Law of Tort
Module Code: LAW 324 M1
Tutor: Brian Collins
Assignment
Question: 1
In Rylands v Fletcher (1865) Lord Cairns stated that liability thereunder would only arise when the accumulation amounted to a non-natural use of the land.
Explain fully what is meant by this concept and trace its development in case law to the present day.
This rule in Rylands v Fletcher originated in the tort of nuisance in the nineteenth century during the industrial revolution. It was based on the principle that if a person purchased land or put his land to use for industrial purposes, and as a result damage was caused to a neighbours land, then the cost of that damage would be borne by the industrialist, without the need for the claimant to prove fault. The essence of the rule is that it is a form of strict liability for the escape of 'things' likely to cause damage, that have been brought onto land. Probably the best example of the rule functioning is in Rylands v Fletcher1 itself. The defendant, a mill owner, employed an independent contractor to build a reservoir on his land, the contractor failed to block disused mine shafts that he had come across on the site. When the reservoir was filled, the water escaped down the shafts and flooded the plaintiffs adjoining mine, causing damage estimated at almost £1000. D had not been negligent because he could not have known about the shafts nor could he have been held vicariously liable for the contractors. An action in trespass was not available because the damage was not direct and immediate, and action in the tort of nuisance was also unavailable because at the time of the case it could not be applied to an isolated escape.2 Nevertheless, D was held liable in tort, in the Court of Exchequer Chamber and this decision was upheld in the House of Lords. The judges did not regard their decision in this case as a new form of liability in tort, the justification for this rule was explained by Blackburn J in the Court of Exchequer Chamber by quoting previous cases in nuisance as authorities. These authorities however did not appear to go as far as the decision in Rylands and "as developed by the courts in subsequent decisions, was wider and quite different in kind to any that preceded it."3 In delivering the judgement of the Court of Exchequer Chamber, Blackburn J said that the "rule applied only to a thing which was not naturally there."4 Lord Cairns in the House of Lords added the condition that the defendant must have put his land to "a non-natural use"5 It is this concept of non-natural use that has created much confusion, and the courts have over the years redefined this concept on a number of occasions, adding conditions and restrictions to its application.
Accumulation
The rule does not apply to things that occur naturally on the land, the thing must have been brought on to, or accumulated on the land. In the event of the escape of water that is naturally upon the land D will not be liable if there is an escape that causes damage because D is not responsible for the accumulation or its creation,6 there must exist the fact that it has been "artificially accumulated"7 by D. Similarly, the escape of rocks that are naturally on the land would not amount to an accumulation,8 however if the escape of the rocks is the result of blasting in a quarry, as was the facts in Miles v Forest Rock Granite Co. (Leicestershire) Ltd,9 liability may be imposed for the accumulation of the explosives. Therefore, even if the thing that escapes is not the thing that has been accumulated, liability can still be imposed. Although, this rule in Rylands is said to be a principle of strict liability the common law has developed a number of defences that have moved towards introducing the elements of fault. The occupier of the land is liable for damage caused by an escape subject to the defences of common benefit,10 act of a stranger,11 statutory authority,12 consent of the claimant,13 default of the claimant14 or an act of God.15
As already noted D is not liable under the rule for an escape of things that are naturally upon the land, in Giles v Walker16, wild vegetation such as thistles were held to be outside the rule. D had ploughed his land causing a large crop of thistles to grow, from which seeds were blown onto his neighbours land, causing the same problem. D was found not liable because the thistles had not been planted by him, they were the 'natural growth of the land'. Remarks made by Lord Esher MR during the argument, suggested that had it ...
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As already noted D is not liable under the rule for an escape of things that are naturally upon the land, in Giles v Walker16, wild vegetation such as thistles were held to be outside the rule. D had ploughed his land causing a large crop of thistles to grow, from which seeds were blown onto his neighbours land, causing the same problem. D was found not liable because the thistles had not been planted by him, they were the 'natural growth of the land'. Remarks made by Lord Esher MR during the argument, suggested that had it been proven that D's actions had caused the thistles to come onto the land and grow, "the requirement of artificial accumulation would have been satisfied."17 This would suggest that should an occupier introduce new vegetation unto his land that was not the natural growth of the land, and damage to a neighbours land was a consequence, then the occupier would be liable. This was not the case in Noble v Harrison,18 when the planting and growing of trees, brought onto the land by the occupier was held to be the natural use of land. Even if the planting of trees can generally be deemed to be the natural use of land, it may well depend on the facts of the case and the nature of the plant. Whether a tree planted by an occupier that was later found to be poisonous would be held natural use is very much in doubt. The planting of a yew tree for example, was held in Crowhurst v Amersham Burial Board19 not to amount to a natural use of the land, when several of a neighbour's livestock died after eating some of the leaves.
