LAW OF TORT II

LECTURE 7

Professor Edmund Ato Kwaw

Faculty of Law,
University for Professional Studies,
Accra
 NUISANCE 1
DEFENCES TO NUISANCE:
1. Coming to the nuisance – Miller v. Jackson, [1977] QB 966
2. Statutory authority
3. Planning (Zoning) permission
 
 REMEDIES:
1. Injunction – Shelfer v. City of London Electric Co.,[1895] 1 Ch.
287
 RULE IN RYLANDS v FLETCHER 1
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1
Defendants owned a mill and employed independent contractors to
construct a reservoir on their land. The contractors found disused
mines when digging and the reservoir was placed over the disused
mines. However, the contractors failed to seal the mines properly.
When they filled the reservoir with water, water flooded through the
mineshafts into the plaintiff’s mines on the adjoining property. The
plaintiff was successful at Liverpool Assizes. The Court of
Exchequer Chamber held the defendant liable and the House of
Lords affirmed their decision.
Held:
“If a person brings, or accumulates, on his land anything which, if it
should escape, may cause damage to his neighbour, he does so at his
peril. If it does escape, and cause damage, he is responsible, however
careful he may have been, and whatever precautions he may have taken
to prevent the damage.” (Lord Cranworth)
 RULE IN RYLANDS v FLETCHER 2
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
Held:
“The Defendants, treating them as the owners or occupiers of the
close on which the reservoir was constructed, might lawfully have
used that close for any purpose for which it might in the ordinary
course of the enjoyment of land be used; and if, in what I may
term the natural user of that land, there had been any
accumulation of water, either on the surface or underground, and
if, by the operation of the laws of nature, that accumulation of
water had passed off into the close occupied by the Plaintiff, the
Plaintiff could not have complained that that result had taken
place. If he had desired to guard himself against it, it would have
lain upon him to have done so, by leaving, or by interposing,
some barrier between his close and the close of the Defendants in
order to have prevented that operation of the laws of nature…”
 RULE IN RYLANDS v FLETCHER 3
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
Held:
“…On the other hand if the Defendants, not stopping at the natural use of
their close, had desired to use it for any purpose which I may term a non-
natural use, for the purpose of introducing into the close that which in its
natural condition was not in or upon it, for the purpose of introducing
water either above or below ground in quantities and in a manner not the
result of any work or operation on or under the land, - and if in
consequence of their doing so, or in consequence of any imperfection in
the mode of their doing so, the water came to escape and to pass off into
the close of the Plaintiff, then it appears to me that that which the
Defendants were doing they were doing at their own peril; and, if in the
course of their doing it, the evil arose to which I have referred, the evil,
namely, of the escape of the water and its passing away to the close of the
Plaintiff and injuring the Plaintiff, then for the consequence of that, in my
opinion, the Defendants would be liable.” (Lord Cairns)
 RULE IN RYLANDS v FLETCHER 4
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
Held:
“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 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.” (Lord
Blackburn)
 RULE IN RYLANDS v FLETCHER 5
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
Requirements for the rule
  
1. Accumulation on the defendant’s land (must be brought or created by
the defendant and kept on the land)
2. Of a thing that is likely to do mischief if it escapes
3. The accumulation was a non-natural use of the land
4. The thing escapes
5. Damage to the Plaintiff which must not be too remote (must be
foreseeable)
 
 RULE IN RYLANDS v FLETCHER 6
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
Requirements for the rule
 Does not apply
 
1. If the thing (the accumulation) is already on the land or is there
naturally.

2. Where the escape is due to an act of God, a default on the part of the
plaintiff

3. Where the thing that escapes is present by the consent of the plaintiff

4. Where there is no escape

 RULE IN RYLANDS v FLETCHER 7
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law
A – Defendant should have created the accumulation or brought it onto
his land

Giles v Walker [1890] 24 QBD 656

“Seeds from some thistles growing naturally on Defendant’s land blew into P’s
land damaged his crops. Defendant had neglected to weed the land.
Held: The defendant was not liable because he had not brought the thistles
onto his land.

