Journal of Environmental Law (2006) Vol 18 No 3, 423442 doi: 10.1093/jel/eql021.

Advance Access publication 4 August 2006

DECONSTRUCTING THE RULE I N RYLANDS V FLETCHER

A.J. Waite*
1. Introduction
In 1860, as John Rylands contemplated the new reservoir constructed to supply water to the Ainsworth Mill,1 he did not know that he had triggered a chain of events which was to have a profound, if chaotic, effect on the development of the common law of tort. The litigation resulting from the escape of water from the reservoir via old mine shafts to Thomas Fletchers mines progressed sedately through the courts from 1861 until 1868.2 The case began as an action for negligence, which was heard before Mellor J and a special jury in September 1862. A fictitious verdict was entered for the plaintiff, subject to a reference to a barrister arbitrator.3 Following an order of Channell B in December 1864, a special case was stated by an arbitrator for the Court of Exchequer. The arbitrator found that the contractors, but not the defendants, had been negligent. On that basis, the question for the Court of Exchequer was whether the plaintiff was entitled to recover damages against the defendants. The Court of the Exchequer, by a majority (Pollock CB and Martin B), decided in favour of the defendants.4 Martin B held that in such a case there could be no liability without negligence, because otherwise the defendant would be an insurer, which, in his view, would be contrary to legal analogy and principle.5 Baron Bramwell dissented, holding that the defendant should be liable on the basis of strict liability.6 The case went on appeal to the Court of Exchequer Chamber, where Blackburn J delivered the judgment of the Court, finding for the plaintiff Mr Fletcher. Despite the absence of proof of negligence on the part of Mr Rylands, he was held liable according to Blackburn Js classic principle:
* Partner, Planning and Environment Department, Co-ordinator of the Environment Group, Berwin Leighton Paisner Solicitors, London; Vice President (and former President) of the European Environmental Law Association (andrew.waite@blplaw.com). 1 The facts and background are chronicled in A.W.B. Simpson, Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v Fletcher, 12 Journal of Legal Studies (1984) 209. 2 A.W.B. Simpson, above n 1 at 24351 from which the following brief account is taken. 3 Professor Simpson explains that the purpose of this procedure was to give the award of the arbitrator the status of a court judgment: above n 1 at 243. 4 (1865) 3 H & C 774; 159 ER 737. 5 (1865) 159 ER 737 at 745. 6 (1865) 159 ER 737 at 744. Journal of Environmental Law Vol 18 No 3 The Author [2006]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

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We think that the true rule of law is, that a 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 . . . it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, . . . but which he knows to be mischievous if it gets on his neighbours, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property . . . he should at his peril keep it there . . . or answer for the natural and anticipated consequences.7

The defendants appealed in the House of Lords and the plaintiff was again successful.8 The speeches of the only two Lords who are recorded as having spoken Lord Cairns LC and Lord Cranworth9will be considered in more detail later.

2. The Temporary Ascendancy of Strict Liability

The triumph of strict liability is surprising because, even in 1866, the decision probably appeared somewhat anachronistic.10 In an age of a general extension of liability, fault liability had made much progress.11 However, by the time Rylands v Fletcher climbed through the court hierarchy, Blackburn J appeared to consider strict liability as the norm and fault liability as the exception. In his view, the latter applied in traffic accident cases where it could be said that those travelling on the highway voluntarily assumed the inevitable risk of accident, except where the defendant had been negligent.12 The question arises why was there a decision in favour of strict liability, given the advances in the law of negligence? Rylands v Fletcher was decided against the backdrop of public concern at the problem of bursting reservoir dams13 in the middle years of the nineteenth century, which caused major loss of life, injury and property damage. Lord Hoffmann has recognised Blackburn Js rule as a judicial response to this concern, even though the judgment is constructed in the traditional common law style of deducing principle from precedent without reference to questions of social policy.14 Professor Simpson points, nonetheless, to an oblique reference to the dam disasters in Blackburn Js judgment.15
(1866) LR 1 Ex 265 at 27980. (1868) LR 3 HL 330 (HL). 9 Professor Simpson records that Lord Cranworth died on 26 July 1868, only nine days after the House of Lords speeches in Rylands v Fletcher were delivered: A.W.B. Simpson, above n 1 at 251 n 153. The identity of the third Lord is a mystery: R.F.V. Heuston, Who was the Third Lord in Rylands v Fletcher?, 86 Law Quarterly Review (1970) 160. 10 A.W.B. Simpson, above n 1 at 2146. 11 That development is beyond the scope of this article but is explained in J.H. Baker, An Introduction to English Legal History (Butterworths, 2002, 4th edn) Chapter 23; D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 1999) Chapter 9. See also Cornish and Clark, Law and Society in England 17501950 (Sweet and Maxwell, 1989) 4869; A.W.B. Simpson, above n 1 at 2104. 12 (1866) LR 1 Ex 265, 2867. 13 A.W.B. Simpson, above n 1. 14 Transco plc v Stockport MBC [2004] 1 All ER 589, 600. 15 (1866) LR 1 Ex 265, 2856; A.W.B. Simpson, above n 1 at 24950. Other possible influences are discussed in Markesinis and Deakin, Tort Law (Oxford University Press, 2003, 5th edn), 5334. See also F.H. Bohlen, The Rule in Rylands v Fletcher, 59 University of Pennsylvania Law Review (1911) 298, 373, 423; cf R.T. Molloy, Fletcher v Rylands, A Re-examination of Juristic Origins, 9 University of Chicago Law Review (1942) 266.
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Another factor that may have influenced the Court of Exchequer Chamber and the House of Lords was the relentless progress of the Industrial Revolution, which inevitably caused many deaths and accidents. Although the response of the law had often been to disallow claims on the part of injured workmen, on the basis that there had been a voluntary assumption of risk,16 the powerful voice of Edwin Chadwick was calling for strict liability to reduce injuries to workmen.17 Despite having no immediate effect in provoking legislation, it may be that his words struck a chord with the judiciary. In any event, the scene was set for a struggle between the two opposing viewpoints. The imposition of strict liability in those circumstances may be considered as a victory for the view that the cost of industrial enterprise should be internalised and should not be borne by the wider environment including, of course, neighbours.18 However, the protagonists of laissez-faire in the late nineteenth and early twentieth centuries were stronger than the cost internalisers. Consequently, the rule in Rylands v Fletcher became hedged in by so many restrictions that there are no reported cases of claims which have succeeded solely on the basis of the rule since the Second World War.

