Generally emphasis has been placed by courts on fault based liability. Strict liability is an exception to this principle. This is liability without fault. Where torts are of strict liability there is no need for the plaintiff if to prove fault on the defendant’s part.
It is important to distinguish strict liability from absolute liability. In absolute liability, a particular wrong is actionable without proof of fault and in addition there is no defense availed to the wrongdoer. In strict liability however, the wrongdoer has a number of defense availed to him/her, hence the difference between the two.
Strict liability is clearly brought out in the following case;
Rylands v. Fletcher (1866)
The defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a disused mine whose passages communicated with the adjoining mine of the plaintiff. The defendant was not aware of this fact and therefore took no precaution against it. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage. Held: The defendants were strictly liable for the damage caused by a non- natural use of land. It was immaterial that there was no fault on their part.
The following statement made by Lord Cranworth, explains the rule behind this case;
“If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.”
Liability under Rylands v Fletcher is now regarded as a particular type of nuisance. It is a form of strict liability, in that the defendant may be liable in the absence of any negligent conduct on their part. Imposing liability without proof of negligence is controversial and therefore a restrictive approach has been taken with regards to liability under Rylands v Fletcher, It is worth noting that the rule refers to anything likely do mischief, this poses its own challenges.
THE RULE IN RYLANDS v. FLETCHER
Anyone who in the course of non – natural use of his land, accumulates thereon for his own purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby caused.
This is the rule in Rylands v. Fletcher where the defendant employed independent contractors to construct a water reservoir on the land, which was separated from the plaintiffs land by adjoining land. In the course the works the contractors came upon some old shafts and passages filled with earth. The contractors did not block them up. Unknown to them, the shafts connected their land with the plaintiff’s mines. When the water filled the reservoir, it seeped through the old shafts and into the plaintiff’s mines thence flooding them. It was found as a fact that the defendant was not negligent, although the contractors had been. However, although the defendant was neither negligent nor vicariously liable in the tort of his independent contractors, he was held liable by the Court of Exchequer chamber and the House of Lords.
The judgment of the Court of Exchequer chamber was delivered by Blackburn J. at P. 279 -280 and it has become a classical exposition of doctrine.
“We think that the true rule of law is, that the person who for his own purpose 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 consequences of its escape.”
This may be regarded as the „rule in Rylands v. Fletcher’
But what follows is equally important. The court further said:
“He can excuse himself by showing that the escape was owing to the plaintiff’s default; or the act of God: it is unnecessary to inquire what excuse would be sufficient”.
The general rule, as above stated, seems to be just in principle.
“The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from the neighbor’s reservoir, whose cellar is invaded by filth of his neighbours or whose habitation is made unhealthy by the fumes and noise and vapours of his neighbours alkali works, is damnified without any fault of his own; and it seems reasonable and just that the neighbour, who has brought something on his own property which was naturally there harmless to others so long as it is confirmed to his own property, but which he knows to be mischievous if it gets on his neighbours should be obliged to make good the damage which ensues if he does not succeed in confining it to his property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences and upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.”
Lord Cairns in the House of Lords upheld this judgment but restricted the scope of the rule to where the defendant made a “non-natural use” of the Land.
This decision makes it clear that liability was strict in the sense that the defendant’s liability was neither personal nor based on a mere vicarious liability for the negligence of his independent contractors.
REQUIREMENTS OF THE RULE IN RYLANDS v. FLETCHER
1. THE THING
The rule does not require that the thing should both likely to escape and likely to do mischief on escaping. If this were the case, there would be little difference between the rule in Rylands
v.Fletcher and negligence. Furthermore, in Rylands v. Fletcher,the thing need not be dangerous
in itself. The most harmless objects may cause damage on escape from a person land.
The rule has been applied to a large number of objects including water, gas, electricity, explosives, oil, vibrations, poisonous leaves of trees, a flag post, a revolving chair at a fair ground, acid smuts from a factory, a car, fire and even at one time gypsies.
The thing must be brought into the land for the defendant’s purposes. The defendant need not own the land into which the thing is brought.
A temporary occupier of land such as a lessee or a person physically present on the land but not in legal occupation of it such as a licensee is equally within the scope of the rule and is liable for damage caused upon escape or a thing he has brought onto the land.
The requirement that the thing should be on the land for the purpose of the defendant does not mean that it must benefit the defendant.
Where the thing is naturally present on the defendant cannot be liable for its escape under Rylands-v-Fletcher. The escape of weeds, rocks and floodwater is thus outside the scope of the rule but recent decisions have established possibility of an action in nuisance for such escape.
The accumulation must thus be voluntary.
3. NON-NATURAL USER OF LAND
This is the most flexible and elusive ingredient of liability. Blackburn J. understood „natural‟ to mean things naturally on the land and not artificially created. However uncertainty crept as a result of Lord Cairns qualification that must be „a non-natural user‟ of the land.
Through a series of cases, courts have come to look upon „natural‟ as signifying something which is ordinary and usual even though it might be artificially instead of non-artificial. Non-natural use of land was explained by the Privy Council in Richard v. Lothian as per Lord Moulton.
„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.‟
What is natural is now viewed differently in different cases.
Non-natural use of land is generally constituted by certain activities as the storage on the land in bulk of water, electricity, gas and the collection of sewage by local authorities.
