Group 2: Afiah, Balqis & Izyan

Tutorial : Strict Liability

QUESTION 1

Ana, Joyce, Sara and Dora occupied adjoining houses in a residential area, near a
rooftop water theme park maintained by Wet Water. Sara had a temporary posting
overseas for two years starting in October 2018. She let her house for two years to Eric,
whose hobby is carpentry. Eric spent a great deal of time building furniture and other
large wooden objects in the garden at the back of the house. This has annoyed Dora, a
nurse, who is frequently on duty at nights and is unable to sleep during the day when
Eric is working. Eric has refused to desist from noisy work when Dora is trying to sleep.
Sawdust from Eric's activities has blown over the fence into Joyce's garden. Some of this
was eaten by a dog belonging to Joyce's sister, Emily who came to stay permanently
with Joyce in January. The dog was severely ill as a result and eventually died. The
sawdust was extremely difficult to pick up and after a heavy rainstorm the sawdust was
carried in the drain in Joyce's garden. The drain was blocked and, in the ensuing flood,
water flowed into Joyce's and Ana's houses. They all suffered damages in this incident.
In the meantime, Joyce, whose house is only 700 meters from the theme park, discovered
that all her belongings were damaged or destroyed. It was later found that Wet Water's
water pump has leaked and burst. Since Joyce's house is the only one in the area that is
the lowest, among other houses, the water centered onto her land.

a) Advise the parties as to their legal rights against Eric; and (25 marks)

b) Explain the legal action that could be brought by Joyce against Wet Water. (15 marks)
(DEC 2019)
Issue + Definition ● The issue is whether Wet Water can be held liable under
strict liability.

● Strict liability or the rule of law in Rylands v Fletcher, as

stated by Blackburn J, is that the person who brings on his
land and collects and keeps anything likely to cause mischief
if it escapes, must keep it in at his peril, and if he does not, is
prima facie answerable for all the damage that is the natural
consequence of its escape.(state the brief facts of the case
of Rylands v Fletcher)

Law + Application Elements required to establish liability under SL;

1. The defendant brought something onto his land.
- The defendant must bring, collect and keep something onto
his or her land for his or her own purposes that does not
naturally occur there.
- The rule does not apply to things such as natural
accumulation.
- Case: Giles v Walker - where the defendant was found not
liable when thistles from his land flew onto the Plaintiff‘s land
and seeded. The thistles were the natural growth of the
defendant’s land despite the fact that the thistle grew on his
land due to his leaving it unattended after he had ploughed
it.
- Case: Miles v Forest Rock Granite Co (Leicestershire)
Ltd - The defendant brought some explosives onto his land
and used them to blast rocks which had already been
naturally occurring on his land. As a result of this blasting,
some rock fragments flew onto nearby land below, where
they hit and injured the claimant. The plaintiff brought an
action under the rule in Rylands v Fletcher, which had
established strict liability for damage done as a result of an
escape of a thing from one’s land which was brought onto
 the land by the defendant and which could be expected to
cause such damage.
- Application: In the present situation, Wet Water had
maintained a rooftop water theme park near a residential
area. Thus the accumulation of water in order to maintain the
rooftop water theme park is intentional and not at all natural
as in the case of Giles v Walker. Wet Water, who is the
defendant, has satisfied this element. The case of Miles v
Forest Rock Granite Co (Leicestershire) Ltd shows that
defendants are still liable for the deliberate accumulations.
By virtue of mentioned cases, the existence of a rooftop
water theme park that uses a lot of water satisfies the
element of the defendant bringing something onto his land,
which is water.

