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Malayan Law Journal Articles/2003/Volume 3/LIABILITY UNDER THE RULE IN RYLANDS v FLETCHER IN
MALAYSIA

[2003] 3 MLJ i

Malayan Law Journal Articles

2003

LIABILITY UNDER THE RULE IN RYLANDS V FLETCHER IN MALAYSIA

Chan Shick Chin

Advocate & Solicitor High Court of Malaya

The rule in Rylands v Fletcher is one of the most well-known common law principles in the law of tort. This
article is an attempt at evaluating two landmark cases on the rule, decided fairly recently in the House of
Lords1 and the Australian High Court,2 and their implications for tortious liability in Malaysia.
The following is a summary of the contents:

1. Introduction
2. The traditional rule in Rylands v Fletcher
3. Scope of the rule as applied in Malaysia
4. Retreat of strict liability
5. What is the law in Malaysia?
6. Conclusion
3 MLJ i at ii

INTRODUCTION
Rylands v Fletcher3 was decided in 1868 and the numerous judicial decisions 4 that followed in its wake es-
tablished it as a common law rule of strict liability. 5 As far back as 1957, it had been recognized in Singapore 6
as a cause of action in the law of torts distinct from nuisance and negligence. The applicability of the rule to
Malaysia itself was settled more than three decades ago in Hoon Wee Thim,7 where it was held to be 'part of
the law of this country by virtue of s 3 of the Civil Law Ordinance 1956. 8' Subsequent Malaysian cases,9
though small in number, have produced judicial results that are generally10 consistent with the tenor of the
English decisions, the different economic and industrial conditions that prevail locally notwithstanding.
In 2000, however, in Steven Phoa,11 the High Court made a pronouncement that mirrors the paradigm shift in
judicial approach to
3 MLJ i at iii
Rylands v Fletcher type situations that had taken place six years earlier in the Australian High Court. 12 The
judge in Steven Phoa said:13

The rule expounded by Blackburn J in the case of Rylands v Fletcher (1868) LR 3 HL 330; [1861-73] All ER Rep 12 is:
'that the person who for his own purpose brings onto his land and collects and keeps there anything to do with mischief
if it escapes must keep it 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.'14 When such a situation is found to exist, then there is no necessity for the plaintiff
to prove the negligent act of the defendant; this is a case of strict liability.
However this rule has undergone changes in recent years in the common law practising countries. Starting with Eng-
land, the House of Lords in Cambridge Water Co Ltd v Eastern Counties Leather plc has added to this principle the
necessity to prove that the defendant could have reasonably foresee the thing might, if escape, cause damage to the
plaintiff. Then in Australia, in the case of Burnie Port Authority v General Jones Pty Ltd 120 ALR 42, the High Court
after describing this rule as having 'all its difficulties, uncertainty, qualifications and exception' completely discarded it
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as an independent cause of action, and incorporated it into the law of negligence. I tend to favour the Australian ap-
proach since after the case of Cambridge Water Co Ltd the requirement of foreseeability had deprived this independent
cause of action of its attractiveness. Since foreseeability is required to be proved, it might as well be absorbed into the
liability of negligence.

The court, it will be observed, in the last two sentences of this passage merely asserted its preference for
one of the two approaches on general grounds without having addressed the underlying arguments espe-
cially from the Malaysian point of view. The rule in Rylands v Fletcher, as we shall see, has been a canon of
the law of tort in Malaysia for several decades15 and, for this reason alone, ought not be abolished without a
comprehensive appraisal. Furthermore, the rule having been explicitly endorsed by the old Federal Court, 16 a
tribunal one tier above the then High Court, is it open to the current High Court to sidestep the doctrine of
stare decisis and blaze a new trail? We will return to this issue at the end of this article.
With this overview, we will examine briefly the development and application of the rule in Malaysia and then
consider whether the changes in England and Australia justify the abolition of the rule as suggested in Ste-
ven Phoa.
3 MLJ i at iv

THE TRADITIONAL RULE IN RYLANDS V FLETCHER

It will be recalled that in Rylands v Fletcher the defendant had selected competent engineers and contractors
to construct a reservoir on his land. As a result of the lack of proper care and skill used by the persons em-
ployed in the construction, water from the reservoir burst into disused mine shafts under the land and flooded
a colliery on the adjoining land occupied by the plaintiff, causing damage. It was found that the defendant
personally was free from blame but was nevertheless held liable to the plaintiff.17 The ratio decidendi of
the judgment is contained in the famous passage of Blackburn J, quoted above, 18 which was approved on
appeal by the House of Lords.19
A case under the rule usually involves adjoining occupiers of land. Generally, for liability to attach to a de-
fendant, he must have an interest either by way of ownership 20 or occupation of land. In Abdul Rahman,21 the
court held:

The defendant was not the owner of the land but he was in occupation on an implied licence from the government to
work on the land and therefore in possession of the land and thus was in effective control of the land for the purpose of
grounding an action against him.

