The Rule in Rylands vs Fletcher

Introduction

This paper focuses on the rule of Rylands vs. Fletcher a case that was heard in the early
1860s (specifically 1860-1868). In this case the plaintiff (Fletcher) sued Rylands for the
damage that the plaintiff believed was caused by the defendant. The defendant (Rylands)
had a water reservoir in his land. It was the water from the reservoir that overflowed to the
plaintiff’s land and caused damage on his mines. This will be the basis for drawing
conclusion on whether this rule fits in the modern setting in commonwealth countries, and
whether or not the rule has withstood the test of time to deserve recognition in the present
times.

Hypothesis

“The rule in Rylands and Fletcher has no place in the modern world”.

The rule in Rylands vs. Fletcher

The plaintiff was Thomas Fletcher and the defendant’s was John Rylands. In the
circumstances, the defendant had constructed a reservoir on land that was on leasehold,
whose purpose was to supply water into his powered textile mill. Thomas Fletcher’s land
neighbored that of Rhlands. In his land, Fletcher operated mines and had excavated up to
disused mines which were under the land where the plaintiff’s reservoir was located. The
land that both parties were using had been rented from lord Wilton and the “activities that
each carried out were legal”. Rylands employed independent contractors and engineers to
build a reservoir.

When on duty the contractors came across some mine shafts that were no longer in use
and which were loosely filled with marl and earth. The contractors “made no attempt” to fix
the shafts. These shafts led through a series of interconnected shafts and channels, into
the plaintiff’s (Fletcher) mines and land. After completion, water burst and flooded into
Fletcher’s land and mines. In those circumstances, Thomas Fletcher sued John Rhylands.

The Court Of Liverpool

This court’s ruling favored the plaintiff on the basis of both nuisance and trespass. Rylands
was not satisfied by the decision of this case and thus applied for the case to be heard
before the three judges of the exchequer in which he succeeded. The three exchequer
judges “overturned the first ruling”. The exchequer judges based their judgment on the idea
of trespass requiring a direct personal involvement in the invasion of the quiet enjoyment of
land. This kind of invasion “required evidence of intent or negligence”.
Court Of Exchequer Chamber

Fletcher was angered by the decision of the three exchequer judges and appealed to the
exchequer chamber composed of six judges. The six judges “overturned the previous
decision” this time in favor of Fletcher. The judges held thus, “we, the judges of the
exchequer think that correct rule of law is that, any person, who for his own intentions
brings on his land, accumulates and keeps on the land anything likely to cause trouble if it
escapes, must keep it at his own risk, and, if he does not do so, is prima facie (without need
for further information), answerable for all the damage which is the natural effect of its
escape. He can, however excuse himself by proving that the escape was caused by the
plaintiff’s default; or possibly, that the escape was a consequence of the act of God”
(Fordham Margaret1995)

The judges concluded that “none of these excuses had been proven in the case”, and it was
therefore “unnecessary to find out what other excuse would be sufficient”. The judges, on
making their ruling relied on the “basis of the liability for damages of land through the tort
of chattel of trespass, the tort of nuisance”, as well as “the scienter action (common law
rule that deals with the damages directly done by animals to human beings)” (Duhame.org,
2009). Rhylands felt that this was not just. He appealed to the House of Lords.

House Of Lords

The House of Lords dismissed Rhylands appeal. They agreed with the six exchequer judges
but went further to add a limitation on the liability.

Strict Liability

From the proceedings of this case, there developed what is called “the strict liability”
aimed at avoiding “misrepresentation of facts in a court of law”. In our case, “the
defendant’s (Rylands) reservoir caused an old mine shaft owned by Fletcher to collapse”.

It was proven in courts that “the defendants were not negligent” but still the judges ruled
that “the defendants ought to pay damages to the plaintiff and they conformed”. The case
thus established doctrine of strict liability “but only in limited circumstances” which were
stated by the judges. Any person “wishing to rely on this doctrine has to fulfill certain
requirements that were highlighted by the judges during this case”.

