Chapter 13 Podcast Transcript

Since its development in the 1868 case of the same name, the rule in Rylands v Fletcher has appeared to impose strict liability for damage caused by the escape of dangerous things from land. Much of the legal precedent relating to this tort stems from the 19^th century and some have believed that Rylands v Fletcher is of relatively little practical significance today. This is because of the expansion of the torts of nuisance and negligence—as well as developments in statutory liability for environmental wrongs. However there have been some interesting cases on the tort of Rylands v Fletcher in the last 25 years. Much liability for hazardous activity and environmental matters is now also specifically governed by statute.

The ingredients of the tort are, according to Blackburn in Rylands v Fletcher :

 ‘ … that the person who for his own purposes brings on 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.’

To this has been added the requirement that the defendant was in the course of non-natural user of land. The definition of non-natural user is: ‘…some special use bringing with it increased danger to others and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community.’ That quote comes from Rickards v Lothian in 1913.

Important cases are Cambridge Water Co v Eastern Counties Leather plc in 1994, and Transco plc v Stockport Metropolitan Borough Council in 2004. In the former, a requirement for foreseeability of the type of damage was introduced by the House of Lords. Strict liability is maintained, however, in the sense that the escape itself need not be foreseeable. In Transco the possibility to follow the Australian example and abolish the tort was rejected by the House of Lords, which expressed that this would be for Parliament to do. In the meantime, there was a place in the common law for this unique action.

It is important that the key elements of this tort be understood, and their relationship to and differences from nuisance. Because it is essentially a land-based tort, recovery for physical injury is no longer permitted.

Defences include statutory authority, Act of God and behavior of an unknown third party.