#19882 - Rylands V Fletcher Notes - Tort Law

Why did the Australian High Court Abandon Rylands in Burnie Port Authy v General Jones?

The Majority Rule on Rylands

It had been absorbed into negligence.

Blackburn J in Fletcher v Rylands summarised the rule:

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 at his peril. he is, prima facie, liable for all damage which is the natural consequence of its escape. defences include showing the escape was due to the claimant, or the escape was due to a vis major, or an act of god

So:

1. bring and keep something onto your land

2. likely to do mischief if it escapes

3. strict liability for all damage which is a natural consequence of the escape

Defences:

1. claimant consented or contributed/caused the escape (contributory negligence isn’t really a defence, remember)

2. vis major, or act of god¹

3. escape is caused by a third party²

4. (statutory authority³ to keep thing on land – have to act reasonably)

When the case went to the HL, they changed the requirement to ‘non-natural use’. The requirement that D know the thing be mischievous has been interpreted into almost a requirement of foreseeability of damage.

The AHC didn’t like the requirements of ‘dangerous substance’ and ‘non-natural use’. If, as in Rylands itself, water is a dangerous substance for this rule, then the court argued it would be difficult to identify a non-dangerous substance. Brennan J, dissenting in the Australian case, argued the two requirements must be read together. Water is not a dangerous substance on its own, but combined with a non-natural use through which it might cause damage, it becomes a dangerous substance. Although the majority do not raise this point, it seems the requirement of dangerous substance thus adds nothing but confusion.

The minority raised a good point that the determination of non-natural use and dangerous substance is a question of law, unlike the equivalent in negligence which is one of fact.

The majority gave several problems with the rule:

• ‘for his own purposes’ has largely been discarded

• ‘his lands’ has been expanded to include mere occupiers. They argued this was not certain in application and wanted it to include anyone in control but exclude the non-occupying owner

• ‘anything likely to do mischief if it escapes’ has largely been replaced with ‘dangerous’

• liability for damage if the thing escapes is no longer strict – it has mostly been confined to foreseeable losses

• does ‘escape’ mean escape from land, or escape from control?

The majority thought Rylands liability had become assessed in the context of surrounding circumstances. Defences to Rylands liability are similar to those of negligence.

Cambridge Water

The HL argued although both nuisance and Rylands gave rise to strict liability, each had a controlling mechanism. In nuisance it was the ‘reasonable user’ principle, in the latter the notion of ‘natural use’. These are both different to negligence where liability depends on fault or foreseeability of harm.

The waters were muddied when Lord Goff in Cambridge Water decided foreseeability of damage of the relevant type was now a prerequisite to liability under Rylands. He even went on to say ‘I do not consider [the defendant] should be under any greater liability than that imposed for negligence’. Amirthalingam thinks this is practically the same as getting rid of the rule. However, Rylands still allows liability without proof of fault or breach of duty, albeit liability is contingent on reasonable foreseeability of the relevant damage.

Nuisance, Rylands and negligence all now require foreseeability of damage.

Non-Natural Use

First laid down by Lord Cairns in Rylands itself.

A clear example of what is natural v non-natural use is Smith v Kenrick (natural) and Baird v Williamson (non-natural). In the former, water flowed naturally into a mine, despite being as a result of the mining activity, and in the latter water was pumped into the mine.

However, nuisance law now covers things occurring naturally: Goldman v Hargrave, Leakey v National Trust. This is evidence for the argument that Rylands should be abolished.

Further, in Rickards v Lothian, Lord Moulton said for the rule to apply, there must be some special use bringing with it increased danger to others and must not just be ordinary use of the land or use generally beneficial to the community. Waite argues this is simply a restatement of the nuisance rule that liability is not imposed when the activity is reasonable (Bamford v Turnley), and not excessive or abnormal on the ‘give and take’ principle. The control mechanism is at risk of no longer being unique, and thus no control at all.

Lord Goff in Cambridge Water thought the storage of substantial quantities of chemicals on industrial premises should be regarded as a classic case of non-natural use.

But, in Transco, this was shaken up. Lord Bingham considered a non-natural use where the defendant has done something which he recognises, or ought to recognise, as being quite out of the ordinary considering the time and place he does it. Lord Hoffmann thought a use would tend to...