This prerequisite had been laid down in Read v Lyons22 'which establishes that there can be no liability under
the rule except in circumstances where the injury has been caused by an escape from land under the control
of the defendant.'23
For the rule to apply, negligence need not be proved,24 but several requirements must be satisfied. In Dato'
Dr Harnam,25 these requirements were summarized as follows:
3 MLJ i at v

As to negligence under the rule of Rylands v Fletcher, I was also satisfied from the evidence adduced by the plaintiff
that he had proved all the ingredients required to be proven under the said rule, firstly, that the defendant had brought,
stored and used at first formalin (formaldehyde) and then renalin (acetic acid) in their premises; secondly, that noxious
gases were produced; thirdly, that the said gases escaped into plaintiff's premises and, lastly, the said gases caused
injury to plaintiff's health.26

The plaintiff first has to show that the defendant had collected and kept on the land a thing that was likely to
do mischief. Thus, fire has been said to be a dangerous thing.27 Other things that come within the rule include
inflammable materials like petrol,28 water,29 combustible cut vegetation,30 noxious fumes,31 and loose earth.32
Intangible 'things' like vibrations are, however, not within the purview of the rule.33
Secondly, the manner of use that the thing is put to must be what is called, for lack of a more precise term, a
'non-natural' user. This was explained in Hiap Lee34 in the following terms:
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It is a condition of the application of the rule that the user to which the defendant has put his land is a 'non-natural' user.
As pointed out by Professor Newark in his article entitled 'Non-natural User and Rylands v Fletcher' (1961) 24 Modern
Law Review 557 'non-natural' user is an ambiguous phrase. It may simply indicate that the defendant has artificially
introduced on to the land a potentially dangerous substance - and that would appear to be the meaning intended in the
earlier cases. But according to later cases even if the substance has been artificially introduced the user will not be
'non-natural' if it is an ordinary use. Thus in Richards v Lothian35 Lord Moulton in giving the judgement of the Board said
at p 280:
'It 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 a use as is proper for the general benefit of the community.'
3 MLJ i at vi
and in Read v Lyons36 Lord Porter said at p 176 that non-natural user-
'seems to be a question of fact ... and in deciding this question ... all the circumstances of the time and place and prac-
tice of mankind must be taken into consideration so that what might be regarded as dangerous or non-natural may vary
according to the circumstances.'

In Hiap Lee itself it was suggested that a user that 'can be regarded as unusual' might be caught by the
rule.37 Examples of non-natural use include constructing a water reservoir above ground level for mining pur-
poses in the neighbourhood of a thickly populated area,38 excavating land and artificially accumulating rain
water, 39 filling a steep slope with earth,40 storing formalin and renalin which produce noxious gases,41 burning
cut vegetation,42 storing petrol on business premises,43 and leaving firewood outside an unattended bakery
oven with the fire burning.44 There must be sufficient evidence to enable the court to conclude that the user in
question comes within the category.45
Thirdly, it is an essential ingredient of liability that there is an escape of the thing from the defendant's land to
an area outside his occupation. In each of the examples cited in the preceding paragraph there was invaria-
bly such an occurrence ie an outflow of water from a mining reservoir, a landslide onto adjacent property, an
escape of fumes or an escape of fire accompanied by inflammable material. By comparison, where the plain-
tiff in a factory was hurt by an explosion that occurred inside the premises, her claim failed. 46
Lastly, there must be proof of damage, as there cannot be liability if no loss is suffered.47
3 MLJ i at vii

SCOPE OF THE RULE AS APPLIED IN MALAYSIA

We will examine the rule as it has been applied in Malaysia in relation to liability under the rule, the damages
that may be awarded and the available defences.48

