Professional Documents
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harm if it escapes, and such a use amounts to a non-natural use of land, and
should the substance escape causing damage the tort can be said to exist.
The rule was developed slightly on appeal to the House of Lords where Lord
Cairns is credited as adding the requirement that the use of the land be 'nonnatural.' This highlighted that there is no liability for a natural accumulation.
Care must be exercised over this matter as to what amounts to 'non-natural'
use and this has been the subject of scrutiny by the courts over the years.
Danger
'thing likely to do mischief if it escapes' does not mean that escape is
likely or probable. In Musgrove v Pandelis (1919) a fire accidentally
started in the carburettor of the defendants car in the defendant's garage.
The fire soon enveloped the car and spread to the claimants rooms above
the garage. The defendant was held liable for the negligence of his servant,
who could have prevented the development and spread of the fire. The Court
of Appeal also held that the defendant was liable under the rule in Rylands v
Fletcher because the motor car was a dangerous thing. The parking of a
car with a full tank of petrol was considered a non-natural use as presumably
the petrol was likely to cause damage although the risk of it escaping must
be low, and what was at that time considered a dangerous innovation would
now be seen as commonplace.
In Shiffman v Order of St John of Jerusalem (1936) children in Hyde
Park pulled down a flag pole resulting in the injury of the claimant. The claim
succeeded even though the flag pole was not dangerous in itself, it was held
to amount to an escape for the purposes of Rylands v Fletcher. It was
considered that the flagpole design allowed harm where people, including
children, congregate.
Non-natural User
Few would argue against the sense of the additional requirement of nonnatural use as a result of Lord Cairns views expressed in the former House of
Lords, but this concept has still taken up the court's time in defining what
amounts to non-natural use. Lord Moulton helpfully stated in Rickards v
Lothian (1913) that 'not every use of land brings into play this principle. It
must be some special use bringing with it increased danger to others, and
not merely by the ordinary use of land or such as is proper for the general
benefit of the community.'
What we understand to be non-natural use is not fixed and is likely to change
as and when new technologies allow for new innovative processes, and this
is probably right in that the law needs to reflect the needs of society. On the
other hand natural use arising from domestic use which is considered
natural, may be less likely to change so often. The case of Rickards v
Lothian involved the use of water pipes a natural use as is the use of fire
and electricity. In Rickards v Lothian a wash basin on the top floor of a
property was deliberately blocked and a tap was left turned on. The water
leaked down to the premises below causing damage to stock. The water
pipes and the supply of water was held to be a natural use of the land and
the act of a vandal blocking the sink and turning on the tap counted as an
act of God. The act which caused the damage to the property was a wrongful
act by a third party and there was no non-natural use of land.
Charing Cross Electricity Supply Co v Hydraulic Power Co
(1914) (sometimes simply referred to as the Charing Cross Case)
concerned the storage of water in a high pressure main laid under the road in
a city area. This was considered a non-natural use as it was considered a
danger. The case is usually used to support the argument that volume or
quantities can be associated with the increased risk of harm.
However some characteristics, including the question of whether the public
benefit in some way which makes it a natural use, add to the difficulties of
predicting the outcome of a case. This was the position in British Celanese
v A H Hunt (1969), where the defendants owned a factory on an industrial
estate in which they manufactured electrical components. Strips of their
metal foil escaped from the factory and blew onto an overhead cable,
causing a power failure which stopped production at the claimants factory.
The defendants were held not liable under Rylands v Fletcher because, given
where their factory was sited, theirs could not be called a non-natural use of
land. There were no special risks attached to the storage of foil and the use
was beneficial to the community. On the other hand, the defendants were
held liable in both negligence and nuisance.
Some uses however will always be considered non-natural even though there
may be a public benefit as was the case in Cambridge Water Co Ltd v
Eastern Counties Leather plc (1994) which established the principle that
claims under nuisance and Rylands v Fletcher must include a requirement
that the damage be foreseeable. The case involved the presence of
chemicals originating from the leather company contaminating the water in
the borehole owned by the Claimant water company. At the time the
borehole had been purchased the issues relating to the chemicals were not
known about. Lord Goff finally dismissed the case and argued that it had
always been intended for forseeability of harm to be a factor. The seminal
principle emanating from the case was that industrial processes can be an
unnatural use of land, even if they benefit the community as a whole. Most
importantly, the case of Cambridge Water not only gave new life to the tort
in Rylands , but also brought in a new element of fault. It established that a
defendant could only be liable for a type of damage which was reasonably
Escape
It should be borne in mind that there must be an escape of the thing causing
damage. As regards the nature of such an escape the rule, as originally
outlined by Blackburn, was not strictly limited to situations which involved
neighbouring landowners. Blackburn's original definition could be construed
as intending to create a general liability for harm caused by the escape of
dangerous substances.