3. Different Approaches to Rylands v Fletcher

The process of change has been an untidy one, leaving in its wake uncertainty as to the true nature of the rule in Rylands v Fletcher and the field of its application. This has led to different approaches by judges and legal writers. In Hale v Jennings Brothers,19 Scott LJ referred to the rule as a broad principle . . . that the liability attaches because of the occupier of the land bringing onto the land something which is likely to do damage if it escapes. On the contrary, nine years later Lord Macmillan stated in Read v Lyons20 that the doctrine of Rylands v Fletcher . . . derives from a conception of mutual duties of adjoining landowners and its congeners are trespass and nuisance. There has been similar disharmony between the legal writers. In 1894 the American jurist, Wigmore, wrote:
. . . What we have still to notice is the fate of those scattered classes of cases which never became amenable to this test of Due Care under the Circumstances. Briefly, they wandered about, unhoused and unshepherded, except for a casual attention, in the pathless fields of jurisprudence, until they were met some thirty years ago, by the master-mind of Mr Justice Blackburn, who guided them to the safe fold where they have since rested. . . . . . . What gave the exposition on this occasion its novelty and its permanent success was the broad scope of the principle announced, the strength of conviction of its expounder, and the clearness of his exposition, and perhaps, too, the fact that the time was ripe for its acceptance . . . it furnished a general category in which all such rules, whenever formed, could be placed.21
J.H. Baker, above 11 at 416. Cornish and Clark, above n 11 at 515. This was the view of B. Bramwell when Rylands v Fletcher was heard in the Court of Exchequer: 3 H&C (1865) 774. See the speech of Lord Hoffman in Transco plc v Stockport MBC [2004] 1 All ER 589, 600. 19 [1938] 1 All ER 579 at 583 (CA). 20 [1947] AC 156 at 173 (HL). 21 J.H. Wigmore, Responsibility for Tortious Acts: Its History, 7 Harvard Law Review (1894) 315 at 4545.
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In similar, though less eulogistic, vein, Sir Percy Winfield was of the opinion that:
. . . the rule in Rylands v Fletcher has been taken as the starting-point of a wider liability than any preceding it.22

On the contrary, Professor Newark, writing in 1949, took a very different view:
. . . This case is generally regarded as an important landmarkindeed, a turning pointin the law of tort; but an examination of the judgments shows that those who decided it were quite unconscious of any revolutionary or reactionary principles implicit in the decision. They thought of it as calling for no more than a restatement of settled principles, and Lord Cairns went so far as to describe those principles as extremely simple. And in fact the main principle involved was extremely simple, being no more than the principle that negligence is not an element in the tort of nuisance. . . . . . . But the profession as a whole, whose conceptions of the boundaries of nuisance were now becoming fogged, failed to see in Rylands v Fletcher a simple case of nuisance. They regarded it as an exceptional caseand the Rule in Rylands v Fletcher as a generalisation of exceptional caseswhere liability was to be strict on account of the magnitude of the danger, coupled with the difficulty of proving negligence, rather than on account of the nature of the plaintiffs interest which was invaded.23

In view of the obvious breadth of Blackburn Js principle, it is tempting to wonder whether it was Professor Newarks conceptions which had become fogged. Be that as it may, he did have support from the House of Lords in Read v Lyons. In the event, Professor Newarks view was sanctified by the House of Lords in Cambridge Water Co v Eastern Counties Leather Plc24 and now forms the cornerstone of the modern view of the rule in Rylands v Fletcher.25 What is the explanation for this apparent juristic schizophrenia? The answer is surprising but simple: there is no single rule in Rylands v Fletcher, but rather two rules. The wide rule is that enunciated by Blackburn J and followed by Lord Cranworth in the House of Lords. The narrow rule, relied on by Lord Cairns LC, is a species of nuisance liability arising between neighbours for the escape of something not naturally on the defendants land which adversely affects the claimants enjoyment of his land. Lord Cairns expressed it in this way:
. . . if the Defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the landand if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the Plaintiff, then it appears to me that that which the Defendants were doing they were doing at their own peril. . . .26

P.H. Winfield, Nuisance as a Tort, 4 Cambridge Law Journal 189 (19302) at 193. F.H. Newark, The Boundaries of Nuisance 65 Law Quarterly Review (1949) 480, 4878. See also G. Cross, Does only the Careless Polluter Pay? A Fresh Examination of the Nature of Private Nuisance 111 Law Quarterly Review (1995) 445. 24 [1994] 2 Weekly Law Reports 53, 734. 25 See also Transco Plc v Stockport MBC [2004] 1 All ER 589, 5912 (Lord Bingham); 6012 (Lord Hoffmann); J. Murphy, The Merits of Rylands v Fletcher, 24 Oxford Journal of Legal Studies (2004) 643. 26 (1868) LR 3HL 330, 339.
23

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However, Lord Cairns went further. Although he considered that his narrow rule was sufficient to dispose of the case, he also stated that the same result is arrived at on the principles referred to by Mr Justice Blackburn . . ..27 The significance of that statement is the clear recognition by the Lord Chancellor (who entirely concurred with Blackburn Js opinion) that Rylands v Fletcher could be decided under either the wide or the narrow rule. A source of confusion has been the fact that the wide rule in Rylands v Fletcher and nuisance overlap at this point. In effect, liability under the narrow rule forms the common segment of the overlapping circles of the wide rule and the law of nuisance. The wide rule is concerned with the escape of dangerous things from the defendants land or control. On the contrary, the narrow rule is restricted to liability for the escape of such things from the defendants land which adversely affect the claimants land. This enabled Lord Cranworth to rely on Smith v Kenrick28 and Baird v Williamson29 as illustrations of Blackburn Js principle, although both were the foundation of Lord Cairns narrow rule. The failure to appreciate that the distinction exists has led to a conflation of the two principles in practice, with some judges and writers leaning towards the wide rule and others towards the narrow rule. The result has been confusion and uncertainty. That defect earned the wrath of the High Court of Australia, which sounded the death knell of Rylands v Fletcher in that country.30 A better solution than the confusion that has prevailed during most of the lifetime of Rylands v Fletcher is to acknowledge that the case fathered two rules and then make a policy choice between them. That process was begun in England and Wales in several dicta in Read v Lyons, in which the wide rule was noted but rejected. The clearest example is by Viscount Simon, who said that:
The classic judgment of Blackburn J, besides deciding the issue before the court and laying down the principle of duty between neighbouring occupiers of land on which the decision was based, sought to group under a single and wider proposition other instances in which liability is independent of negligence, such for example as liability for the bite of a defendants monkey . . .31

However, he then proceeded to discountenance the wide rule in the following terms:
There are instances, no doubt, in our law in which liability for damage may be established apart from proof of negligence, but it appears to me logically unnecessary and historically incorrect to refer to all these instances as deduced from one common principle.32

27 Ibid. In J P Porter Co Ltd v Bell, [1955] 1 Dominion Law Reports 62, Macdonald J. in the Nova Scotia Supreme Court also noted that the true situation seems to be that there is not one rule in Rylands v Fletcher but two; and that Lord Blackburns version or Lord Cairns more flexible one is invoked according to the circumstances of the case in hand. However, the judge did not elaborate further. 28 (1849) 7 CB 515. 29 (1863) 15 CB (NS) 376. 30 Burnie Port Authority v General Jones Pty Ltd [1994] 120 ALR 42. For a critique of that case, see J. Murphy, above n 25; J. Swanton, (1994) 2 Torts Law Journal (1994) 101. 31 [1947] AC 156 at 167. See also the speeches of Lord Macmillan at 173, Lord Porter at 178, Lord Simonds at 181 and Lord Uthwatt at 185, which are to similar effect. 32 Ibid.

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Nonetheless, the wide rule refused to die, at least immediately. The Court of Appeal in Perry v Kendricks Transport Ltd33 considered that the rule covered personal injury despite the onslaught by the House of Lords in Read v Lyons. Eventually, the wide rule was unceremoniously dispatched by Lord Goff in Cambridge Water Co v Eastern Counties Leather Plc34 and the coup de grace delivered by the House of Lords in Transco Plc v Stockport MBC.35 Both cases relied not on the dicta in Read v Lyons but on Professor Newarks analysis,36 which makes no mention of the wide rule. This is unfortunate because it disguises the fact that a real policy choice was available to the House of Lords without the need to change the law.37 At this point, it is necessary to explore the wide and narrow rules in more detail.

