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Questions 2
What is the future of the tort in Rylands v Fletcher, following recent key cases?
For the general approach, refer to ‘Approaching an essay question’, above.
Outline
- Begin with an introduction to the tort in Rylands v Fletcher, its components, history, function and relation to other torts particularly nuisance.
- Proceed to recent key cases, eg Cambridge Water v Eastern Counties Leather and Transco v Stockport MBC. In both, future developments for the tort were considered and determined.
- Conclude with your own prediction, supported by appropriate legal authority.
The detail for the first introductory paragraph can be found Chapter 12. It is important to stress its close relationship to nuisance – indeed following Cambridge Water it is clear that it is a sub-category of nuisance. It is a land-based tort and its particular characteristic is that can comprise a single rather than repeating event and it a tort of strict liability. Key cases are Rickards v Lothian, Read v Lyons and Mason v Levy Autoparts.
Cambridge Water is a key case because it was a modern opportunity for the House of Lords to consider and refine the concept of non-natural user. It also produced the surprising requirement for reasonable foreseeability of the type of damage. In Transco, further definitions of non-natural user were produced. The House of Lords considered the Australian decision in Burnie Port Authority v General Jones where it was decided to absorb the tort into negligence.
The reasons given in Transco for not taking that option are significant and will inform your paragraph 3. They include the fact that such a decision would more appropriately be taken by parliament. It is a common law principle of long-standing and is still an important tool in environmental protection.