Gloucester Corp [1947] K.B. 71.
516
Davis v Foots [1940] 1 K.B. 116.
517
Which came into force, by virtue of s.7(2), on January 1, 1974. See further Ch.8, above, paras
8–124–8–137.
518
By the Landlord and Tenant Act 1985 ss.11–16, 32 and 36, there is imposed by law an obligation
to repair in the case of short leases of dwelling-houses, which does extend similarly to business
premises.
[1028]
GAS 13–152
situation arises, probably, where the landlord has failed to warn of defects not
created by him in business premises but of which he may have knowledge.
Different considerations apply if gas escapes from part of the premises 13–150
retained by the landlord into the tenant’s part. In Federic v Perpetual Invest-
ments,519 a landlord, in operating on his own garage premises situated directly
below a tenant’s apartment, allowed gas to escape and penetrate the tenant’s
premises so that the tenant suffered chronic carbon monoxide poisoning. The
landlord was held strictly liable under the rule in Rylands v Fletcher.
The duties of builders in relation to property which they have constructed have 13–151
been discussed already.520 Duties can arise at common law by way of the
principles set out in Murphy v Brentwood District Council,521 alternatively under
the Defective Premises Act 1972. By s.1 of the Act there is specifically imposed
on builders, inter alia,522 the duty of carrying out work in a workmanlike or
professional manner and using proper materials, so that in respect of the
contribution which that work makes to the dwelling, whether by erection,
conversion, enlargement or otherwise, the dwelling is fit for habitation. The duty
is owed not only to the first owner of the dwelling but also to his successors in
title; but the usual periods for limitation of actions will apply and will begin to
run, as a general rule, from the completion of the dwelling.
Gas contained in cylinders or otherwise. In Beckett v Newalls Insulation 13–152

Co,523 a refrigeration company and an insulation company were working on a
ship under construction. The refrigeration company was using Calor gas in a
cylinder and left it in an outer chamber of the ship on a Friday, knowing that they
would not be using it until the following Tuesday but that other men would be
working on the ship in the meanwhile. On the Sunday, a man employed by the
insulators, without any negligence, moved a gas cylinder from the outer to the
inner chamber. On the Tuesday, the claimant, employed by the insulators, entered
the inner chamber, struck a match and caused an explosion which injured him.
The refrigeration company was held liable, because they had not taken the high
degree of care imposed on them as the persons who had brought a dangerous
thing on board the ship. Following the use of an oxyacetylene burner in the poop
space of the claimant’s oil tanker, an explosion occurred. The defendants, on
whose floating pontoon the tanker was being repaired, were held liable for the
negligence of their consulting engineer who, prior to burning commencing, had
tested for gas and reported it to be free.524
519
(1968) 2 D.L.R. (3d) 50.
520
See Ch.2, para.2–233 and Ch.8, para.8–112, above.
521
[1991] 1 A.C. 398.
522
Including specialist sub-contractors and manufacturers of equipment made to order.
523
[1953] 1 W.L.R. 8 (It was not proved how the gas had escaped.)
524
The Pass of Ballater [1942] P. 112 at 117, per Langton J.: ‘‘Where the introduction of implements
or substances dangerous in themselves, such as flame-bearing instruments or explosives, are
necessarily incidental to the work to be performed, a contractor is equally bound by an inescapable
duty. The point may perhaps be crystallised by saying that he has not merely a duty to take care but
a duty to provide that care is taken.’’
[1029]
6.—ELECTRICITY
13–153 General rule of liability for electricity. Electricity generated, stored or

transmitted in a substantial quantity is clearly dangerous and the principle in
Rylands v Fletcher applies.525 Generators of electricity and those responsible for
the transmission and supply of electricity would at common law be strictly liable
for any escape of electricity causing damage to an interest in land.
13–154 Statutory authority. When electricity is generated, transmitted or supplied

under statutory authority the rule of strict liability arising under Rylands v
Fletcher will be displaced unless the statute authorising the activity preserves
it.526 If the statute is silent, the usual rule is that liability can only be established
on proof of negligence. The generation, transmission and supply of electricity is
now carried out by public electricity suppliers under licences527 granted pursuant
to the provisions of the Electricity Act 1989. The 1989 Act is silent as to the
tortious liability of public electricity suppliers and thus it is likely that liability in
respect of damage caused by the escape of electricity from apparatus operated by
electricity companies will arise only on proof of negligence. The provisions of
ss.77 and 81 of the Electric Lighting (Clauses) Act 1899, which specifically
preserved the liability in nuisance of the old electricity boards were repealed by
the 1989 Act and not replaced. Cases before 1989 where liability in nuisance was
imposed without proof of negligence ought to be viewed with some caution.
13–155 Liability in respect of negligence. The standard of care required of a supplier

of electricity is a high one, reflecting the intrinsically dangerous nature of
electricity itself.528 All reasonable known means of keeping electricity harmless
should be used.529 Where an electricity supply company erected two overhead
cables carrying a high tension current and, in a wind, a tree branch snapped and
brought them down, permitting current to escape along a low tension cable and
cause a fire in the claimant’s home, the company was liable. It had failed to earth
the wires of transformers so that the electricity could pass harmlessly into the
ground, instead of entering the neighbouring houses.530 However, when a
building contractors’ workman was operating a derrick in the street to raise a
stone and the derrick came into contact with the overhead wire, as a result of
which electricity was conducted down the cable of the derrick, rendering the
525
National Telephone Co v Baker [1893] 2 Ch. 186; Eastern and South African Telephone Co v Cape
Town Tramways [1902] A.C. 381.
526
National Telephone Co v Baker [1893] 2 Ch. 186.
527
See the Electricity Act 1989 ss.4–6.
528
See Northwestern Utilities v London Guarantee and Accident Co [1936] A.C. 108 (gas).
529
per Collins M.R. in Midwood v Manchester Corp [1905] 2 K.B. 597 at 608.
530
Quebec Railway Light, Heat and Power Co v Vandry [1920] A.C. 622. In dealing with the defence
of statutory powers, Lord Sumner, at 679, said: ‘‘Such powers are not in themselves charters to
commit torts and to damage third persons at large, but that which is necessarily incidental to the
exercise of the statutory authority is held to have been authorised by implication, and therefore it is
not the foundation of a cause of action in favour of strangers, since otherwise the application of the
general law would defeat the purpose of the enactment.’’
[1030]
ELECTRICITY 13–158
workman unconscious and killing two men rushing to help him, the electricity
company was not liable.531
When electricity is carried overhead by wires or cables, in addition to any 13–156

precautions required by statute, great care must be taken to see that it is not likely
to become a source of danger. In Buckland v Guildford Gas Light & Coke Co,532
high voltage electric wires were routed across a field, immediately over the top
of a tree, part of which had been cut down to permit the passage of the wires. A
girl of 13 climbed the tree, when it was in full leaf, came into contact with the
wires and was electrocuted. The electricity undertakers were liable on the ground
that they should have foreseen that someone might climb the tree and, being
unable to see the wires obscured by the dense foliage, accidentally come into
contact with them.533 Nevertheless, a different result was reached in the
somewhat similar case of McLaughlin v Antrim Electricity Supply Co.534 There
a boy of 12 had climbed a pylon, one leg of which was on public land and the
other in a field used by children as a playground, and was injured when he came
into contact with a wire conductor. He failed to recover damages on the ground
that he was a trespasser on the pylon and had climbed at his own risk. It would
seem, however, that the real question was not whether the boy was a trespasser
but whether the electricity undertakers had fulfilled their duty to take care having
regard to the situation and position of the wire and to the known circumstances
generally.535
Where a high voltage underground cable had been laid at a depth of only 8 to 13–157
10 inches beneath a pavement, instead of the normal depth of 18 inches, because
of the presence of cellars below, the London Electricity Board decided to cover
it with steel plates, in order to protect it as well as to prevent it becoming a trap
to anyone working on the roadway. The Board, in such circumstances, was
exonerated from all blame when a workman was electrocuted as a result of
penetrating the cable with his employers’ pneumatic drill.536
Limit of the electricity supplier’s duty of care. Normally the supplier’s 13–158
liability ends at the point when electricity is delivered to the consumer. So an
electricity supplier was not liable where the claimant’s wife was electrocuted as
a result of a contractor’s failure, when installing a new circuit for a boiler, to
make a proper earth connection.537 There was no duty to carry out any inspection
or test of the new installation before supplying electricity.
531
Dumphy v Montreal Light, Heat and Power Co [1907] A.C. 454.
532
[1949] 1 K.B. 410. See also, Ch.8, para.8–93, above.
533
The girl was found not to be a trespasser on the tree but, as the defendants did not own the tree
or the field in which it was growing, this fact is irrelevant, except possibly on the question of
foreseeability.
534
[1941] N.I. 23. See also Moyle v Southern Electricity Board [1962] 1 Lloyd’s Rep. 607 (where a
kite being flown from a steel wire touched an overhead cable the accident could not have been
foreseen).
535
The trespasser point would now be determined by reference to the Occupiers’ Liability Act 1984:
see Ch.8, paras 8–144–8–160, above.
536
Lait v A.A. King (Contractors) Ltd, The Times, April 11, 1975.
537
Sellars v Best [1954] 2 All E.R. 389.
[1031]
13–159 Explosions. Where an explosion occurred in the electric mains of a statutory

