#19883 - Donal Nolan Distinctiveness Of Rylands - Tort Law

The Distinctiveness of Rylands – Donal Nolan

Line: Rylands is not an offshoot of private nuisance, as the HL in Transco thought. Why?

1. Not supported by caselaw

2. There are distinctions between Rylands and nuisance

3. Merging the two would be and for nuisance

4. This version of ‘strict liability’ informed by the offshoot status is unappealing

Lord Goff in Cambridge Water described Rylands as an offshoot of nuisance, which the HL in Transco agreed with. Article also wants to disprove the AHC in Burnie Port Authy who said Rylands had been conflated with negligence to the extend it had no exclusive jurisdiction. Lord Goff in Cambridge Water agreed with Newark that Rylands was an extension of nuisance to cases of isolated escapes. This was the new judicial orthodoxy. Two years after Cambridge Water, Bowsher J in Ellison v MoD said it was difficult to separate the two, and Harvey J in Marcic v Thames Water said much the same. This was all confirmed in Transco.

However, Lord Bingham in Transco argued that since Rylands liability was a remedy for damage to land, no personal injuries were actionable, and only those with a proprietary interest in the land affected could sue.

The Case against Offshoot

• Lord Wright in NW Utilities v London Guarantee and Accident said the two were different in legal character and in many of its applications

• Winfield argued nuisance and Rylands are intersecting circles, not segments of the same circle

• West thinks the difference is nuisance is a wrong caused to land, whereas Rylands is a wrong arising from land

(1) The Caselaw

In Rylands, Blackburn J took a liability rule previously applied to specifics, like cattle and filth, and extended it to mischievous things generally. The liability was also imposed not only for your own actions, but for the acts of anyone not a stranger. Rylands imposed liability for independent contractors ten years before nuisance did in Bower v Peate.

(2) Distinctions between Rylands and Nuisance

Nuisance is a tort against land. Rylands developed into a general cause of action. As per Hunter v Canary Wharf, if a wrong is against land, as per nuisance, claims can’t e brought for personal injury, and only those with an interest in the land have standing.

In Read v Lyons, Lord Uthwatt said Rylands only applied to interference with land, Lord Macmillan said it had nothing to do with personal injury. But this was dicta. With regard to standing, the caselaw before Cambridge Water suggested the right to bring a claim was not linked on having an interest in the property onto which the thing escaped. Lawton J in British Celanese v AH Hunt said ‘once there has been an escape… those damnified may claim. They need not be the occupiers of… any land’. As such, in Charing Cross Electricity Supply v Hydraulic Power, the claimant could claim damages despite having no claim to the land where the cables were damaged. In Shiffman v Order of St John, C could claim damages after being hit by a falling flag pole in Hyde Park. Authorities and academics who think Rylands extends to personal injury

• Parker LJ in Perry v Kendricks Transport

• Lord Cooke in Hunter v Canary Wharf

• Fleming

• Murphy

• Linden

Lord Goff in Cambridge Water thought the control mechanisms of nuisance unreasonable user and Rylands non-natural use were similar. But unreasonable user is concerned with whether interference with C’s land is tolerable – the focus is not on D, but C’s discomfort (Andrew Grubb). Non-natural use focuses on the nature of the defendant’s activity (Maria Lee). As Cross points out, the reasonable user principle is not a general prerequisite for nuisance liability, but a test to establish in a limited number of cases whether the interference is enough to give rise to an action. This is unlike the non-natural use requirement.

Link between defendant and the land where the thing escapes/emanates? In nuisance, the creator of the thing emanating is liable regardless of their link to the land (Jones v Portsmouth City Council). Some consider the defendant’s occupation of land a prerequisite to Rylands liability – Pett v Sims Pavin and Road Construction.

In Rylands the involvement of independent contractors makes no difference, as per Rylands itself, but in nuisance the general rule is that an occupier who employs a contractor to do work on his behalf is not liable if unlawful interference results – Matania v National Provincial Bank. However there are exceptions, like where the task the contractor’s engaged in of its very nature involved a risk of damage to a third party – Matinia.

