Introduction to Rylands v Fletcher

The rule in Rylands v Fletcher protects against interference due to an isolated escape
from the defendant’s land.
In Rylands v Fletcher itself, the defendant engaged some independent contractors to
construct a reservoir on his land in order to supply water for his mill. The builders failed to
block off a number of disused mineshafts and, as a result, when the reservoir was filled,
water escaped and flooded the claimant’s adjoining mine. The claimant commenced an
action to recover the cost of the flood damage (£937). There was no evidence of
negligence by the defendant (as he had not known of the mineshafts). However,
Blackburn J held him to be liable, stating:
"We think that the true rule of law is that the person who for his own purposes
brings on his land 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 that is the natural consequence of the escape."
The House of Lords upheld the decision but also introduced into the rule the requirement
that the defendant’s use should be a non-natural use of his land.
 Read alongside:
In order to understand the tort of Rylands v Fletcher you should be fully conversant
with the original case (John Rylands and Jehu Horrocks v Thomas Fletcher [1868]
LR 3 HL 330). It is essential that you understand all the requirements as set out in this
case.

Rylands v Fletcher preliminaries

Before looking at the elements that make up the tort of Rylands v Fletcher, it is important
to consider the following preliminaries:

1. Who can sue in Rylands v Fletcher?

2. Who can be sued in Rylands v Fletcher?
3. Loss
Who can sue?
In light of Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 AC 264, it
would appear, that the rule in Rylands v Fletcher amounts to no more than an extension
of private nuisance. Due to the decision in Hunter v Canary Wharf, a claimant in a private
nuisance action must have a proprietary interest in the land affected and this is now
true for the rule in Rylands v Fletcher. This was confirmed in Transco v Stockport
Metropolitan BC [2003] UKHL 61 which stated that the Rylands v Fletcher rule is a sub-
species of private nuisance.
Who can be sued?
The person who brings, collects and keeps the ‘thing’ onto the land (the creator of the
nuisance) and/or any person who has control over the land (owner/occupier).
Loss
The claimant must suffer some damage. Following Transco and the ruling in Hunter v
Canary Wharf, it now seems clear that claims under the rule in Rylands v Fletcher will not
allow recovery for personal injury, in line with the same restriction in private nuisance.
The only types of loss recoverable under Rylands v Fletcher are therefore property
damage and consequential economic loss.
Elements of Rylands v Fletcher

Having discussed the preliminaries, the elements that make up this tort must now be
considered. The elements are:

1. The defendant brings onto land and accumulates there;

2. For their own purposes, anything likely to do mischief if it escapes;
3. Escape;
4. Escape caused foreseeable harm; and
5. Non-natural use of land.
The defendant brings onto land and accumulates there

The defendant must have voluntarily brought something onto the land.
In Giles v Walker (1890) 24 QBD 656 there was no liability for the spread of thistles from
the defendant’s land as they grew there naturally and had not been brought onto the
land.
For their own purposes anything likely to do mischief if it escapes