4. The Wide Rule in Rylands v Fletcher

It has been said that Blackburn Js judgment is an outstanding example of a creative generalisation.38 To understand its scope and potential limitations, it is necessary to examine its antecedents. Although Blackburn Js judgment has been acknowledged to have created new law,39 he himself disavowed any such intention.40 This may be because he believed that his new wide rule had a secure historical foundation. The twin pillars relied on by Blackburn J in formulating his principle were the old law of liability for animals41 and nuisance, or at least the underlying principles of nuisance. It is clear from Blackburn Js judgment that he places more reliance on the former. It is understandable that this should be so, because (a) it enabled his new principle to escape from any potential confinement as a tort to land; and (b) it could encompass personal injury as well as property damage. There were two strands to the old law of animals relied on by Blackburn J. The first was cattle trespass. A person who kept cattle was bound to ensure that they did not escape onto other peoples property and cause damage. The owner was strictly liable for any damage so caused which was the natural consequence of the trespass.42 The second was the rule that a person keeping an animal of a species known to have a fierce nature, such as a bear or a lion, was bound to prevent it from causing injury and was strictly liable if it did so.43 On the contrary, if the animal was not of a species known to have a fierce nature, the owner was only liable for injury it caused if he knew (scienter) that that particular animal had vicious propensities.44 The two key
[1956] 1 All England Law Reports 154. [1994] 2 Weekly Law Reports 53. 35 [2004] 1 All England Law Reports 589. 36 (1949) 65 Law Quarterly Review 480, 4878. 37 See Markesinis and Deakin, above n 15 at 546: The demolition of the strict liability rule may thus be neither as (historically) obvious nor as desirable as the House of Lords has recently made it out to be. 38 Markesinis and Deakin, above n 15 at 533. 39 Ibid at footnote 9. 40 Ross v Fedden (1872) 26 LT 966, 968. 41 The classic work on this subject is G. Williams, Liability for Animals (1939). 42 Ellis v Loftus Iron Co [1874] LR 10 CP 10; Theyer v Purnell [1918] 2 KB 333; Wormald v Cole [1954] 1 QB 614 (CA) (damages recoverable for personal injury). See G. Williams, above n 41 at Part 2 and particularly 1979 for a comparison between cattle trespass and Rylands v Fletcher. 43 Besozzi v Harris (1858) 2 F&F 92; Hale, Pleas of the Crown 430. 44 May v Burdett (1846) 9 QB 101; Cox v Burbidge (1863) 13 CB (NS) 431; Hale, ibid; G. Williams, above n 41 at Part 5 and particularly 3523 for comparison between the scienter action and Rylands v Fletcher.
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aspects of these rules relating to animals were that (a) actionable damage was not restricted to the plaintiffs real estate and (b) compensation for personal injury was not excluded. These features provided the possibility for Blackburn Js new wide rule to escape from the straightjacket of nuisance and to blossom into a true doctrine of strict liability for dangerous things. That it did not do so is due to the restrictive tendencies of many judges, which have been noted above. The other pillar on which Blackburn J relied was the law of nuisance. He refers to:
the person . . . whose mine is flooded by the water from his neighbours reservoir, or whose cellar is invaded by the filth of his neighbours privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbours alkali works . . .45

The main case he relied on in this area is Tenant v Goldwin.46 The wall of the defendants house of office collapsed due to want of repair, as a result of which filth flowed into the plaintiffs cellar and contaminated his beer and coal supply. Holt CJ found for the plaintiff on the principle that every one must so use his own, as not to do damage to another. In doing so, he drew on the analogy of cattle trespass. Blackburn J noted that Holt CJs principle was very similar to that laid down in a cattle trespass case in 1480. The defendants cattle, which were pastured on common land, strayed onto the plaintiffs land. Brian CJ said:
It behoves him to use his common so that he shall do no hurt to another man, and if the land in which he has common be not enclosed, it behoves him to keep the beasts in the common and out of the land of any other.47

It seems that although both Tenant v Goldwin and the Year Book case concerned disputes between adjoining neighbours, Blackburn Js interest was in the underlying principle which was potentially much wider. This point was elaborated further in the House of Lords by Lord Cranworth who fully supported Blackburn Js principle:
In considering whether a Defendant is liable to a Plaintiff for damage which the Plaintiff may have sustained, the question in general is not whether the Defendant has acted with due care and caution, but whether his acts have occasioned the damage. . . . And the doctrine is founded on good sense. For when one person, in managing his own affairs, causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer. He is bound sic uti suo ut non laedat alienum.48

Lord Cranworth relied on Lambert v Bessey,49 a case on trespass and false imprisonment in which it was said that in all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering.50 Lambert v Bessey itself relies on the Case of Thorns,51 a Year Book case of 1466 in which the defendant whose land was bounded by a hedge of thorns cut the thorns so
45 46 47 48 49 50 51

(1866) LR 1 Ex 265, 280. (1704) 2 Ld Raym 1089, 6 Modern Reports 311. YB 20 Ed. IV 11, pl. 10, discussed by G. Williams, above n 41 at 142, 182. (1868) LR 3 HL 330, 341. (1682) Sir T. Raym 421. (1682) Sir T. Raym 421, 423. Hulle v Orynge (1466) Y.B. Mich. 6 Ed IV, 7 pl. 18.

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that some fell onto the plaintiffs neighbouring land. The defendant was sued for trespassing on the plaintiffs land in going to collect the cut thorns. The defendant pleaded that the thorns fell against his will (ipso invito). The plaintiff demurred and was successful. The court held that the defendants intention was relevant in criminal law but not in actions for damages. Littleton J explained that If a man suffers damage it is right that he be compensated. However, there was an interesting discussion on the plea. Choke J indicated that If he wants to make a good plea out of this, he should show what he did to prevent the thorns from falling, so that we can judge whether he did enough to excuse himself. Choke Js example of a possible excuse in the circumstances of this case was a sudden gust of wind, in effect breaking the chain of causation. It has been pointed out52 that the case does not categorically imply strict liability. Although intention was held to be irrelevant, it would have been a good defence to show that there was no reasonable opportunity to avoid the harm. It seems that the type of defence suggested by Choke J became, four hundred years later, Blackburn Js defence of vis major or Act of God.53 On that basis, it is probably best to characterise the position as one of strict liability qualified by justificatory defences and questions of causation.54 It is possible that, in the mediaeval period, lack of negligence (or accident) could also be raised as a defence to trespass actions not on the pleadings but by way of argument before the jury. However, in the absence of any record of what lay behind the jurys record, it is impossible to be certain.55 It seems, therefore, that there was a generally pervasive rule of strict liability in the law of tort as assumed by Lord Cranworth. Blackburn J took the same view when he distinguished cases of road traffic accident and collision in which proof of negligence was a necessary ingredient by the nineteenth century.56 Accordingly, it can be asserted that the wide rule in Rylands v Fletcher is justified historically on the basis of a broad strict liability principle despite the denial of Viscount Simon in Read v Lyons.57 To the extent that it is a bold judicial generalisation,58 it may be considered as an attempt to stem the rising tide of negligence in the area of dangerous things.

