Nuisance Flashcards
Sedleigh-Denfield v O’Callaghan 1940 AC 880 (esp at 902-4)
Private Nuisance:
• Facts
o HL
♣ The council undertook some work on the defendant’s land at the request of a neighbouring landowner.
♣ They had placed a culvert in a ditch to allow water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. However, a heavy rainy storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the claimant and caused substantial damage.
♣ The claimant brought an action in nuisance for the damage caused.
♣ The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert.
o Held
♣ D was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance.
♣ Lord Maugham:
• ‘I am of the opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour’s land.
• They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.’
Note
♣ Case on the positive duties of an occupier.
♣ Viscount Maugham provides useful definition of adopting and continuing the nuisance.
♣ Lord Atkin, specifies the similarities and differences between nuisance and negligence.
o Specifies that the action in nuisance does not require any degree of negligence, but that it does require some degree of ‘personal responsibility’.
o So, in addition to the question of whether the interference amounts to a nuisance, there is the further and separate question of whether there is a sufficient link between the occupier of land, and the nuisance, to justify liability on the part of the occupier.
Leakey v National Trust 1980 1 All ER 17
Private Nuisance:
• Facts
o The national trust had built an artificial bank which experienced a landslide, damaging the claimant’s property.
o In-depth facts CA
♣ Cs’ land had been damaged by falls of soil and other debris from D’s land known as Burrow Mump. The falls were caused entirely by nature.
♣ Ds were aware of the risks since 1968. They had taken legal advice and were told that they would not be liable for naturally occurring slides and consequently did nothing to prevent such slides.
♣ Following an exceptionally hot dry summer of 1976 and unusually heavy rainfall in the autumn, Mrs Leaky noticed a big crack appear in the bank above her house. She informed the national trust and offered to pay half the cost of making it safe.
♣ Her offer was rejected. A few weeks later there was a large fall. She joined forces with other neighbours to bring an action in nuisance.
• Issue
o Was the National Trust liable?
• Held
o Yes
♣ The damage was foreseeable
♣ Analogous to fire in Goldman v Hargrave
o The National Trust were liable following the PC decision in Goldman v Hargrave. A defendant is liable for a naturally occurring hazard on the land if they were aware of the danger and failed to act with reasonable prudence to remove the harzard.
♣ Megaw LJ
• ‘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, among other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means…’
Holbeck Hall v Scarborough BC (CA) 2000 2 WLR 1396
Private Nuisance:
• Facts
o Cs owned Holbeck Hall, a four-star hotel situated on South Cliff in Scarborough. The defendant council owned the land between the hotel and the sea.
o A massive land slip took place on the cliff. The lawn of the hotel disappeared into the sea and the ground under the seaward wing of the hotel collapsed. As a result, the hotel became unsafe and had to be demolished.
o The claimants brought an action based on the principle in Goldman v Hargrave + Leaky v National Trust. It was said that although D did not know or foresaw that the hazard was of such a magnitude that it would be likely to involve the grounds of the hotel itself, they owed a duty of care to the plaintiffs and had been negligent in failing to conduct further geological investigation as devised by the engineers, which would have made it clear that further remedial works were required to ensure the long-term stability of the slope.
o Judgement found for C and the council appealed.
• Held
o Appeal allowed.
o The council was not liable. In assessing the scope of the duty imposed under the principle in Leaky v National Trust the courts are to take into account the resources of the defendant.
o Stuart Smith LJ
♣ ‘the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking fault of his own. His interest, and his resources, whether physical or material, may be of a very modes character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust.’
o 1. It was held that the owner or occupier of land owed a measured duty of care to prevent danger to a neighbour’s land from lack of support due to natural causes where the owner or occupier knew, or was presumed to know, of the defect or condition on his land giving rise to the danger. And where it was reasonably foreseeable that the defect or condition would, if not remedied cause damage to the neighbour’s land.
♣ That the duty arose when the defect was known and the hazard or danger to the neighbour’s land was reasonably foreseeable.
o 2. That the scope of duty depended not only upon the defendant’s knowledge of the hazard, but also the extent to which the damage was foreseen, and whether it was fair just and reasonable to impose a duty. Since, the defendants were not aware of the magnitude of the danger which in fact occurred they were not liable to the plaintiffs.
