Rylands v Fletcher is a celebrated case in the law of tort, and one that the House of Lords has recently decided still has a part to play
Key points |
? English law still imposes strict liability for the escape of dangerous things ? But this is only where the defendant’s use of land creates an exceptional risk |
Anyone who has studied the law of tort will recall the celebrated case of Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330, in which the owner of a reservoir was held liable without proof of negligence when water escaped into the claimant’s mine. As Blackburn J explained at trial:
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 of its escape.
On appeal, the House of Lords upheld the judgment, with the rider that, in order to incur this form of strict liability, the defendant must be shown to have been engaged in a “non-natural” use of his or her land.
In the years that have elapsed since this seminal decision, the courts have generally taken a restrictive view of the principle it created; for example, by permitting a defendant to avoid liability where his activities were conducted under statutory authority, or where the immediate cause of the escape was an Act of God or that of an independent (usually malicious) third party. Indeed, there have been very few cases in the past 100 years in which a successful claim has been based solely on the rule in Rylands. Nevertheless, as a recent House of Lords decision confirms, the principle remains part of English law.
Leaking pipes and subsidence damage
In Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61; [2003]
3 WLR 1467, the water supply to 66 flats in an 11-storey block came via a high-pressure asbestos cement pipe, owned by the defendants. This connected the water authority’s mains system to large tanks in the basement of the block, from where it was pumped to further tanks on the roof. With a diameter of 3ins, the capacity of the pipe was 16 times that of a normal domestic water pipe.
During the summer of 1992, the water pipe developed a leak. This was not discovered until a considerable amount of water had escaped, which undermined part of an old railway embankment at the edge of the estate and led to the withdrawing of support from a high-pressure gas main, owned by the claimant, that had been laid under the surface of the disused railway. The possibility that the gas pipe would in turn fracture was, not surprisingly, treated as an emergency, and the claimant quickly took steps to repair the damage to the embankment. Having done so, the claimant then sued the defendants to recover its costs of around £93,000.
The status of Rylands v Fletcher
The claimant did not suggest that the leak was due to the defendants’ negligence. The question that arose was whether any form of strict liability applied. This led the House of Lords to embark on a lengthy examination of the rule in Rylands, and to consider whether it retained any real usefulness in modern conditions. As Lord Hoffmann pointed out, the principle of strict liability (that is, liability without fault) is based upon a decision as to where the risks of certain activities should be allocated, and there is a strong argument for leaving such decisions to parliament.
Indeed, had the escaping water in the present case issued from a water authority’s main, the legal position would have been clear. Section 209 of the Water Industry Act 1991 imposes strict liability on a water authority towards most claimants, but specifically excludes any damage to gas mains: the clear statutory intention is for public gas suppliers to insure their own property against damage, except where this is caused by negligence.
Against this background, and given their lordships’ acknowledgment that most cases today are fought between two insurance companies, it would not have been surprising if the opportunity had been taken to abolish this form of liability. This had been done by the Australian High Court 10 years earlier, in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, where it was treated as having been subsumed by the general law of negligence. But the lords felt that outright abolition would be too radical, preferring to note that strict liability was kept within tight limits by the twin requirements of a “dangerous substance” and a “non-natural use” of land. (Interestingly, it was the inherent uncertainty of these requirements that had led the Australian judges to lose patience and to insist on abolishing Rylands.)
Surviving, but only just
So Rylands survives for the time being, but how often it will apply is questionable. Quite apart from the restrictions mentioned above, the lords made it clear that, because of its strong historic links with the tort of private nuisance, the rule cannot be used to claim damages for personal injury. Moreover, they felt that “dangerous substance” and “non-natural use of land”, taken together, create a requirement in which the defendant has done something that, judged by the standards of the time, it ought to have recognised would give rise to an exceptionally high risk of danger if an escape were to occur (however unlikely the escape itself might be thought to be).
As for the case itself, their lordships had few doubts that Transco’s claim must fail. Since a domestic water system would be regarded as a perfectly natural use of land, and therefore outside Rylands, the installation (which was simply a somewhat larger pipe) should not be treated any differently. And, as Lord Hoffmann noted, it would be very strange indeed if the claimant was entitled to recover against the local authority when, had the water escaped from a water authority’s mains system, its claim against that authority would have failed.
John Murdoch, professor of law, Reading University
