Private nuisance - Ryland's v Fletcher

Question 1

Parameters of rylands v fletcher (1)

Answer 1

• Contains no requirement of intention, recklessness or negligence – outcome-based struct liability
• Benning v Wong (Australian High Court)
• ‘The whole point of Rylands v Fletcher is that the exercise of care is irrelevant’

Question 2

Facts of Ryland’s v Fletcher (+trial judge, appellate court, House of Lords)

Answer 2

• Facts:
  o Water escapes from a reservoir being built for D by contractors
  o C’s nearby mine workings were flooded as a result
  o Water flowed through disused shafts connecting D’s property to C’s
  o Trial judge
   Could not argue trespass – interference of water flowing was not direct enough
   Private nuisance not applicable – the interference had to be continuous or recurring
  o Appellate Court
   Took broad liability rule – claim was similar to instances of strict liability
   Fleming – Blackburn J ‘created new law by extending the incidence of strict liability to the general category of all inherently dangerous substances’.
   Blackburn J’s judgment: ‘[T]he true rule of law is, that 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 in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural and probable consequence of its escape’.
   Key features of Blackburn’s judgment:
  1. The rule focuses on ‘anything likely to do mischief if it escapes’. (High levels of risk/danger.)
  2. D must ‘must keep it in at his peril’. (Risk-bearing/’surcharge’ (Hart).)
  3. D is ‘prima facie answerable’ for damage resulting from escapes.
  4. D ‘can excuse himself’: per Blackburn J. Defences.
  o House of Lords on Rylands:
   Lord Cairn: Rylands only applied to damage from a non-natural user of the land

Question 3

Decision procedure of Rylands v Fletcher

Answer 3

1. Accumulation of something on D’s land
2. Must be non-natural use
3. Risk/accumulation must escape
4. Damage
5. Remoteness
6. Defences

Question 4

Rylands v Fletcher - 1. Accumulation of something on D’s land (1)

Answer 4

o The thing that later escapes must be brought onto D’s land
o Accumulation must be voluntary
o Miles v Forest Rock Granite
 Rylands applies where D is instrumental in causing things naturally on the land to escape
 D was setting off explosive charges – rock was escaping – Rylands is applicable

Question 5

Rylands v Fletcher - 2. Must be non-natural use (14)

Answer 5

o Rickards v Lothian
 It must be some special use bringing with it increased danger to others
o Read v Lyons
 The relevant question is whether the particular object can be dangerous
 Whether a use is natural or not is a question of fact subject to ruling of the judge
 All circumstances at time and place and practice of mankind must be taken into consideration
o Transco v Stockport
 Leak developed in D’s water pipe – escaping water saturated embankment where C’s gas pipe was located
 Embankment collapsed and left gas pipe unsupported – this was a grave risk
 C had to undertake costly remedial work
 D not liable – D’s use was natural
 Non-natural has to do with uses that are ‘extraordinary and unusual’
o George Fletcher – academic
 Critical feature of Rylands is that the D created a risk of harm to C that was of an order different from the risks that the C imposed on the D – non-reciprocal risk-imposition
o Must look to context
 Rainham Chemical Works v Belvedere Fish Guano – D engaged in manufacture of explosives in peacetime context – manufacture of explosives non-natural use
 Read v Lyons – in wartime context, manufacture of explosives would be natural
 Transco v Stockport – even in wartime context, would manufacture of explosives be ordinary use of land?
 Rylands highly context sensitive
o Non-natural use and abnormal risk
 Mason v Levy Auto Parts
 D stored large amount of combustible material on its premises – Caught fire and damaged C’s property - the use was non-natural
 Relevant considerations 1) quantity of material b) the way it was stored 3) the character of the neighbourhood
 Crown Diamond Paint v Arcadian Holding Realty (Canada)
 Non-natural use associated with ‘enhanced risk’
 Schubert v Sterling Trusts (Canada)
 Non-natural use associated with ‘increased danger’
 The Second Restatement of Torts (USA)
 Relevant concerns: 1) high risk, 2) likelihood of great harm 3) harm cannot be avoided by reasonable care 4) the activity is uncommon 5) inappropriate at the particular site 6) value to the community of D’s activity
 Balancing exercise
o Insurance and non-natural risk
 Transco v Stockport
 The relevant use should be classified as natural where an occupier (potential claimant) can reasonably be expected to insure against the risk it generates – only those risks that are uninsurable should be classified as non-natural
 Jenny Steele – Lord Hoffman would place the burden of insuring against such losses on the claimant provided the risk is readily insurable
o Cost internalisation v entrepreneurship
 Transco v Stockport
 Cost internalisation:
If you are doing something so risky and it escapes/does damage, you should pick up the cost if anything goes wrong – creates an incentive to manage the risk
 Entrepreneurship:
Should be careful about generating incentives that make people cautious and unwilling to take risks – creates a less vibrant economy – public interest may be served by promoting economic development
 Clash of agendas (cost internalisation v entrepreneurship)