Requirements For One To Rely On The Case Of Rylands And Fletcher

1. The defendant needs to have brought something into his land

In the case of Rylands and Fletcher, “the defendant brought water into their land”. The
plaintiffs “depended on this fact”.
2. Non-natural use to the land

In our case “the defendants brought in water to their land and this was not the natural user
of the land” (Weinrib, Ernest, pp 58).

3. There must be something likely to do mischief

The Court of Exchequer chambers stated that “if a person brings into his land something
which is likely to do mischief if it escapes, the person keeps it at his own peril”.

4. Escape

The exchequer court came out clear and stated that “there must be escape of the
dangerous substance”.

Remedy

The case of Rylands versus Fletcher “laid the basis on which the person who has suffered
can be bona fide to be remedied” (Lillian Munroe, 09). The person “who has suffered
damage can be compensated if he can prove damage on his property”.

Case 1: Greenock Corporation v Caledonian Railway [1917] AC 556

According to Willem H. Van Boom (2004), “Greenock Corporation constructed a concrete

pool meant for rowing” “by children” in the bed of a stream and so “obstructed the stream
from flowing down stream”. At some point, there was extraordinarily heavy rainfall that “led
to overflowing from the pool and the property of the plaintiff” (Caledonian railway) “was
damaged” (Jackson, Rupert M. Jackson & Powell, 207). The plaintiffs sued for damages. The
court held that “the damages were to be paid”. The defendants “had relied on the facts of
the case of Rhylands and Fletcher” (Helmut Keziol, 26). Their defense was that “the
overflow was caused by an act of god but was not found to be sufficient”.

Case 2: Bolton v Stone [1951] AC 850, [1951] 1 All ER 1078

According to Bailii.Org (2009), it was during a game of cricket that Miss Stone “got hit by the
cricket ball” in Manchester. The ball “flew from the ground and hit the claimant” that was
“standing outside her house” about 100 meters from the cricket field: “the field had been
used for cricket since 1864 before the road along which the claimant’s house was built in
1910” (Hodge, Sues, pp 254). The field was surrounded by a fence 3.7m long and, Valerie
Hoag, (pp 40) argues that the ground sloped up so that the fence was 5.2m high. The fence
was 71m from the batsman who had hit the ball. The ball rarely been hit out of the field;
about six times in thirty years (Valerie Hoag, pp 42).

Court Ruling
The high court “was the first to hear this case”. It was held that “in the last 38 years, there
was not a single incidence of injury” and so “this could not amount to negligence in the
part of the club”.After the first judgment by the high court, the applicant felt that “the
decision was not fair”. She then “applied to the court of appeal”. The case in the court of
appeal “was heard by three judges: Somervell, Singleton and Jenkins” (Willem Van Boom,
pp 34). They all “dismissed the case -just as the high court had done”. After the judgment,
“the defendants appealed to the House of Lords”. In the House of Lords “the case was
heard by five lords, in whom the lady lost”.

Case 3: Cambridge Water Co v Eastern Counties Leather plc (1994) 2 AC 264

Facts

The plaintiff (Cambridge Water Company) “had purchased a borehole in 1976 (18 years
before the case came up in 1994) to extract water for supplying to the public” (Gleeson 09).
In 1983, the “company carried out tests on water to see whether the water was safe for
human consumption”. They found out that “the water was contaminated with a certain
chlorine component”. When investigations were done, it was found out that the
contaminating element came from Eastern Counties plc tannery located approximately
2.5kilometres (1.3 miles) from the borehole (Zachary Noon, 65).

The tannery had started its operations in 1879. From that time in1976 the chlorine solvent
used by the defendants had always been delivered to the company in 40 gallon drums and
could finally end up in a sump. After 1976 (the year which the borehole was dug) “the
solvents were being delivered in bank and stored in the PLCs tanks”. From the tanks, the
solvent was then “piped into the tanning machines”. There was “no evidence of spills from
the pipes or the tanks”, it was concluded that “the spills must have occurred under the old
system” (James, 66). Cambridge water company sued for damages on the basis of
negligence, nuisance and on the basis of the rule in Ryland’s vs. Fletcher.