undertaker owing to the ignition by the electric spark of an accumulation of gas
which had leaked from a gas main, and there was evidence that a ventilator
would have prevented the explosion, it was held that there was negligence on the
part of the electricity undertakers.538 An explosion, which has been created by an
escape of electricity from the mains or wires of an electricity supplier, is prima
facie evidence of negligence. Thus, where the claimant, who was walking along
the street and passing a sunken chamber, was injured by an explosion, which
caused a metal plate to open and a flash to emanate, it was held there was
negligence on the part of the electricity undertakers.539
13–160 Breaking up streets. Those licensed to supply electricity are empowered

under the Electricity Act 1989 to execute such street works as are required to
inspect, maintain and keep their apparatus in repair.540 The standard to which the
work is performed and the safety measures to be adopted are governed by the
New Roads and Street Works Act 1991, which has already been discussed
above.541
13–161 Liability of persons other than statutory suppliers. The liability of persons
who own or control electricity without any statutory authority542 is that laid down
in Rylands v Fletcher.543 An exception, however, occurs in the case of ‘‘electric
wiring which everybody, or most people, nowadays have in the houses which
they occupy whether for domestic use, or for purposes of trade’’,544 when
negligence must be proved to establish liability. Thus, where there was some
unknown defect in the electrical wiring in the basement of the defendant’s
grocery stores, causing a fire to break out, and the claimant’s adjoining shop was
damaged by the water used in extinguishing the fire, it was held that the
defendant was not liable in the absence of evidence of negligence.545 Again,
when a fire was caused by a short circuit of the electric wiring, behind the
panelling and near to a ventilator on the half landing of a building, where a stack
of packing and wrapping material was stored, it was held there was no liability.546
538
Solomons v Stepney Borough Council (1905) 69 J.P. 360. But, to the contrary, see Goodbody v
Poplar Borough Council (1915) 84 L.J.K.B. 1230 (where there was a similar explosion and it was
found that the chamber in which it occurred was constructed properly, the electricity undertakers were
held not liable).
539
Farrell v Limerick Corp (1911) 45 I.L.T. 169, per Palles C.B.: see also Solomons v Stepney
Borough Council (1905) 69 J.P. 360, per Alverstone C.J.
540
The powers are set out in the Fourth Schedule.
541
para.13–87, above.
542
See further, as in the case of gas, para.13–146, above, and the liability of landlord, seller or builder
of real property, para.13–149, above.
543
National Telephone Co v Baker [1893] 2 Ch. 186; Eastern and South African Telephone Co v Cape
Town Tramways [1902] A.C. 381; Hiller v Air Ministry, The Times, December 8, 1962. Simultaneous
electrocution of 19 cows in a field following an escape of electricity from an underground high
voltage cable: the statutory power under which the cable was laid did not authorise such an
escape.
544
Collingwood v Home and Colonial Stores [1936] 3 All E.R. 200 at 208, per Lord Wright M.R.
545
Collingwood v Home and Colonial Stores [1936] 3 All E.R. 200 at 208. Lord Wright said that the
rule in Rylands v Fletcher did not apply ‘‘to the ordinary domestic installation of electric wiring for
the ordinary comfort and convenience of life.’’
546
Solomons v R. Gertzenstein Ltd [1954] 1 Q.B. 565, reversed on other grounds [1954] 2 Q.B.
243.
[1032]
ELECTRICITY 13–164
On somewhat similar facts, however, the defendant was held liable in nuisance
in Spicer v Smee.547 There, the claimant’s house was destroyed by fire caused by
a defect in the electric wiring of the adjoining house which was owned by the
defendant. The condition of the wiring was found to be a nuisance, created by the
defendant or those for whom he was responsible, and, as this nuisance had caused
the fire, the defendant was held liable. In the particular circumstances, the
defendant was also liable for negligence on the part of an independent contractor
he had employed to instal the wiring.
In Hartley v Mayoh,548 an electricity supplier’s employees installed a new 13–162

meter on premises but did not test the circuits after completing the work.
Negligently, they had crossed the leads, as a result of which a fireman, called to
the scene to fight a fire on the premises, was electrocuted. They were held liable
on the ground that they should have contemplated that their omission to make a
test might cause damage to persons lawfully on the premises who came into
contact with any part of the wiring system.
Again, an electrical contractor, who had installed at the claimant’s house an 13–163
electric boiler, together with a new circuit, but negligently had failed to provide
a fully efficient earthing system for it, was liable to the claimant for the death of
his wife, who was electrocuted in consequence.549 When two persons were using
public baths but were electrocuted as a result of the negligence of the local
authority in failing to earth the metal tubes employed in connection with the
electric light system, liability was established against the local authority.550
Supply and installation of electrical equipment. This is tightly regulated by 13–164

statute. The Consumer Protection Act 1987551 imposes strict liability in respect
of defective products (which include electricity552) on the producer of prod-
ucts.553 Regulations554 provide detailed measures for safety and consumer
protection with regard to electrical equipment. Recourse can also be had to the
547
[1946] 1 All E.R. 489. Collingwood v Home & Colonial Stores [1936] 3 All E.R. 200, was
distinguished on the ground that there had been no finding of fact that there was a nuisance or any
negligence in the installation or maintenance. Obviously, it is unsatisfactory (if it is the law) that
liability for damage which has been caused by the domestic installation of electric wiring should
depend on whether the claimant sues in negligence or in nuisance. Possibly, the two cases may be
reconciled on the ground that a person who instals electricity on his premises owes a duty to take care
to instal and to maintain the installation in a safe condition and, if he fails to do this, whether by
himself, his employees or agents or his independent contractors, he is liable for the resultant dam-
age.
548
[1953] 2 All E.R. 525, appeal on a different point dismissed [1954] 1 Q.B. 383. cf. Green v
Fibreglass [1958] 2 Q.B. 245.
549
Sellars v Best [1954] 2 All E.R. 389. See 70 L.Q.R. 170.
550
See Re Fulham Borough Council and National Electric Construction Co (1905) 70 J.P. 55. (The
local authority, however, failed to obtain an indemnity for breach of contract from the electrical
contractors.)
551
The Product Liability Directive 85/374/EEC, is thereby implemented. See Ch.15, below, for a
detailed discussion of the Act.
552
s.1(2).
553
s.2 defines ‘‘producer’’ and it can include the person whose trademark appears on a product
irrespective of the identity of the manufacturer or an importer.
554
The Electrical Equipment (Safety) Regulations (SI 1994/3260) implementing Council Directive
73/23/EEC in respect of electrical equipment placed on the market on or after January 1, 1997.
[1033]
Supply of Goods and Services Act 1982555 with regard not only to the equipment
itself but its installation.
7.—EXPLOSIONS AND EXPLOSIVES
13–165 Explosives Act 1875. The manufacture, keeping, sale, importation and
conveyance of explosives are regulated by the Explosives Act 1875.556 It is
provided by s.102 that:
‘‘This Act shall not, save as is herein expressly provided, exempt any person from any
action or suit in record of any nuisance, tort, or otherwise, which might, but for the
provisions of this Act, have been brought against him.’’
13–166 Strict liability for explosives. Persons who manufacture or store explosives
are liable under the rule in Rylands v Fletcher557 if an explosion occurs and
causes damage, whether or not there is any negligence on their part. In Rainham
Chemical Works v Belvedere Fish Guano Co,558 a large quantity of dinitrophenol
was stored in close proximity to sodium nitrate with the result that when a fire
broke out there was a violent explosion which caused damage to adjoining
property. Depite the defendant’s ignorance of the risk of explosion from the
storage of the two materials in close proximity, liability was established under the
principles of Rylands v Fletcher.
13–167 Where a 20-gallon drum of paraffin exploded in a yard because of the spread
of a negligently lit fire, the defendant was liable both in respect of negligence in
starting the fire and under Rylands v Fletcher in respect of the storage of
paraffin.559 In Read v J. Lyons and Co Ltd,560 the claimant was injured by the
explosion of a high explosive shell inside a munitions factory. It was accepted
that there had been no negligence. Liability was not established under Rylands v
Fletcher because there had been no escape of a dangerous substance from the
land. Lord Macmillan expressed doubt as to whether Rylands v Fletcher applied
to cases of personal injuries,561 similar doubts being expressed in Transco Plc v
Stockport MBC.562
13–168 Liability based on negligence. A high standard of care is expected of persons

