Ordeal by water and fire

Rylands v Fletcher [1868] LR3 HL 330 is a case which generations of lawyers have discussed since it was decided. In the current (19th) edition of Clerk and Lindsell on Torts it merits 71 entries in the index. However, in recent years there has been a tendency for the House of Lords to seek to restrict the principle laid down in the case, as it is not in accordance with modern social and political conditions and as not laying down any significant principle separate from the law of nuisance and negligence. In Australia the rule has been abolished as incompatible with the development of the law of negligence. However, there are strong arguments for saying that Rylands v Fletcher is not only still very much alive but also, by imposing strict liability for certain types of activity on land, performs a valuable economic and social function of allocating risk efficiently and justly.

Rylands v Fletcher: the decision

The case concerned a privately constructed water reservoir the floor of which failed, resulting in water leaking into the plaintiff's mine. Judgment for the plaintiff was upheld in the House of Lords. In the Court of Exchequer Chamber Justice Blackburn said: 'We think that the true rule of law is, that the person who for his own purposes brings on to his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence if its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God.'

This was approved by the House of Lords, although Lord Cairns restricted the application of the rule to circumstances where there had been a 'non-natural' use of land by the defendant.

The case established a new principle; the court was in effect extending the law of nuisance to give a remedy where justice required it. The plaintiff could not have sued in nuisance since the mere presence of the water on the defendant's land prior to its escape did not interfere with his land. A claim in negligence failed because the defendant had not been personally at fault. He had employed an apparently competent engineer and contractor.

The rationale was that landowner was free to use his land as he chose, but had to undertake strict liability if there was a dangerous escape from his land.

Rylands v Fletcher: the retreat

However, since the Second World War the House of Lords has adopted a generally restrictive interpretation of the principle, as exemplified in three cases, Read v J Lyons & Co Ltd [1947] AC 156 ('Read'); Cambridge Water Company Ltd v Eastern Counties Leather Ltd [1994] 2 AC 264 ('Cambridge Water'); and Transco plc v Stockport MBC [2004] 2 AC 1 ('Transco').

In Read a claim by a worker in a munitions factory for personal injury caused by an explosion of a shell in the factory failed because there had been no escape from the defendant's land to land beyond his occupation or control. In Cambridge Water, the House of Lords held that foreseeability of harm of the relevant type was a requirement of Rylands v Fletcher liability. The action related to pollution of a borehole by chlorinated solvent used in a factory some distance away soaking in to the ground. The House of Lords held that the use in the factory of the solvent was a non-natural use of land, but that the risk of contamination of the borehole was not foreseeable. The claim therefore failed. Lord Goff of Chieveley who gave the only opinion, showed clear reluctance to sanction an expansion of liability under the principle. Rylands v Fletcher should be regarded simply as an extension of the law of nuisance, rather than a developing principle of strict liability. He supported this view by reference to the growing volume of well-informed and carefully structured legislation on environmental matters.

The lack of enthusiasm for Rylands v Fletcher carried on in Transco in which water escaping from a water main caused the collapse of an embankment and the loss of support to the claimant's gas main. The claim failed on the ground that the use of land for a water main was not a non-natural user. This was in line with earlier authorities.

The House of Lords flirted with the idea of abolishing the rule, as had the High Court of Australia in Burnie Port Authority v General Jones Pty [1994] 179 CLR 520. The entire house rejected this as too radical.

However, two of their Lordships sought to limit the rule. Lord Bingham suggested that the principle was simply part of the law of nuisance 'novel only to the extent that it sanctioned recovery where the interference by one occupier of land with the right or enjoyment of another was isolated and not persistent'. Lord Hoffman preferred to limit the rule to those residual situations where no statutory provision was made and where insurance against such liability would be available. He asserted (incorrectly'“ see the authorities below) that there had been no case since 1945 when a claim had succeeded.

It was left to Lord Hobhouse, in a cogent and succinct opinion, to reject the suggestion that the availability or otherwise of insurance was relevant and to defend the rule and its rationale of imposing strict liability as the price of not restricting use of the land for high risk activities.

Other authorities

Despite the views of some of their lordships, there are a significant number of cases since 1945 where the rule has been applied both in favour of claimants and against them. Fire and flood predominate.

In Mason v Levy Autoparts of England [1967] 2 QB 530 the defendant was held liable for the escape from his premises of a fire in an accumulation of inflammable packaging, petroleum, acetate and paints. This was held to be a non-natural use of land.

In Hobbs (Farms) v Baxenden Chemical Co [1992] 1 Lloyds Rep 54 liability was imposed where the defendant's premises were insulated with inflammable foam.

Fire liability

In LMS v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC) 171 it was held that liability was established under this principle where a fire originated in large quantities of highly inflammable plastic foam and products produced from such foam at the defendants' premises and spread to those of the claimant. The LMS case contains a valuable and thorough review of the authorities and deserves wider notice

Finally, in Re-Source America International Ltd v Platt Site Services Ltd [2003] EWHC 1142 (TCC) liability arose for fire which escaped from part of a warehouse where welding was taking place to add an extension without adequate protection.

Flood damage

In the realm of flood damage, in Superquinn Ltd v Bray UDC [1998] 2 IR 542 the Irish High Court considered a claim for damage caused by the failure of a dam owned by Coillte (the Irish forestry commission), forming part of an artificial lake fed by a stream during a period of exceptional rainfall. The release of the water surcharged the river Dargle into which the valley below the lake fed, and caused flooding to the plaintiff's premises. Ms Justice Laffoy said: '

In my view, Coillte could reasonably have foreseen that, if the dam at Paddock Pond failed and the impounded water escaped, it would flow via the gorge and watercourse into the Dargle and that damage in the nature of flooding of the riparian properties downstream would ensue.

Coillte however argued that the exceptional rain was an act of God for which it bore no liability. This argument was supported by Nichols v Marsland [1876] 2 Ex D 1, a case in which dams at the ends of artificial lakes failed during exceptional rainfall. The Court of Appeal held that the defendant ought not to be held liable because she did not prevent the effect of an extraordinary act of nature, which she could not anticipate.

Laffoy J, after considering the authorities, stated that: 'I consider that the test to be applied is whether the storm...could reasonably have been anticipated or guarded against by Coillte. I am satisfied that the evidence shows that the storm did fall within the category of the most extreme natural phenomena and could not reasonably have been anticipated or guarded against, so that the defence of act of God succeeds.'

Useful function

The revolutionary principle laid down by Rylands v Fletcher remains very much alive, and performs a useful function particularly in cases of fire escaping from premises full of inflammable materials and dangerous processes. There is no justification for restricting it to areas where liability is not regulated by statute or to those in which insurance is available against strict liability.