5. The Narrow Rule in Rylands v Fletcher

Lord Cairns considered that two simple principles governed the case of the bursting reservoir in Rylands v Fletcher. The first was that if in the natural user of the defendants land any accumulation of water passed from there to the plaintiffs land by
J.H. Baker, above 11 at 4045. (1866) L R 1 Ex 265, 280. D.J. Ibbetson, above n 11 at 5863. The scienter action may be an example of a stricter type of liability than would otherwise have arisen: J.H. Baker, above 11 at 408. 55 Until the early nineteenth century, the defendant could plead not guilty and explain the facts to the jury. The issue would therefore not generally appear on the record. See J.H. Baker, above 11 at 4045; S.C.F. Milsom, Historical Foundations of the Common Law (Oxford University Press, 1981, 2nd edn) at 295300; D.J. Ibbetson, above n 11 at 58. 56 (1866) LR 1 Ex 265, 2867. 57 See Viscount Simon, Read v Lyons & Co [1947] AC 156, 167. 58 Markesinis and Deakin, above n 15 at 544.
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operation of the laws of nature, the plaintiff would have no cause of action. It is up to the claimant to guard against the operation of the laws of nature. The second principle (quoted above) relates to a non-natural use of land for the purpose of introducing onto the land water that was not present in the natural condition of the land and that escapes and causes damage on the plaintiffs land. In such a case the defendant is liable. The first principle had been decided by Smith v Kenrick59 and the second by Baird v Williamson,60 both cases of water flowing from the defendants mine to that of the plaintiff. However, in the first case, the water had entered the defendants mine of its own accord as a result of his working a seam of coal which formed a barrier between the body of water and the defendants mine. In the second case, the defendant had pumped the water into his mine. Lord Cairns decided nothing new in his narrow rule. Baird v Williamson is nothing more than Tenant v Goldwin61 applied to the escape of water. The narrow rule would not by itself warrant more than a footnote in the nuisance chapters of the standard tort textbooks, let alone a whole chapter. The narrow rule was, as we have seen, given a favourable reception in Read v Lyons. It was later adopted by the House of Lords in Cambridge Water, where Lord Goff stated that the rule in Rylands v Fletcher was essentially concerned with an extension of the law of nuisance to cases of isolated escape.62 That approach was duly confirmed by the Transco case, in which Lord Bingham was of the view that the rule in Rylands v Fletcher is a sub-species of nuisance,63 and Lord Hoffmann considered that the rule was founded on the principles of nuisance.64

6. The Incidents of the Rules in Rylands v Fletcher

Having discussed the two rules, the incidents applicable to each must be considered. In view of the recent approach of adopting the narrow rule as a type of nuisance, the assumption must be that the incidents of the rule should be approximated to those of nuisance. However, it does not follow that all the incidents of the narrow rule (or of nuisance) apply to the wide rule.65 Indeed, there is no reason why that should be so. It will be convenient to consider in turn each of the incidents generally ascribed to the rule in Rylands v Fletcher, examining their status in relation to both the wide and the narrow rules.

(1849) 7 CB 515. (1863) 15 CB(NS) 317. (1704) 2 Ld Raym 1089, 6 Modern Reports 311. 62 [1994] 2 Weekly Law Reports 53, 79. However, this development had already been achieved by Tenant v Goldwin: J.H. Baker above 11 at 432. 63 [2004] 1 All England Law Reports 589, 594. 64 [2004] 1 All England Law Reports 589, 602. 65 In Transco, Lord Hobhouse of Woodborough considered that if the established common law principles of the civil law of nuisance and the essentials of Blackburn Js statement of the rule . . . had not been departed from, the confusions could have been avoided: [2004] 1 All England Law Reports 589, 610. Those sentiments can be applauded even though Lord Hobhouse makes no distinction between the wide and narrow rules.
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In Blackburn Js formulation, the rule applies to bringing onto the defendants land things likely to do mischief if they escape, which have been described as dangerous things.66 The rule has been applied, e.g., to water,67 fire,68 a motor vehicle,69 gas,70 electricity,71 poison,72 paraffin,73 a blow lamp,74 colliery spoil tipped on a hillside without drainage provision75 and raw polystyrene.76 However, the rule has been held inapplicable to an aeroplane,77 an oil can,78 a boiler without a safety valve79 and water piped to a block of flats.80 Whilst it may seem difficult to extract a clear principle from these decisions, Lord Bingham has stated81 that the threshold for the mischief test is a high one.
Bearing in mind the historical origins of the rule, and also that its effect is to impose liability in the absence of negligence for an isolated occurrence, I do not think the mischief or danger test should be at all easily satisfied. It must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be.

The dangerous things principle clearly applies to both the wide and the narrow rule. What is not so clear is why Lord Bingham thought that the basis of the (narrow) rule in nuisance implied a high-risk threshold. The answer is probably that he, like Lord Goff, conceived of the narrow rule as an extension of nuisance liability to isolated escapes, overlooking the fact that this step had already been taken in Tenant v Goldwin.82 Evidently, he was reluctant to apply that extension other than in fairly exceptional cases. In Lord Binghams view, the category of case . . . in which it seems just to impose liability even in the absence of fault includes catastrophes such as that in Rylands v Fletcher itself, the Aberfan disaster, an explosion in a military explosives factory83 and the escape of perchloroethene into groundwater in Cambridge Water. In applying that principle in Transco,84 Lord Bingham held that water piped to
66 Stallybrass points out that danger is relative and that the danger depends on the use and environment of the thing: W.T.S. Stallybrass, Dangerous Things and the Non-Natural User of Land, 3 Cambridge Law Journal (1929) 376, 3867. Cf D. Wilkinson, Cambridge Water Company v Eastern Counties Leather plc: Diluting Liability for Continuing Escapes, 57 Modern Law Review (1994) 799. 67 Rylands v Fletcher (water in a reservoir); Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 KB 772 (water stored in a high pressure main). 68 Jones v Ffestiniog Railway (1868) LR 3 QB 733. 69 Musgrove v Pandelis [1919] 2 KB 43 CA; Perry v Kendricks Transport Co [1956] 1 Weekly Law Reports 85 CA. 70 Goodbody v Poplar BC [1915] 84 LJ KB 1230. 71 National Telephone Co v Baker [1893] 2 Ch 186. 72 West v Bristol Tramways Co [1908] 2 KB 14. 73 Mulholland and Tedd Ltd v Baker [1939] 3 All England Law Reports 253. 74 Balfour v Barty-King [1957] 1 QB 496, CA. 75 A-G v Cory Bros [1921] 1 AC 521. 76 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC). 77 Fosbroke-Hobbes v Airwork Ltd [1937] 1 All England Law Reports 108. 78 Wray v Essex CC [1936] 3 All England Law Reports 97. 79 Ball v LCC [1949] 2 KB 159. 80 Transco plc v Stockport MBC [2004] 1 All England Law Reports 589. 81 Ibid at 595. 82 [1704] 2 Ld Raym 1089, 6 Mod Rep 311. See J.H. Baker, above 11 at 432. 83 Rainham Chemical Works v Belvedere Fish Guano Co Ltd [1921] 2 AC 465. 84 [2004] 1 All England Law Reports 589, 596.

