Nuisance — Rylands v Fletcher — Water escaping from pipe in respondents’ block of flats — Whether respondents liable for damages caused by escape of water — Appeal dismissed
The respondent local authority owned a tower block of flats, which was supplied with water by a statutory undertaker. The appellant owned a high-pressure gas main in an embankment near to the block. The water for the flats was piped from the main to a tank in the basement of the block, where it was distributed to the individual flats. The pipe was an ordinary pipe, designed to meet the needs of 66 dwellings, and carried water at mains pressure. It failed at one point within the block, and that failure remained undetected for a prolonged period, with the result that a considerable quantity of water escaped. The water flowed away from the block and percolated into the embankment, causing it to collapse. The appellant had to take immediate remedial measures to avert a serious risk of the gas main cracking, which would have had potentially devastating consequences.
The appellant subsequently brought a claim against the council to recover the cost of the repairs. It did not allege any lack of care on the part of the council. Instead, it claimed that the council were liable without proof of negligence under the rule in Rylands v Fletcher (1868) LR 3 HL 330: namely that a person who brought onto his land something that was likely to do mischief if it escaped was liable for all the damage done if it did in fact escape. To be liable, the defendant must have been engaged in some “non-natural” use of the land. The judge allowed the claim, but his decision was reversed by the Court of Appeal. On a further appeal by the appellant, the respondents submitted that the rule should be abolished, as it had been superseded by the law of negligence.
Held: The appeal was dismissed.
Although it was hard to find any rational principle that explained the rule and its exceptions, it would not be consistent with the judicial function of the House to abolish it. The question of what constituted a natural user of land had to be judged by contemporary standards. Relevant features of contemporary society included the extension of statutory regulation to a number of activities, such as discharge of water, and the fact that insurance against various forms of property damage was extremely common. A useful guide in deciding whether the risk had been created by a “non-natural” user was therefore to ask whether the damage that eventuated was something against which the occupier could reasonably be expected to have insured himself. Property insurance was relatively cheap and accessible, and people ought to be encouraged to insure their own property rather than seek to transfer the risk to others by means of litigation, with the heavy transactional costs involved therein.
In the instant case, the damage was of a kind that no rational owner of a gas main would fail to insure against. The source was a perfectly normal item of plumbing. The Court of Appeal had been correct to say that it was not a “non-natural” user of land. No evidence existed to suggest that it created a greater risk than was normally associated with domestic or commercial plumbing, even though the pipe was larger than average; one could not simply assume that the bigger the pipe, the greater the risk. The criterion of exceptional risk had to be taken seriously and created a high threshold for a claimant to surmount. Moreover, the risk of damage to property by leaking water was one against which most people could, and did, insure.
Ian Leeming QC and Robert Sterling (instructed by the solicitor to Transco plc) appeared for the appellant; Mark Turner QC, Stephen Davies and John Sorabji (instructed by Berrymans Lace Mawer) appeared for the respondents.
Sally Dobson, barrister