who manufacture, store or use explosives given the potentially disastrous
consequences of an explosion. Thus where a man was walking on a road adjacent
555
See Ch.15, para.15–52, below.
556
As amended by the Explosives Act 1923 and the Explosives Acts 1875 and 1923 etc. (Repeals and
Modifications) Regulations 1974 (SI 1974/1885).
557
para.13–10 et seq., above.
558
[1921] 2 A.C. 465 at 479.
559
560
[1947] A.C. 156. See too Howard v Furness Houlder Argentine Lines Ltd [1936] 2 All E.R. 781
(welder injured by steam from exploding boiler—no liability under Rylands v Fletcher because no
escape from the defendant’s premises).
561
Read v J. Lyons and Co Ltd [1947] A.C. 156 at 170.
562
[2003] 3 W.L.R. 1487 per Lord Bingham at 1473 and per Lord Hoffmann at 1481. See further
para.13–28, above.
[1034]
EXPLOSIONS AND EXPLOSIVES 13–171
to a quarry in contravention of a red warning flag and was injured when he was
struck by a piece of stone thrown up by blasting operations, the quarry owner was
liable for having provided an insufficient warning.563
A telephone company, which was engaged in laying telephone wires in a 13–169

street, employed a plumber, who was an independent contractor. The plumber, in
the course of soldering some tubes, dipped a lamp into a cauldron of melted
solder. The safety valve on the lamp was defective; a fact that the plumber ought
to have known and the lamp exploded injuring a passing pedestrian. The
telephone company was held liable on the ground that ‘‘works were being
executed in proximity to a highway in which in the ordinary course of things an
explosion might take place’’, and that it was ‘‘under an obligation to the public
to take care that persons passing along the highway were not injured by the
negligent performance of the work’’.564 The principle of this decision is not
confined to work done in or near to the highway.565 So, where some photogra-
phers, who were independent contractors, were engaged to take a flashlight
photograph of the interior of a cinema, the persons employing them were held
liable for the negligence of the photographers. The negligence had consisted in
burning magnesium powder in a tray near a curtain, which was set alight by the
naked flames.
Similarly, a lock-up shop’s owner, who entered the premises with a friend in 13–170
order to try to locate an escape of gas, was held liable to the tenant of the shop
for the goods damaged by an explosion, which was caused by a friend’s act in
using a naked light to discover the source of the gas escape.566 Again, where a
firm of ship-repairers, before using an oxyacetylene burner, had employed a
consulting engineer to make a report and, on his reporting ‘‘gas free’’, had used
the burner, when an explosion occurred, the ship-repairers were held liable for
the negligence of the engineer in not making a proper inspection before giving
his certificate. Their duty, when dangerous things were to be used, was not
merely to take care but to ensure that care was taken.567
In Muir v Stewart,568 a customer in a chemist’s shop produced an empty bottle 13–171

and asked for some nitric acid. The chemist asked what the bottle had contained
and, on being told nitric acid, filled it. An explosion occurred, injuring another
person in the shop. The chemist was held not liable, because he had taken some
563
Miles v Forest Rock Granite Co (1918) 34 T.L.R. 500. Lord Swinfen Eady M.R. also stated obiter
that liability could have been established pursuant to Rylands v Fletcher but this is inconsitent with
dicta in Read v J. Lyons & Co Ltd [1947] A.C. 156 see para.12–167, above.
564
Holliday v National Telephone Co [1899] 2 Q.B. 392 at 399, per Lord Halsbury L.C.
565
Honeywill & Stein Ltd v Larkin Bros Ltd [1934] 1 K.B. 191 at 199, per Slesser L.J. who said that
it ‘‘does not depend merely on the fact that the defendants were doing work on the highway, but
primarily on its dangerous character, which imposes on the ultimate employers an obligation to take
special precautions, and they cannot delegate this obligation by having the work carried out by the
independent contractors. This is equally true when the work being done by the independent contractor
for the ultimate employer is being done on another person’s premises.’’
566
567
The Pass of Ballater [1942] P. 112. See also para.13–152, above.
568
1938 S.C. 590.
[1035]
care, and there was no evidence to show what was the practice of chemists in
filling bottles.
13–172 The fact that either something belonging to the defendant explodes or an
explosion occurs out of and in the course of some operation carried out by or
under the control of the defendant, can be sufficient evidence of negligence on his
part, so as to place an evidential burden on the defendant to demonstrate how the
explosion occurred without negligence.569 Where an explosion occurred at a
cartridge factory, the cause of which was unknown, the owners were nevertheless
found negligent in not supplying suitable machinery and in not taking sufficient
precautions, to prevent an explosion. It was also held that exact proof of
negligence was not necessary where the accident was the work of a moment, and
its origin and cause were incapable of being detected.570 Where two passengers
carried fireworks onto a railway carriage and a passenger was killed when the
fireworks exploded, the railway company was not liable because there was no
evidence that it knew or ought to have known that that the fireworks had been
carried on to the train.571
13–173 Fireworks. A person setting off fireworks is bound to take great care to
prevent them from causing damage to others. In Whitby v Brock & Co,572 where
the claimant went to the Crystal Palace to see a firework display by the
defendants but was struck by one and injured, it was held that the defendants
were liable. Lord Esher M.R., in giving judgment, said that the defendants knew
that fireworks were dangerous articles so that,
‘‘there was a duty to manage with care their dealings with the fireworks . . . The mere
fact that the fireworks struck the plaintiff was sufficient prima facie evidence of
negligence, because fireworks did not ordinarily strike the spectators and bystand-
ers.’’
When a schoolboy was injured at a firework display at his school on November