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a block of flats was not something likely to cause danger or mischief if it escaped, unlike the water in the Ainsworth Mill reservoir, or the perchloroethene that affected the Cambridge Water Companys boreholes. With respect, Lord Binghams conclusion that the piping of a water supply from the mains to the storage tanks in the block [of flats] was a routine function which would not have struck anyone as raising any special hazard is questionable. As he himself recognises, everyone knows that water in quantity is likely to cause damage if it escapes. It matters little whether the water comes from fractured or leaking pipes or from a burst reservoir. That is the real issue, which should not be confused with whether the operation is routine or otherwise. Lord Binghams conclusion risks confusing the dangerous things requirement with that of non-natural user.85 Blurring this distinction has the effect of creating an additional (or at least higher) obstacle for claimants to surmount, which was not apparently intended by Blackburn J in relation to the wide rule in Rylands v Fletcher. 6.2 Non-Natural User Over the years, Rylands v Fletcher has been restricted by the notion of nonnatural use of land.86 This requirement was first laid down in the House of Lords by Lord Cairns LC in Rylands v Fletcher itself. In Cambridge Water, Lord Goff considered that it was probably only by way of explanation of Blackburn Js statement of the rule involving bringing on to the land something which was not naturally there.87 In fact, this was an area in which the wide and narrow rules converged until the second half of the twentieth century. The non-natural use to which Lord Cairns refers is bringing something onto land which was not there in its natural condition.88 The point is confirmed by his contrast between Smith v Kenrick89 (natural user) and Baird v Williamson90 (non-natural user). As indicated above, the difference between the two cases is that in the latter the defendant actively pumped water into his mine, whereas in the former it flowed in of its own accord, even though as a result of the defendants mining activity. In 1868 nuisance law did not extend to liability for anything occurring naturally.91 That position has since changed.92 However, the matter did not rest there. By 1913, this controlling mechanism had expanded. In Rickards v Lothian93, Lord Moulton explained that for the rule to apply, there
85 However, Lord Bingham considered that the dangerous thing requirement could not be viewed in complete isolation from the non-natural user condition: [2004] 1 All England Law Reports 589, 595. Lord Walker of Gestingthorpe took the same view: ibid at 6212. On the relationship between the two requirements, see below. 86 W.T.S. Stallybrass, above n 66; A.L. Goodhart, Liability for Things Naturally on the Land, 4 Cambridge Law Journal (1932) 13; F.H. Newark, Non-Natural User and Rylands v Fletcher, 24 Modern Law Review (1961) 557; D.W. Williams, Non-Natural Use of Land, 32 Cambridge Law Journal (1973) 310. 87 [1994] 2 Weekly Law Reports 53, 82. See F.H. Newark, above n 86 at 557, 5602. 88 [1868] LR 3 HL 330, 3389. 89 (1849) 7 CB 515. 90 (1863) 15 CB(NS) 317. 91 Giles v Walker [1890] 24 QBD 656; Pontardawe UDC v Moore-Gwyn [1929] 1 Ch 656. 92 Goldman v Hargrave [1967] 1 AC 645; Leakey v National Trust [1980] QB 485. 93 [1913] AC 263 at 280.

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. . . must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land or such use as is proper for the general benefit of the community.

The non-natural user test had become a restatement of the rule in nuisance that liability is not imposed where the activity in question is reasonable94 and not excessive or abnormal95 on the give and take principle. This is relevant to the narrow rule, but there is no reason why it should apply to the wide rule. Since then, the ordinary user concept has been applied to many uses, including the manufacture of explosives in wartime96 and the storage of metal foil strips used in the manufacture of electrical components.97 In Cambridge Water, however, Lord Goff (although denying that he was redefining the concept of natural or ordinary use) said that the storage of chemicals in substantial quantities and their use in the tanning process did not fall within the natural user exception. In his view:
. . . the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use.98

By this deft footwork, the House of Lords gave the narrow rule in Rylands v Fletcher a potential new lease of life. However, ten years later in Transco, the House of Lords reverted to a more restrictive approach. Lord Bingham considered that non-natural user is equivalent to extraordinary or unusual circumstances. He said that the question is whether the defendant has done something which he recognises, or ought to recognise, as being quite out of the ordinary in the place and at the time when he does it.99 In the view of Lord Hoffmann, a useful guide to whether the user is non-natural is whether the occupier could reasonably be expected to have insured against the damage arising from it.100 On that basis, the House of Lords held in Transco that supplying water to a block of flats through a high-pressure pipe was not a non-natural user, because it was a routine function creating no great risk. It appears, therefore, that the non-natural user principle in its original conception by Lord Cairns was no more than a reworking, in the context of the narrow rule, of Blackburn Js dangerous things requirement. However, because the narrow rule was merely a type of nuisance, the non-natural user principle evolved into the give and take principle of the law of nuisance by the time of its reincarnation in Rickards v Lothian. That being so, it seems that the non-natural user requirement has no place in the wide rule which, as we have seen, has a broader foundation than the law of nuisance.
94 Bamford v Turnley (1862) 3 B & S 62; Winfield and Jolowicz on Tort (Sweet & Maxwell, 2002, 17th edn) para 14.6; W.T.S. Stallybrass, above n 66 at 376, 393. 95 Clerk & Lindsell on Torts (Sweet & Maxwell, 2000, 18th edn) para 19-19. 96 Read v J Lyons & Co Ltd (1947) AC 156, 16970 per Viscount Simon and 174 per Lord Macmillan. 97 British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 1 Weekly Law Reports at 959. 98 [1994] 2 Weekly Law Reports 53, 79. For a contrary view, see P.R. Ghandi [1994] Conv 309. 99 Transco plc v Stockport MBC [2004] 1 All England Law Reports 589, 596. However, the use of premises for the manufacture of polystyrene products has recently been held to be non-natural: LMS International Ltd v Styrene Packing and Insulation Ltd [2005] EWHC 2065 (TCC). The opposite conclusion was reached in relation to construction works on a disused airfield: Ellison v Ministry of Defence (1997) 81 Building Law Reports at 101. 100 Ibid at 605. That view was criticised by Lord Hobhouse in the same case. See Christopher McNall [2004] Conv 240.

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6.3 Foreseeability In a major development, the House of Lords in Cambridge Water Co v Eastern Counties Leather Plc101 held that the requirement of foreseeability of damage (as opposed to foreseeability of the escape) is a prerequisite of liability under the rule in Rylands v Fletcher.102 Blackburn Js statement of the rule in the Court of Exchequer Chamber was quoted by Lord Goff. By focussing on the words: likely to do mischief if it escapes, which he knows to be mischievous and he should at his peril keep it there . . . or answer for the natural and anticipated consequences,103 Lord Goff concluded that according to Blackburn J, foreseeability of damage is a prerequisite for recovery of damages under the (wide) rule in Rylands v Fletcher.104 The next question was whether the law of nuisance should serve as a model for the rule in Rylands v Fletcher. Critically, as we have seen, Lord Goff accepted the view that the rule was no more than an extension of the law of nuisance to cases of isolated escape.105 In doing so, he shackled English law firmly to the narrow rule in Rylands v Fletcher. Concepts of negligence had intruded into certain areas of nuisance, such as the continuance or adoption of a nuisance, bringing with them the requirement of foreseeability.106 The Privy Council in The Wagon Mound (No.2)107 held that foreseeability of damage should be a necessary element in all categories of nuisance, on the basis that it could not be right to discriminate between different cases of nuisance. In view of the close connection between nuisance and the narrow rule in Rylands v Fletcher, Lord Goff extended the same foreseeability requirement to the narrow rule. He pointed out that it would be unjust in that respect to make it easier to establish liability in cases of property damage than for personal injuries.108 The foreseeability requirement is, as Lord Goff has demonstrated, integral to the concept of dangerous substances as enunciated by Blackburn J. Its function is to elucidate the point that dangerous things are not those considered dangerous per se, but those which are dangerous in relation to foreseeable types of damage. Accordingly, foreseeability should also be a requirement under the wide rule.