(a) Liability under the rule

As noted above, liability under the rule has been imposed in the local jurisdiction for escape in cases of fire, 49
water,50 loose earth51 and gas52 where the necessary prerequisites in respect of liability, especially that of
non-natural user, have been satisfied. It would appear that even where these conditions of liability are satis-
fied, but no damage has been suffered, a claim based on the rule cannot be maintained. 53 The range of
Rylands v Fletcher situations encountered by the courts here has not been broad enough to enable the limits
of its application to be tested to the fullest. It will hardly be surprising that where new circumstances arise for
adjudication close reference will perforce continue to be made to English cases where the scope of the rule,
having been judicially interpreted over a period of almost a hundred and fifty years, is much better defined.

(b) Damages
Once liability is established against the defendant for an escape, he is liable for 'all the damage which is the
natural consequence'.54 The remedy is in damages which are awarded for loss of or damage to property and,
in Malaysia as will be seen, also for damage suffered from personal injury. It seems settled that the measure
of damages in property and personal injury claim awards for liability under the rule is no different from the
3 MLJ i at viii
conventional heads of damages given in respect of similar claims based on negligence. 55
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Damage to property
With regard to assessment of property damage, it has been held that there is no a priori rule that the court
ought to have resort first to the diminution in value principle and exclude its application on the evidence be-
fore having resort to the reinstatement method and further one of the relevant considerations which an as-
sessing court may take into account is the intention of the tortfeasor. 56
More detailed guidelines for awarding damages were enunciated in Sheikh Amin bin Salleh,57 where a num-
ber of houses were destroyed in a fire. It was held that:

The usual measure of damages58 in the case of damage to or loss of property is the cost of replacement or repair of the
property lost or damaged and in addition a sum to cover the loss of the beneficial use of the property. (See Clerk and
Lindsell on Torts 11th Ed para 642). When a chattel is damaged by a wrongful act, one direct consequence is that the
owner, besides being put to the expense of repairing it, is deprived of its use during the period of repair, and for his loss
of use he is entitled to recover. (See Clerk & Lindsell on Torts 11th Ed para 267). The measure of damages in the pre-
sent case therefore would be the cost of rebuilding the eight houses within a reasonable period after their destruction,
bearing in mind that it was the duty of the plaintiff to minimise the damages.59

The court went on to assess the monetary loss for rebuilding the eight terrace houses, loss of rent during the
rebuilding period, cost of repairing done to the kitchen portion of a bungalow and damage to the bungalow
then under construction.
Further illustrations of liability for damage to property are found in Abdul Rahman,60 where the plaintiff was
awarded the total cost of 2,360
3 MLJ i at ix
rubber trees that had been burnt in a fire and Yat Yuen Hong,61 where the court held that a successful plain-
tiff could recover for damage to his personal property.

Personal injury
In respect of personal injury, including death, the opinion expressed in the House of Lords in Read v Lyons
rejecting liability for such damage has not been followed.62 In Hoon Wee Thim,63 the court took up the issue
and ruled, rather peremptorily, as follows:

It was urged upon me that in view of what Lord Macmillan said in Read v Lyons & Co Ltd64 damages for personal inju-
ries cannot be recovered under the doctrine in Rylands v Fletcher. But, as Charlesworth on Negligence (4th Edn) says
at p 523, 'there is neither principle nor authority for holding that there can be liability for one kind of damage, namely, to
property, and yet no liability for another, namely, for personal injuries, caused by the same wrong.' Damages for per-
sonal injuries under the principle of Rylands v Fletcher65 were awarded in Miles v Forest Rock Granite Co Ltd,66 Shiff-
man v Order of St John67 and Hale v Jennings Bros.68

As to the heads of damages, in Hoon Wee Thim69 a claim arising from death, the court made awards of (a)
general damages for loss of expectation of life, loss of dependence; and (b) special damages for funeral ex-
penses and loss of pigs, fowls and cash and damage to house, pigsty and motor car, ie chattels. For bodily
injury per se, the court in Dato' Dr Harnam70 awarded general damages for injury caused to the plaintiff's
health by noxious gases. As a matter fact, in the earlier case of Ang Hock Hai,71 not referred to in Hoon Wee
Thim or Dato Dr Harnam, the court in Singapore had made awards of (a) general damages for loss of expec-
tation of life for death and pain and suffering for personal injury; and (b) special damages for loss of personal
property and funeral expenses.
3 MLJ i at x