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

Some rocks from the Defendant’s land fell onto Plaintiff’s land.
Held: The Defendants were not liable as they had not brought the rocks onto
the land to accumulate them. Further, the escape was also caused by natural
events, ie. weather conditions had caused an avalanche which had caused the
rocks to fall.

  
 RULE IN RYLANDS v FLETCHER 8
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law

A – Defendant should have created the accumulation or brought it onto his land

Ellison v Ministry of Defence (1997), 81 BLR 101

The Ministry of Defence constructed bulk fuel installations at Greenham Common. As a result
of the construction, rainwater that had accumulated flowed off the land and flooded an
adjoining land. Plaintiff sued.

Held:
1. The construction was not a non-natural use of the land but a natural use of the land,
necessary for it to be used as an airfield.
2. The rainwater had accumulated there and had not been brought there by the defendants.
The escape of the rainwater which caused flooding to neighbouring land did not give rise to
liability.

NOTE: It is still possible for there to be an action in NUISANCE where the defendant is aware
of the thing causing the nuisance and has in effect ‘adopted it’ by failing to do anything about
it. (See Leakey & Ors  v National Trust [1980] QB 485  Court of Appeal)

  
 RULE IN RYLANDS v FLETCHER 9
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law

A – Defendant should have created the accumulation or brought it onto

his land

Leakey & Ors  v National Trust [1980] QB 485  Court of Appeal)

Facts:
Defendants owned land (called Burrows Mump) that abutted the Plaintiff’s home. There
was a mound of earth on the land. The defendants had been advised that if there was a
natural mud slide, there would be no liability so they had done nothing since 1968.
Following a very hot dry summer in 1976 and unusually heavy rainfall in the autumn, a
big crack appeared in the bank of earth over Mrs Leaky’s home. She noticed it, advised
the defendants and offered to pay half the cost of making it safe. Her offer was rejected.
A few weeks later there was a large mud slide which caused damage to her property.
She joined forces with other neighbours to bring an action in nuisance.

  
 RULE IN RYLANDS v FLETCHER 10
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law
A – Defendant should have created the accumulation or brought it onto
his land
Leakey & Ors  v National Trust [1980] QB 485  Court of Appeal) (contd)

Held:
“The defendant's duty is to do that which it is reasonable for him to do. The criteria of
reasonableness include, in respect of a duty of this nature, the factor of what the
particular man - not the average man - can be expected to do, having regard, amongst
other things, where a serious expenditure of money is required to eliminate or reduce
the danger, to his means. Just as, where physical effort is required to avert an
immediate danger, the defendant's age and physical condition may be relevant in
deciding what is reasonable, so also logic and good sense require that, where the
expenditure of money is required, the defendant's capacity to find the money is relevant.
But this can only be in the way of a broad, and not a detailed, assessment; and, in
arriving at a judgment on reasonableness, a similar broad assessment may be relevant
in some cases as to the neighbour's capacity to protect himself from damage, whether
by way of some form of barrier on his own land or by way of providing funds for
expenditure on agreed works on the land of the defendant.” (Megaw L.J.)

  
 RULE IN RYLANDS v FLETCHER 11
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law

A – Defendant should have created the accumulation or brought

it onto his land

Leakey & Ors  v National Trust [1980] QB 485  Court of Appeal)

(contd)

Held:
The National Trust was liable. A defendant is liable for a naturally
occurring hazard on the land if they are aware of the danger and
failed to act with reasonable prudence to remove the hazard.

  
 RULE IN RYLANDS v FLETCHER 12
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law
Contrast the above cases with

Miles v Forest Rock Granite (1918) 34 TLR 500

The defendant brought explosives onto his land and used them to blast rocks that
were naturally on his land. The blasting caused some of the rock fragments to fly
onto the highway, hitting and injuring the claimant. The claimant brought an action
under the rule in Rylands v Fletcher.  