2. Non-natural use of land

- Whereupon the bringing or accumulating of the thing onto his
land, the defendant makes a non-natural use of the land.
- Case: Rickards v Lothian (define non-natural use, by
Lord Moulton) - “It must be some special use bringing with it
increased danger to others and must not merely be the
ordinary use of the land or such a use as is proper for the
general benefit of the community” /Read v Lyons/Abdul
Rahman
- Application: Non-natural use of land exists due to the
existence of the rooftop water theme park maintained by Wet
Water near a residential area. By virtue of the case of
Rickards v Lothian, the existence of the rooftop water
theme park increased dangers to the people at the
residential area and the purpose of the water theme park
was not for the general benefit of the community. Thus, the
element is fulfilled.
3. Likely to do mischief
- The object or thing does not have to be dangerous ‘per se’,
because there are objects that are safe when kept properly
but dangerous when they escape.
- Only applies where the thing brought onto the land causes
damage when it escapes.
- Eg : poisonous fumes, explosives, fire, gas, trees, water,
sewage, chemicals.
- Case: Ang Hock Tai v Tan Sum Lee - The court held that
the defendant was liable for the death of the plaintiff’s family
as the petrol which the defendant stored in his basement had
caught fire and spread to the plaintiff’s home.
- Application: In the present situation, the accumulation of a
large amount of water at the rooftop water theme park is not
dangerous if it is maintained properly. However, since it is a
large amount of water, if it escapes it will likely cause
damage. Moreover, the rooftop water theme park is located
near the residential area and only 700 meters from Joyce’s
house. By virtue of the case of Ang Hock Tai v Tan Sum
Lee, Wet Water shall be made liable for the damages
suffered by Joyce because the Wet Water’s water pump has
leaked and burst and leads to the escape of a large amount
of water and damaged/destroyed all Joyce’s belongings.

4. Escape
- The thing that is brought onto the defendant’s land must
escape from there onto other land.
- Escape is defined as “escape from a place where the
defendant has occupation or control over land to a place
which is outside his occupation or control” (Per Viscount
Simon)
- Case: Midwood & Co Ltd v Mayor Aldermen - The
defendants were held liable when an explosion on their
 property caused inflammable gas to escape into the
plaintiff’s house and consequently set fire to the plaintiff’s
property.
- Application: In the present situation, the large amount of
water from Wet Water’s water pump that has leaked and
burst has escaped into others land and especially caused
great damage to Joyce whereby all her belongings were
damaged and destroyed. By virtue of the case of Midwood
& Co Ltd v Mayor Aldermen, the large amount of water had
escaped to Joyce’s house, situated on the outside of the Wet
Water’s rooftop water theme park. The situations show that
there is an element of escape by the large amount of water
from Wet Water’s water pump towards Joyce’s house which
is only 700 metres away from the theme park.

5. Foreseeability of damage
- For liability to arise, escape and cause damage must be
foreseeable or else the action under the rule will fail.
- Case: Cambridge Water Co. v Eastern Counties Leather -
Where Defendant was held not liable as it was
unforeseeable that the spillage would accumulate
underground or that it would spread and cause damage to
the plaintiff. The principle that was extracted from this case
was that, if the damage that occurs is not known through any
scientific knowledge at the time the escape occurred, then
no liability shall be imposed.
- Application: In the present situation, the escape of the
large amount of water from the water pump which leaked
and burst and the damages suffered by Joyce is
foreseeable. It is because when the water pump leaked and
burst, the large amount of water from the rooftop water
theme park will flows down to the lower ground and in this
case, Joyce’s house, which is only 700 metres away from
 the theme park, is the only one in that area that is the lowest
among other houses. Therefore, it is foreseeable that the
water will be centered onto her land. By virtue of the case of
Cambridge Water Co v Eastern Counties Leather,
however, it is foreseeable for the water pump to leak and
burst and cause damage to the people in the residential area
who are in the vicinity of the rooftop water theme park.
Hence, the last element has also been fulfilled.

Conclusion ● In conclusion, as all the elements required to establish strict

liability are fulfilled, Wet Water shall be held liable for the
damages suffered by Joyce under strict liability.