** Cambridge Water Co v East Counties Leather (HL) 1994 1 All ER 53; 1994 2 WLR
Private Nuisance:
• Established the principle that claims under nuisance and Rylands v Fletcher must include a requirement that the damage be foreseeable; it also suggested that Rylands was a sub-test of nuisance rather than an independent tort, a debate eventually laid to rest in Transco plc v Stockport Metropolitan Borough Council.
• Facts
o The Cambridge Water Company were responsible for providing portable water to the inhabitants of Cambridge and the surrounding areas. They purchased a borehole due to rising demand. In 1980 a Directive was issued requiring nations of the European Community to establish standards in water which they did.
o It was found that the borehole was contaminated with a liquid that had originated in a tannery owned by Eastern Counties Leather. Cambridge Water Co sued.
o HC
♣ Kennedy J dismissed the claims under nuisance, negligence and Rylands v Fletcher because the harm was not foreseeable.
o CA
♣ Kennedy’s decision was reversed.
o HL
♣ Lord Goff – argued that it had always been intended for foreseeability of harm to be a factor, something not previously put into law by the English judiciary.
♣ Goff – then stated that Rylands was arguably a sub-test of nuisance, not an independent tort, and as such the factors which led him to including a test of foreseeability of harm in Rylands cases also imposed such a test on all nuisance cases.
o The decision in this case – made an immediate change to the law, for the first time requiring foreseeability of harm to be considered in cases brought under Rylands v Fletcher and the general tort of nuisance.
o It was also significant in implying that Rylands was not an independent tort, something later concluded in the case of Transco.
o Goff’s judgment has been criticised on several points. It is pointed out that there are flaws in the wording which leave parts of the judgment ambiguous.
• Significance of case:
o 1. This was the first decision which imposed a requirement of foreseeability of harm to cases brought under Rylands v Fletcher, ‘it must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place or time, or ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be’.
o 2. It was the first decision to state that Rylands may be a sub-test of nuisance, and as such applied the same requirement of foreseeability of harm to nuisance, where previously such a requirement had not existed.
• Critics
o Academic Tom Clearwater
♣ Criticised some of the language Lord Goff used – ‘anything likely to do mischief if it escapes’ and ‘answer for the natural and anticipated consequences’ to justify his argument that Rylands had always intended foreseeability to be a factor suggests Goff.
♣ The reliance on Newark’s article was also criticised, since ‘Neither he nor Goff attempted to justify their opinion with reference to anything external to [the Rylands] judgment’
o Peter Kutner
♣ Argues that there is a significant ambiguity in Goff’s judgment. Cases brought under Rylands now have a requirement that the harm was foreseeable, but it was not defined whether or not it was sufficient that it be foreseeable that harm could occur, or that it be foreseeable that the use of land is ‘non-natural’, that the substance be capable of doing ‘mischief’, and all the other requirements of Rylands.
♣ He also states that the decision did not explain precisely whether Rylands should be treated as a development within the law of nuisance, or something which sprung from nuisance and retains a separate existence.
♣ He interpreted the Cambridge Water Company decision as not being sufficient to completely write out Rylands as a distinct doctrine; this was later done in Transco.
Note
• Lord Goff, discussed the applicability and interpretation of the remoteness criterion in nuisance.
o The HL found that reasonable foreseeability is an essential element of liability in Rylands, just as it is in nuisance.
o 1. Do note that there is some case law where foreseeability is not a requirement.
o 2. Rylands is accepted to be a sub-branch of nuisance relating to isolated escapes – therefore, the development of a remoteness rule for nuisance in the form of a reasonable foreseeability, as explained in the Wagon Mound.
o 3. Lord Goff saw Rylands as part of a developing principle of strict liability for ultra-hazardous operations.
** Hunter v Canary Wharf (HL) [see Dobson] 1997 2 WLR 684; 1997 2 All ER 426
Private Nuisance:
• Facts
o Private nuisance case.
o Several hundred claimants alleged that Canary Wharf Ltd, in constructing One Canada Square, had caused nuisance to them by impairing their television signal. The HL held that such interference could not amount to an actionable nuisance; the nuisance was equivalent to loss of a view, or a prospect, which had never previously been actionable.
• Held
o The first issue to consider who could be seen to have a legitimate right in the land. They upheld the decision in Maloney v Laskey establishing that only householder with a right to a property could commence actions in nuisance.
o The second issue was that, after establishing who could bring an action for nuisance, what rights were protected by the tort. Lord Lloyd referred to three areas of private nuisance:
♣ ‘Private nuisance is of three kinds. They are (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quite enjoyment of land.’
o The issue at hand was whether it would be fair in the circumstances to impose restrictions upon land owners with regard to their right to build properties.