Natural v Non-natural use of Land
The rapid increase of industrialisation in Britain from the late nineteenth century led to the courts having to rethink what could be deemed a non-natural use of land. In Rickards v Lothain,20 Lord Moulton redefined the concept of non-natural use of land when he stated that,
"It is not every use to which land is put that brings into play that principle, it must be some special use, bringing with it increase danger to others, and which must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community."
This formulation had for a long time been considered to be the best definition of non-natural use of land and it allowed the courts to interpret the facts of future cases with a greater degree of discretion than had been allowed from the words of Lord Cairn's speech in Rylands v Fletcher. Over the years this concept has been extended to mean the 'ordinary' use of land which has enabled the courts greater flexibility with the principle of strict liability and to adapt the application of the rule to suit changing circumstances and times. The judges have expanded the term ordinary use to create exceptions of non-natural use to include things brought onto the land for domestic uses and in some case even for industrial purposes.
The decisions in the cases that follow demonstrate how the application of the rule has varied according to time and circumstances. In Rainham Chemical Works Ltd. v Belvedere Fish Guano Co.21the building and operating of a munitions factory was held to be a non-natural use of land. However in Read v Lyons22 it was stated that non-natural uses 'may vary according to the circumstances' and the operating of a munitions factory was held not to be a non-natural use of land. These two cases make obvious the flexibility of the courts when applying the rule in Rylands. In both cases the facts were interpreted to suit the circumstances of the times, taking notice that the earlier decision in the House of Lords took place in peacetime, whereas the later case occurred in wartime. On the face of these two cases it would seem that the use of land for similar military purposes in peace time would be termed non-natural use, however following the decision in Ellision v Ministry of Defence,23 this is very much questionable, when the court expanded the meaning of Lord Moulton's words, 'the general benefit of the community,' to mean the 'national community as a whole'.
There have been an abundance of cases were the question was whether the use of the land or premises was a natural or non-natural use. Although it was never really clear what a non-natural use of land was, it could be said form the following cases that the courts were sure of what amounted to a natural use of land. Water pipe installations in a building was held to be natural use of land in Rickards v Lothain (1913)24 as was the building or pulling down of walls in Thomas and Evans Ltd v Mid-Rhondda Co-operative Society (1941).25 The working of mines and extracting minerals on the land in Rouse v Graelworks Ltd (1940)26 was held to be a natural use of land, also the provision for disposal of sewage by a local authority in Pride of Derby and Derbyshire Angling Association v British Celanese Ltd (1953)27 was held not to amount to a non-natural use of land. The lighting of a fire in a fireplace of a house in Sochaski v Sas (1947)28 and holding a torch at the top of a opening in a grate in order to test the chimney draft in J Doltis Ltd v Isaac Braithwaite & Sons (Engineers) Ltd (1957)29 were both held to be natural uses of land. Similarly, in British Celanese v A H Hunt (1969),30 the defendants manufactured electrical components on an industrial estate. Metal foil strips escaped from the factory, they blew onto overhead power cables causing a power failure which halted production at the claimant's factory. The court said that there was no special risk attached to storing the foil and the use of the land was beneficial to the community, therefore the defendants were held not liable under Rylands because where their factory was situated could not be regarded as a non-natural use of land.
By contrast to the vast number of cases were the use of land was held not to be non-natural, there are only a small number of cases were the rule has been applied. The application of the rule in Rylands has been restricted and modified by the courts on so many occasions that it has imposed a number of conditions that make it almost impossible to find situations where the use of land could be held to be non-natural. Nonetheless, the rule was applied to the bulk storage of water, gas, electricity in mains and the like in Northwest Utilities v London Guarantee and Accident Co (1936).31 The use of a blow torch in a loft to thaw frozen pipe in Balfour v Barty King (1956) 32and the storing of ignitable materials in a barn in Hobbs v Baxendale Chemicals Co (1992)33 were also held to be a non-natural use of land. Likewise, in Mason v Levy Auto Parts Ltd (1967)34 the defendants stored flammable material on their land. It ignited and fire spread to the neighbouring property. The defendants were held liable under the rule as the storage of the material amounted to a non-natural use of land.