QUESTION 2

For some years, Boombang Sdn Bhd has operated a factory manufacturing fireworks and
gunpowder situated on the edge of an industrial estate. Recently, Bill rented a house
nearby. Bill and his wife, Ann, cannot enjoy their evening meals because of the smell of
gunpowder emanating from the factory and their daughter, Manja, cannot sleep well
because of the bangs and flashes which continually light up the sky. Bill’s valuable
collection of exotic flowers is damaged by the gunpowder which settles on the leaves
and blooms. One evening, there was a colossal explosion at the factory, the vibrations
from which caused the roof of houses nearby to collapse. The explosion also shattered
the windscreen of a car being driven by Elmo, which caused him to swerve off the road
and collide with Tipah, a pedestrian, thus injuring her. The cause of the explosion had not
yet been discovered, although the action of vandals or the unusually high temperature on
the day in question have not yet been ruled out.

Advise Boombang Sdn Bhd as torts possible liability in nuisance and under the rule in
Rylands v Fletcher (1863) 3 H & C.
Issue + Definition ● The issue is whether Boombang Sdn Bhd can be held liable
under strict liability
● Strict liability or the rule of law in Rylands v Fletcher, as
stated by Blackburn J, is that the person who brings on his
land and collects and keeps anything likely to cause mischief
if it escapes, must keep it in at his peril, and if he does not, is
prima facie answerable for all the damage that is the natural
consequence of its escape.

Law +Application Elements required to establish liability under strict liability:

1. The defendant brought something onto his land.

- Case: Miles v Forest Rock Granite Co (Leicestershire)

Ltd - The defendant brought some explosives onto his land
and used them to blast rocks which had already been
naturally occurring on his land. As a result of this blasting,
some rock fragments flew onto nearby land below, where
they hit and injured the claimant. The plaintiff brought an
action under the rule in Rylands v Fletcher, which had
established strict liability for damage done as a result of an
escape of a thing from one’s land which was brought onto
the land by the defendant and which could be expected to
cause such damage.

- Application 1: By virtue of the present case, the existence

of the Boombang Sdn Bhd satisfies the element of the
defendant bringing something onto his land which is the
fireworks and gunpowder.
2. Non-natural use of land
- Whereupon the bringing or accumulating of the thing onto his
land, the defendant makes a non-natural use of the land.
- Case: Rickards v Lothian (define non-natural use, by
Lord Moulton) - “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”
- Case: Dr Abdul Hamid Abdul Rashid & Anor v Jurusan
Malaysia Consultants & Ors [1997] 1AMR 673 - where the
artificial accumulation of rainwater on higher ground, which
then seeped underground, causing increased infiltration rate
and saturation of soil as a result of which a landslide
 occurred and damaged the plaintiff’s house. The
accumulation of water was held to be a non-natural use as
the excavation of a trench, purportedly for the foundation of a
retaining wall, constituted an alteration to the nature of the
land. It further interfered with the natural flow of water.
Application: Non natural use of land exists due to the existence of
the factory manufacturing gunpowders and fireworks situated on the
edge of an industrial estate. By virtue of the case of Rickards v
Lothian, the existence of the fireworks factory increased danger to
the people and the purpose of this was not for general benefit of the
community. Thus the element is fulfilled.