♣ Lord Goff referred o several authorities in support that merely blocking a property owner’s view, airflow, or light, is not actionable. He stated: ‘more is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance.’
• Significance
o Before Hunter it had been stated in Bridlington Relay v Yorkshire Electricity Board that it was not thought interference to television reception could give rise to an actionable nuisance, Buckely J - comments were obiter.
- Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2012] 3 W.L.R. 795
Private Nuisance:
• CA rules in test case that residents have potential claim for nuisance by smell from landfill site.
• Summary
o A judge had erred in dismissing a claim of nuisance relating to smells emitted by a waster-tipping site by extending the existing principles of ‘reasonable user’ and considering that complying with the terms of a permit meant that such use of the site had been reasonable. There was no basis for using a statutory scheme to cut down private law rights and in any event, the permit did not authorise the emission of such smells.
• Facts
o A housing estate was built in an area with a history of quarrying and back-filling.
o In 1980 the local planning authority granted planning permission for the tipping of industrial and household waste at a site nearby, tipping continued from 1984 until 2004.
o In 2003 the Environment Agency, exercising its statutory powers granted a waste management permit for the tipping of pre-treated waste at another part of the site, subject to detailed conditions including requirements for compliance with a defined working plan and measures to control, minimise and monitor odours. The permit was transferred to D which operated in the site.
o Odour complaints from residents on the estate began within a week and increased without solution for five years.
o The claimants said:
♣ Cs commenced a group action against D, alleging that the smell emanating from the waste tip constituted a nuisance.
o D contended that the relevant legislation and the terms of the waste permit, which it said it had complied with, provided a defence of statutory authority to the nuisance claim.
o At first instance
♣ D’s defence was rejected but still dismissed the claims.
• Held
o Appeal allowed for the claimants.
o The principles of nuisance applied, the concept of ‘reasonable user’ being the measure what objectively a normal person would find it reasonable to have put up with.
• Ratio
o Therefore, the relevant question was whether the introduction of tipping of pre-treated waste, in an area with a history of quarrying and tipping, created an amount of discomfort in excess of that which an ordinary person could reasonably be expected to put up with; that there was no principle that the common law should march with a statutory scheme covering similar subject matter and, unless there were express or implied statutory authority to commit a nuisance.
Note
• *Wheeler case, similar to Wheeler.
• Carnwath J said that in his view the principle of nuisance are relatively simple and that they do not need to be elaborated in order to deal with the issue of the modern world. The overriding question was simply whether of not a normal person would find it reasonable to have put up with the interference in question. SO the grant of the permit was in no sense ‘strategic’, and indeed the effect in terms of increased interference by smell was not anticipated. In these circumstances, the interference amounted to a nuisance despite the fact that the operations creating it were the subject of the permit.
** Coventry v Lawrence [2014] UKSC 13
Private Nuisance:
• CA rules in test case that residents have potential claim for nuisance by smell from landfill site.
• Summary
o A judge had erred in dismissing a claim of nuisance relating to smells emitted by a waster-tipping site by extending the existing principles of ‘reasonable user’ and considering that complying with the terms of a permit meant that such use of the site had been reasonable. There was no basis for using a statutory scheme to cut down private law rights and in any event, the permit did not authorise the emission of such smells.
• Facts
o A housing estate was built in an area with a history of quarrying and back-filling.
o In 1980 the local planning authority granted planning permission for the tipping of industrial and household waste at a site nearby, tipping continued from 1984 until 2004.
o In 2003 the Environment Agency, exercising its statutory powers granted a waste management permit for the tipping of pre-treated waste at another part of the site, subject to detailed conditions including requirements for compliance with a defined working plan and measures to control, minimise and monitor odours. The permit was transferred to D which operated in the site.
o Odour complaints from residents on the estate began within a week and increased without solution for five years.
o The claimants said:
♣ Cs commenced a group action against D, alleging that the smell emanating from the waste tip constituted a nuisance.
o D contended that the relevant legislation and the terms of the waste permit, which it said it had complied with, provided a defence of statutory authority to the nuisance claim.
o At first instance
♣ D’s defence was rejected but still dismissed the claims.
