Early common law in England held persons liable who caused harm, regardless of bad intent or negligence. Over time trespass and nuisance developed as causes of action applicable to a landlord suffering from an unauthorized intrusion onto his land. In 1825 Negligence surfaced as a separate tort, it focused on an equitable standard of reasonable care with defenses such as contributory negligence and assumption of risk. Negligence was a product of the Industrial Revolution in England. Rylands v Fletcher could have been an attempt to shield people’s rights from development in industry without legislative intervention.
Many jurists believe the Rylands doctrine should be a subset of nuisance or it should be absorbed into the ordinary rules of negligence. However, it cannot be denied that there are specific requirements to a claim in Rylands that do not apply to nuisance. The concept of strict liability is still imposed under a Rylands claim. I will discuss cases where the rules of negligence and Rylands have overlapped, instances in which Rylands has been abolished and how the concept of strict liability under the Rylands rule has developed.
The plaintiff was mining coal on premises adjoining the defendant. The defendant built a reservoir to supply water to a mill on his land. The work was done by independent contractors. They had failed to discover that there was a disused shaft of mine under the reservoir. Over time water from the reservoir broke into the shaft and flooded the plaintiffs mine. The problem with this case was that the defendants had not been negligent, no trespass was committed, the defendants were also not guilty of nuisance as there had only been a single escape. However, liability was imposed on the defendants.
It was established that a person who allows a dangerous element on their land and if it escapes and damages a neighbor, is liable on a strict liability basis. There’s no need to prove negligence on the part of the landowner from which the dangerous substance has escaped.
Justice Blackburn held, “We think that the true rule of law is, that the person who for his own purposes 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 damage which is the natural consequence of its escape.”
Lord Cairns added a condition that restricted the rule to circumstances where the defendant made a non natural use of the land. This is strict liability as it is unnecessary for the claimant to prove negligence on the part of the defendant.
Strict liability is defined as an absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault. In the case of Rylands v Fletcher it was proven that the defendants were not negligent but the judges ruled that they still had to pay damages to the plaintiff. The judges stated that strict liability could only occur in limited circumstances and there were requirements that had to be fulfilled if you were hoping to rely on the doctrine of strict liability. Imposing liability without proof of negligence is controversial and therefore a restrictive approach has been adopted regarding liability under Rylands v Fletcher.
In the past strict liability was limited to the escape of fire, cattle, unruly beasts or filth hereafter liability was to attach to anything likely to do mischief in the event of escaping. Rylands v Fletcher created a new set of circumstances in which strict liability was now applicable. In the case itself it was found that the defendants were not personally negligent, however strict liability includes liability for the employee’s negligence regardless of whether he is an independent contractor.
There are arguments that the rule in Rylands v Fletcher is an extension of the torts of negligence and nuisance. In certain instances, it does overlap however there are definite aspects of difference. The defenses laid out by Blackburn J overlap with basic aspects of the ordinary negligence. Contributory negligence is a defense to a tort of negligence and it also applies in nuisance and a Rylands case too. This reduces the strictness of the tort, by requiring proof of negligence. Statutory Authority also applies in both nuisance and Rylands. Act of God, intervention of a 3rd party and necessity are other defenses that apply to Rylands but do not apply in nuisance. Nuisance is defined as the unreasonable, unwarranted, unlawful use of property which causes inconveniences or damage to others either to individuals or to the public.
There are specific requirements the claimant must show to succeed in this tort and these requirements set Rylands apart from other torts. The claimant must show the defendant brought something onto his land, the defendant made a non natural use of his land, the thing was likely to do mischief if it escaped and the thing escaped and caused damage.
These requirements have stayed the same in Ireland where there haven’t been many claims under the Rylands doctrine. In England the House of Lords added another requirement that harm must have been foreseeable.
There are issues with some of the requirements. The bringing things onto land or accumulation raises issues in the case of McDonnell v Turf Development Board. In this case water drained from a bog was held to come within the principle however unlike the Rylands case this did not involve the unintentional escape of water brought to the defendant’s land but the intentional ejection of water naturally occurring on the land. This extension of the principle obscures the lines between private nuisance and Rylands v Fletcher. An explanation for the McDonnell decision suggests that the equipment used for drainage constituted the accumulation.
The requirement of foreseeability is something the Rylands rule and negligence share in common. This implies that there is no need for the defendant to compensate for accidents beyond his normal contemplation. This was established in the case of Cambridge Water Co Ltd v Eastern Counties Leather plc. In this case chemicals originating from the leather company were found contaminating the water in the borehole owned by the water company. Lord Goff described the use of chemicals as “an almost classic case of non-natural use”. Applying the doctrine of strict liability, it is easy to see how liability could be imposed in this case regardless of the fact the defendant did everything in his power to prevent the escape. However, Lord Goff dismissed the case and said that it was not foreseeable the chemicals would enter the borehole miles away. He stated that Rylands was arguably a sub-set of nuisance and it had always been intended for foreseeability of harm to be a factor. This burden on the plaintiff reduces the strictness of the obligation owed, bringing it closer to nuisance and negligence. Foreseeability of harm is a factor more akin with the rules of negligence and its not generally seen to be an approach in line with strict liability. A component of strict liability still remains as the plaintiff would be still liable for a foreseeable escape even if they took care to try and prevent it. This reasonable foreseeability requirement would mean less plaintiffs would rely on Rylands v Fletcher. It also appears that a remoteness test applies to this tort as it does for nuisance. The House of Lords rephrased the principle of Rylands v Fletcher and held that Rylands had not introduced any profound new departure from the well established doctrine of nuisance, but was an extension of the law of nuisance to deal with ‘one off escapes’. It could be argued that if the requirement for reasonable foreseeability is adopted fully, Rylands wouldn’t exist as a separate tort. Even without the requirement for reasonable foreseeability the tort is of little importance with very few successful claims reported.