In terms of defences, two – consent and statutory authority – are shared by Rylands and nuisance, but both are general defences to tort liability anyway. The other three Rylands defences are act of God/vis major, act of a third party and default of the claimant (where the escape is entirely C’s fault). These defences are causation based. There is no equivalent in nuisance.

(3) Merging Rylands with Nuisance will be Bad for Nuisance

Assimilation of the two torts seems to be leading judges to applying Rylands principles to ordinary nuisance cases, with unfortunate results. In Dennis v MoD, Buckley J held using an airfield to train pilots was an extraordinary use of land the noise that resulted was a nuisance. In Crown River Cruises v Kimbolton Fireworks, Potter J said physical damage caused by a fireworks display was an actionable nuisance because it was not an ordinary and reasonable incident of river life. This would wreak havoc on nuisance – it would mean any interference with land caused by extraordinary use will be actionable, no matter how trivial, and that ordinary use is never actionable, no matter how intolerable. HL has already begun; they held ordinary use is never actionable in nuisance (Southward LBC v Mills).

Secondly, extending nuisance to isolated escapes undermines the essential nature of the cause of action. In nuisance, you’re not being punished for the interference itself, but the state of affairs that causes the interference (Seavey). Because nuisance is a wrongful state of affairs, the interference doesn’t have to have happened yet for you to obtain an injunction (Winfield). This sort of injunction before any harm has occurred is a quia timet injunction. Rylands is different – as Mellish LJ remarked in Nichols v Marsland, the wrongful act is not the making or keeping the reservoir, but the allowing or causing the water to escape. Here, there is no wrongful state of affairs you could describe as a nuisance. As per Bagshaw, this points to a fundamental difference between nuisance and Rylands. He says one of the functions of nuisance is to decide what activities people should be permitted to pursue in a particular locality, given the impact on the neighbours. It is no part of Rylands to forbid particular activities, rather it’s a rule which requires those who pursue some activities to internalise the cost of escapes. It’s a rule about who pays when things go wrong rather than about whether D’s activity is wrongful.

However, there are some nuisance cases which involve one-off escapes. But they tend to fall within the Leakey v National Trust category of liability being contingent on proof of carelessness, and since Rylands is strict liability (at least as far as the escape’s concerned), the overlap isn’t awful. Gearty argues these cases are best regarded as negligence liability dressed up in nuisance clothing, anyway. Apart from this category, there are a few one-off nuisance cases before Cambridge Water, although Nolan thinks none are persuasive. In Midwood v Manchester Corp, an explosion was caused by the deficient insulation of the defendant’s electric main. This was a nuisance case for some reason, and could easily have come under Rylands. In British Celanese v AH Hunt, foil strips stored on D’s premises had blown onto the bus bars of a neighbouring electricity sub-station, and affected the electricity supply to C’s factory. Since C suffered physical damage to their property, recovery in negligence was straightforward. However, Lawton J held D was also liable in nuisance, but how is damage to materials an interference with use and enjoyment with land? The same judge deciding Spartan Steel made no mention of nuisance, and that was a similar case. The final one-off nuisance case is Spicer v Smee. Defective electric wiring in Ds bungalow caused a fire which destroyed a neighbour’s house. Atkinson J decided to award damages in nuisance, but this was off because liability for fire and liability for nuisance have always been separate (Winfield). But this means, if the defective wiring was nuisance (the state of affairs is the nuisance), C should have been able to get an injunction requiring D to fix the wiring before the fire took place. A similar case in Midwood was dismissed as nuisance by Mathew LJ.

Nolan agrees with Lord Denning in AG v PYA Quarries that an isolated act may be negligence or Rylands, but not nuisance. Nuisance always involves some degree of repetition or continuance.

(4) The version of the strict liability rule from the offshoot theory is unappealing

In Transco, Lord Bingham summed up the reformulated rule:

An occupier of land who can show that another occupier of land has brought or kept on his land an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances is in my opinion entitled to recover compensation from that occupier for any damage caused to his property interest by the escape of that thing, subject to defences of act of God or of a stranger, without the need to prove...