3. Likely to do mischief
- The object or thing does not have to be dangerous ‘per se’,
because there are objects that are safe when kept properly
but dangerous when they escape. -only applies where the
thing brought onto the land causes damage when it escape.
- Eg: poisonous fumes, explosive, fire, gas , tress, water,
sewage, chemicals.
- Case: Ang Hock Tai v Tan Sum Lee- The court held that
the defendant was liable for the death of the plaintiff’s family
as the petrol which the defendant stored in his basement had
caught fire and spread to the plaintiff’s home.
Application: In the present situation, there was a colossal explosion
at the Boombang Sdn Bhd that caused the windscreen of Elmo’s car
being shattered and caused him to swerve off the road and collided
with Tipah, a pedestrian . The defendant has fulfilled this element.
4.Escape
- The thing that is brought onto the defendant’s land must
escape from there onto other land.
- escape is defined as ‘escape from a place where the
defendant has occupation or control over land to a place
which is outside his occupation or control ‘ (Per viscount
 Simon)
- Case: Midwood & Co Ltd v Mayor Aldernen- The
defendants were held liable when an explosion on their
property caused caused inflammable gas to escape into the
plaintiff’s house and consequently set fire to the plaintiff’s
property.
-Application: In the present situation, the explosion had
escaped
5. Foreseeability of damage
- For liability to arise, escape and cause damage must be
foreseeable or else action under the rule will fail.
- case: Cambridge Water Co. v Eastern Counties Leather-
Where defendant was held not liable as it was foreseeable
that the spillage would accumulate underground or that it
would spread and cause damage to the plaintiff. The
principle that was extracted from this case was that , if the
damage that occurs is not known through any scientific
knowledge at the time the escape occurred, then no liability
shall be imposed.
- Application: In the present situation, it is foreseeable for the
explosion to occur and cause

Conclusion
QUESTION 3

Nik started operating a sawmill in a small village. He has leased the premises for a
ten-year period from Munda who had told him to be careful about noise and dust. To
complete a large order, he has had to work late at night for the last month. The noise
prevented Nona, the wife of Kaka who owns the market garden next to the mill, from
sleeping at night. Nik has installed the best wood dust extraction equipment available,
but last week the equipment malfunctioned and blew dust all over the village. Much of the
dust settled on Kaka’s garden and ruined a large number of sensitive orchids which he
was about to send to a market. Last night, there was a thunderstorm and lightning set fire
to the wood stored in the mill yard. Nik had not had the time to purchase any fire fighting
equipment and, because of the way he had stored the wood, the fire quickly got out of
control. It spread to Kaka’s property where it destroyed two tool sheds before the fire
brigade brought it under control. Advise the parties.

RYLANDS v FLETCHER/ PRIVATE NUISANCE

Issues There are three issues in this question:

 ● The first issue is whether Nona can sue Nik for amenity
damage under private nuisance.
● The second issue is whether Kaka can sue Nik for the
damage of his large number of sensitive orchids under strict
liability.
● The third issue is whether Nik can be held liable due to the
escape of fire which destroyed Kaka’s property under strict
liability.

Law + Application FIRST ISSUE

● In Read v Lyons & Co Ltd (1945) private nuisance is an
unlawful interference with a person’s use, comfort,
enjoyment and any interest that a person may have over his
land.
Elements required to establish private nuisance:
1. Substantial interference
Nuisance is not actionable per se. A plaintiff needs not
prove special or particular damage but needs to prove
that he has suffered some form of damage in order to
succeed in his claim.
- Application: Due to the noise from Nik’s work who work late
at night, Nona is unable to sleep.
2. The interference is unreasonable
Unreasonableness is relevant but not a conclusive
factor of whether the interference is unreasonable
or otherwise.
Generally, for an action in private nuisance to lie in
respect of interference with the Plaintiff’s
enjoyment of his land, it has to arise from
something emanating from the Defendant’s land. In this
question, the relevant element is damage and location of the
plaintiff’s and defendant’s premises.

- Case: In the case of Bliss v Hall (1838), the defendant

managed a factory for 3 years and during this time smoke,
smell and other remittances came from the factory. The
 plaintiff moved into a house near the factory. In an action
against the Defendant,the latter raised the defence that it
had been going on, before an action was brought to halt.
The activity is inapplicable as the plaintiff had his rights.
- In the case of Malone v Laskey (1905) the courts denied a
remedy claimed under private nuisance because she was
the wife of the occupier of the land, therefore she failed in
her claim because she did not have any legal interest in the
land. People having legal interest would be the owner, tenant
or occupier in the land.
- Application: In this question, Nona suffered from non
physical damage which is amenity damage as she is not
able to sleep because of the noise caused by Nik’s activity.
The relevant element is damage and location of the
defendant’s premise. Based on the case of Bliss v Hall
(1838), Nona has suffered from substantial interference from
Nik. However, Nona might not be able to sue Nik because an
action under private nuisance requires the plaintiff to have
interest in the land as can be seen in Malone v Laskey
(1905).