There may be liability for things that are obviously dangerous under this rule but it is also
possible to impose liability for relatively safe things if they can escape in a way that would
make them dangerous. The ‘thing’ brought onto the land must be capable of causing
damage (and therefore be dangerous) if it escapes.
Examples of things likely to do mischief if they escape:
• Water (Rylands v Fletcher).
• Acid (Rainham Chemical Works v Belvedere Fish Guano [1921] AC 465).
• Explosives (Read v Lyons [1946] 2 All ER 471).
The potentially wide-ranging effect of the term ‘anything likely to do mischief’ has been
circumvented more as time goes on by the requirement that there should be a non-
natural use of land by the defendant. It has also been circumvented by Transco. A pipe
carrying water to flats owned by the defendant leaked and caused an embankment on
the defendant’s land to collapse. This collapse exposed and left unsupported a gas
pipeline owned by Transco. Transco had to spend £94,000 to stop the pipe fracturing.
The House of Lords held that the thing that escapes has to be reasonably recognised as
having an exceptionally high risk of causing a danger if it were to escape. This sets a
very high threshold and it was not satisfied in Transco.
Escape
There must be an escape, i.e. the substance must escape from land over which the
defendant has control to land where they do not have control. The escape can be slow
and over a period of time (Cambridge Water).
In Read v Lyons, the claim failed because the claimant was injured by an explosion on
the defendant’s land, so there was no element of escape.
In Transco, the court held that there was no escape from the defendant's land. The water
leaking from the pipe had moved from one part of the defendant’s land to another.
It must also be the substance that was collected by the defendant that escapes
(Stannard v Gore [2012] EWCA Civ 1248). See the next slide.
Key case: Stannard v Gore [2012] EWCA Civ 1248
The defendant ran a tyre fitting business and brought tyres onto his property. There
was a fire on the defendant’s property and the tyres spread the fire onto the
claimant’s property. The rule in Rylands v Fletcher did not apply because it was not
the tyres that escaped. It was an essential requirement of Rylands v Fletcher that
the ‘dangerous thing’ brought onto the defendant’s land should escape. Where a fire
escapes but the ‘dangerous thing’ does not, the defendant will not be liable under
Rylands v Fletcher even if the ‘dangerous thing’ played a role in starting or
spreading the fire. However, if the fire was deliberately started by the defendant, it
could be argued that the fire was the ‘dangerous thing’ that was accumulated on the
land and had escaped.
The claim was also unsuccessful because the tyres did not have an exceptionally
high risk of causing a danger if they were to escape.
Note that following Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180,
where fuel is the ‘dangerous thing’ brought onto the defendant’s land and it is the fuel that
starts the fire/causes an explosion, the fuel could be seen as escaping with the fire (it is a
component of the fire/explosion). Essentially if the defendant is storing things known to
be a fire risk, especially if placed near something likely to cause ignition, the defendant
might be liable in Rylands v Fletcher.
Escape caused foreseeable harm

Following Cambridge Water, foreseeability of damage in the event of an escape is

essential for a claimant to succeed. The defendant need not have foreseen the escape
but must have known or ought reasonably to have foreseen that the ‘dangerous thing’
could, if it escaped, cause damage.
Even if the defendant has taken reasonable care to prevent the escape and the damage,
the defendant will still be liable if they fulfil the requirements for operation of the rule.
What has to be foreseen is the damage, not the escape, so the strict liability rule applies.
Key case: Cambridge Water Co. v Eastern Counties Leather plc [1994] 2 AC
264
The defendant operated a leather manufacturing business. Over the course of many
years, a chemical that the defendant used, seeped through the concrete floor, into
the soil below, from where it travelled to the claimant's borehole 1.3 miles away
polluting the water. The borehole was supplying water to local residents. The
claimant was forced to relocate its pumping station costing over £1million.
The claim in Rylands v Fletcher failed: pollution to water in a borehole 1.3 miles
away (and the subsequent closure of the borehole) was not reasonably
foreseeable. Lord Goff stated that it was not foreseeable that chemicals spilt on a
concrete floor could cause damage to the claimant’s water.
Non-natural use
‘Non-natural use’ of the land by the defendant is not the same as avoiding liability on the
basis that the thing occurs naturally. Rather it means that the thing that has been
accumulated must have the additional quality of being for non-natural use.
In Rickards v Lothian [1913] AC 263, Lord Moulton stated that:
"... it must be some special use bringing with it increased danger to others
and must not merely be the ordinary use of the land or such a use as is proper
for the general benefit of the community."
In Rickards, the claimant suffered damage when the defendant’s sink overflowed
because a trespasser had blocked it. The court said that non-natural use constituted a
use of land which posed an increased risk over and above that of a normal use,
and which, in the circumstances, justified imposing liability on the defendant. As the
defendant was making ordinary and proper use of the land, there was no liability.
It is perhaps more helpful to define this element as ‘non-ordinary use’ of the land and
what is ordinary depends upon the time, place and context of the use of land: what is the
defendant using ‘the thing’ for and would you expect the defendant to be using ‘the thing’
/ the land in that way?
All the circumstances must be taken into account (e.g. the type of area) and just because
an earlier case found a non-natural use, this would not categorise that item for all time.
What was unacceptable at one stage in history may be commonplace and acceptable at
a later date.
This is illustrated by the case of Musgrove v Pandelis [1919] 2 KB 43, where it was held
that storing a car with a full tank of petrol in a garage was a non-natural use of land.
Musgrove was not followed in Cammidge v Young [1997] C.L.Y. 3803.
In Stannard v Gore the storing of 3000 tyres on land was deemed natural use even
though this exceeded the typical number of tyres stored at such a facility and the stacking
of the tyres was haphazard and untidy.
In Cambridge Water the defendant argued that in the present day, chemicals in a factory
on an industrial estate were a natural use. The House of Lords rejected this, stating
(obiter) that the storage of substantial quantities of chemicals on industrial premises is an
"almost classic case" of non-natural use.
In Transco, the House of Lords, following Rickards, stated that the piping of water for
domestic use to the defendant’s block of flats was not a non-natural use of the land and,
therefore, the rule in Rylands v Fletcher did not apply. Lord Bingham was of the opinion
that Rylands v Fletcher could only be engaged where the defendant’s use was shown to
be extraordinary and unusual according to the standards of the day. The requirements
of non-natural use and the concept of dangerousness, as cited in many cases, were said
to be intertwined. In Transco, piping water to a block of flats in an urban area was clearly
not an extraordinary and unusual use of land.
In Colour Quest, the use of the land could be seen as non-natural because of the
quantity of oil kept on the premises despite the industrial nature of the defendant’s depot
(Buncefield in Hemel Hempstead). Quantity/volume is therefore relevant when
considering non-natural use.
By interpreting ‘non-natural’ so widely the courts allow themselves flexibility when
deciding whether to find liability or not.
Defences