Over the years it was a clear tendency of the courts when applying the rule in Rylands to favour a narrow approach, in order not to stand in the way of industrial and economic growth. Many cases were decided on matters of policy and the judges viewed many industrial activities as a natural use of land. They believed that this was the correct approach in a rapidly growing industrialised society. This was certainly the view of Kennedy J at first instance in Cambridge Water Co v Eastern Counties Leatherworks 35 when he said that his decision was based on reflection of,
"the innumerable small works up and down the country with drums stored in their yards ... Inevitably that storage presents some hazard, but in a manufacturing and outside a primitive and pastoral society such hazards are a part of the life of every citizen."
This case of Cambridge Water Company v Eastern Counties Leatherwork36eventually made its way to the House of Lords, the facts of the case were that the Water Company supplied the area of Cambridgeshire via a borehole in an aquifer. The water in the borehole was found to be contaminated by substances, including a chlorinated solvent - PCE. The PCE came from the tannery of the Leatherworks and the Water Company made a claim under Rylands.37 The High Court rejected liability under Rylands and held that the tannery's premises were a natural use of the land. The Court of Appeal upheld this decision.38 However, the House of Lords rejected this view and Lord Goff of Chievely, "denied the fact that the generation of employment for a local community was sufficient to transform the storage of chemical used in the tanning industry into a natural use of the land."39 Lord Goff could have used this case as an opportunity to make clear the concept of 'non-natural use' but he declined, saying only that in his view "the storage of chemicals on industrial premises should be regarded as an almost classic case of non-natural use."40
His Lordship obviously prefers a much wider concept of non-natural use in the application of the rule in Rylands and it is difficult to reconcile his view with the view of Lord Moulton in Rickards v Lothain (1913)41 which has been strictly applied by the courts for many years. Environmentalists have no doubt welcomed the assertions of Lord Goff and we can be certain that his words will be repeated many times in future cases. Whether the decision in Cambridge Water Co will lead to the court adopting a broader concept of non-natural use to include industrial activities remains to be seen. Bearing in mind that the original purpose of the rule in Rylands was intended to impose strict liability on the industrialist who "for his own purposes, brings on his land and keep there anything likely to do mischief, if it escapes it must do so at his peril...."42 Academic writers have persistently criticised the non-natural use of land rule in Rylands and have even called for it to be abolished, as it was in Scottish law in 1985,43 however, some writers have welcomed Lord Goff's dictum in Cambridge Water Co and have suggested that providing the judges in future cases share Lord Goff's broad concept this could mean the return of Rylands v Fletcher as a distinct principle in the law of tort.44 The status of earlier authorities will now have to be re-evaluated in light of Cambridge Water Co. particularly the decisions in Rickards v Lothain [1913] AC 265 and British Celanese v A H Hunt [1969] 1 WLR 959, considering that the use of a commonly used chemical in a particular manufacturing industry was the subject matter, and the operations of the company in question served to support a local community, yet that was not sufficient to render the use of the land a natural use. The relationship between community benefit and non-natural user will evidently be the discussion of future cases but until then the position is unclear and we await further clarification.
Table of Cases
Balfour v Barty King [1956] 2 All ER 555
British Celanese v A H Hunt [1969] 1 WLR 959