Read v Lyons (1947) was interpreted in a restrictive way by Lord MacMillan
when he stated that 'the rule derives from a conception of mutual duties of
Defences
Having explained the general rule in Rylands we now need to turn to the
defences. These include consent or common benefit, act of a stranger, act of
god, statutory authority and contributory negligence.
The case of Dunne v North West Gas Board (1964) supports the view
that if both parties stand to gain and therefore the parties acquiesce in the
keeping of the thing, then one or other of the parties cannot later complain if
there is a problem. In this case a burst water main caused gas to escape
from a gas main. The gas travelled along a sewer and was ignited, this in
turn caused a series of explosions resulting in injuries to five claimants. They
each brought an action based on liability under Rylands v Fletcher. Because
the Gas Board had not accumulated the gas for their own purpose the
defendant was not liable.
Act of Stranger
The act of a stranger is not seen as the act of the defendant if the defendant
is not entitled to exercise any control. This defence proved successful in the
case of a fire started accidentally in Perry v Kendrick's Transport Ltd
(1956). If the escape was caused by the unforseeable act of a stranger
the Rylands v Fletcher rule does not apply. In Perry v Kendricks Transport two
young boys trespassed onto the defendant's land and threw a lighted match
into the petrol tank of a disused bus. There was an explosion and the plaintiff
was injured. As the defendants had no control over the trespassers and they
had not been negligent the Court of Appeal held that the defendants were
not liable. Parker LJ said that once the defendant proves that the escape was
caused by a stranger the burden of proving negligence rests with the
plaintiff. This defence is restricted in the sense that it can only afford a
defence in the case of extreme natural conditions 'which no human foresight
can provide against'. The defendant was not liable as the escape was caused
by the deliberate action of a third party.
Act of God
In Nichols v Marsland (1876) the defendant owned a number of artificial
lakes. Following an exceptional rainfall the lakes overflowed causing the
dams to give way. In the absence of any evidence of negligence the defence
of Act of God was allowed.
The defence of Act of God was pleaded in the Jamaican case of Synagogue
Trust Ltd v Perry (1988). There, it was argued that the spread of a fire by
wind was an act of God for which the defendant was not liable. Not
surprisingly, the contention was rejected by Morgan J. He said:
To avail the defendant, the act must be something which no human
foresight could provide against, and something which human prudence was
not bound to recognise as possible. A windy day in our fair island is
something everyone is bound to recognise, and which every citizen expects
and can guard against or take precautions ... That windy day clearly did not
fall within what can be determined as an Act of God.
Similarly, in Brown v AG (1978), where the deceased had been
electrocuted when she came into contact with a live electric wire which had
fallen to the ground, the defence that the wire had been blown down by the
wind, which was an Act of God, was rejected. Hewlett J said:
Act of God is only a defence if it is impossible to provide against the
occurrence, and in this case the evidence is that there were some strong
winds in Nevis on the night of 8 March 1977. But there is nothing so unusual
about occasional strong gusts in the Caribbean. In fact, we are in a hurricane
zone, and we know to prepare against hurricanes every year, so it cannot be
true to say that strong winds could not reasonably be anticipated.
Statutory Authority
Defendants may escape liability under Rylands v Fletcher if the terms of a
relevant statute clearly authorise their actions. However, many Acts which
permit the performance of dangerous activities do not specify whether the
rule should apply, and the question then becomes one of interpretation of
the particular statute. Statutory authority may amount to a defence if it can
be shown that the escape arose as a direct consequence of the defendant
carrying out a duty imposed under statute. Presumably the basis being that
Parliament anticipated a need for the duty to be carried out and that this
overrode any potential for harm. In Green v Chelsea Waterworks Co
(1894), a water main laid by the defendant burst, flooding the claimants
premises. The company were empowered to lay the main and were under a
statutory obligation to maintain high pressure in the water main meaning
that any escape would be sure to cause damage. The Court of Appeal held
that the company was not liable because they were not only permitted but
obliged by statute to maintain a water supply, and occasional bursts were an
inevitable result of such a duty. By contrast, in Charing Cross Electricity
Co v Hydraulic Co (1914), which featured similar facts, the defendants
were found not to have a defence of statutory authority because the relevant
statute did not oblige them to provide a water supply but only gave them the
power to do so.