(c) Defences
The main defences that could thwart an action pursued under the rule, which otherwise satisfies the prereq-
uisites of liability, are that the damage complained of was caused by (i) the act of a trespasser;72 (ii) neces-
sity;73 (iii) an act liability for which had been excluded by statutory authority; 74 or (iv) an act which the plaintiff
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had consented to.75 The last of these defences was raised successfully in Sheik Amin bin Salleh76 where in a
claim for damage by fire under the rule, the court held:

At common law if a fire started in the house or on the land of one man and spread to the land of another, the person
from whose house or land the fire started had to make good the damage. But a person who consents to the dangerous
thing being brought to a place from which it may cause him injury if it escapes, has no right of action unless he can
prove negligence. There is ample evidence in this case that the plaintiff assented to or acquiesced in the use of the
defendants' premises as a bakery with an oven therein. The defendants therefore cannot be held liable in damages
under the rule in Rylands v Fletcher.77

It should also be mentioned that an act of God had been recognized as a possible defence to an action un-
der the rule by Blackburn J in Rylands v Fletcher. The point was considered in Hoon Wee Thim as regards
extraordinary rainfall but the court held that 'in a tropical country such as Malaya a heavy shower can cer-
tainly not be held to be an act of God.'78

RETREAT OF STRICT LIABILITY

In the history of its development, strict liability under the rule had never been extended outside the ambit of
situations arising from land use.79 The
3 MLJ i at xi
rule was certainly not strict (or absolute) in so far as defences -- which by and large closely correspond to
several in the law of negligence -- were available to defeat its application.80 On the other hand liability was
strict in the sense that no negligence was required to be proved against the defendant. It will be seen, as a
result of the two judicial decisions discussed below, that the Rylands v Fletcher doctrine of strict liability has
been deprived of much of its 'strictness' in the first and discarded altogether in the second.

(a) The Cambridge Water case81

Facts of case
The plaintiffs owned a borehole from which it extracted water for public consumption in and around Cam-
bridge. The defendant was a leather manufacturer situated 1.3 miles away in Sawston, a village in Cam-
bridgeshire, which used a chlorinated solvent82 in its tanning process. In this process there had been small
but regular spillages of the solvent, which was not readily soluble in water, onto the concrete floor of the tan-
nery, the total spillage over a period of years being at least 1,000 gallons. The spilled solvent seeped through
the tannery floor into the soil until it reached an impermeable strata 50 metres below where it percolated
along a plume until, about nine months later, it reached and contaminated the plaintiffs' water.
On these facts the plaintiffs brought an action against the defendants claiming damages in negligence and
nuisance and under the rule in Rylands v Fletcher. The trial judge dismissed the claim in negligence and nui-
sance because the defendants could not have reasonably foreseen that the repeated spillages would lead to
any environmental hazard and the action under Rylands v Fletcher failed because the use of the solvent in
the defendants' tanning business constituted a natural use of their land. On appeal by the plaintiffs, the Court
of Appeal held that the defendants were strictly liable for the contamination of the water under the plaintiffs'
land. The defendants appealed to the House of Lords.

The judgment
Lord Goff, with whom the other four law lords agreed, delivered the judgment of the House in favor of the de-
fendants. He prefaced his consideration of the applicable law by stating that this was a case of interference
with the plaintiffs' enjoyment of their land including their right to extract water beneath it. Liability would de-
pend on the principles
3 MLJ i at xii
governing one or other of two heads of law, ie the law of nuisance and the rule in Rylands v Fletcher.

Nuisance and the rule in Rylands v Fletcher

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Lord Goff drew attention to the similarity of function and close relationship between these two torts. He ac-
cepted the thesis of Professor Newark 83 that Rylands v Fletcher was 'a simple case of nuisance' and the main
principle involved was that negligence was not an element in the tort of nuisance. Looking back, there was
no reason to suppose that Blackburn J intended to create a liability any more strict than that created by the
law of nuisance. In the case of nuisance where the user of land is not reasonable and correspondingly under
the rule in Rylands v Fletcher where there is non-natural use of land, the defendant in each case will be lia-
ble even though he may have exercised reasonable care and skill to avoid the nuisance or the escape, ie
liability is strict.

