The case of Rylands
v Fletcher (1868) LR 3 HL 330 is one with which every law student is
familiar. It represents an attempt by the common law to impose strict liability
(ie liability in the absence of negligence) in respect of certain activities
which involve a high degree of risk. As Blackburn J put it: ‘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.’
This formulation was approved by the House of Lords, where Lord Cairns
added the qualification that, to be liable, the defendant must have been
engaged in some ‘non-natural use’ of his land.
The 20th
century has seen the rule in Rylands v Fletcher decline almost to
the point of extinction. A broad judicial approach to the question of what is a
‘natural’ use of land (extending in one case to the manufacture of
explosives!), coupled with the availability of defences such as act of a third
party, have done much to ensure that the so-called ‘strict’ liability in
practice arises only where the defendant has in any event been guilty of
negligence.
Whether this
decline is good or bad is a matter of debate. Some believe that, while persons
who are guilty of negligence should be liable for the consequences of it, there
is no justification for imposing liability on those who take all reasonable
care to avoid causing harm. However, many would argue that, where an industrial
activity creates hazards for innocent neighbours, the financial burden should
be borne by those who profit from the activity; and the fact that the risks may
be inevitable is not relevant. Moreover, an increased general awareness of
environmental damage lends support to the view that risk rather than fault
should be the touchstone of legal liability in this area.
A recent
decision of the House of Lords must rank as one of the most important
contributions this century to the arguments over the rule in Rylands v
Fletcher. Apart from settling a specific aspect of the rule which had
hitherto been unclear, the House cast welcome light on the relationship between
Rylands and the tort of nuisance, and made some pertinent comments as to
the rightful place of such a legal principle in a modern, environmentally
conscious society.
Water
The case of Cambridge
Water Co v Eastern Counties Leather plc [1993] EGCS 211 arose out of
the purchase in 1976 by the plaintiffs, a statutory water company supplying a
large area around Cambridge, of old mill premises, which included a borehole.
The water from this borehole, which the plaintiffs pumped out and supplied to
domestic users, was regarded as ‘wholesome’ by the standards then operating. In
1980, however, the UK Government, responding to an EEC directive, created a new
definition of ‘wholesomeness’, which laid down the maximum permitted
concentration of various organic chemicals.
In 1983,
tests of the plaintiffs’ water showed it to contain many times the permitted
concentration of perchloroethane (or PCE). An investigation pointed the finger
at the defendants, a firm of leather manufacturers, who had been using PCE
until 1976 in a tannery near the plaintiffs’ mill. On learning that it was
almost certainly spillages of this chemical by the defendants’ employees which
had contaminated (and continued to contaminate) the ground water, the
plaintiffs sued to recover their costs (approximately £1m) of developing an
alternative source of water supply.
The expert
evidence at the trial indicated that, in all probability, small quantities of
PCE had been spilled on to the tannery floor over a number of years before
1976; these had then seeped down through the soil and collected at the base of
the chalk aquifer, from where they percolated down to the plaintiffs’ borehole.
Having concluded that a reasonable person could not have foreseen such a chain
of events (partly because spilled PCE would be expected to evaporate), the
judge rejected the plaintiffs’ claims in negligence, nuisance and Rylands v
Fletcher. The Court of Appeal, however, relying on the old polluted well
case of Ballard v Tomlinson (1885) 29 ChD 115, held that any
interference with a landowner’s natural rights of ownership (including the
right to percolating water) gives rise to a form of strict liability, to which
foreseeability is irrelevant.
and strict liability
Strictly, the
defendants’ appeal to the House of Lords was, like that to the Court of Appeal,
concerned solely with their liability under the rule in Rylands v
Fletcher. However, Lord Goff (who delivered the only judgment) took the
view that the two torts are so closely intertwined that it would be difficult
if not impossible to treat Rylands in isolation. His lordship
accordingly gave a lucid and persuasive account of the origins and development
of Rylands, coming to the firm conclusion that its true significance lay
in extending the boundaries of nuisance to include cases of an isolated escape
(nuisance traditionally has required some element of continuity or repetition).
Pointing to the remarkable similarity between the defence of ‘natural use’ in Rylands
and that of ‘reasonable use’ in nuisance (and noting that ‘reasonable use’
had not been argued in the present case, even though the defendants’ spillages
had not been contrary to law at the time), Lord Goff came to the firm
conclusion that, so far as possible, the basic principles of liability in the
two torts should be similar if not identical.
This
conclusion was largely responsible for the key ruling in the Cambridge Water
case, namely that there can be no liability under Rylands v
Fletcher unless the type of damage suffered by the plaintiff could have
been reasonably foreseen. Lord Goff found some support for this ruling in the
wording of Rylands itself — ‘anything likely to do mischief if it
escapes’; ‘damage which is the natural consequence’ — and, having
demonstrated that liability in nuisance requires the damage in question
to have been foreseeable, the House of Lords declared Rylands to be
governed by the same principle.
The effect
of this latest decision is therefore that ‘knowledge, or at least
foreseeability of the risk, is a prerequisite of the recovery of damages under
the [rule in Rylands v Fletcher]; but that the principle is one
of strict liability in the sense that the defendant may be held liable notwithstanding
that he has exercised all due care to prevent the escape from occurring’.
of Rylands v Fletcher
Specific
issues aside, Lord Goff’s speech in Cambridge Water contains valuable
pointers as to the place of Rylands in a modern system of civil
liability. His lordship considered the argument put forward by some writers,
that the rule should not be regarded merely as an extension of nuisance, but
rather as the basis of a general principle of liability for ultra-hazardous
activities. According to Lord Goff, the attractions of such an approach were
outweighed by the practical difficulties of deciding to which activities it
should apply, difficulties which had led the Law Commission to shrink from
attempting to provide a statutory definition.
Nor did Lord
Goff see the function of Rylands v Fletcher as an important
weapon in the struggle for the protection and preservation of the environment.
Significant though that might be, its importance was recognised by the
increased quantities of legislation originating at national, European and
international level and the courts should hesitate before intruding into an
area policed by well-informed and carefully structured legislative rules.
Such sentiments might be regarded as just one
more (and possibly the final) nail in the coffin of Rylands as a useful
legal principle. However, the last part of Lord Goff’s speech suggested that
reports of its death might be premature. His lordship, who had earlier made
clear his belief that there is nothing inherently wrong with the idea of strict
liability based on the creation of risk to others, turned to the 20th-century
emasculation of Rylands by the defence of ‘natural use’. A liberal
interpretation of those words in a number of cases had enabled writers to suggest
that any activity with a social value fell outside the rule, and even that the
mere granting of planning permission would defeat any argument that the use in
question was ‘non-natural’. Not so, retorted Lord Goff. The storage of
substantial quantities of chemicals on industrial premises might be regarded as
an almost classic case of non-natural use, and should not be treated otherwise
because the industry was lawful, because it took place on an industrial estate,
or even because of the beneficial effects of the defendants’ business in
creating employment in the locality.