101 [1994] 2 Weekly Law Reports 53 (HL). See R.F.V. Heuston [1994] Law Quarterly Review 185. The Cambridge Water case concerned liability for spillages of solvents in small quantities over a long period which had percolated through the underground chalk layers and polluted the water abstracted for drinking water purposes from the plaintiffs borehole. Since it was not foreseeable at the time of the spillages that they might lead to damage of the kind which occurred, the defendants were held to be not liable. 102 The principle relates to remoteness of damage. 103 (1866) LR 1 Ex 265 at 27980. 104 Lord Goff adopted the narrow rule (see above). However, his analysis of Blackburn Js judgment clearly applies to the wide rule. For the view that foreseeability is relevant to the determination of what things should be classed as dangerous and to the concept of non-natural use as well as remoteness of damage, see P.R. Ghandi [1994] Conv. 309. 105 [1994] 2 Weekly Law Reports 53, 74 and 79; F.H. Newark, The Boundaries of Nuisance, 65 Law Quarterly Review (1949) 480; F. McManus, 3 Environmental Law Review (2001) 186. 106 Clerk & Lindsell on Torts, above n 95 at para 7-01, 19-01. 107 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No.2) [1967] 1 AC 617 at 640. 108 [1994] 2 Weekly Law Reports 53, 75. However, despite the requirement of foreseeability, nuisance is still a strict liability tort, whereas in negligence claims for personal injuries, it is necessary to demonstrate breach of a duty of care.

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6.4 Damage to the Claimants Interest in Land This and liability for personal injury mark the greatest practical distinction between the wide and narrow rules. The narrow rule being a sub-species of nuisance only applies to damage to the claimants interest in land.109 No such restriction applies to the wide rule.110 6.5 Liability for Personal Injury As noted above, it follows that there can be no liability for personal injury under the narrow rule in Rylands v Fletcher,111 although such liability can arise under the wide rule.112 6.6 Escape The requirement of escape is central to Blackburn Js principle and was the basis of the House of Lords decision in Read v Lyons.113 However, escape had sometimes been taken to mean escape from control, whereas in Read v Lyons the House of Lords interpreted the requirement to mean escape from the defendants land. That approach accords with the narrow rule in Rylands v Fletcher but is unnecessary in the context of the wide rule. By retaining this strict interpretation of escape, courts have rejected the opportunity to develop the wide rule in Rylands v Fletcher into a broader strict liability tort relating to hazardous substances or activities. Such a step has been taken in American tort law. The Restatement (Second) of Torts contains no requirement of escape.114 6.7 Defences In Rylands v Fletcher, Blackburn J mentioned the claimants default, and vis major or the act of God115 as possible defences. Subsequently, the act of a third party116 and
109 Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 Weekly Law Reports 53; Hunter v Canary Wharf Ltd [1997] AC 655; Transco plc v Stockport MBC [2004] 1 All England Law Reports 589, 594 (Lord Bingham), 607 (Lord Hobhouse). 110 Miles v Forest Rock Granite Co [1918] 34 TLR 500; Shiffman v Order of St. John [1936] 1 All England Law Reports 557; J. Murphy, above n 25. 111 Transco plc v Stockport MBC [2004] 1 All England Law Reports 589, 594 (Lord Bingham), 602 (Lord Hoffmann). 112 Miles v Forest Rock Granite Co [1918] 34 TLR 500; Shiffman v Order of St. John [1936] 1 All England Law Reports 557 (obiter); Hale v Jennings Bros [1938] 1 All England Law Reports 579 (CA); Perry v Kendricks Transport [1956] 1 Weekly Law Reports 85. See also Benning v Wong [1969] 122 CLR 249. See J. Murphy, above n 25; K.A. Warner, Juridical Review (1998) 201, 2167. 113 [1947] 156. In Transco, Lord Scott of Foscote held that the claim failed due to the absence of any escape from the defendants land. The land through which Transcos pipeline ran and over which Transco had an easement belonged to the defendant. However, it has been noted that prior to Read v Lyons, the requirement of escape was soft in the sense that escape from the defendants land was not always necessary: K.A. Warner, Juridical Review (1998) 201, 2068. 114 Section 519. The Restatement (Third) of Torts is in draft. 115 Carstairs v Taylor (1871) LR 6 Ex 217, 221 per Kelly CB (rat gnawing a hole in a wooden gutter box); Nichols v Marsland (1876) LR 6 Ex D 1 (exceptionally heavy rainstorm); Superquinn Ltd v Bray UDC [1998] 3 IR 542; cf Greenock Corporation v Caledonian Railway [1917] AC 556. See generally C.G. Hall (1993) 13 Ox Jo Leg Stud. 227. For a discussion of this defence in relation to cattle trespass and the scienter action, see G. Williams, above n 41 at 184, 336. 116 Rickards v Lothian [1913] AC 263 (act of a vandal who blocked a washbasin and turned on the tap). For a discussion of this defence in relation to cattle trespass and the scienter action, see G. Williams, above n 41 at 181, 334.

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statutory authority117 has been added to the list. In principle, all of these defences apply to both the wide and the narrow rules.

7. Future Directions
As a result of the various weaknesses identified in Rylands v Fletcher, and without accepting that there are two rules in the case, the highest courts in the United Kingdom and Australia have considered calls for its further development or abolition. In Cambridge Water, Lord Goff addressed the question of whether the rule in Rylands v Fletcher should:
. . . be treated as a developing principle of strict liability for damage caused by ultra-hazardous operations, on the basis of which persons conducting such operations may properly be held strictly liable for the extraordinary risk to others involved in such operations?118

Lord Goff declined to follow this path for three reasons. First, such a developed rule would logically apply to all damage resulting from the ultra-hazardous operations. However, (as we have seen) the earlier House of Lords decision in Read v J Lyons & Co Ltd119 had effectively precluded such a development by confining liability under Rylands v Fletcher to cases where the injury is caused by an escape from land under the defendants control.120 Second, the Law Commission had expressed doubt about the desirability of adopting a rule of strict liability for especially dangerous or ultra-hazardous activity on the ground that uncertainties inherent in those concepts would make such a rule too difficult to apply.121 Lord Goff considered that judges should not proceed down a path where the Law Commission had feared to tread. Third, he observed that the protection and preservation of the environment is now perceived as being of crucial importance to the future of mankind. In view of the volume and quality of legislation being put in place in this field, he considered that developments in this area should be left to Parliament rather than the common law.122 On the contrary, the majority of the High Court of Australia decided in Burnie Port Authority v General Jones Pty Co123 that the time had come to abolish the rule in Rylands v
Green v Chelsea Waterworks Co (1894) 70 LT 547; Dunne v North Western Gas Board [1964] 2 QB 806. [1994] 2 Weekly Law Reports 53, 79. 119 [1947] AC 156. 120 Damages for personal injuries are no longer recoverable under the rule in Rylands v Fletcher: see Transco above. 121 Report of the Law Commission on Civil Liability for Dangerous Things and Activities (1970) (Law Com. No 32) para 146. Fleming on the Law of Torts (LBC, 1992, 8th edn) at 3278 favours such a development on the basis that the cost of damage from such hazardous operations would have to be absorbed as part of the overheads of the business rather than borne, in the absence of negligence, by the victim. See now Fleming (LBC, 1997, 9th edn) at 36871. 122 Some support for Lord Goffs approach comes from Markesinis and Deakin, above n 15 at 56: For tackling these [complex problems which confront our modern society] we need new approaches, new ideas, and new techniques. Thus, it may well be that in these days of common law fatigue the initiative must pass on to the legislator. Amongst other recent developments in Europe at that time were the Lugano Convention (the Council of Europe Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment), 21 June 1993, and the EC Green Paper on Remedying Environmental Damage [COM(93) 47 final]. The letter eventually bore fruit as the Directive on Environmental Liability with regard to the Prevention and Remedying of Environmental Damage (2004/35/CE), but does not cover civil liability. 123 (1994) 120 ALR 42. See R.F.V. Heuston and R.A. Buckley, Law Quarterly Review (1994) 506; S. Dziobon and R. Mullender, Cambridge Law Journal (1995) 23; E. Fisher Journal of Environmental Law (1995) 216; K.A. Warner, Juridical Review (1998) 201; J. Murphy, above n 25.
118 117

