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1. How could the action under Rylands v Fletcher be used to help to solve environmental problems?
Much of the answer to this question will depend on a consideration of the action/rule as it stands today and whether it still retains any potential usefulness (see guide answer to question 2). Clearly, having strict liability for substances or items housed on land, should they 'escape' to another's land and cause damage, is a tool that could well be utilised by environmentalists. Imagine the scenario where a factory storing chemicals or oil near a riverbank or lake had an escape which polluted the water. Could Rylands (in its traditional form) help? Who would sue? And, more to the point, can the rule be used this way today, or has it lost its potential usefulness in this respect with the adaptations made to it in more recent cases interpreting how the rule should be applied (particularly Transco)? Given that the action is, these days, rarely used, it would be useful to include any more recent examples: see, for instance Stannard (t/a Wyvern Tyres) v Gore [2012]. What does the outcome and reasoning used in ‘modern’ cases (and possibly even the approach adopted in other jurisdictions) tell us about Rylands v Fletcher’s environmentalist credentials?
2. Does the action under Rylands v Fletcher serve any useful purpose in the modern day?
The straightforward answer to this question centres upon the fact that post-Transco there is really only a very limited scope of situations to which a Rylands claim might apply. So, while it might be a useful tool to have in one's arsenal, the Rylands action is likely to be only of very limited use (in this jurisdiction – it is more widely used elsewhere) and, potentially, is of historical significance only. Given that the action is, these days, rarely used, it would be useful to include any more recent case examples/attempts: see, for instance Stannard (t/a Wyvern Tyres) v Gore [2012].
The requirements of the claim post-Transco mean that Rylands actions are more like nuisance actions for one-off escapes. First, there is now a standing requirement; the same as exists in private nuisance and dominated (currently) by Hunter v Canary Wharf [1997]. This in itself will limit the number of potential claimants – and therefore the action's useful purpose – as events such as those in Rylands, Cambridge Water, and Transco don't necessarily only cause harm to landowners or those with a proprietary interest (consider also our comments in the Pause for Reflection box in section 19.2.2 for a relationship between this point and the point about limiting the scope to cover property claims only and not personal injury or sickness). Note, however, that there is potentially scope to challenge the strictness of the standing requirement using human rights law or other 'ways around' the requirement (see e.g. McKenna v British Aluminium [2002]; Dennis v MOD [2003]).
Transco has further limited opportunities to use the Rylands action by requiring that the substance or thing in question must pose an 'exceptionally high risk' of harm to neighbouring property if it should escape and must also represent an 'extraordinary', 'unusual' or 'special' use (not merely 'non-natural') of land. Despite the opening up of the category of non-natural use in Cambridge Water, this aspect of a claim now seems so limited that it may ensure that the Rylands action serves little useful purpose in a modern age (again, see Stannard [2012]). This seems, too, to take the Rylands claim further from its roots in true strict liability for industrial-type activity.
Lord Goff's addition of a foreseeability requirement in Cambridge Water (and the confirmation of this as being the same test as is used in private nuisance in Transco) also further limits the scope and usefulness of Rylands actions. The very thought that such events as were envisaged by Lord Blackburn in Rylands (burst reservoirs and the like; things happening by colossal 'accident' in an industrial age) could be described as foreseeable is perplexing. Lord Goff appears to accept that Blackburn's phrasing 'likely to do mischief' translates directly into 'mischief (harm) must be foreseeable' – but it is certainly arguable that this is not what was meant by the words 'likely to do mischief if it escapes'.
So, an answer to this question needs to consider these factors and see if, within them, there is a small door open for future claims – and speculate on what type of claim this might be – there may be useful points made in the Stannard [2012] judgment on this point. At another level, it also ought to be considered whether leaving this door open serves (or could potentially serve) any useful purpose – such as by filling a (potential) gap left by the coverage of the law of private nuisance and negligence. English law seems to have determined that the Rylands action is a species of nuisance – in other jurisdictions (see e.g. Burnie Port Authority v General Jones Pty Ltd [1994]) it has been subsumed into negligence – does this mean that there is no point keeping it? Who or what could we protect by doing so? (See Roderick Bagshaw, 'Rylands confined' (2004) 120 Law Quarterly Review 388 and Donal Nolan ‘The Distinctiveness of Rylands v Fletcher’ (2005) 121 Law Quarterly Review 421).
3. Do you think the courts in this country should follow the Australian High Court and formally view the action under Rylands v Fletcher as a species of negligence?
Again, an answer to this question would require an understanding of the developments and adaptations made to the rule in the later cases, and a consideration, following from this, of the usefulness of the rule in the modern day (see guide answer to Q2). However, there is another category of case that could be utilised in answering this question and that is those 'escape'-type cases that actually seem to straddle either private nuisance and Rylands or negligence and Rylands (see section 19.6; also Conor Gearty, 'The place of private nuisance in a modern law of torts' (1989) Cambridge Law Journal 214 and Roderick Bagshaw, 'Rylands confined' (2004) 120 Law Quarterly Review 388). It may be that there is really no difference – these days – between the action and the way similar problems could be dealt with in nuisance or negligence. The question asks, however, whether this should be formalised in the sense it has been in Australia (see Burnie Port Authority v General Jones Pty Ltd [1994) – an answer to this will clearly have to consider whether there would be any potential (e.g. remaining usefulness of the rule in certain – very specific – circumstances) use for the rule as it stands (again, you could consider Stannard [2012] here).