Foreseeability of damage a requirement in Rylands v Fletcher

In nuisance, the fact that a defendant has taken all reasonable care will not, of itself, exonerate him from lia-
bility and Lord Goff said (at p 72) that the law is settled

... to the effect that foreseeability of harm is indeed a prerequisite of recovery of damages in private nuisance, as in the
case of public nuisance.

Is there a similar prerequisite under the rule in Rylands v Fletcher? In the ensuing analysis of Blackburn J's
statement of the 'true rule of law', Lord Goff put forward the view that the 'general tenor of his statement of
principle is therefore that knowledge, or at least foreseeability of risk, is a prerequisite under the principle.'
After overcoming the apparent difficulty posed by two cases 84 to the contrary he answered the question in the
affirmative (at p 75).

... the historical connection with the law of nuisance must now be regarded as pointing towards the conclusion that
foreseeability of damage is a prerequisite of the recovery of damages under the rule. I have already referred to the fact
that Blackburn J himself did not regard his statement of principle as having broken new ground; furthermore, Professor
Newark has convincingly shown that the rule in Rylands v Fletcher was essentially concerned with an extension of the
law of nuisance to cases of isolated escapes. Accordingly since following the observations of Lord Reid in The Wagon
Mound (No 2) [1966] 2 ALL ER 709 at 717, [1967] 1 AC 617 at 640, the recovery of damages in private
3 MLJ i at xiii
nuisance depends on foreseeability by the defendant of the relevant type of damage, it would appear logical to extend
the same requirement to liability under the rule in Rylands v Fletcher.

He cited various reasons why it was undesirable for the rule be developed further and concluded (at p 76):

Having regard to these considerations, and in particular to the step which this House has already taken in Read v Ly-
ons to contain the scope of liability under the rule in Rylands v Fletcher, it appears to me to be appropriate now to take
the view that foreseeability of damage of the relevant type should be regarded as a prerequisite of liability under the
rule.

Justification for change

This fundamental re-alignment of the law from a position of strict liability to one of no liability without
fault, apart from the historical basis outlined above, may also be justified on at least two other grounds. His
Lordship reasoned that strict liability for operations of high risk should be imposed by legislation85 in prefer-
ence to developing a general theory of strict liability at common law under the rule in Rylands v Fletcher or
rendering it stricter to achieve the same end. Furthermore, there would be a beneficent effect on the future
development of the law of tort concerning which he said (p 76):

It would moreover lead to a more coherent body of common law principles if the rule were to be regarded essentially as
an extension of the law of nuisance to cases of isolated escapes from land, even though the rule as established is not
limited to escapes that are in fact isolated.

Decision of the court

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As to the appeal before the House, it was held that the storage of substantial quantities of chemicals on in-
dustrial premises, as in this case, was 'an almost classic case of non-natural use'86, but the defendants were
nonetheless not liable as they could not reasonably have foreseen the resultant damage which occurred at
the plaintiffs' borehole.

Review of case
The House of Lords decided that the rule in Rylands v Fletcher, viewed historically and in its proper context,
should be treated as an extension of the law of nuisance applicable to isolated escapes. In so doing it merely
3 MLJ i at xiv
clarifies, and does not change, the existing law.87 The rule, subject to this decision, remains a part of the
common law of England88 and it still appears to be the case that a person may be liable under the rule even
though neither he nor anyone else has been guilty of negligence in allowing the escape.89
Other important corollaries that might be drawn from the decision are that (a) the linkage of the rule and the
tort of nuisance clearly suggests that the rule has no legitimacy as a remedy for persons other than land oc-
cupiers,90 this being the position in the case of liability for private nuisance; 91 (b) there was no nuisance where
the acts committed by the defendants did not involve their use of their land even though they affected the
claimants' enjoyment of theirs;92 (c) the view that damages for personal injury could be recovered under the
rule in Rylands v Fletcher, ie without proof of negligence, for example, by road users when suing for dam-
ages, is now difficult to support93 and as a matter of fact Professor Newark, in his article, had asserted cate-
gorically that such damages were not claimable;94 (d) now that liability is limited by the concept of foreseea-
bility, there would appear to be no need for a separate determination of whether the thing which escapes is
'dangerous in itself';95 and (e) as a tort of nuisance, once the wrong act complained of is proven, the burden
shifts to the defendant to raise a defence.96
3 MLJ i at xv
The House of Lords has been criticized by Fleming for its 'present day static philosophy' in refusing to de-
velop a general theory of strict liability for ultra-hazardous activities.97 He went on to observe98 that the recep-
tion of the rule in the United States was such that it became 'acclimated and developed as a vital branch of
tort law' in the form of the Restatement (Second) of Torts, para 519.96.99 On the other hand, it has been con-
ceded that 'we cannot go on using torts devised hundreds of years ago to meet the more complex problems
which confront our modern society' and so it may well be that in these days of 'common law fatigue' the initia-
tive must pass on to the legislator.100 The decision itself, however, has been defended as being fair on the
ground that land occupiers, simply by reason of occupancy, are liable to an increase in their legal duties and
it seems not unreasonable to expect that in relation to activities carried on by them on their land that they be
subject to a duty that is higher than that imposed upon non-occupiers, ie strict liability as opposed to fault-
based liability respectively.101