• Held
o Appeal allowed for the claimants.
o The principles of nuisance applied, the concept of ‘reasonable user’ being the measure what objectively a normal person would find it reasonable to have put up with.
• Ratio
o Therefore, the relevant question was whether the introduction of tipping of pre-treated waste, in an area with a history of quarrying and tipping, created an amount of discomfort in excess of that which an ordinary person could reasonably be expected to put up with; that there was no principle that the common law should march with a statutory scheme covering similar subject matter and, unless there were express or implied statutory authority to commit a nuisance.
Note
• Wheeler case, similar to Wheeler.
• Carnwath J said that in his view the principle of nuisance are relatively simple and that they do not need to be elaborated in order to deal with the issue of the modern world. The overriding question was simply whether of not a normal person would find it reasonable to have put up with the interference in question. SO the grant of the permit was in no sense ‘strategic’, and indeed the effect in terms of increased interference by smell was not anticipated. In these circumstances, the interference amounted to a nuisance despite the fact that the operations creating it were the subject of the permit.
** Coventry v Lawrence [2014] UKSC 13
Private Nuisance:
• Summary
o The SC set out the approach to be adopted when a court had to consider whether to award damages or grant an injunction in a nuisance case.
• Facts
o In 1975 the fourth defendant, pursuant to planning permission, constructed a stadium which was used for various motor sports, including speedway racing and stock car racing.
o In 1992 he obtained temporary planning permission to use agricultural land to the rear of the stadium as a motocross track for one year and constructed a track. The permission was renewed on a number of occasions until permanent permission was granted in 2002. Limits on the frequency and times of activities at the stadium and tract were in place BUT NOT on the level of noise emitted during those activities.
o In 2006 the claimants bought a house which was situated close to the stadium and the track. Cs complained on the level of noise, after works were carried out to reduce the noise, they claimed that the noise generated remained unacceptable and issued proceedings in nuisance.
• It was held before the SC –
o That planning permissions for the uses of the stadium and the track did not change the character of the area so as to affect his assessment of what noise levels and frequency would constitute a nuisance, and that the operation of the activities at the stadium and track both before and after the abatement works constituted a noise nuisance to the claimants.
o The judge also rejected a defence claim that they had acquired a right to create what would otherwise have been a nuisance by noise, as a result of the activities taking place at the stadium for more than 20 years, holding that no such right could be acquired as a matter of law.
• CA
o Found for the second and third defendants, said that the question whether particular activities in that locality constituted a nuisance was to be decided against the background of its changed character; and that, following the implementation of the permissions in respect of the stadium track, the noise of motor sports emanating from them were an established part of the character of the locality and so the nuisance claim fell to be dismissed.
• HL
o On appeal by the claimants
♣ 1. That it was possible for the owner of land to acquire by prescription an easement to carry on an activity which resulted in noise, provided that such noise had been emitted for a continued number of years. Thus, granting an easement by prescription that grants a defence to the nuisance claim;
♣ 2. That in determining whether a particular activity caused a nuisance by noise, the court had to assess the level of noise which, objectively a normal person would find it reasonable to have put up with given the established pattern of uses, or character, of the locality.
♣ 3. The court has the power to award remedies rather than an injunction, and in doing so it could take planning permission, as well as matters of public interest such as the effect of an injunction on the viability of D’s business into account.
♣ 4. Appeal allowed – the noise on part of Ds constituted a nuisance + Ds could not rely on any defence that Cs had come to the nuisance and that CA had been wrong in overturning the first instance decision.
Note
♣ The uses of the sport stadium were subject of planning permission.
♣ The CA considered Gillingham in that the noise was ‘character of the locality’ that it should be taken into account when assessing whether the interference constituted a nuisance.
♣ SC disagreed and said the approach in G was incorrect. This was not the only important aspect of the tort of private nuisance determined by the SC in complex decisions.
♣ Here, more weight was given to ‘public interest’ factors than have previously been admitted in cases of private nuisance.
♣ Remedies:
o All members of the SC agreed that courts should approach the choice of injunction or damages in a far more flexible and open way than implied by Shelfer criteria. The SC took another significant step and declared that both the public interest, and the interests of third parties were relevant, may also be directly relevant when considering whether to award an injunction or damages.