5, Lord Ellenborough stated his opinion ‘‘that if the master of a school, knowing
the fireworks would be used, were to be guilty of negligence in not preventing the
use of them, he would be amenable for the consequence’’.573 Where a boy, aged
eight, bought from the defendant’s shop a firework, which he later set off in such
a manner that the explosion blinded him in one eye, Stable J. held that the
shopkeeper had been negligent in allowing a firework to be sold to so young a
child.574 When the defendant threw a lighted squib into a crowded building and
the person near whom it fell, picked it up and threw it away towards some other
569
See Solomons v Stepney Borough Council (1905) 69 J.P. 360; Farrell v Limerick Corp (1911) 45
I.L.T. 169.
570
McArthur v Dominion Cartridge Co [1905] A.C. 72.
571
East Indian Ry v Kalidas Mukerjee [1901] A.C. 396.
572
(1888) 4 T.L.R. 241. Further, Lopes L.J. said that he adhered to what he had said in Parry v Smith
(1879) 4 C.P.D. 325, that under such circumstances the defendants were bound to use care and the fact
that the claimant was struck was evidence of negligence.
573
King v Ford (1816) 1 Stark.N.P. 421.
574
Beaver v Cohen, The Times, May 14, 1960. The supply of a firework to a person who is apparently
under the age of 18 is prohibited by reg.6 of the Fireworks (Safety) Regulations 1997 (SI
1997/2294).
[1036]
EXPLOSIONS AND EXPLOSIVES 13–177
man, who also hurled it away, whereupon it exploded and injured the claimant,
the defendant was held liable.575
On the other hand, the claim failed where a firework party was held at a 13–174
riverside bungalow, and the house was set on fire as a result of a ‘‘jumping jack’’
accidentally finding its way into the lounge from the vicinity of the porch and
there setting alight other fireworks stored in a cubby-hole especially made for the
occasion.576
Petrol. When a vehicle is parked in a parking area occupied by its owner, and 13–175
the tank contains petrol fumes, the owner is not liable to a person who is injured
by an explosion caused by the dropping of a lighted match into the petrol tank,
whether by strangers577 or by the injured person,578 because such an act could not
reasonably have been foreseen.
Explosive substances. The duty in the case of explosive materials is similar 13–176
to that in connection with firearms.579 If they are delivered to a person competent
to understand and profit by a warning, a warning should be given. When, for
example, a carrier had delivered unexpectedly some celluloid scrap to a factory
by mistake and had failed to give warning of its dangerous character, whereupon
an employee in the factory, in ignorance of the explosive nature of the scrap, set
it on fire by touching it with a lighted cigarette end, thereby causing an explosion,
the carrier was held liable.580 Explosive substances ought not to be delivered to
a person who is not competent to understand a warning. In Yachuk v Oliver Blais
Co Ltd,581 a boy of nine obtained petrol from a filling station by falsely stating
that it was needed for his mother’s car, which ‘‘was stuck down the street’’. He
then used the petrol to make a torch for a game which he was playing with his
younger brother, and, on lighting the petrol, he was injured by its explosion. The
owners of the filling station were held liable.
Similarly, explosive substances must be kept in a safe place, where they are not 13–177
likely to be interfered with by unauthorised persons. Where a bottle, containing
a stick of phosphorus, was left by a schoolmaster in a conservatory, to which the
boys had access, and one of the boys took the bottle, played with it and broke it
as a result of which he was injured by coming into contact with the phosphorus,
the schoolmaster was held liable. The Court of Appeal approved of the direction
of Cave J. that, if a man kept dangerous things, he must keep them safely and
575
Scott v Shepherd (1773) 2 W.Bl. 892.
576
Horsenail v Kennedy, The Times, April 30, 1964. The occupiers, having done all that could be
expected of them within reason to store the fireworks safely, were held not liable for the death of one
of their visitors who had been caught in the inferno which resulted.
577
578
Adcock v Loveridge, The Times, June 21, 1956.
579
See paras 13–178–13–191, below.
580
Philco Radio Ltd v Spurling Ltd [1949] 2 All E.R. 882.
581
[1949] A.C. 386. It was held that the act of the claimant was one which he might be reasonably
expected to do, so that there was no contributory negligence (at that time a complete defence) or new
intervening act. See also Evans v Soul Garages Ltd, The Times, January 23, 2001: 13-year-old boy
found one-third contributorily negligent.
[1037]
must take such precautions as a prudent man would take, and that to leave such
things about, in the way of boys, would not be reasonable care.582
8.—FIREARMS
13–178 Firing guns. Loaded firearms must be used with the greatest caution. ‘‘The
law of England, in its care for human life, requires consummate caution in the
person who deals with dangerous weapons.’’583
13–179 Before firing a gun, care must be taken to see that anyone whose presence is
known or might reasonably be anticipated is not within the line of fire. Blackburn
J. said584:
‘‘If a man fires a gun across a road where he may reasonably anticipate that persons will
be passing, and hits some one, he is guilty of negligence and liable for the injury he has
caused; but if he fires in his own wood, where he cannot reasonably anticipate that any
one will be, he is not liable to any one whom he shoots, which shows that what a person
may reasonably anticipate is important in considering whether he has been negli-
gent.’’
Even a man who fires a gun in his own wood will be liable if he shoots a person
who is visible to him without first looking to see whether that person is in the line
of fire.585
13–180 In Stanley v Powell,586 the defendant was a member of a shooting party and the
claimant was employed to carry cartridges and the shot birds. The defendant fired
at a pheasant and a shot from his gun struck the bough of a tree, glanced off, and
struck the claimant. The distance between the claimant and the defendant was
about 30 yards. The defendant was acquitted of negligence, but the case was not
approached on the basis of the degree of care required in using a dangerous
weapon, and the result can only be considered as based on a surprising finding
of fact by a jury.
13–181 Despite the fact that a gun is only intended to be loaded with blank cartridges,
there is still an obligation to take great care to see that only a blank is loaded,
before it is fired. When a member of the audience at a theatre was injured by a
‘‘bullet’’, fired from a blank cartridge pistol by one of the actors, it was held that
the proprietor of the theatre would be liable, although the actor was employed by
582
Williams v Eady (1893) 10 T.L.R. 41; cf. Shepherd v Essex CC (1913) 29 T.L.R. 303, where a jury
found no negligence on the facts.
583
per Erle C.J. in Potter v Faulkner (1861) 1 B. & S. 800 at 805. See also the provisions of the
Firearms Act 1968 as amended.
584
Smith v L. & S.W. Ry (1870) L.R. 6 C.P. 14 at 22.
585
Chettle v Denton (1951) 95 S.J. 802.
586
[1891] 1 Q.B. 86. In Fowler v Lanning [1959] 1 Q.B. 426 at 438, Diplock J. expressed the view
that the decision in Stanley v Powell was still good law. (See also 75 L.Q.R. 161.)
[1038]
FIREARMS 13–184
a theatrical company and not by the proprietor himself, if he failed to see that
reasonable care was taken in the loading of the pistol.587
If a person shoots intentionally at another, the cause of action is in trespass to 13–182

the person but, if the injury sustained by the claimant was caused unintentionally,
then proof of negligence is required before an action for damages can succeed.
In Fowler v Lanning,588 Diplock J. held that the onus of proving negligence,
where the shooting injury was not intentional, lies upon the claimant, whether the
action be framed in trespass or in negligence.
Entrusting firearms to incompetent persons.589 The owner of a loaded gun 13–183

is under a duty not to entrust it to a person, who by reason of his youth, ignorance
or lack of intelligence is incompetent to handle it. ‘‘Take the extreme instance of
a loaded gun. This is so obviously dangerous when it gets into unknown hands
that the law holds it to be negligence on the part of the owner to let the gun leave
his possession in that state and be put in inexperienced hands.’’590 It is a question
of fact whether he is competent or not.591
Where a firearm is being entrusted to someone with competence in such 13–184