Question 6

Rylands v Fletcher - risk/accumulation must escape (1)

Answer 6

o Rigby v Chief Constable of Northamptonshire
 D need not have a proprietary interest in the land from which the escape occurs
 But D must have control of the source of danger
 Police decided to psychopath with a gun out of a shop – police used a CS gas canister – bad fire resulted – Fire Brigade was on strike – direct interference (trespass to land) held to be justifiable

Question 7

Rylands v Fletcher - remoteness (3)

Answer 7

o Cambridge Water v Eastern Counties Leather
 ‘foreseeability of damage of the relevant type should be regarded as a prerequisite of liability’
o Overseas Tankship (Wagon Mound (No 1))
 Remoteness test – reasonable foreseeability of harm
o Transco v Stockport
 Affirmed Overseas Tankship test

Question 8

Rylands v Fletcher - defences (5)

Answer 8

o Act of God
 Nichols v Marshland
o Flooding caused by deluge of rain that was greater and more violent than any within the memory of the witnesses
o Unforeseeable act of third party
 Rickards v Lothian
o Consent (volenti non fit injuria)
 Attorney-General v Cory brothers
o Necessity
 Rigby v Chief Constable of Northamptonshire
o Statutory authority/default of the claimant
 Dunn v Birmingham Canal Navigation – Parl put in place legislation when properly interpreted relieves D of liability not withstanding D has caused harm

Question 9

Rylands v Fletcher and Fire (8)

Answer 9

o Stannard v Gore
 Stannard stored 3000 tyres on his premises for business
 Fire broke out – fire ignited tyres and spread to Gore’s adjoining premises
 Claimant has to show D has done something that gave rise to an exceptionally high level of danger if escape occurs
 Rejected argument that Rylands v Fletcher could apply where a) a dangerous thing (i.e. something likely to catch fire) was brought onto the land and b) started a fire that escaped
 The tyres did not escape, what escaped was the fire
 Rejected approach of Musgrove v Pandelis
* Fire began in engine of car stored in garage – fire spread and damaged neighbouring property – occupier of garage held liable for resulting damage
 New Stannard Rule: The fire must be brought onto D’s land and later escape
* When would this ever happen though? No one is going to bring fire into someone’s land – application of Rylands too narrow
* Miles v forest Rock Granite – Rylands was applicable where after an explosion, damage was caused by something other than explosives themselves (debris) – wide application of Rylands
 Applying Transco:
* Ensure you have insurance cover for losses occasioned by fire on your premises – as Ryland’s is not going to protect you
o Goldman v Hargrave
 Tree on D’s land struck by lightning – D cuts tree down but does not extinguish fire
 Held liable for damage to P’s premises – measured duty of care (cost of taking care is low when compare with expected harm)
o Fire Prevention (Metropolis) Act 1774, section 86
 No action will lie where a) fires arise from mere chance and b) are uncontrollable to any cause
 H and N Emmanuel v Greater London Council
* Fire Prevention Act covers all cases where a fire begins or spreads by accident without negligence
 Filliter v Phippard
* Defence of Fire Prevention Act will not apply where fire starts accidentally but spreads through negligence

Question 10

Critical commentary of Rylands v Fletcher (2)

Answer 10

• Williams
  o Non-natural use – the user should be tested to see whether iy is natural or not in the modern context of land use regulation – if use if approved by responsible administrative authorities i.e. planning permission, it would be natural use
• Fletcher
  o Critical feature of Rylands is that the D created a risk of harm to C that was of an order different from the risks that the C imposed on the D – non-reciprocal risk-imposition