SECOND ISSUE AND THIRD ISSUE

● Strict liability or the rule of law in Rylands v Fletcher, as
stated by Blackburn J, is that the person who brings on his
land and collects and keeps anything likely to cause mischief
if it escapes, must keep it in at his peril, and if he does not, is
prima facie answerable for all the damage that is the natural
consequence of its escape.

Elements required to establish liability under SL;

1. The defendant brought something onto his land.
- The defendant must bring something onto his or her land for
his or her own purposes that does not naturally occur there.
- The rule does not apply to things such as natural
accumulation.
- The ‘thing’ that the defendant brought must be dangerous
and the word dangerous has its own meaning under this tort.
What is dangerous is the question of fact. The rule applies to
anything that may cause damage if it escapes. Once this
element is fulfilled then the thing is a dangerous thing.
- Case: Giles v Walker - where the defendant was found not
liable when thistles from his land flew onto the Plaintiff‘s land
and seeded. The thistles were the natural growth of the
defendant’s land despite the fact that the thistle grew on his
land due to his leaving it unattended after he had ploughed
it.
- Case: Miles v Forest Rock Granite Co (Leicestershire)
Ltd - The defendant brought some explosives onto his land
and used them to blast rocks which had already been
naturally occurring on his land. As a result of this blasting,
some rock fragments flew onto nearby land below, where
they hit and injured the claimant. The plaintiff brought an
action under the rule in Rylands v Fletcher, which had
established strict liability for damage done as a result of an
escape of a thing from one’s land which was brought onto
the land by the defendant and which could be expected to
cause such damage.
- Application:
Second issue: Nik has installed wood dust extraction
equipment for his sawmill. The wood dust is not something
natural to the land and does not naturally occur there. Based
on the case of Miles v Forest Rock Granite Co
(Leicestershire) Ltd shows that Nik is liable for the
accumulation of the wood dust extraction.
Third issue: Nik had stored the wood in his millyard.The
wood is not something natural to the land and Nik has
brought the wood for his own
2. Non-natural use of land
- Whereupon the bringing or accumulating of the thing onto his
land, the defendant makes a non-natural use of the land.
- Case: Rickards v Lothian (define non-natural use, by
Lord Moulton) - “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”
- Case: Dr Abdul Hamid Abdul Rashid & Anor v Jurusan
Malaysia Consultants & Ors [1997] 1AMR 673 - where the
artificial accumulation of rainwater on higher ground, which
then seep underground, causing increased infiltration rate
and saturation of soil as a result of which a landslide
occurred and damaged the plaintiff’s house. The
accumulation of water was held to be a non-natural use as
the excavation of a trench, purportedly for the foundation of a
retaining wall, constituted an alteration to the nature of the
land. It further interfered with the natural flow of water.
- Application:
Second issue and third issue: Non-natural use of land
exists due to the existence of the millyard to store the woods.
Based on the case of Rickards v Lothian, the existence of
the millyard increased dangers to the people at the village
and the purpose of the millyard was for Nik's purpose.

3. Likely to do mischief
- The object or thing does not have to be dangerous ‘per se’,
because there are objects that are safe when kept properly
but dangerous when they escape.
- Only applies where the thing brought onto the land causes
damage when it escapes.
- Eg : poisonous fumes, explosives, fire, gas, trees, water,
sewage, chemicals.
- Case: Ang Hock Tai v Tan Sum Lee - The court held that
 the defendant was liable for the death of the plaintiff’s family
as the petrol which the defendant stored in his basement had
caught fire and spread to the plaintiff’s home.
- Application:-
Second issue: The wood dust extraction equipment is not a
dangerous thing, however when the wood dust escapes from
the machine, it becomes a dangerous thing.
Third issue: The wood on it’s own is not a dangerous thing
but because of the way Nik had stored the wood and the
escape of the wood caused damage it becomes a dangerous
thing.