weapons, the duty is to give warning that the gun is loaded.592 Conversely, there
is a duty not to entrust a gun and ammunition for it, to a person who is not
competent. A mere warning of the danger is not enough.593 Where the father of
a boy of 12 had allowed him to possess a .410 shotgun but had not instructed him
properly in handling it while he was in the presence of other persons, the father
587
Cox v Coulson [1916] 2 K.B. 177 at 187. Pickford L.J. put his duty as follows: ‘‘In this case it is
obvious that firearms would be used, and it is common knowledge that unless proper care is taken in
loading them they are dangerous, and I think there was an obligation on his part to take reasonable
care that they were so loaded as not to be dangerous.’’ The cause of action was breach of contract,
but it was held that the duty owed by the defendant to the claimant was that of invitor to invitee.
588
[1959] 1 Q.B. 426. Lord Denning M.R. in Letang v Cooper [1965] 1 Q.B. 232 at 240 added: ‘‘I
would go this one step further: when the injury is not inflicted intentionally, but negligently, I would
say that the only cause of action is negligence and not trespass. If it were trespass, it would be
actionable without proof of damage; and that is not the law today . . .’’
589
By s.24(2) of the Firearms Act 1968 it is an offence to make a gift of or lend a firearm to a person
under the age of 14.
590
per Lord Dunedin in Oliver v Saddler & Co [1929] A.C. 584 at 599.
591
Dixon v Bell (1816) 5 M. & S. 198 (defendant sent his servant, a girl of about 13 or 14, to a
friend’s house to fetch his gun, giving her a note asking the friend to remove the priming. The friend
did so, as he thought, and the servant on her way home pointed the gun, as a joke, at a child and fired.
The gun went off and the child was injured. The defendant was held liable).
592
See per Scrutton L.J. in Hodge & Sons v Anglo-American Oil Co (1922) 12 Ll.L.R. 183 at
187.
593
A. & E. Kille [1939] 2 K.B. 743. (the defendants sold a 12-year-old boy a ‘‘safety pistol’’ which
was found to be dangerous by reason of its construction and the tendency of the barrel to become
blocked. When the boy fired close to the claimant and a rim of the cartridge injured the latter’s eye,
the defendants were held liable for selling such a dangerous thing to a young boy). See also Beaver
v Cohen, The Times, May 14, 1960 (firework to 8-year-old), Yachuk v Oliver Blais Co Ltd [1949] A.C.
386 (petrol to 9-year-old boy) and Evans v Souls Garages Ltd, The Times, January 23, 2001 (petrol
to 13-year-old boy). But cf. Ricketts v Erith B.C. [1943] 2 All E.R. 629: seller of toy bow and arrow
to 10-year-old boy not liable because it was not considered a danger in itself in the boy’s hands.
[1039]
was held liable when a child was shot accidentally. It was irrelevant that he had
forbidden his son to use the gun in the company of such other children.594
13–185 Not keeping loaded guns in a safe place. In addition to the duty not to
entrust firearms to the incompetent, there is a further duty to keep loaded firearms
in a safe place, so that they cannot be used by anyone who is likely to use them
carelessly. ‘‘You must not put anything dangerous in itself where the public may
possibly have access to it, and the best known instance of that is the case of a
loaded gun.’’595 This was followed in Sullivan v Creed,596 where the defendant
left a gun loaded and at full cock inside a fence on his land, close to a path. His
young teenage son picked it up and pointed it in play at the claimant, then pulled
the trigger, causing the gun to fire and injure the claimant. The defendant was
held liable, Fitzgibbon L.J. saying:
‘‘In the case of a gun loaded at full cock the measure of care is at its maximum. The
scope of duty is the scope of danger, and it extends to every person into whose hands
a prudent man might reasonably expect the gun to come, having regard to the place
where he left it. The ground of liability here is not that the boy was the defendant’s son,
but the fact that the gun was left without warning, in a dangerous condition, within
reach of persons using the pathway, and the boy was one of the very class of persons
whom the defendant knew to be not only likely but certain to pass by, viz., his own
household.’’597
13–186 What amounts to a ‘‘safe place’’ for keeping a loaded firearm depends very
much upon the circumstances, including what interference with it can reasonably
be foreseen. The father of a family, which included a two-year-old boy, was held
liable when he placed an air pistol, loaded with a dart, in a kitchen cupboard:
even though it was well out of the reach of children, the mother, not knowing of
the danger, brought it out and placed it within the boy’s reach. The child quickly
grabbed hold of it, playfully pointed it at a female visitor and discharged it,
striking her in the eye with the dart.598
13–187 In the cases cited in the previous paragraphs, the gun concerned was fired by
a child, but if it had been fired negligently, as opposed to intentionally, by an
adult, a similar result would have followed. This is pointed out in Sullivan v
Creed by Holmes L.J.:
594
Newton v Edgerley [1959] 1 W.L.R. 1031.
595
per Lord Dunedin in Fardon v Harcourt-Rivington (1932) 48 T.L.R. 215. To the same effect is the
illustration given in Lynch v Nurdin (1841) 1 Q.B. 29 at 35, by Lord Denman C.J.: ‘‘If, for example,
a gamekeeper, returning from his daily exercise, should rear his loaded gun against a wall in the
playground of schoolboys whom he knew to be in the habit of pointing toys in the shape of guns at
one another, and one of these should playfully fire it off at a school fellow and maim him, I think it
will not be doubted that the gamekeeper must answer in damages to the wounded party.’’ See also the
Firearms (Amendment) Act 1988 s.14(1)(a), which imposes a duty on auctioneers, carriers and
warehousemen to take reasonable precautions for the safe custody of firearms or ammunition in their
possession without a certificate.
596
[1904] 2 Ir.R. 317.
597
Sullivan v Creed [1904] 2 Ir.R. 317.
598
Thomas v Bishop [1976] C.L.Y. 1872 (Judge R.P. Smith Q.C., sitting as a deputy Judge of the High
Court).
[1040]
FIREARMS 13–190
‘‘I do not attach much importance to the age of the defendant’s son. He was old enough
to know that it was dangerous to handle the gun on full cock . . . Quite irrespective of
the age of the persons who might use the path, I think that there was evidence from
which the jury were at liberty to find that the defendant, when placing the gun against
the fence, ought to have contemplated that it might fall into negligent hands . . . I hold
that in a case of this kind there is a marked distinction between a negligent act and a
wilful act. A man who negligently lays aside a loaded gun ought to contemplate that it
may be taken up by a person who will handle or use it negligently. But I think that it
would not be within reasonable contemplation that the finder of it would wilfully
discharge it at another.’’599
Where an employee placed a loaded shotgun on top of a harvester machine in

disobedience to his employer’s instructions and the gun was accidentally
discharged, injuring the driver, the employer was vicariously liable for the
employee’s negligence.600
Airweapons.601 An airgun is not a thing dangerous in itself,602 but it is 13–188

capable of causing injury to others if it is negligently used. It should not,
therefore, be entrusted to a child, who is too young603 to be likely to use it safely.
Where it has been so entrusted and damage is caused, the parent or other person
who either gave the airgun to the child or allowed the child to use it, will be
liable. If the child is old enough to use it safely, provided that he has been warned
and, where necessary, has been reminded of the dangers and provided that proper
precautions, such as a reasonable and prudent parent would take, are taken, then
the parent will avoid liability.
Where a boy was injured by an airgun pellet ricocheting when fired by a boy 13–189
of 12, who had been instructed properly in its use and had not been pointing the
gun at him, it was held by Thesiger J. to have been purely accidental and not to
have been caused by negligence of any person.604 Further, where a father allowed
his son, aged 13, to have an airgun, on condition that it was only used in the cellar
of the house and not outside, but the boy, in breach of his promise to his father,
used the airgun in the open and injured a child, the father was held not lia-
ble.605
Although, in Gorely v Codd,606 the 14-year-old defendant was found to be 13–190

guilty of negligence, which caused the accident to the claimant, aged 16, when
he was struck by an airgun pellet, whilst they were ‘‘larking about’’ together, the
599
[1904] 2 Ir.R. 317 at 355, 356.
600
Spencer v Curtis Bros (1962) 106 S.J. 390.
601
A weapon is an air rifle, air gun or air pistol not of a type declared by the Secretary of State to
be specially dangerous: s.1(3)(b) of the Firearms Act 1968. A weapon powered by compressed carbon
dioxide is included in this definition: s.48 of the Firearms (Amendment) Act 1997.
602
Donaldson v McNiven [1952] 1 All E.R. 1213, per Pearson J.
603
By s.24 of the Firearms Act 1968 it is an offence to supply, which includes selling, letting and hire,
lending or giving a gift, a firearm or ammunition to minors under certain specified ages. See also
Thomas v Bishop [1976] C.L.Y. 1872.
604
Rogers v Wilkinson, The Times, January 19, 1963.
605
Donaldson v McNiven [1952] 2 All E.R. 691. (It was conceded that the father was not negligent
in allowing his son to have the airgun).
606
[1967] 1 W.L.R. 19.
[1041]
defendant’s father was held not to be negligent. This was because he had given
his son proper and sufficient instruction in the use of the rifle and the defendant
was found by the court normally to have been a responsible boy. The prohibition,
in s.1(3) of the Air Guns and Shot Guns Act 1962,607 against persons under 17
years of age possessing an air weapon, only extended to a public place and, as the
shooting had taken place in a private place, it was of no application in the case.
On the other hand, if experience had shown that the child could not safely be
trusted to have the airgun, the parent will be liable. So, where a father gave an
airgun to his son, aged 15, who had fired at and had broken a window in March,
and then in June shot another boy in the eye, it was held that the father was liable,
because ‘‘in leaving the air gun in his boy’s hands the defendant had not
exercised such reasonable care as a prudent person ought to exercise’’.608 Also,
the father of a boy of 15 was held liable for failing to take reasonable care to
ensure that his son did not use an airgun in such a way as to injure other
persons.609 Donovan J. added that a parent’s duty included giving instructions
that the gun, whether loaded or unloaded, should never be pointed at other
persons and, certainly, never be fired at anybody.
13–191 If, in breach of s.24 of the Firearms Act 1968,610 which forbids inter alia the
sale of firearms and ammunition by a seller when he knows or has reasonable
grounds for believing that the buyer was under the age of 17, a person sells an
air pistol to someone who is under that age, then prima facie such person has
been negligent. Accordingly in Hinds v Direct Supply Co (Clapham Junction)
Ltd611 the sellers of an air pistol to an under-aged boy were held to be liable in
negligence for the personal injuries sustained by the victim of the shooting by
that boy.
9.—POISON AND POLLUTION
13–192 Liability for poisons. Poison,612 when in liquid or gaseous form, imposes the
same liability upon those who own or control it, as does water or gas, and
reference should be made to the previous sections, which deal with those subject-
matters.
13–193 Rylands v Fletcher liability. In West v Bristol Tramways Co613 a tramway