Court Ruling

The claims for negligence and nuisance were disallowed by the court. The plaintiff
(Cambridge water Co) “appealed successfully against the first decision”. The Eastern
counties leather PLC “was not contented with the decision that came up after the appeal”.
They “appealed to the House of Lords”.

The House of Lords collectively found that “the eastern counties leather PLC was not guilty
and so was not liable to pay damages”. They had also “not invaded plaintiff’s privacy”. The
defendants had explained that they thought that “any spilt chemical could evaporate” and
the only way there could be a risk is only if large a mounts were spilt, in this way a person
could be overwhelmed by vapor.
The above three cases relate to England. The following cases relate to Australia a
commonwealth country where the case in Rylands and Fletcher has been modified.

Case 1: Burnie Port Authority v General Jones Pty Ltd (1994)

According to Weinrib, Ernest (2003), an independent contractor’s employee welding

negligently caused a fire that the caused damage to the defendant’s premises and even
spread to the nearby property. The plaintiff’s property was burnt and this made him sue to
recover the damages. “The plaintiff relied on negligence”, nuisance and the case of
Rhylands vs. Fletcher.

Court Ruling

The judges held that the plaintiff could not rely on the rule of Rylands versus Fletcher. It
was felt that the case should be done away with and so the independent contractor was
not legally responsible under those circumstances, but could only be liable in the law of
negligence.

Application In India (A Commonwealth Country)

Case 1: State of Punjab (defendant) Vs. Modern Cultivators, LADWA (Plaintiff) (2005)NBr
294

Facts

According to the records from the Supreme Court of India (2004), in 1960, a company by
the name “Modern Cultivators” brought a case into court “against the State of Punjab”. The
modern cultivators, suffered loss by flooding of its land as a result of a burst in a canal
owned by the state. The company case was that there was breach of duty owing to
negligence of state and water from the canal escaped to the fields “causing floods in
modern cultivators’ land”. In its defense, the state argued that there was no breach that
took place because the canal had been repaired and the flooding was due to heavy rains
that pounded the area during the month of September.

Court Ruling

The court consisting of judges; Sarkar A.K, Hidayatullah M and Mudholkar J.R, ruled against
the states government fining it Rs 20, 000 but it was later revised to Rs. 14,130 by the high
court “on basis of negligence”. In its ruling the court held that the damage to the company’s
field was caused by “the water from the canal and not from the river”. The Court agreed that
the government had a duty of maintaining the canals and of being held liable for all
damages caused by them (Linden Allen, pp 64).
Sarkar held that one, “Law of negligence was applicable to that case because there would
not have been a breach of duty had those people in management taken proper care and
hence the breach itself remained a proof of negligence” (Supreme Court of India, 2004).
Two documents called for in the court were produced deliberately a clear indication that
“there was negligence in management of the canal”.

Hidayatullah held that there was sufficient evidence to conclude there was negligence
referring to Barkway v. South Wales Transport Co. case of 1950 where the same position
was taken to rule a case of similar nature. Secondly he ruled that “the scenario in Rhylands
and Fletcher was hardly applicable in this case”. This is so because canal systems are
essential for the life of the whole country and land that is used as canals is subjected to an
ordinary use (Linden Allen, pp 67).

According to Devlin (2005), the rule of Fletcher had been used in several cases to make
verdict in India and hence “regarded as part of common law but could not apply in this
case”. However in its country of origin the rule has been subjected to certain law (pp 33).
John Murphy (2007) said that one of the exceptions to the rule is that, unless proof of
negligence is established as the cause of the accumulated substance escape, “the
defendant can not be held liable for damages caused on other persons by escaping
substances”. And if the rule of Rayland and Fletcher had to apply in this case, then the
state of Punjab “would not be liable for damages but is liable on the basis of negligence”.
This is because the defendant (State) would have excused itself by claiming that the
escape was due to act of God (Pablo Salvador, 867). However because there was nothing
of such sort existing, the court ruled that the breach of duty was due to negligence by the
people managing the canal banks. Although the defendant could have defended himself on
bases of act of God, his excuses could not be sufficient enough to guarantee safety
because there was clear indication of negligence (Nolan, Joseph, 61).