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Fletcher in Australia. Henceforward, the rule was to be absorbed by the principles of ordinary negligence. The reasons given for this drastic step were (a) the uncertainties as to the content and application of the rule; (b) its progressive weakening by restricting its scope largely by means of the non-natural user requirement;124 and (c) that the law of negligence had developed since Rylands v Fletcher and largely supplanted it. According to Mason CJ, the non-delegable duty of care which arose in many situations and the fact that the standard of care required under the law of negligence varies with the risk involved meant it was highly unlikely that liability would not exist in negligence where it would exist under Rylands v Fletcher. Indeed, he pointed to Lord Macmillans statement in Donoghue v Stephenson125 that depending on the magnitude of the danger, the standard of care may involve a degree of diligence so strict as to amount practically to a guarantee of safety. The approach taken in Burnie is all the more surprising because Australia had earlier espoused the wide rule in Rylands v Fletcher. In Benning v Wong,126 Windeyer J said that:
. . . to regard negligence as the normal requirement of responsibility in tort, and to look upon strict liability as anomalous and unjust, seems to me to mistake present values as well as past history. In an age when insurance against all forms of liability is commonplace, it is surely not surprising or unjust if the law makes persons who carry on some kind of hazardous undertaking liable for the harm they do, unless they can excuse or justify it on some recognised grounds.

In the Transco case127 in 2003, the House of Lords faced the three-fold choice of following the Australian example and abolishing the rule in Rylands v Fletcher, extending the rule to a general principle of strict liability for hazardous substances or activities, or retaining the rule while giving it as much certainty as possible. Perhaps unsurprisingly, the House of Lords chose the third course. The reasons given by Lord Bingham for not going down the abolition route are as follows:
(a) There is a category of case, however small, in which it is just to impose liability without fault. An example is Cambridge Water if the damage had been foreseeable. (b) Strict liabilities have been created by statute against a backdrop of the existing common law. Examples are section 209 of the Water Industry Act 1991, which imposes strict liability on water undertakers, and Schedule 2 to the Reservoirs Act 1975, which assumes strict liability in the circumstances of Rylands v Fletcher.128 (c) Stop-go is generally a bad approach to legal development. The House of Lords, therefore, preferred to follow the lead taken in Cambridge Water.

This ignores the clarification of the non-natural user requirement by Lord Goff in Cambridge Water. [1932] AC 562 at 612. [1969] 122 CLR 249 at 304. 127 [2004] 1 All England Law Reports 589. 128 Lord Hoffman also referred to the examples of liability for pollution by the escape of waste: section 73(6) of the Environmental Protection Act 1990, and liability for the escape of nuclear matter: section 7 of the Nuclear Installations Act 1965. He thought that it may have to be considered whether these and similar provisions create an exhaustive code of liability for a particular form of escape which excludes the rule in Rylands v Fletcher: Transco at 605. It should be noted that in general liability under section 7 of the NIA 1965 excludes any other liability: section 12(2). However, no such statutory exclusion applies under the other provisions referred to.
125 126

124

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(d) Although replacing Rylands v Fletcher with fault liability would approximate the law of England and Wales with that of Scotland (which has not adopted the rule), it would widen the gap between it and the law in France and Germany. In both of those countries, strict liability regimes exist for disputes involving land.129

The upshot of the perceived uncertainties surrounding Rylands v Fletcher is that it has had a chequered history in common law jurisdictions. However, only in Australia has it been discarded entirely. In other common law jurisdictions such as Canada, Ireland and New Zealand, cases based on the rule in Rylands v Fletcher continue to come before the courts. The general approach has been to follow the lead given by the English courts in Cambridge Water.130 Consequently, the cases have been decided under the narrow rule only. There have been two successful claims in Canada in recent years,131 whilst others have foundered on the traditional rocks which beset Rylands v Fletcher litigation.132 Clearly, a niche has been found for the narrow rule in the common law world. Even in England, a recent case133 shows that it is possible for a claimant to succeed on the basis of Rylands v Fletcher, despite the cold water of the Transco case. On the contrary, it seems that the wide rule has been consigned to the dustbin of legal history. In the United States, however, the wide rule has had more success. As Fleming notes, after an at first cool reception, strict liability is now generally applied to abnormally dangerous activities; that is, those with inherent risks that cannot be
129 See Van Gerven, Lever and Larouche, Cases, Materials and Text on National, Supranational and International Tort Law (Hart Publishing, 2000) at 2045. It is interesting that, despite the criticisms of Rylands v Fletcher made in common-law jurisdictions, Van Gerven considers that it is under English law that the most developed of these regimes can be found, consisting in the tort of nuisance and the rule in Rylands v Fletcher. However, he continues that the relationship of [these torts] with one another and with the tort of negligence is only now being authoritatively settled through cases such as Cambridge Water Co and Hunter v Canary Wharf. 130 See, e.g., Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont. Sup CJ LEXIS 1034 (Canada); Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand); and Superquinn Ltd v Bray UDC [1998] 3 IR 542 (Ireland). 131 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheld by the Nova Scotia Supreme Court. The plaintiffs fishing equipment on his own land was damaged by flooding caused by a sudden rise in the river level due to the operation of the companys dam and reservoir system); Morassutti v Lanoue (2000) 96 All Canada Weekly Summaries (3d) 1084 (Damages awarded by the Ontario Superior Court of Justice because the plaintiffs tomatoes ripened late due to spray from a herbicide, glyphosphate, spread non-negligently by the defendant on its own land, drifting to the plaintiffs land). 132 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries (3d) 436 (Genetically modified canola seed was held by the Saskatchewan Queens Bench not to be a dangerous substance); Alberta v Hay [2002] 112 All Canada Weekly Summaries (3d) 655 (Fire for the purpose of normal husbandry was held by the Alberta Queens Bench to be natural user); John Campbell Law Corp v Strata Plan 1350 [2001] 108 All Canada Weekly Summaries (3d) 930 (The British Columbia Supreme Court held that the use of a sewer pipe which became blocked was a natural user of the defendants land); Hamilton v Papakura DC [2002] 3 New Zealand Law Reports at 308 PC (Damage was caused to cherry tomato crops by hormone herbicides present in the water supply. This was due to contractors spraying gorse in the catchment area for the towns water supply. The Privy Council held that the damage was not foreseeable); BP Oil New Zealand Ltd v Ports of Auckland Ltd [2004] 2 New Zealand Law Reports at 208 (A claim by a landlord against a tenant in relation to contamination of the tenanted land failed under Rylands v Fletcher in the High Court of New Zealandthough it succeeded on other groundson the basis that there had been no escape); Superquinn Ltd v Bray UDC [1998] 3 IR 542 (The failure of a dam due to a violent storm which increased the volume of water in a river and thereby contributed to flooding was held by the Irish High Court not to give rise to liability under Rylands v Fletcher on the ground that the Act of God defence applied). 133 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC).