Held
The thing that escapes need not be the thing accumulated. There was strict
liability. There had been an escape of a sorts, namely the blast. While the rocks
were not brought onto the land, the defendant had brought the explosives onto
his land which caused the rocks to fly out. A non-natural use of the land could in
effect extend the rule to damage done by naturally occurring objects.

  
 RULE IN RYLANDS v FLETCHER 13
B. Accumulated for the purposes of the defendant – NOTE: this does
not mean that it is for the benefit of the defendant.
Dunne v North West Gas Board [1964] 2 QB 806
Water leaked following a burst water pipe, and the water had
washed away the soil supporting a gas main, causing a gas leak.
Gas, under pressure, had then escaped, travelled along a sewer
and ignited, causing a series of 46 explosions in Liverpool, resulting
in injuries to five claimants. One was blown off her bicycle, two
young children were injured playing in the street and a husband and
wife suffered injuries in their home. They each brought an action
based on liability under Rylands v Fletcher.
Held 
The defendant was not liable. The Gas Board had not accumulated
gas for its own purposes. Works carried out by virtue of a statutory
authority are an exemption to liability under the rule in Rylands -v-
Fletcher.
 RULE IN RYLANDS v FLETCHER 14
B. Accumulated for the purposes of the defendant – NOTE: this
does not mean that it is for the benefit of the defendant.
Pearson v North Western Gas Board [1968] 2 All ER 669
The gas main outside the plaintiff’s house exploded, killing her
husband and destroying the house. There had been particularly
cold weather and this caused the ground to freeze and then
buckle during the thaw. This caused the pipe to fracture. The gas
board alleged that they had taken all reasonable precautions to
prevent gas leaks. Plaintiff sued.
Held:
Her claim failed under Rylands v Fletcher following Dunne v
North West Gas Board.
 RULE IN RYLANDS v FLETCHER 15
C. A thing likely to do mischief
Under the rule, The thing need not be inherently hazardous,
it need only be a thing likely to cause damage if it escapes:
“Things” which have been held in the past as within the rule
include;
1. Electricity (National Telephone Co v Baker [1893] 2 Ch. 186),
explosives (Rainham Chemical Works Ltd v Belvedere Fish
Guano [1921] 2 A.C. 465); C.S.
2. Gas canisters (Rigby v Chief Constable of Northamptonshire [1985]
1 W.L.R. 1242);
3. A motor car petrol tank (Musgrove v Pandelis [1919] 2 K.B. 43
and Perry v Kendricks Transport Ltd [1956] 1 All E.R. 154),
4. Fumes (Halsey v Esso Petroleum Co Ltd [1961] 2 All E.R.145),
5. Coal (see Anthony v Coal Authority [2005] EWHC 1654 (QB))
 RULE IN RYLANDS v FLETCHER 16
C. A thing likely to do mischief
Under the rule, The thing need not be inherently hazardous,
it need only be a thing likely to cause damage if it escapes:
“Things” which have been held in the past as within the rule
include;
1. Electricity (National Telephone Co v Baker [1893] 2 Ch. 186),
explosives (Rainham Chemical Works Ltd v Belvedere Fish
Guano [1921] 2 A.C. 465); C.S.
2. Gas canisters (Rigby v Chief Constable of Northamptonshire [1985]
1 W.L.R. 1242);
3. A motor car petrol tank (Musgrove v Pandelis [1919] 2 K.B. 43
and Perry v Kendricks Transport Ltd [1956] 1 All E.R. 154),
4. Fumes (Halsey v Esso Petroleum Co Ltd [1961] 2 All E.R.145),
5. Coal (see Anthony v Coal Authority [2005] EWHC 1654 (QB))
 RULE IN RYLANDS v FLETCHER 17
C. A thing likely to do mischief
Note: can also include things which are not dangerous whilst
contained, but become dangerous when released.
Crowshurst v. Amersham Burial Board,[1878] LR 4 Ex D 5
The defendant planted a yew tree on their property but very close to
the plaintiff’s property. Over time, the trees grew and their branches
extended over the fence separating the plaintiff’s from the
defendant’s properties. Leaves fell from the trees onto the plaintiff’s
property and the plaintiff’s horse ate the leaves. The horse died from
yew poisoning. Plaintiff sued under  Rylands v Fletcher.
Held: Defendant was liable. Since the tree was poisonous to some
animals it was a non-natural use of the land. It could not be an
ordinary use to plant trees which have the potential to harm the
livestock of one’s neighbour. Further, the tree could be said to have
“escaped” the land as its branches reached out onto neighbouring
land, even though the tree itself obviously did not move.
 RULE IN RYLANDS v FLETCHER 18
C. A thing likely to do mischief
Transco Plc. v. Stockport Metropolitan Borough
Council,[2003]UKHL 61
A waterpipe took water to a block of flats owned by the
council. Unknown to anyone, the pipe had failed and water
was escaping. This water caused an embankment to
collapse and a gas main was exposed and unsupported.