More
♣ Planning permission cannot be taken to authorise a nuisance, even by changing the character of the neighbourhood
** Coventry v Lawrence (No. 2) [2014] UKSC 46
Private Nuisance:
• The same as above – but on appeal by the second and third defendants, the CA quashed the judge’s finding of nuisance so the cross-appeal by the claimants was not considered on the grounds:
o That the judge had been wrong to hold that the fourth and sixth defendants had not been liable in nuisance as landlords.
o On restoration of the above ground that fourth and sixth Ds were liable in nuisance as landlords:
• Held
o 1. No – that a landlord would not be liable for nuisance caused by the tenant of a property unless the landlord either could be said to have authorised the nuisance by letting the property in question or had participated directly in the commission of the nuisance, and that it was not enough that the landlord was aware of the nuisance and had taken no steps to prevent it;
o That to succeed in this claim C would have to show a very high degree of probability that the letting of the property would result in nuisance.
Kenaway v Thompson 1980 3 All ER 329
Public Nuisance: (see Bolton v Stone; Wagon Mound II from earlier tutorials)
• Facts
o D was a member and acting on behalf of the Cotswold Motor Boat Racing Club which carried out motorboat-racing and water-skiing. Water sports including motor boat racing had been carried out at the Club’s waters since early 1960s. In 1972, the claimant moved into a house which she had built on land she inherited from her father and was aware of the activities. She did not think the activities would disturb her. The activities increased over the years disturbing her.
o The house was situated 390 yards from the start line for the races. The frequency of the races increased over time and the club’s waters were often used as a venue for both national and international races.
o The claimant brought an action against the club in nuisance for the noise and disturbance experienced. She was successful in the claim and was awarded damages, however, the judge refused to grant an injunction following Miller v Jackson. C appealed.
• Issue
o Does the plaintiff have an action for an injunction in nuisance?
o Yes.
• Held
o Appeal allowed and an injunction was granted.
o Lord Cairn’s Act allowing discretion to award damages in lieu of an injunction should only be used in exceptional circumstances Shelfer v City of London Electric Lighting approved, Miller Jackson doubted.
• Reasoning
o The court stated that once the plaintiff had proved that the club had caused a nuisance that interfered in a substantial and intolerable way with the enjoyment of her house, she was entitled to be granted an injunction. However, it was clarified that the injunction must protect her from excessive noise, but not prevent the club from organizing events about which a reasonable person could complain. As a result, the injunction laid out detailed provisions about how and when the club could operate.
• Ratio
o The court expressly disagreed with Denning’s ruling in Miller v Jackson, and refuses to allow the public interest to prevail.
- Gillingham BC v Medway 1992 3 All ER 923; 1993 QB 343
Public Nuisance: (see Bolton v Stone; Wagon Mound II from earlier tutorials)• Facts
o D had obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day. Local residents brought an action in public nuisance in relation to the noise created by Heavy Goods Vehicles throughout the night. They were seeking an injunction to restrain the activities during the night.
o It was held that where planning permission is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use. So C’s actions failed.
• Held
o Buckley J:
♣ ‘Parliament has set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding the scales between individuals, to the local planning authority. There is the right to object to any proposed grant, provision for appeals and inquiries, and ultimately the minister decides. There is added safeguard of judicial review. If a planning authority grants permission for a particular construction or use in its area, it is almost certain that some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise a licence. However, a planning authority can, trough its development plans and decisions, alter the character of the neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance.’
• Note that:
o Following this decision the CA came to a different conclusion in Wheeler v Saunders concerning nuisance by smell emanating from two pig houses – CA held that Ds could not rely on the planning permission either as a defence, or as changing the character of the neighbourhood.
o Similar in Barr v Biffa
Watson v Croft Promo [2009] EWCA Civ 15 - see Coventry (above)
Public Nuisance: (see Bolton v Stone; Wagon Mound II from earlier tutorials)• Facts
o The claimants lived in close proximity to Croft Motor Circuit and brought an action in nuisance for the excessive noise generated by the defendants seeking an injunction to restrain the continuation of the nuisance and damages as compensation for its commission in the past.
o The former owners of the land had been granted planning permission to use it as a motor racing circuit 1963. It was used as a motor racing between 1963-1979. The land was sold in 1979 and there were no motor racing taking place between 1979-1994. D then acquired the land and restarted the motor racing on the land. D defended on the grounds that the granting of planning permission had changed the nature and character of the area and the use for motor sport was therefore reasonable.
o The trial judge held that despite the planning permission the use of the land for motor sports was an actionable nuisance and the area was still essentially rural despite the planning permission. However, he refused to grant an injunction awarding damages in lieu. The defendant appealed against the finding of nuisance and the claimant appealed against the refusal of the injunction.