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eliminated by the exercise of reasonable care.134 A notable feature of the rule is that liability arises for harm to the person, land or chattels of another resulting from the activity despite the exercise of the utmost care. If it is appreciated that there are two rules in Rylands v Fletcher rather than only one, many of the difficulties and uncertainties which so troubled Mason CJ in Burnie fall away. A clearer picture emerges which should enable courts to make a principled choice between the wide and narrow rules which best serves the needs and environmental circumstances of their jurisdiction. It remains to consider whether there should be a place in the legal firmament for strict liability similar to the wide rule. If so, how does it relate to the general scheme of environmental law? It is suggested that strict liability does have a role to play in the sphere of dangerous activities, a view espoused by several academic writers135 as well as the Pearson Commission.136 The reasons are five-fold. First, as a matter of justice, those who undertake dangerous activities rather than the victim, should bear the risk of resulting harm, irrespective of whether negligence can be established. Second, internalising the costs of dangerous activities promotes economic efficiency by encouraging the operator to minimise those costs. Third, strict liability is consistent with the polluter pays principle in the environmental arena. Most of the case law on Rylands v Fletcher deals with environmental questions. Fourth, strict liability may provide a better incentive for avoiding environmental harm from dangerous activities than a fault-based liability regime.137 Fifth, the current position creates an anomaly whereby a dangerous activity can give rise to strict liability for property damage under the narrow rule in Rylands v Fletcher and nuisance, but only fault-based liability for personal injury.138 That position places more value on real property than human life. Inevitably, some of this reasoning runs into a hail of criticism. With regard to the first point, it is said that it is not clear why an activity should attract strict liability rather than fault liability simply because it is extra-hazardous.139 Indeed, that line of thought has driven Fleming to suggest the wisdom of extending strict liability to common hazards such as motoring and flying.140 However, there does seem to be justice in distinguishing between dangerous/extra-hazardous activities on the one
134 Fleming on the Law of Torts, above n 121. C.O. Gregory (1951) 37 Virginia LR 359; see also Prosser Wade and Schwarz, Cases and Materials on Torts (Foundation Press, 1982, 7th edn) Chapter 14, which even carries photographs of Blackburn J. and Lord Cairns; E. Reid, Liability for Dangerous Activities: A Comparative Analysis, 48 International and Comparative Law Quarterly (1999) 731. 135 For example Fleming on the Law of Torts, above n 121 at 36871; Markesinis and Deakin, above n 15 at 5447; Waite, The Quest for Environmental Law Equilibrium, 7 Environmental Law Review (2005) 3462, 60. For the opposite view, see P. Cane, Are Environmental Harms Special?, 13 Journal of Environmental Law (2001) 3, 13. 136 Cmnd 7054I (1978). 137 Evidence for this assertion is hard to come by. However, the removal of the proof of fault requirement inevitably makes liability a more likely prospect. In the UK, although civil claims for environmental damage are likely to be less frequent than regulatory action, levels of damages may be much higher than expenditure on compliance with regulatory requirements. In Blue Circle Industries Plc v Ministry of Defence [1999] Environmental Law Reports 22 (CA), damages in the region of 6 million were awarded in respect of losses consequent on damage caused by pollution originating on adjoining property. The cost of clean-up was about half a million pounds. 138 Transco plc v Stockton MBC [2004] 1 All England Law Reports 589, 594 (Lord Bingham); 602 (Lord Hoffmann). 139 P. Cane, above n 135 at 13. 140 Fleming on the Law of Torts, above n 121 at 370.

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hand (which may cause harm even if carefully conducted) and ordinary activities (which are safe if carefully carried out) on the other. The difficulty (and this is another criticism) is where to draw the line.141 Such problems are inherent in the vague formulation in the US law which imposes strict liability for damage caused by any abnormally dangerous activity with imprecise criteria such as a high degree of risk of harm and the likelihood that any harm will be great.142 That objection led the Pearson Commission to propose two categories where strict liability should be imposed: those which require supervision because of their unusually dangerous nature, and those which pose a risk of serious and extensive casualties, e.g. public bridges and stadiums. To overcome the difficulty of imprecision, the Commission proposed listing that included activities covered by statute.143 It can still be said that whether categories are vague, requiring precision through case law, or are detailed in regulation, the problem of uncertainty at the fringes will remain. However, that is a fact of life in any legal system which attempts to make distinctions. It should not be a reason for avoiding principled distinctions where appropriate. Another possibility (similar to the Pearson Commissions proposal) which may reduce the grey areas would be to impose strict liability in relation to activities which are controlled under particular environmental legislation. A limited approach could be taken by including only those activities controlled under IPPC144 or COMAH.145 Alternatively, a wider selection of environmental legislation could be used, such as that in Annex III of the Environmental Liability Directive.146 The former approach is more likely to be acceptable politically, and is arguably more in keeping with the spirit of Rylands v Fletcher. In any case, reservoirs147 and water mains,148 should also be included to maintain consistency with the present coverage of the rule. A version of the wide rule along these lines (or the statutory equivalent) would not represent a confusion of the regulatory and compensatory functions of the law, but rather a degree of alignment which would benefit both. Strict civil liability may encourage compliance with regulatory law. On the contrary, regulatory controls may help to ensure that sufficient controls are in place to prevent the harm which would give rise to strict civil liability. This proposal is consistent with the piecemeal statutory strict liability introduced on a sectoral basis in several environmental statutes.149 It is notable that these statutory provisions were introduced before the demolition of the wide rule in Rylands v Fletcher by the House of Lords in the Cambridge Water and Transco cases. It is, therefore,
141 It is arguable that driving motor cars should attract strict liability on that basis. On the other hand, driving cars is such an integral part of everyday life that it can be argued that people should bear the risk of nonnegligent accidents. 142 The Restatement (Second) of Torts, s 519 and 520. 143 Cmnd 7054I (1978) s 1656. The Lugano Convention (the Council of Europe Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment) 21 June 1993, also provides for liability in respect of a tightly drawn list of dangerous activities. 144 Directive 91/61/EC; Pollution Prevention and Control (England and Wales) Regulations 2000, SI 2000, No 1973 (as amended). 145 Directive on the control of major accident hazards involving dangerous substances (96/82/EC); Control of Major Accident Hazards Regulations 1999, SI 1999, No 743. 146 Directive 2004/35/CE. 147 Reservoirs Act 1975, Schedule 2. 148 Liability already arises under Section 209 Water Industry Act 1991. 149 See footnote 128 and text thereto.

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not surprising that in each case strict liability applies for personal injury as well as for other types of damage.150 Lord Bingham in Transco considered these statutory liabilities were created against a backdrop of the existing common law. As we have seen, he considered them to be one reason for not abolishing the (narrow) rule in Rylands v Fletcher altogether. He might, perhaps with greater force, have suggested their existence as a reason for maintaining (or rather restoring) the wide rule. Nonetheless, action from the English courts is probably unlikely in view of the recent emphatic pronouncements on the subject by the House of Lords.151 In the absence of bold action from the judiciary, legislation will be required if the wide rule in Rylands v Fletcher is ever to rise, Phoenix-like, from the funeral pyres of Cambridge Water and Transco.

150 In the case of waste and nuclear matter, liability for personal injury is expressly imposed by s 73(6) of the Environmental Protection Act 1990 and s 7 of the Nuclear Installations Act 1965 respectively. Liability under section 209 of the Water Industry Act 1991 is for loss or damage which seems wide enough to include personal injury. However, the only reported case on section 209, Aerospace Publishing Ltd v Thames Water Utilities [2006] All England Law Reports(D)39 (Jan) deals with damage to chattels. On the other hand, the Reservoirs Act 1975, Schedule 2 merely precludes the statutory authority defence in actions for damage or injury in proceedings where liability would otherwise have arisen. That presumes the existence of the wide rule in Rylands v Fletcher. 151 However, signs of common law fatigue in this area must be seen in the context of much greater agility when judges consider that there is a serious lacuna in the common law. A good example is the relaxation of the rules on causation in mesothelioma cases: Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32.