were authorised under statute to pave part of a road with wooden paving. The
paving used had been coated in creosote, the fumes from which damaged plants
belonging to a neighbouring market gardener. The tramway company was liable
for the damage done by the escape of the fumes under the principle in Rylands
v Fletcher nothwithstanding the absence of negligence on their part. The fact that
607
Repealed by the Firearms Act 1968 s.59.
608
Bebee v Sales (1916) 32 T.L.R. 413.
609
Court v Wyatt, The Times, June 25, 1960.
610
As amended by the Firearms (Amendment) Act 1988 s.23.
611
The Times, January 29, 1966.
612
The principal Act governing the control of poisons is the Poisons Act 1972.
613
[1908] 2 K.B. 14.
[1042]
POISON AND POLLUTION 13–196
the tramway company was authorised by statute to lay wooden paving did not
afford a defence because the statutory authorisation did not extend to the laying
of wooden paving coated with creosote.
The owner of yew trees must prevent the leaves, which are poisonous to cattle, 13–194
projecting over the boundary of his neighbour’s land. If he fails to do this,
whereupon his neighbour’s cattle are poisoned by eating the leaves, on the
principle of Rylands v Fletcher he is liable for the damage.614 On the other hand,
if he fulfils his duty, but his neighbour’s cattle are poisoned by putting their heads
over the boundary fence or otherwise trespassing on his land, he is not liable.615
But, if the trespass occurred because of the defendant’s failure to maintain a
fence, which by contract, prescription or otherwise he is bound to maintain
between his land and that of his neighbour, and his neighbour’s cattle are
poisoned on his land, he is liable.616 Nevertheless, if a landlord lets land to a
tenant and, at the time of the letting, there are yew trees upon other land
belonging to the landlord which overhang the tenant’s land, so that the tenant’s
cattle are poisoned from eating the yew trees, the landlord is not liable.617
Liability based on negligence. Where an oil company sent oil by rail in a 13–195
defective tank, from which the oil leaked and got into the watercourse, making
the water unfit to be drunk by cattle, it was held that the company was liable for
the resulting damage on the ground that it had consigned the tank in a condition
in which oil was likely to escape from it.618 Where the defendant delivered to the
claimant’s husband, the owner of a keel, a quantity of a chemical, ferro-silicon,
which could give off dangerous fumes and the keel owner was killed as a result
of inhaling the fumes, the defendant was liable for failing to provide such
information as the defendant had as to the nature of ferro-silicon.619
Poisons, like explosives, must not be left in a place which is easily accessible 13–196
to third parties who may carelessly use them and so damage themselves or
others.620 A boat owner, who employed a joiner to repair his boats, was held
liable for the act of the joiner in leaving scrapings of paint from the boats in a
field, where they poisoned a cow, which ate them.621 Where a local authority had
planted in a public park shrubs with poisonous berries of attractive appearance,
they were held liable for the death of a boy of seven, who ate some of the berries.
Such liability was on the ground that ‘‘there was fault in having such a shrub
where it was without definite warning of its danger and definite protection against
the danger being incurred’’.622 When the poison is in a place to which the public
614
Crowhurst v Amersham Burial Board (1878) 4 Ex. D. 5; Wilson v Newberry (1871) L.R. 7 Q.B.
31.
615
Ponting v Noakes [1894] 2 Q.B. 281.
616
Lawrence v Jenkins (1873) L.R. 8 Q.B. 274.
617
Cheater v Cater [1918] 1 K.B. 247; Erskine v Adeane (1873) L.R. 8 Ch. 756.
618
Smith v G.W. Ry (1926) 42 T.L.R. 391.
619
Bamfield v Goole and Sheffield Transport Co Ltd [1910] 2 K.B. 94. Liability was also established
for a breach of an implied warranty that the goods were fit for carriage as an alternative to negli-
gence.
620
paras 13–165–13–177, above.
621
Stewart v Adams, 1920 S.C. 129.
622
Glasgow Corp v Taylor [1922] 1 A.C. 44 at 63.
[1043]
has access, a mere giving of a warning of the danger is not enough. There must
be some further precaution taken, either by removing the poisonous nature of the
thing in question, if such a course is possible, or by putting it in such a position
that it is not accessible. When the poison is not in a place to which the public has
access, the duty is the same as that in respect of loaded guns623 and explosive
substances.624
13–197 Animals poisoned on defendant’s land. A person who puts poisoned bait on
his own land with the object of poisoning animals which are attracted by the food
on his land, is liable to the owner of the animal.625 However, if the poison is put
down for another purpose, the person putting it down is not liable, unless he
ought to have foreseen that it was likely to poison animals which were brought
legitimately to his premises. Thus a confectioner, who had put some poisoned
bait behind the counter of his shop with the object of poisoning rats and mice,
was held not liable to the owner of a dog which was poisoned as a result of its
going behind the counter and eating the bait.626
When the land of the claimant was separated from that of the defendant by a
wire fence, which the defendant was bound by contract to maintain, but the wire
decayed, so that a piece broke off and fell on the claimant’s land, where it was
swallowed by one of his cows, killing it, the defendant was held liable.627
13–198 Statutory liability relating to environmental protection. In addition to the

common law principles discussed above civil liability is created in respect of
certain types of pollution by the Environmental Protection Act 1990 as regards
the deposition of waste on land and the Merchant Shipping Act 1995 as regards
oil pollution at sea. Whilst a detailed analysis of these statutes is beyond the
scope of this text, it is convenient to consider in outline the liabilities created.
(i) The Environmental Protection Act 1990

13–199 Pursuant to s.33(1) of this Act it is an offence: to deposit controlled waste628
on land other than in accordance with a licence; to treat, keep or dispose of
controlled waste other than in accordance with a licence; and to treat, keep or
dispose of controlled waste in a manner likely to cause pollution of the
environment or harm to human health. By s.73(6) where damage is caused by the
deposition of waste in a manner so as to commit an offence under s.33(1) or an
offence under s.63(2)629 then the person who deposited it is liable for the damage.
This strict liability arises without prejudice to liability arising otherwise than
under this subsection and so liability pursuant to Rylands v Fletcher appears to
be preserved by the Act. The liability under s.73(6) is subject to two exceptions
namely: where the damage was due wholly to the fault of the person who
623
624
625
Townsend v Wathen (1808) 9 East 277.
626
Stansfeld v Bolling (1870) 22 L.T. 799.
627
Firth v Bowling Iron Co (1878) 3 C.P.D. 254.
628
Controlled waste is defined by s.75. The defintion is broad, encompassing household, industrial
and commercial waste each of which is separately defined by s.75.
629
s.63(2) creates an offence in relation to the deposition of waste other than controlled waste.
[1044]
NUCLEAR INSTALLATIONS 13–202
suffered it630 and where the damage was suffered by a person who voluntarily
accepted the risk of the damage being caused.631 ‘‘Damage’’ is defined as
including the death of or injury to any person (including any disease and any
impairment of physical and mental condition).632
(ii) The Merchant Shipping Act 1995