It is important to note that there are circumstances of procedural differences between nuisance and Rylands. The claimant does not have the burden of proving the defendant was at fault. This is assessed by the court with regard to the reasonable user and remoteness considerations. A non occupier can commit the tort of nuisance in that the key requirements of nuisance are unlawful use of land, indirect interference with the claimants use or enjoyment of their land, indirect interference with the land with the land and aspects of damage. However, in Rylands the occupier is key. Nuisance as a tort does not encompass the Rylands rule. It is safe to say that as this rule exists it will always have limits of application.
There’s also an issue with the requirement of non natural use. It is difficult to know how to assess the danger of non natural use. An accurate analysis including factors such as defendants conduct and significance of the risk would be very similar to negligence. The two torts would still be different due to the duty owed. Under Rylands a strict duty is owed and under negligence it’s the duty of reasonable care. However, the difference isn’t all that great. This issue came up in the Burnie Port Authority v General Jones case. In this case a fire was caused by the use of welding torches near highly flammable insulating material the fire spread and burnt a nearby property. There was confusion in interpreting Rylands in this case and this was due to the development and alteration of the elements of the Rylands principle. Defenses had become similar to negligence. In most cases where recovery was possible under Rylands you could also recover under a negligence action. In the Burnie case it was said that Blackburn J’s formulation had been ‘all but obliterated by subsequent judicial explanations and qualifications’. They said the independent contractor should be liable in the law of negligence. Burnie when allowing its contractor to introduce dangerous substances and activities on site, owed a duty of care to Jones to take reasonable steps to prevent a fire and this breach in the duty of care created liability under the normal rules of negligence, not the rule in Rylands. Australia abolished the Rylands doctrine. There was no clear guidance as to what constituted a non natural use and the doctrine had many uncertainties and difficulties. Rylands rule in Australia became absorbed into the ordinary law of negligence with requirements of duty of care, reasonable foreseeability and proximity.
The Rylands rule was adopted in many jurisdictions however many states have interpreted the rule wrongly. The rule was applied in the Ontario Supreme Court in Curtis v Lutes.
“One who sets a fire which spreads to his neighbor’s land and does damage may be held liable under the rule of absolute liability laid down in Rylands v Fletcher.”
Rylands v Fletcher does not impose absolute liability. It is imperative to recognize the difference between absolute and strict liability. Like strict liability and unlike absolute liability, the Rylands doctrine offers various defenses to limit the application of the doctrine and the liability of the defendant.
Originally it was thought Justice Blackburn’s “true rule” seemed fair and just. That a landowner who brings something onto his land which escapes and injures an innocent party should be compelled to compensate at his own expense. However, Blackburn J saw the harshness of such an absolute statement and introduced exceptions to the rule such as the escape was owing to the plaintiffs default or an act of god. It was seen right away as a rule of strict rather than absolute liability. Blackburn J and Lord Cairns created a redress for the Rylands plaintiff but added exceptions to the rule.
The controversy surrounding the Rylands decision and the interpretation of the decision meant it faced opposition from some American courts. The grounds of this restatement of the law, which was Rylands, were not clear enough. This led to the foundation of a general theory of strict liability for ‘ultra-hazardous’ activities in the American Law Institutes Restatement of the Law Of Torts in 1938. Ultra hazardous activity created a strict liability in tort. Ultra-hazardous activity identified activities such as blasting and the use, storage and transportation of explosive substances. However, the American Law Institute avoided the controversy surrounding Rylands by stating, “The institute expresses no opinion as to whether the construction and use of a large tank or artificial reservoir in which a large body of water or other fluid is collected is or is not an ultra-hazardous activity.”
In the American Law Institutes Second Restatement of the Law of Torts the term ultra-hazardous was replaced by abnormally dangerous. Strict liability would apply to activities which were abnormally dangerous. The Third Restatement of Tort, the authors as well as Blackburn J and Lord Cairns agree that an activity does not constitute an ultra-hazardous or abnormally dangerous activity and therefore strict liability does not apply if the activity is a matter of common usage. Common usage is defined in the second restatement as an activity habitually carried out by the great mass of mankind or by many people in the community.
There are many activities in a modem society that, even though they are dangerous, are accepted because they are so common. An activity may involve fundamental risks of harm and still not be considered “ultra-hazardous” or “abnormally dangerous” if it is a matter of common usage”. The case for strict liability is weakened if an activity is common, as its likely its dangers are not seen as great and there will more than likely be safety precautions available to reduce risk. Water collected in large quantity in a hillside reservoir in the midst of a city or in coal mining country is not a common activity, and may be regarded as abnormally dangerous. Water in a cistern or in household pipes, although it may involve the same danger of escape, differing only in extent, still is a matter of common usage and therefore not abnormal. In Indiana Harbor Belt Railroad Company v American Cyanamid Company, the court explained that common usage in this context depends not on the regularity with which the activity occurs but rather the number of people who take part in it. Common usage is an element that a plaintiff must prove if he is alleging a defendant is strictly liable due to engaging in an abnormally dangerous activity.
The Restatement also recommended a more limited range of defenses leaving the defendant liable for the release of the hazard by the unintentional intervention of a stranger.
Less defenses are in line with the doctrine of strict liability.
Rylands doctrine has not been used often in Ireland. This is probably due to lower density of population, better control of unsafe substances, dislike for the concept of strict liability and preference to restrict actions to nuisance, trespass and negligence.