• Held
o D’s appeal was dismissed. C’s appeal was allowed. Following Shelfer v City of London there must be exceptional circumstances before an injunction may be refused.
- Corby Group Litigation [2008] EWCA Civ 463
Public Nuisance: (see Bolton v Stone; Wagon Mound II from earlier tutorials)• Summary
o The judge found Corby Borough Council liable in negligence, public nuisance and breach of statutory duty for its reclamation of a Corby Steelworks in the town of Corby.
o The decision was historically significant as the first in the world to establish a link between atmospheric toxic waster and birth defects – all previous cases have involved water pollution and held implications for other council reclamations.
• Facts
o In November 2005 expert evidence was submitted to the High Court by mothers of thirty children who claimed that during their pregnancies they were exposed to contamination from waste removal operations and who sought to bring a legal action to try to prove a link between the mismanagement of the toxic waste and the birth defects suffered by the children.
• Case brought to the HC –
o The case brought to the HC in 2009 represented 18 young people who alleged that toxic waste dumped by Corby Borough Council between 1984 and 1999 was the cause of their deformities. All had serious disabilities, including missing or undeveloped fingers and deformities of their feet.
o They alleged that their mothers ingested or inhaled the toxic substances that affected the developments of their limbs while they were still in the womb. All of their mothers either lived in or regularly visited Corby between 1984 and 1999 when the work was carried out across the town.
o The case had taken ten years to reach this point largely because of the difficulties encountered in obtaining disclosure of information from Corby Borough Council.
• Ruling
o Following the evidence, Mr Justice Akenhead said it was clear that the council had permitted toxic waste to disperse into the atmosphere. He also said that there was a ‘statistically significant’ cluster of birth defects between 1989 and 1999…
o ‘There was an extended period between 1983 and 1997 in which Corby borough Council was extensively negligent in its control and management of the sites which they acquired from British Steel and otherwise used. That negligence breached statutory duty on the part of CBC permitted and led to the extensive dispersal of contaminated mud and dust over public areas of Corby and into and over private homes, with the result that the contaminants could realistically have caused the types of birth defects of which complaint rose.
o CBC is liable in public nuisance, negligence and breach of statutory duty.
o Mr Justice Akenhead said that the council’s motive was to develop the land quickly without thought for the consequences of those nearby, and without appreciating ‘the enormity, ramifications and difficulty’ of its task in moving material.
o The two youngest claimants were unable at the time to proceed with their cases, however, because of the ruling that there were no breaches of duty after August 1997 their parents indicated that they would appeal this cut-off date.
- Rylands v Fletcher 1868 LR 3 HL 330
(2) The Rule in Rylands v Fletcher
• Decision established a new area of English tort law.
• The HL led to the development of the rule in Rylands v Fletcher:
o ‘the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief it 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 of its escape.’
• Rylands imposed strict liability without having to prove a duty of care or negligence, which brought the law into line with that relating to public reservoirs and marked a significant doctrinal shift. Academics have criticised it for both economic damage such as a doctrine could cause and for its limited applicability.
• **NOW Raylands is still valid law. BUT Cambridge Water Co + Eastern Counties Leather plc + Transco plc make it clear that it is no longer an independent tort, but instead a sub-tort of nuisance.
• Facts
o In 1860, Rylands paid contractors to build a reservoir on his land, intending that it should supply the Ainsworth Mill with water. Rylands played no active role in the construction, instead contracting out to a competent engineer. While building it, the contractors discovered a series of old coal shafts and passages under the land filled loosely with soil debris, which joined up with Thomas Fletcher’s adjoining mine. Rather than blocking these shafts up, the contractors left them.
o On 11 December 1860, shortly after being filled for the first time, Ryland’s reservoir burst and flooded Fletcher’s mine causing monetary damages. Fletcher pumped the water out but a year later his pump burst, and the mine again began to flood. At this point a mines inspector was brought in, and the sunken coal shafts were discovered.
o Fletcher brought a claim against Rylands, the owner, the manager of the reservoir.
• Held
o Court of Exchequer Chamber
♣ Blackburn J who spoke on behalf of all the judges and said that:
• ‘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 it 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.’…
o HL
♣ Dismissed the appeal and found for Fletcher. Lord Cairns HL agreed with the rule stated by Justice Blackburn, but added a further limitation on liability –
• Which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate.