Cambridge Water Co v Eastern Counties Leatherworks (unreported 31 July 1991)
Cambridge Water Company v Eastern Counties Leatherwork [1994] 1 All ER 53
Carstairs v Taylor [1871] LR 6 Ex 217
Crowhurst v Amersham Burial Board [1878] 4 Ex D 5
Ellison v Ministry of Defence [1997] 81 BLR 101
Giles v Walker [1890] 24 QBD 656
Green v Chelsea Waterworks Co. [1894] 70 LT 547
Hobbs v Baxendale Chemicals Co [1992] 1 Lloyds Rep 54
J Doltis Ltd v Isaac Braithwaite & Sons (Engineers) Ltd [1957]1 Lloyd's Rep 522
Kennard v Cory Bros [1921] AC 521
Lomax v Stott [1870] LJ Ch 834
Mason v Levy Auto Parts Ltd [1967] 2 All ER 62
Miles v Forest Rock Granite Co. (Leicestershire) Ltd [1918] 34 TLR 500 CA
Nichols v Marsland [1876] 2 Ex D1
Noble v Harrison [1926] 2 KB 332
Northwest Utilities v London Guarantee and Accident Co [1936] AC 108
Pontardawe R.D.C. v Moore-Gwyn [1929] HC
Pride of Derby and Derbyshire Angling Association v British Celanese Ltd [1953] Ch 149 at 189, 1 All ER 179 at 203 CA
Rainham Chemical Works Ltd. v Belvedere Fish Guano Co. [1921] 2 AC 465
Read v Lyons [1947] AC 156
R.H.M. Bakeries Ltd v Strathclyde Regional Council [1985] SLT 214
Rickards v Lothain [1913] AC 265
Rouse v Graelworks Ltd [1940] 1 KB 489
Rylands v Fletcher [1868] LR HL 330
Smith v Kenrick [1847] 137 ER 205
Sochaski v Sas [1947] 1 All ER 344
Thomas and Evans Ltd v Mid-Rhondda Co-operative Society [1941] 1 KB 381
Bibliography
Brazier, M Street on Torts, 10th Edition, Butterworth's, London (2000)
Cooke, J Law of Tort, 5th Edition, Longman, London (2001)
Elliott, C & Quinn, F Law of Tort, 3rd Edition, Pearson's Ed. Ltd, London (2001)
Heuston, R & Buckley, R Salmond and Heuston on the Law of Torts, 21st Edition, Fontana Press, London (1995)
Heuston, R.F.V. The Return of Rylands v Fletcher, The Law Quarterly Review, (1994) Vol.110
Hodgson, J & Lewthwaite, Law of Torts: Cases and Materials, Blackstone's, London (2000)
Howarth, D Textbook on Tort, Butterworth's, London (1995)
Kidner, R Casebook on Torts, 6th Edition, Blackstone's, London (2000)
Weir, A Casebook on Tort, 9th Edition, Sweet and Maxwell, London (2000)
Other Sources
http://www.bailii.org.htm
http://www.uklawonline.co.uk.htm
http://www.booleweb.ucc.ie.htm
http://www.open.gov.uk.htm
[1868] LR 3 HL 330
2 Elliott, C & Quinn, F Law of Tort, 3rd Edition, Pearson's Ed. Ltd, London (2001) p. 239
3 Brazier, M Streets on Torts, 10th Edition Butterworth's, London (2000) p. 396
4 Cooke, J Law of Tort, 5th Edition, Longman, London (2001) p. 263
5 Brazier, M. Op Cit, p. 395
6 Smith v Kenrick [1847] 137 ER 205
7 Brazier, M. Op Cit, p. 399
8 Pontardawe R.D.C. v Moore-Gwyn [1929] HC, (an outcrop of rocks fell due to the process of weathering
9 [1918] 34 TLR 500 CA
0 Carstairs v Taylor [1871] LR 6 Ex 217
1 Rickards v Lothain [1913] AC 265
2 Green v Chelsea Waterworks Co. [1894] 70 LT 547
3 Kennard v Cory Bros [1921] AC 521
4 Lomax v Stott [1870] LJ Ch 834
5 Nichols v Marsland [1876] 2 Ex D1
6 [1890] 24 QBD 656
7 Ibid.
8 [1926] 2 KB 332
9 [1878] 4 Ex D 5
20 [1913] AC 265
21 [1921] 2 AC 465
22 [1947] AC 156
23 [1997] 81 BLR 101
24 [1913] AC 265
25 [1941] 1 KB 381
26 [1940] 1 KB 489
27 [1953] Ch 149 at 189, 1 All ER 179 at 203 CA
28 [1947] 1 All ER 344
29 [1957]1 Lloyd's Rep 522
30 [1969] 1 WLR 959
31 [1936] AC 108
32 [1956] 2 All ER 555
33 [1992] 1 Lloyds Rep 54
34 [1967] 2 All ER 62
35 (unreported 31 July 1991) in Hodgson J & Lewthwaite, Blackstone, London p. 356
36 [1994] 1 All ER 53
37 They also made a claim in Nuisance.
38 because the leather firm spilled the PCE, it did not escape because of crack in a storage tank.
39 Brazier, M. Op Cit, p. 403
40 Cambridge Water Company v Eastern Counties Leatherwork [1994] 1 All ER 53
41 [1913] AC 265
42 per Blackburn J, Cambridge Water Company v Eastern Countries Leatherwork [1994] All ER 53
43 R.H.M. Bakeries Ltd v Strathclyde Regional Council [1985] SLT 214 at p.217 per Lord Fraser of Tullybelton, "Rylands v Fletcher has no place in Scots law..."
44 Heuston R F V, The Return of Rylands v Fletcher, The Law Quarterly Review, (1994) Vol.110 p.185
