Chapter 19 Pointers to 'pause for reflection' and 'counterpoint' boxes

Actions under the rule of Rylands v Fletcher

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While this question is asking for a personal response to the case, including thoughts on whether the decision was the right or wrong one to arrive at, it is also asking a more nuanced legal question: could the case have been decided differently? For example, had the law lords stuck true to the formulation of (strict) liability under the Rylands rule, would the decision be different? To answer this we would now need to determine whether the defendants had brought onto their land something that was not naturally there and likely to do mischief (the chemicals), which had subsequently escaped (through the earth into the borehole) and caused harm (polluted drinking water). On this formulation, there would/should have been liability in Cambridge Water (as found by the Court of Appeal). If this is strict liability then does it matter that the chemicals may not have been harmful to humans? Conversely, if they were not harmful, why had the EU banned them? Also, if there was liability, what would it be for – that is, what would the damages have had to pay for, and is it right that a polluter would pay (only) for this?

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There is not much more to say about this. The role of the rule from Rylands as a 'land tort' suggests that it is land damage (in both the tangible and non-tangible sense) that we need to look for. In private nuisance, harm to a person's health or well-being can be brought into a claim, albeit not directly, by translating it into the 'language' of nuisance and saying that the health problems or personal injury suffered affect one's 'use and enjoyment of land'. This does not have an obvious parallel in Rylands liability and simply comes down to how 'harm' or 'damage' caused by an escape is interpreted. However, it would seem strange that this should be the rule, given the political and moral reasons for creating Rylands liability in the first place – a response to man-made disasters waiting to happen. What if – to use the Rylands scenario – water flooding out of a burst reservoir actually injured or killed a person, instead of only damaging land? What if, in Cambridge Water, people had drunk contaminated water and become ill as a result?


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