The House of Lords decided in favour of the Council

because the supply of water through the pipes was normal
and did not create any special hazard.
 RULE IN RYLANDS v FLETCHER 19
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law
Mark Stannard (t/a Wyvern Tyres) v. Robert Raymond Harvey Gore,
The Defendant (Appellant) supplied and fitted car tyres. They had
constructed racks along the length of two small offices to the side of the
premises and to the rear of the building for the storage of tyres. Some had
been piled as high as the chimney. The Plaintiff’s premises were behind
the defendants’. Between them was a space that was also used for the
storage of new and part worn tyres. On 4 February 2008 at about 6.15
p.m a fire broke out. It started in the front workshop section and quickly
intensified. The blaze spread into Mr Gore’s premises and destroyed it.
Plaintiff sued

Held (At trial)

There was an escape within the meaning of the rule. Liability turned on
whether or not Mr Stannard’s activities were dangerous and a non-natural
use of his land.
  
 RULE IN RYLANDS v FLETCHER 20
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law
Mark Stannard (t/a Wyvern Tyres) v. Robert Raymond Harvey Gore,
Held (At trial) [contd]
Given the way the tyres were stored, there was an exceptionally high risk of
damage to the claimant’s premises if fire broke out and that once alight, fires
could burn rapidly and intensively so there was a foreseeable risk. It was thus a
non-natural use of the land. The situation that the defendant had created was out
of the ordinary. It would have been routine for a tyre business to store tyres in an
orderly fashion and in numbers well within the capacity of its storage facilities.
This was not the case here and it was consequently non-natural use.
Held (On Appeal)
Since the essence of the rule was to impose liability in the absence of negligence
in isolated occurrences, it had to be shown that the defendant had done
something, which, judged, by standards appropriate at the relevant place and
time, gave rise to an exceptionally high risk of danger or mischief if there should
be an escape.

  
 RULE IN RYLANDS v FLETCHER 21
Rylands v. Fletcher (1868), LR 3 Exch 330; UKHL 1 (contd)
The case law
Mark Stannard (t/a Wyvern Tyres) v. Robert Raymond Harvey Held (On Appeal)
(contd)
Applying the principles set out in Transco:
1. The thing brought onto the defendants’ premises was a large stock of tyres.
2. Tyres as such are not exceptionally dangerous or mischievous.
3. There was no evidence that the defendant recognised, nor that he ought to
have recognised, that there was an exceptionally high risk of danger from
mischievous tyres as such should have escaped.
4. The tyres did not escape. The fire escaped.
5. Keeping a stock of tyres, even a very large stock on the premises of tyre fitting
business, was not for the time and place an extraordinary or unusual use of the
land. Therefore the facts could not be drawn within Rylands v Fletcher liability
and the claim had to fail.