There is no liability under the rule unless there is an escape of the substance from the land where it is kept. In Read-v-Lynns & co Ltd. the defendants operated on ammunition factory as agents of the Ministry of Supply. The plaintiff was an appointed inspector for the ministry. In the course of carrying out her duties in the factory, an explosion occurred causing her injuries. She based her claim against the defendants on Rylands-v-Fletcher making no assertion that the defendants had been negligent. It was held that Rylands-v- Fletcher was inapplicable because there had been no escape of the thing that inflicted the injury. The House of Lords defined escape as:
“Escape from a place where the defendant had occupation and control over land to a place which is outside his occupation or control.”
It was stated further in this case that Rylands-v-Fletcher is conditioned by 2 elements;
a) The condition of escape from the land of something likely to do mischief if it escaped.
b) The condition of non-natural user of the land.
The House of Lords emphasized that the absence of an escape was the basis of their decision in this case.
Rylands –v-Fletcher is not actionable per se and therefore there must be proof of actual damage. This appears to mean actual damage to person or property and it excludes a mere interference with the plaintiff’s enjoyment of this land, such as would be a ground in an action in nuisance.
Damage recoverable under the rule is limited to damage to person or property.
In Hale-v-Jennings Bros, the court held that an occupier of land was entitled to damages for personal injury under the Rule in Rylands-v-Fletcher.
In Cattle-v-Stocker Waterworks co, it was held that purely economic loss was not recoverable.
Requirement for strict liability to be applicable;
1. Accumulation on the defendant’s land
The defendant must bring the hazardous material on to his land and keep it there. If the thing is already on the land or is there naturally, no liability will arise under. The thing must be accumulated for the defendant’s own purposes and the thing that escapes need not be the thing accumulated.
Miles v Forest Rock Granite (1918)
The defendant was blasting rocks using explosives which they had brought onto their land. Some of the rocks flew onto the highway and injured the claimant. The claimant brought an action based on the principal established in rylands v. Fletcher.
Held: The defendant was liable despite the fact that the rocks were not brought on to the land nor purposively collected and kept there. The explosives were accumulated and caused the rocks to escape.
2. A thing likely to do mischief
The thing need not be essentially hazardous, it should only be a thing likely to cause damage if it escapes
3. No for Escape
There must be an escape from the defendant’s land into the plaintiff. An injury inflicted by the accumulation of a hazardous substance on the land itself will not invoke liability under Rylands v Fletcher.
Ponting v Noakes (1849)
The claimant‟s horse died after it had reached over the defendant‟s fence and ate some leaves from a Yew tree. The defendant was not liable under Rylands v. Fletcher as the Yew tree was entirely in the confines of the defendant‟s land and there had therefore been no escape.
“I do not see that they can be made responsible for the eating of these Yew leaves by an animal which, in order to reach them, had come upon his land. The hurt which the animal received was due to his wrongful intrusion. He had no right to be there and the owner therefore has no right to complain.”
4. Non-natural use
The defendant must be using his land in a way that is not ordinary
5. Remoteness of damage
Liability in Rylands v Fletcher is subject to the rules on remoteness of damage.
Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. Remoteness of damage is often viewed as an additional mechanism of controlling tortious liability. Not every loss will be recoverable in tort law. Originally a defendant was liable for all losses which were a direct consequence of the defendant’s breach of duty.
This was largely considered unfair as a defendant could be liable for damage which was not foreseeable and therefore could not take steps to prevent it.
Cambridge Water v Eastern Counties Leather plc (1994)
The defendant owned a leather tanning business. Spillages of small quantities of solvents occurred over a long period of time which seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the Claimant water company. The borehole was used for supplying water to local residents. The water was contaminated at a level beyond that which was considered safe and Cambridge Water had to cease using the borehole. Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher
Held: Eastern Counties Leather was not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in negligence.
The Egg shell skull rule
A final aspect of remoteness of damage is the egg shell (or thin) skull rule. This means a defendant must take their victim as they find them, i.e. if the victim is particularly vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be expected in an ordinary person, the defendant remains responsible for the full extent of the injury.
Defenses in Ryland v Fletcher
1. Plaintiffs fault. Where the escape in question resulted from some fault on the part of the plaintiff this may be used as a defense.
2. Act of stranger – If the escape was caused by the act of a stranger over which the defendant has no control, the defendant will escape liability.
Box v Jubb (1879)
The defendant had a reservoir on their land. There was another reservoir situated at a higher level than the defendant’s. The owner of this other reservoir emptied it through a drain connected to the defendant’s reservoir causing the defendant’s reservoir to overflow and damage the claimant’s land.
The claimant brought an action under Rylands v. Fletcher contending that there was a non natural user of the land and that there had been an escape of water that caused damage.
Held: The defendant was not liable for the damage as it was caused by the act of a third party over which the defendant had no control.
If however, the act which caused the escape was committed by a person over whom the defendant may exercise some control the defendant may still be liable:
3. Statutory authority
4. Act of God – An act of God is an event which ‘no human foresight can provide against, and of which human prudence is not bound to recognise the possibility’
5. Consent/benefit- If the claimant receives a benefit from the thing accumulated, they may be deemed to have consented to the accumulation:
Peters v Prince of Wales Theatre (1943)
The claimant leased a shop adjacent to a theatre from the defendant, the owner of the theatre. The claimant’s shop sustained flood damage when pipes from the theatre;’s sprinkler system burst due to icy weather conditions. The claimant brought an action based on liability under Rylands v. Fletcher
Held: The defendant was not liable. The sprinkler system was equally for the benefit of the claimant and the claimant was deemed to have consented to the use of the sprinkler system since it had been installed prior to him obtaining the lease.