4. Escape
- The thing that is brought onto the defendant’s land must
escape from there onto other land.
- Escape is defined as “escape from a place where the
defendant has occupation or control over land to a place
which is outside his occupation or control” (Per Viscount
Simon) which means the escape must be from a place
where the defendant had control to a place but not the
defendant.
- Escape is an essential element in Rylands v Fletcher.
- Case: Midwood & Co Ltd v Mayor Aldermen - The
defendants were held liable when an explosion on their
property caused inflammable gas to escape into the
plaintiff’s house and consequently set fire to the plaintiff’s
property.
- Application:
- Second issue: The wood dust extract extraction equipment
has malfunctioned and blew dust all over the village and the
dust settled on Kaka’s garden and ruined a large number of
his sensitive orchids.
- Third issue: The way Nik had stored the wood caused the
fire to quickly get out of control. The fire got out of control
and it spread to Kaka’s property, destroying his two tool
sheds before the fire brigade brought it under control. Nik is
the owner of the millyard therefore he has control of that
place but not Kaka as Kaka lives nearby the millyard.
5. Foreseeability of damage
- The escape must cause damage.
- The normal rules of causation apply, in that the damage
must be reasonably foreseeable
- Case: Cambridge Water Co. v Eastern Counties Leather
[1994] 2 AC 264 - the defendants were not liable under the
rule because the type of damage could not be foreseen in
the circumstances. The defendants were concerned with the
tanning of leather.The chemical that they used for tanning
was regularly spilled on the factory floor, and over the years
seeped through the ground and into the water supply. The
claimant water company was unable to pump water
downstream from the factory, as the pollution meant that it
was unfit for human consumption. In this case, the escape
was very minute, little drops everyday through a concrete
flooring and affected an underground water supply,which had
occurred in a span of many years.
- Application-
- Second issue: In this situation, the damage was
foreseeable if the wood dust escaped all over the village.
The type of damage was also foreseeable because the
garden market is near to the millyard. By virtue of the case of
Cambridge Water Co. v Eastern Counties Leather [1994]
2 AC 264 , it is important to foresee the damage.
- Third issue: The damage was foreseeable if the fire got out
because of the wood and the type of damage is also
foreseeable. It is foreseeable that Kaka’s two tools shed will
 be destroyed if the fire gets out because Kaka lives nearby
to the millyard as he owns a garden market next to the mill.

DEFENCES

THIRD ISSUE

● An Act of God was defined by Lord Westbury in Tennent v

Earl of Glasgow (1864) 2 M (HL) 22 , as “an event which no
human foresight can provide against, and of which human
prudence is not bound to recognise the possibility.”
● Case: Nichols v Marshland (1876) In that case the
defendant had formed artificial ornamental lakes on his
property by damming a stream. Owing to an extraordinary
storm described as that heaviest in living memory, the water
escaped and carried away the plaintiff’s bridges.However,
the courts are reluctant to allow this defence unless the
weather conditions are exceptional. The defendant escaped
liability using the defence of the Act of God.
● Application:
● In this question, there was a thunderstorm and the thunder
lightning set fire to the wood stored in the mill yard. Under
the defence for the action under Rylands v Fletcher, Nik may
claim under the act of god. Based on the case of Nichols v
Marshland (1876) under the act of god, the courts only allow
defence if the weather conditions are exceptional. Therefore,
Nik cannot claim for defence under the act of god.

Conclusion ● As an overall conclusion,

● Firstly Nik is not liable for the amenity damage suffered by

Nona under private nuisance.

● Secondly, Kaka would likely succeed in his action against

Nik for his damaged orchid flowers.

● Thirdly, Nik is liable due to the escape of fire which

destroyed Kaka’s property under strict liability.