The same defences apply as for public nuisance, with the addition of common benefit (a
type of consent) and default of the claimant.

1. Common benefit
2. Act or default of the claimant
3. Statutory authority
4. Act of third party
5. Act of God
6. Contributory negligence
7. Consent
 Common Statutory Act of third
Act of claimant party
benefit authority
Defences

Contributory
Act of God Consent
negligence

Common benefit
If the claimant has agreed to the accumulation of the material by the defendant, there will
be no liability under the rule. Consent can be implied if the substance has been
accumulated for the common benefit of the claimant and defendant.
In Peters v Prince of Wales Theatre [1943] 1 AC 521, the claimant leased a shop next to
a theatre from the defendant, the owner of the theatre. The claimant’s shop flooded when
pipes from the theatre’s sprinkler system burst due to icy weather conditions. The
claimant sued the defendants in the rule of Rylands v Fletcher.
The defendant was not liable. The sprinkler system was equally for the benefit of the
claimant and the claimant was deemed to have consented to the use of the sprinkler
system since it had been installed prior to him obtaining the lease.
 Common Statutory Act of third
Act of claimant party
benefit authority
Defences

Contributory
Act of God Consent
negligence

Act or default of the claimant

This defence was recognised by Blackburn J in Rylands v Fletcher. If the escape has
been caused wholly by the claimant’s actions, then he will be unable to complain, as in
Dunn v Birmingham Canal Co (1872) LR 8 QB, where the claimant dug under the
defendant’s canal and caused it to flood his land. If the claimant’s acts were merely
contributory, there may be contributory negligence.
 Common Statutory Act of third
Act of claimant party
benefit authority
Defences

Contributory
Act of God Consent
negligence

Statutory authority
The rules that apply to private nuisance with regard to statutory authority are also
relevant here. Much depends upon the construction of the statute.
In Green v Chelsea Waterworks Co (1894) 70 LT 547 statutory powers authorised the
laying down of a mains water pipe (which burst). The defendant was under a statutory
obligation to maintain high pressure in the water main. This meant any escape would
inevitably cause damage and the defendant could therefore rely upon this defence.
In Charing Cross Electricity Co v Hydraulic [1914] 3 KB 772) statutory powers authorised
hydraulic mains (which burst) to be laid under the street. The defendant could not rely
upon this defence as whilst the statute granted permission to the defendant to keep the
water main at high pressure there was no obligation to do so.
 Common Statutory Act of third
Act of claimant party
benefit authority
Defences