In the case of ships constructed of adapted for carrying oil in bulk as cargo, 13–200
liability for damage resulting from contamination caused by the discharge or
escape of oil outside the ship in the territory of the United Kingdom is imposed
upon the ship’s owner by s.153(1) of the 1995 Act and in respect of other ships,
liability is imposed in like circumstances by s.154(1). No liability is imposed
under either section if the owner proves that that discharge or escape: resulted
from an act of war, hostilities, civil war, insurrection or an exceptional and
irresistible natural phenomenon633; or was due wholly to anything done or
omitted to be done by another person not being a servant or agent of the owner,
with intent to do damage634; or was due wholly to the negligence or wrongful act
of a government or other authority in exercising its function of maintaining lights
or other navigational aids for the maintenance of which it was responsible.635
10.—NUCLEAR INSTALLATIONS
Generally. The harnessing of nuclear power, even for peaceful purposes, has 13–201
become controversial. One aspect is the potential for widespread damage,636
should there be any accidental release of even a single emission of ionising
radiations. It being perceived that the common law would be an unsatisfactory
basis for determining liability for such a disastrous ‘‘escape’’, whether by action
in negligence, nuisance or based on the rule of absolute liability under Rylands
v Fletcher, statutory intervention followed.
Nuclear Installations Acts 1965 and 1969. By virtue of the provisions637 of 13–202
the Nuclear Installations Act 1965,638 which is the principal Act, no person other
630
s.73(6)(a).
631
s.73(6)(b).
632
s.73(8).
633
The Merchant Shipping Act s.155(a).
634
s.155(b).
635
s.155(c).
636
We have the practical experience of the aftermath of the 1987 breakdown of a Russian nuclear
power station at Chernobyl, contamination from which was borne by high easterly winds to the
UK.
637
The 1969 Act makes certain amendments to the 1965 Act, which were necessary in order to bring
that Act into conformity with international agreements, and came into force on May 16, 1969. See
also amendments brought by the Atomic Energy Act 1989, which come into force on September 1,
1989.
638
Which consolidates with an exception (s.29(1)) the Nuclear Installations Acts 1959 and 1965, i.e.
the Nuclear Installation (Licensing and Insurance) Act 1959 and the Nuclear Installation (Amend-
ment) Act 1965. The Nuclear Installations Act 1965 (Commencement No.1) Order 1965 (SI
1965/1880) brought the Act into force on December 1, 1965, except for s.17(5) which bars
enforcement in the UK of certain foreign judgments.
[1045]
than the United Kingdom Atomic Energy Authority shall use any site for the
operation of a nuclear plant, unless a licence to do so has been granted by the
Health and Safety Executive639 in respect of it. Such licences for nuclear sites are
granted only to corporate bodies and are not transferable.640 Liability can only
arise in connection with any licensed nuclear site and it arises when a nuclear
incident occurs at or in connection with certain nuclear installations, or in the
course of carriage of nuclear matter. The Acts apply to occurrences outside the
United Kingdom.641
13–203 Who is liable? The principle of the 1965 Act has restricted all liability to
licensees only, which has also simplified the necessary insurance arrangements,
since there is no need to extend the cover to such additional persons as the
manufacturers, suppliers and contractors. Thus the Act confers on certain victims
of exposure to the emission of ionising radiation a statutory right to compensa-
tion against the licensee, deemed responsible for the occurrence.642 The United
Kingdom Atomic Energy Authority and other Government Departments are
likewise liable for emissions from their sites, by virtue of ss.8 and 9 respectively.
Section 10 imposes duties on foreign operators and s.11 imposes duties on other
persons causing nuclear material to be carried.
13–204 Further, s.12(1) provides that: ‘‘where any injury or damage has been caused
in breach of a duty imposed’’ by the Act, then, subject to certain exceptions, ‘‘no
other liability shall be incurred by any person in respect of that injury or
damage’’. This effectively prevents the licensee from obtaining either an
indemnity arising out of any contract643 or contribution from any negligent third
party644 so that he alone still remains liable. Nevertheless, in order to meet a
situation where two or more licensees are responsible in respect of the same
injury incurred, s.17(3) expressly provides that both or all of those persons shall
be treated as jointly and severally liable in respect of that injury or damage.
13–205 The duty of the licensee. It is enacted by s.7(1) of the 1965 Act:
‘‘it shall be the duty of the licensee to secure that—
(a) no such occurrence involving nuclear matter as is mentioned in subsection (2) of
this section causes injury to any person or damage to any property of any person
other than the licensee, being injury or damage arising out of or resulting from
the radioactive properties, or a combination of those and any toxic, explosive or
other hazardous properties, of that nuclear matter; and
639
See the Nuclear Installations Act 1965, etc. (Repeals and Modifications) Regulations 1974 (SI
1974/2056) reg. 2(1)(b), Sch.2, para.1.
640
s.3(1).
641
s.12(1).
642
It is not actually necessary that the dangerous matter should ‘‘escape’’ as such from the site where
it is kept on to other land, since by the very nature of radioactivity dangerous emissions occur
constantly as do, for example, all the harmful rays of the sun.
643
It should also prevent licensees from invoking the principle in Lister v Romford Ice Co Ltd [1957]
A.C. 555 as a means of claiming an indemnity from the employee, whose negligence caused the
nuclear occurrence.
644
Contribution is only obtainable as between joint tortfeasors and for the purposes of the Act there
can be only one tortfeasor, namely the licensee.
[1046]
NUCLEAR INSTALLATIONS 13–208
(b) no ionising radiations emitted during the period of the licensee’s

responsibility—
(i) from anything caused or suffered by the licensee to be on the site which is
not nuclear matter; or
(ii) from any waste discharged (in whatever form) on or from the site, cause
injury to any person or damage to any property of any person other than the
licensee.’’
The duty is one of absolute or strict liability645 and it is unnecessary to prove 13–206
negligence on the part of anyone. There is one exception only, which is contained
in s.13(4), to the strict nature of this liability, namely that it is a defence that the
breach of statutory duty is attributable to hostile action in the course of any armed
conflict, including any armed conflict within the United Kingdom. It is not,
however, a defence which would be available otherwise under the rule in Rylands
v Fletcher, that the breach is attributable to a natural disaster, notwithstanding
that the disaster is of such an exceptional character that it could not reasonably
have been foreseen.646 By virtue of s.13(6) damages may be reduced by reason
of the fault of the claimant if, but only if, and to the extent that, the causing of
that injury or damage is attributable to any act of the claimant committed with the
intention of causing harm to any person or property or with reckless disregard for
the consequences of his act. This seems to be distinguishable from the provisions
of the Law Reform (Contributory Negligence) Act 1945, where both the degree
of blameworthiness and the causative potency of the claimant’s act have to be
taken into consideration in reducing damages. It would seem, therefore, that even
if a trespasser on the site be hurt by a nuclear incident, provided that he is not
guilty of any such intentional or reckless conduct, he is not precluded from
recovering damages in full.647
The damage suffered. ‘‘Injury’’ for the purposes of the statutory obligation 13–207
imposed by the Act means ‘‘personal injury and includes loss of life’’,648 whilst
‘‘damage to any property’’ must be physical damage to the fabric or its contents
and not, for example, the contamination of a dwelling-house with radioactive
dust.649 Losses which normally follow from such damage, namely loss of
earnings, loss of profits, reduction of value and loss of use, etc., must also be
recoverable but only in so far as they are consequential upon such injury or
damage.650 In the absence of any physical harm no remedy can lie.
The operation of these principles can be seen in Blue Circle Industries Plc v 13–208
The Ministry of Defence651 where a pond on an estate was contaminated by small
645
For the nature of ‘‘absolute’’ or ‘‘strict’’ liability, see paras 13–04–13–06, above.
646
s.13(4)(b).
647
For the law relating to trespassers generally, see Ch.8, paras 8–144–8–160, above.
648
s.26(1).
649
Merlin v British Nuclear Fuels Plc [1990] 2 Q.B. 557. Contrast Blue Circle Industries Plc v
Ministry of Defence [1999] Ch. 289, CA, n.52, below.
650
SCM (United Kingdom) v W.J. Whittall & Son Ltd [1971] 1 Q.B. 337, affirming Thesiger J. [1970]
1 W.L.R. 1017. For the recover of damages for economic loss see Ch.2, paras 2–223–2–225.
651
[1996] E.G.C.S. 190; appeal dismissed [1999] Ch. 289, CA.
[1047]
quantities of radioactive material from the Aldermarston Weapons Establish-