According to Quinn Frances (2007), “the tort of negligence is said to occur when actionable
damage is sustained” (pp 75). That is “the concern here is not being careless but the
damage that results from careless conduct of a person especially in places where the law
recognizes a duty to be careful”. The government has duty to take care of its citizen and
hence “damages caused by its actions whether deliberate or accidental then it should be
held liable” (Canon, Alan 37).

According to John Murphy (2007), the mere fact that a person is injured by actions of
another person does not arise to cause of action. Even if the action is deliberate, the party
who suffers loss will have no claim in law so long as the doer was exercising legal right. But
if the act involves due care cause of actionable damage will arise (Devlin, 112). The rule of
Rayland and Fletcher imposes liability only when something accumulated in defendant
land is likely to cause mischief in event of escape to plaintiff land. “Although this might give
rise to tort of nuisance, it is not necessarily so”.

According to Richard Smellie (2009), the judges could not apply this rule in this case on
basis that there was repeated interference. In addition the Rylands and Fletcher rule is only
applicable in cases where there has been special use of land “that would increase danger
to neighbors rather than ordinary use of land”. The use of land here by the state was not
specific but an ordinary one and hence the rule could not be used for judgment.

Case2: M.C Mehta v. Union of India AIR (1987) 4 SCC 463

Shriram Food and fertilizer industry was producing caustic and chlorine. During its
operation a major leakage occurred from one of the companies units in 1985 in the heart of
New Delhi city resulting to death of several people among the an advocate in courts of Tis
Hazari (Surajit, 22).

The leakage resulted from bursting of storage tanks containing Oleum gas when the
structure from which it was standing collapsed and it caused fear on dwellers next to the
company. The leakage is said to have been caused by both mechanical and human errors.
Even before people had fully recovered from shock caused by previous escape of gas from
the company, another leakage, this time a minor one occurred from the joints of pipe in the
same company.

According to Surajit, (2003) among the units of the Shriram Foods and Fertilizer Company
that were set up in a single complex included manufacture of caustic soda, soap, sulfuric
acid, super phosphate, hydrochloric acid and bleaching powder . The company was
surrounded by densely populated villages within a radius of 4 miles from this company with
population of more than two hundred thousand people. As a result, In December of the
same year the district magistrate, Delhi ordered the company to “shut down its units that
dealt with manufacture of toxic/hazardous chemicals and gasses comprising chlorine,
Oleum etc within two days at the company’s premises in New Delhi”.

Further the Company was given seven days to do away with such chemicals and gases
from the city. M.C Mehta moved to Supreme Court to seek for compensation caused by the
actions of the company and requested that the closed enterprise should not be allowed to
reopen.This petition came before the court on reference to judgment made by a bench of
three judges in February of 1986 that allowed Shriram to re-open its power plant and plants
that manufactured caustic soda and chlorine subject to conditions set out in the judgment.

Court Ruling
The big question on this case was whether the victims of the Oleum leakage would be
compensated and if so, how the liability of such establishment engaged in manufacturing
hazardous products would be measured (Surajit, 33). In their ruling, the bench made up of
five judges ruled against Shriram Food and fertilizer industry applying the rule of absolute
liability. Although the principle of strict liability under the rule of Rayland and Fletcher was
applicable in many cases in India, judges failed to apply this law under basis that “it was
only applicable to non-natural users of land”.

According to judges, the rule of strict liability evolved during the 19th century before
industrialization had taken place and hence the principle could not be used as guide in
determining any standard of liability constituent with the needs of modern day economy
and social structures. Laws must grow at par with the needs of changing community and
be at par with economic development taking place in the nation (David Engel, Michael
McCann, 45).