Contributory
Act of God Consent
negligence

Act of third party

This defence was provided for in Rylands v Fletcher. The defendant will escape liability if
he can show that the situation arose through the unforeseeable act of a stranger over
whom he had no control. If the defendant should have foreseen the act, the defence
will not succeed.
The defence was successful in Rickards v Lothian. A third party deliberately blocked the
waste pipe and left the tap running which led to flooding of the claimant’s property. The
defendant was not liable as he could not reasonably have known of the act so there was
nothing that he could have done to prevent the harm. The court held that where the
cause of the escape is the malicious act of a third party, the defendant is not liable unless
he instigated it or should have reasonably foreseen and guarded against it.
 Common Statutory Act of third
Act of claimant party
benefit authority
Defences

Contributory
Act of God Consent
negligence

Act of God
This is concerned with the situation where the escape is caused by a natural occurrence.
Not every natural occurrence will be an act of God and the defence is restricted to very
exceptional and unforeseeable situations. Unforeseeably high flooding, earthquakes and
unusually violent storms are all examples of acts of God.
In Nichols v Marsland (1876) 2 Ex D 1, the defendant had some ornamental pools on his
land formed by damming a natural stream which flowed through his property. Due to
extraordinarily high rainfall, the banks broke and four of the claimant’s bridges were
swept away. The defendant was not liable for such an extraordinary act of nature which
could not have been foreseen.
This defence was clarified in Transco by Lord Hobhouse. The event must be due
exclusively to natural causes; the event must not involve any human agency or
intervention and it was not realistically possible for a human to reasonably guard against
or prevent the event by any amount of foresight, pains and care.
 Common Statutory Act of third
Act of claimant party
benefit authority
Defences

Contributory
Act of God Consent
negligence

Contributory negligence
The usual rules of contributory negligence apply (s.1 Law Reform (Contributory
Negligence) Act 1945).

Consent
The usual rules for consent apply.
Remedies
The same remedies are available as for private nuisance, namely damages and
injunctions. Damages are the most common remedy given that the types of loss
recoverable in Rylands v Fletcher are property damage and consequential economic loss
and Rylands v Fletcher covers isolated events.
Future Developments and Rylands v Fletcher
The rule’s practical usefulness is limited and successful actions are relatively rare (see
LMS International and Others v Styrene Packaging and Insulation [2005] EWHC 2065
(TCC)). The House of Lords were invited to dismiss the Rylands v Fletcher rule in
Transco but declined. It was felt that such an action would leave a lacuna in the law. An
excellent review of the potential development of Rylands v Fletcher was provided by Lord
Bingham in Transco.

Challenge yourself: Read Lord Bingham’s judgment in Transco. What does

Lord Bingham state regarding how the rule in Rylands v Fletcher should be
used today?
Structure for the rule in Rylands v Fletcher
Identify the parties (claimant name v defendant name) and tort (define).

Preliminaries: Who can sue? Who can be sued? Loss?

Elements:
1. The defendant brings onto land and accumulates there.
2. For their own purposes, anything likely to do mischief if it escapes.
3. Escape.
4. Escape caused foreseeable harm.
5. Non-natural use of land.

Defences
Remedies
Summary
• Rylands v Fletcher protects against interference due to an isolated escape from the
defendant’s land.
• The claimant must have a proprietary interest in the land affected.
• The defendant is the person who brought the ‘thing’ onto the land and/or any person
who has control over the land (owner/occupier).
• The types of loss recoverable are property damage and consequential economic
loss.
• The elements to consider for Rylands v Fletcher are: brought onto land; anything
likely to do mischief if it escapes; it does escape; the escape caused foreseeable
harm; and there is non-natural use of the land.
• The defences in Rylands v Fletcher are the same as for public nuisance, with the
addition of common benefit and act/default of the claimant.
• The remedies in Rylands v Fletcher are the same as for private nuisance. Damages
are the most common remedy given the types of losses that are recoverable.
Draft a table setting out the similarities and differences between private
nuisance, public nuisance and the rule in Rylands v Fletcher.