ment. Even though the level of contamination had been less than presented any
risk to human or animal health, it could only be rectified by major engineering
work, and was thereby held to involve a physical change to the area sufficient to
qualify under s.7(1) of the 1965 Act. Further, it was said that the ordinary
common law rules of causation, foreseeability and remoteness of damage
applied. The claimants, who had lost a potential sale of the estate as a result of
concern about the incident, were to be put into the position they would have been
had the contamination not occurred, with a discount from the resulting figure to
reflect any uncertainty about the sale proceedings.
13–209 Special periods of limitation. Section 15(1) enacts that ‘‘notwithstanding

anything in any other enactment’’ a claim under the Act shall not be entertained
‘‘if made at any time after the expiration of thirty years from the relevant date’’,
which date is that of the occurrence that gave rise to the claim and not of the
infliction of damage. Where that occurrence was a continuing one or was one of
a succession, all of which were attributable to a particular happening on a
particular relevant site, or to the carrying out from time to time on a particular
relevant site of a particular operation, the limitation period begins to run from the
date of the last of those events.
13–210 Where a claim arises in respect of injury or damage, caused by an occurrence

involving nuclear matter stolen from, or lost, jettisoned or abandoned by the
person whose breach of statutory duty under the Act gave rise to the claim, it is
provided by s.15(2) that the limitation period in such circumstances is the period
of 20 years. This period is to be calculated ‘‘beginning with the day when the
nuclear matter in question was so stolen, lost, jettisoned or abandoned’’.
13–211 Limit of liability. Section 16(1) provides:
‘‘The liability of any person to pay compensation under this Act by virtue of a duty
imposed on that person by section 7, 8 or 9 thereof shall not require him to make in
respect of any one occurrence constituting a breach of that duty payments by way of
compensation exceeding in the aggregate, apart from payments in respect of interest
and costs, £140 million or, in the case of the licencees of such sites as may be
prescribed, £10 million.’’
13–212 Insurance arrangements. Sections 17 and 18 make special arrangements for

insurance cover of liabilities arising under ss.7 to 10 and provide for money to
be made available to meet claims by Parliament in certain circumstances.
11.—AIRCRAFT AND SPACECRAFT
13–213 At common law the liability of the owner of an aircraft652 does not differ from
that of the owner of a highway vehicle in that, whilst at rest, it is quite harmless
but, when in motion or flight, it becomes potentially very dangerous, because of
652
See Ch.10, paras 10–168–10–170, above, where the subject is dealt with in more detail.
[1048]
AIRCRAFT AND SPACECRAFT 13–214
the fact of its movement. Nevertheless an aircraft in motion is neither an

inherently dangerous thing nor a thing dangerous in itself,653 hence the rule in
Rylands v Fletcher does not apply to it. This situation has been altered by statute,
namely the Civil Aviation Act 1982 s.76,654 which provides:
‘‘where material loss or damage is caused to any person or property on land or water
by, or by a person in, or an article, animal or person falling from, an aircraft while in
flight, taking off or landing, then unless the loss or damage was caused or contributed
to by the negligence of the persons by whom it was suffered, damages in respect of the
loss or damage shall be recoverable without proof of negligence or intention or other
cause of action, as if the loss or damage had been caused by the wilful act, neglect or
default of the owner of the aircraft.’’
The provisions of the Act only apply to civil aircraft and not to military aircraft,
that is ‘‘belonging to or exclusively employed in the service of [Her] Majesty,’’
unless by Order in Council.655
As regards liability for damage done by spacecraft, including the massive 13–214
ironmongery required to get it into space, it is probable that international law will
recognise strict liability.656 However, for the moment and until an accident
happens, it must remain a case of ‘‘wait and see’’!657
653
See Fosbroke-Hobbs v Airwork Ltd [1937] 1 All E.R. 108 at 112, per Goddard J.
654
See Ch.10, para.10–173, above.
655
s.101.
656
See McMahon ‘‘Legal Aspects of Outer Space’’ (1962) 38 B.Y.I.L. 339, 384; Barrett ‘‘Inter-
national Liability for Damages Caused by Space Objects’’, 76 L.S.Gaz. 646.
657
The Outer Space Act 1986, which came into force on July 31, 1989 by virtue of SI 1989/1097
confers licensing and other powers on the Secretary of State to secure compliance with the
international obligations of the UK as regards all activities in this field. The provisions of the Act do
not concern civil liability, only criminal liability for breaches.
[1049]

Chapter 13 - Dangerous Things - Rylands V Fletcher

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Chapter 13 - Dangerous Things - Rylands V Fletcher

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DANGEROUS THINGS: RYLANDS v FLETCHER

1. Principles of liability .................................................................................................. 13–01

After an appeal to the House of Lords, the decision was upheld.

(B) Principles of liability

reasonably foreseeable as resulting from the escape complained of.7 The

Definition of dangerous things. Blackburn J. spoke in terms of a liability 13–07

In Transco Plc v Stockport Metropolitan Borough Council10 the difficulty in 13–08

chemical, which reacted violently on coming in contact with water36; an electric

natural consequence’’ of the dangerous thing’s escape.111 In light of the House of

escaped into the claimant’s dwelling-house and caused damage by an explosion

13–34 Generally. In giving judgment in Rylands v Fletcher,138 Blackburn J. indi-

(A) Act of God

seas were to be overwhelmed by some abnormal wave, this would be an act of

While it is not possible to anticipate every natural catastrophe, it is suggested 13–39

the United Kingdom would be an event such as an earthquake, volcanic eruption

(B) Default of the claimant

(C) Consent of the claimant

(D) Independent act of third party

controlled.183 There will be few cases in which a trespasser is not a stranger

(E) Statutory Authority

a case, it is unnecessary to prove negligence.197 To be a defence, the statute must

Inevitably what amounts to negligence will depend on the circumstances of the

strict liability is imposed in relation to the escape of ionising radiations208 oil

Liability for accumulating water. Someone who, as a non-natural user, 13–57

Natural streams: culverting. If a stream is enclosed in a culvert and, owing 13–65

Watercourse. A person who constructs a watercourse on his land will be 13–66

so that flooding occurred,238 it is doubtful after Leakey v National Trust whether

13–68 Discharging accumulated water onto land of another. The proprietor of

of the fundamental rights of the individual.247 In one catastrophic case, the

banks.253 A landowner is not obliged, apart from contract or statute, to maintain

13–73 Removal or interference with natural barriers. Nevertheless, a landowner

elsewhere.282 If they raise the banks of their canal causing flood-water to

Water undertakers’ liability for reservoirs. Water undertakers operate 13–84

Certain statutory undertakers are empowered to construct and maintain 13–91

flooding is caused because of the opening of water gates in a time of heavy

13–110 Accidental fire continued by negligence. A fire which started by accident,

13–112 Dangerous things. An alternative ground for the decision in Musgrove v

question of negligence is being considered,396 so that if there is no negligence

Ordinary domestic fire grate. Judicial differences of opinion as to the 13–114

13–124 Highly combustible materials. Highly combustible materials, including

13–128 Where a volunteer intervenes in an attempt to rescue life or property of a third

It follows that the law offers no remedy to a victim of a gas explosion if it

caused484 ‘‘Damage’’ includes loss of life, personal injury and damage to

Installing or disconnecting gas in premises. In installing493 or disconnecting 13–144

of negligence.502 Thus, where gas escaped from an outside service pipe

13–149 Liability of landlord, seller or builder of real property. At common law511

Gas contained in cylinders or otherwise. In Beckett v Newalls Insulation 13–152

13–153 General rule of liability for electricity. Electricity generated, stored or

13–154 Statutory authority. When electricity is generated, transmitted or supplied

13–155 Liability in respect of negligence. The standard of care required of a supplier

When electricity is carried overhead by wires or cables, in addition to any 13–156

13–159 Explosions. Where an explosion occurred in the electric mains of a statutory

13–160 Breaking up streets. Those licensed to supply electricity are empowered

In Hartley v Mayoh,548 an electricity supplier’s employees installed a new 13–162

Supply and installation of electrical equipment. This is tightly regulated by 13–164

7.—EXPLOSIONS AND EXPLOSIVES

13–168 Liability based on negligence. A high standard of care is expected of persons

A telephone company, which was engaged in laying telephone wires in a 13–169

In Muir v Stewart,568 a customer in a chemist’s shop produced an empty bottle 13–171

When a schoolboy was injured at a firework display at his school on November

If a person shoots intentionally at another, the cause of action is in trespass to 13–182

Entrusting firearms to incompetent persons.589 The owner of a loaded gun 13–183