According to David Engel, Michael and McCann, (2009) “law should be dynamic, so that, as
new situations develop, it can evolve to meet challenges and problems presented by the
new situations”, (pp46). Hence the judges felt that it was only fair to rely on new principles
that would adequately address new challenges that arise from the industrializing society
rather than referring to laws that prevailed in England or in any other foreign country.

On the basis of the principle of strict liability under the rule of Rylands and Fletcher, the
accused is allowed to give his defense of due negligence (Matthew Fletcher, 06). Hence, if
this principle could have been applied in this case the court would have failed to provide
justice to the victims of Oleum gas leakage (Legal service of India, 04). This is because the
accused could have defended him by arguing that, the plant was playing a decisive role in
the economic development and hence he could not be held liable to damages under this
circumstance.

According to Legal service of India (2004) if any company manufacture hazardous or

engage in inherently dangerous activity, the enterprise is absolutely liable to compensate
all those who are affected by accident resulting from escape of toxic gas e.g. In India such
liability are not subject to exception made in the principle of strict liability. That is, the
defendant can not defend him or herself on basis of due negligence.

Going by the Law Society of Upper Canada Continuing Legal Education (2003), once a
company is given permission to manufacture inherently dangerous products such as toxic
gasses; such arrangement is conditional on the company “absorbing the cost of any
damage arising from its hazardous activity”. The law presumes that the enterprise has a
duty to protect individuals working in it or people living next to the establishment (Ajayi
99).Hence the principle of strict liability “became obsolete in the Indian court ruling after
the determination of this case”.

Application In Canada (A Commonwealth Country)

Case1: Scythes & Co. Ltd. (plaintiff) V. Gibson’s Ltd. (Defendant) (1927) [1927] S.C.R. 352

Facts

According to the records of the Supreme Court of Canada (2007), the defendant, a
leaseholder of building, “rented some parts of the building to the plaintiff”. Within the
premise was a stand pipe that conducted water from the city’s system for fire protection
through the building. A pipe which happened to pass through the plaintiff’s premises burst
and the plaintiff‘s goods were damaged by the water. Consequently, the plaintiff sued the
defendant for damages stating that the pipe’s water froze and burst due to the defendant
negligence in failing to heat up the room. Further the plaintiff argued that the defendant
failed to take precautions by turning off the water and draining the pipe during the cold
weather.

Ruling By The Court Of British Columbia

In its ruling the court held that “the defendant was not liable”. Further the judges held that
the pipe was not part of definition of the plaintiff premise area. In this ruling it is clear that
the rule Rylands and Fletcher did not apply, either in its general effect or subject to any of
its modification. Both the plaintiff and the defendant shared the same land and the escape
of the water did not cause damage to a person from another land.

The plaintiff’s premise was described “in terms of floor spaces defined within walls and
partition rather and not on land basis” (Lawteacher.net, 09). Again the water did not cause
adverse or general effect on the natural environment. As stated earlier the rule of Fletcher
is applicable in non natural activities. If the rule was applied in deciding this case then “the
dependent would have been held liable”.

Under the doctrine of the Rylands and Fletcher, the defendant would be held liable “only if
he had control over artificial construction which causes mischief to the plaintiff”. In this
case the judges failed to apply this rule on basis that the defendant did not retain control
over the construction (Ernst Christopher, 165).

Case2: Ross v. Dow Chemicals December (1999) AC No 90-C-2420

According to the Ontario Court of Appeal (2000), the common features prominent in
modern Canadian law are statues that “designed to protect both environment and people
who live work and play in it”. Concerning the above mentioned case, the Dow chemicals,
operated a chemical production plant, in Sarnia city (Linden, 354). Propylene oxide whose
manufacturing process used chlorine was one product of the company.