Note
♣ Central issues
o 1. The rule in Rylands appears to determine that there is liability for damage done by the escape of dangerous things accumulated on one’s land, regardless of fault.
♣ The rule applies only if those things were accumulated for one’s own purposes, and were not accumulated in the course of a ‘natural’ use of land.
♣ The strictness of the rule is mitigated by a number of defences and criteria, some of which appear incompatible with the underlying rule itself.
o 2. The application of Rylands has been in decline – yet the existence of strict liability for dangerous activities (including ‘accumulations’) is far from being outdated.
♣ Despite the apparent conflict in principle between strict liability and negligence, in practice the greater problem is not so much conflict, BUT overlap.
♣ Arguably the tort of negligence can adapt to impose liability in situations far removed from cases of individual fault, including the situations covered by Rylands (So negligence can apply to both). THIS was the move made by the Australian HC in Burnie.
♣ In English courts Rylands has been described as one of the source authorities for Non-delegable duty based on the relationship between neighbouring occupiers; BUT without the discussion of whether negligence on part of contractors should therefore be a prerequisite of liability.
o 3. The growth both strict liability statutes, and of negligence liability divorced from fault, underlie that areas of strict liability are entirely acceptable to contemporary thinking. But the growth of these alternative methods of imposing strict liability have left the rule itself exposed as arbitrary, limited, and in this sense archaic.
♣ Studying the limited role of Rylands is a good way of approaching the subtle relationship between negligence and strict liability; also allows to question strict liability in tort.
♣ For the rule to apply, it must have the following elements:
o 3 Blackburn J:
1. A person brings something on his or her land and collects and keeps it there;
2. This is done for his or her own purposes;
3. The thing in question is likely to do mischief it it escapes;
4. The damage done is a natural consequence of the escape.
♣ Lord Cairns HL agreed with the rule stated by Justice Blackburn, but added a further limitation on liability –
Which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate.
• Defining non-natural
o Lord Moulton in Rickards v Lothian –
♣ ‘It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.’
Note
• The general approach in the most recent Ryland cases is one of caution in creating liability for commonly insured risks.
Note
• Cambridge Water + Transco.
o The two cases have clarified the contents of the applicable tests of foreseeability and of natural user. See the cases…
Note
• P695 of textbook – contains key judgments on why the rule of Rylands was kept – the overall point is that its criteria would be difficult to satisfy.
Note – overall commentary on the case
• ‘Bursting Reservoirs and Victorian Law’
o The way in which Rylands was restrictively interpreted in early cases, suggest that may 19th century courts did not find the idea of strict liability in this particular context as natural and comfortable as Lord Hobhouse implies. If they had then a more robust rule, and clearer rationale, would surely have developed in the years immediately following the decision in Rylands itself.
Note – The Australian approach using Rylands
• While the HL in England have decided to treat Rylands as an aspect of the tort of nuisance, the High Court of Australia:
o Decided that Ryland-type cases should generally be dealt with by the tort of negligence, recognising non-delegable duty of care in hazardous work.
** Transco plc v Stockport Metropolitan BC 2004 2 AC 1
(2) The Rule in Rylands v Fletcher
• Concerns the rule in Rylands v Fletcher.
• Facts
o Transco Plc (British Gas come commercial) had used the council for repairs underneath one of its pipes. The ground beneath the gas pipe had washed away when the council’s water pipe leaked.
• Held
o Lords held that because the quantities of water from an ordinary pipe is not dangerous or unnatural in the course of things, the council was not liable.
o Lord Hoffmann, however, remarked on the irony that had the pipe belonged to a ‘water undertaker’ creates strict liability (s209 Water Industry Act 1991) unless the loss is to a Gas Act 1986.
o Their Lordships protected the rule in Rylands v Fletcher but within strict confines. The escape must be something dangerous, out of the ordinary, which did not include a burst water pipe on council property. Unlike the Australian High Court, whose abolition of the doctrine in Burnie Port Authority v General Jones (Rylands v Fletcher) was given severe doubt, their Lordships states their purpose,
♣ ‘to retain the rule, while insisting upon its essential nature and purpose; and to restate it so as to achieve as must certainty and clarity as is attainable, recognising that new factual situations are bound to arise posing difficult questions on the boundary of the rule, wherever that is drawn.’