In November of 1991, uncontrolled fumes of chlorine gas were discharged from the plant
where the oxide was being manufactured (Ontario Court of Appeal, 2000). At time of the
discharge an employee of the complex was working in the roof of the complex checking
valves for proper set. The chlorine gas being heavier than air enveloped the worker
chocking and blinding him. As the worker “became disoriented and could not find his way
down, he stumbled and felled down several times before finally managing to secure a
ladder to the ground”. “This called for a case”.

Court Ruling

Although “the amount of chlorine gas was not too much as earlier described it mattered in
the eyes of the court as put during the case hearing”. The Dow Chemical Canada “was
found guilty and was charged with two offenses”. “The charges for both offenses were
sufficient in guaranteeing that other companies learnt from it”. According to Valerie Hogg
(2006), Judge Eddy, in his ruling held that the release of chlorine gas “was not totally within
the building but to the environment outside the building from where the employee was
working”.

However upon appeal on high court the rule was overturned in the favor of the Down
Company. In his ruling judge, Ross of Supreme court found the company “not guilty on
basic distinction between direct and consequential effects”. This meant that a person
would only be presumed guilty “if the discharged contaminant had an adverse effect on
environment”.

From ruling of the case by the judges “it is evident that the rule of Rylands and Fletcher did
apply”. For one the company “was given chance to rule out the conviction”. The
environmental act clearly outlined that no person was allowed to discharge a hazardous or
contaminant into the natural environment that causes or is likely to cause adverse effect
and event of such happen the person was “supposed to report to the ministry”. However
Dow action “did not cause adverse effect to the natural environment but rather a direct
effect”. If the rule was not applied by the court of appeal then Dow “would have paid the
fine and compensate the victim” (archives.org, 2004).

Application In Africa

Kivuitu vs. the Electoral Commission of Kenya

In Kenya, a country which was under the British Colonial rule until 1963, and “whose many
cases use a replica of the British law system”, the case ruling of Rylands vs. Fletcher has
been modified and incorporated in their constitution as part of the country’s common law
(Alfred Munene, 365). It was put to use in the 2002’s case of Kivuitu vs. the Electoral
Commission of Kenya. This case had involved the breach of electoral Commission rules, in
which Kivuitu was convicted for failing to protect the election ballots in which many votes
were lost following a heavy rainfall that fell in the Coastal part of Mombasa, destroying
votes for Mvita constituency. Kivuitu was then the chairman of the electoral commission of
Kenya.

Court Ruling

When the case was brought to the High court of Kenya, the presiding judge, Kaplana Lawal,
“dropped the case”. If the plaintiff, (Electoral Commission of Kenya) was able prove
otherwise, “the case would be re-petitioned”. To date, there has never been found any
implicating evidence that Kivuitu was on the wrong, a fact that proves that the Rule in
Ryland’s v Fletcher ought to be reviewed.

Conclusion

In all the cases discussed, ranging from Canada, Australia, India and Africa, we can see
that the application of the doctrine of Rhylands v Fletcher had failed to bear fruits. Instead,
the judges are found to advise the complainants of other possible remedies such as
negligence. In Australia, the doctrine of Rhylands v Fletcher is no longer applicable, but has
rather been modified to negligence. The three Australian cases cited have shown that the
plaintiffs or the defendants who relied on the case of Rhylands and FLetcher did not
succeed.

In India and Canada we can see there is difference in application of the doctrine of
Rhylands and Fletcher. First when this rule was adopted in England in late 19th century it
was viewed to play a major role in tort law. However due to advent of tort of negligence and
the concern of strict liability in extreme circumstances it meant it never fulfilled its
foreseen initial promise. This can be evidenced from the two Indian cases outlined in the
paper.

Initially the doctrine was used in some Indian cases but later as evidenced in given cases
the doctrine become marginalized. In Canadian case following the outlined cases in the
paper we can seen that originally the principle was not prominent as it was not used din the
first case. But later we can see its application in cases in Canada. Finally, in Africa, we see
that the doctrine could not be relied upon in which it complicates a simple matter of
negligence into a case that is limited by lack of evidence. Therefore, the doctrine of
Rhylands and Fletcher has no meaning in the modern law.