(b) The Burnie case102

The facts
A fire on premises occupied by the Burnie Port Authority (the appellants) in Burnie, Tasmania was found to
have been caused by the negligence of its independent contractor, W & S, in carrying out unguarded welding
operations in close vicinity to stacked cardboard cartons of isolite, an inflammable insulating material. The
fire spread to adjoining cold rooms occupied by General Jones Pty Ltd (the respondent), and ruined its fro-
zen vegetables. The appellant was found liable for damages both at first instance 103 and on appeal in the Full
Court of the Supreme Court of Tasmania,104 from where it appealed further to the High Court of Australia.
3 MLJ i at xvi
Before this court one105 of the issues raised was whether the appellant was liable under the rule in Rylands v
Fletcher.

The majority judgment

The High Court, by a majority of five to two, upheld the liability of the appellant on grounds of negligence. It
also decided that the rule in Rylands v Fletcher no longer existed as a separate tort in the Australian com-
mon law.
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Criticism of the rule in Rylands v Fletcher

The majority's view of the present day status of the rule, '[n]otwithstanding the many accolades which have
been, and continue to be, lavished on Blackburn J's judgment,' is that:

Unfortunately, the subsequent judicial alterations and qualifications of Blackburn J's statement of the 'true rule' have
introduced and exacerbated uncertainties about its content and application. 106

They proceeded to review some of the cases, including those decided in the Australian courts. In regard to
the need to lay down principles for determining whether the twin requirements of 'something which is danger-
ous' and 'non-natural use' have been satisfied they said:

We are unable to extract any such principles from the decided cases. Indeed if the rule in Rylands v Fletcher is re-
garded as constituting a discrete area of the law of torts, it seems to us that the effect of past cases is that no such
principles exist. In the absence of such principles, those twin requirements compound the difficulties about the content
of the 'rule' to such an extent that there is quite unacceptable uncertainty about the circumstances which give rise to its
so-called 'strict liability'. The result is that the practical application of the rule in a case involving damage caused by the
escape of a substance is likely to degenerate into and essentially unprincipled and ad hoc subjective determination of
whether the particular facts of the case fall within undefined notions of what is 'special' or 'not ordinary'. 107

Their Honors went on to observe108 that the rule had since its inception been progressively weakened and
confined in its application from within and the area in which it applied to impose liability, where it would not
otherwise exist, been progressively diminished by the dominion of ordinary negligence.
3 MLJ i at xvii

Relationship between the rule in Rylands v Fletcher and negligence.

As to the present relationship between the rule and ordinary negligence they declared:

The result of the development of the modern law of negligence has been that ordinary negligence has encompassed
and overlain the territory in which the rule in Rylands v Fletcher operates.109

This led them to the view that:

Inevitably, the past adjustments and qualifications of the rule in Rylands v Fletcher to reflect aspects of the law of ordi-
nary negligence have greatly reduced the likelihood that Rylands v Fletcher liability will exist in a case where liability
would not exist under the principles of negligence.110

In the course of further examining this relationship their Honors went on to develop the concept of 'non-dele-
gable' duty and a 'variable standard of care'.111 Non-delegable duty is a special responsibility or duty to see
that care is taken and exists where (quoting from Kondis):

... the person on whom (the duty) is imposed has undertaken the care, supervision or control of the person or property
of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its
safety, in circumstances where the person affected might reasonably expect that due care will be exercised. 112

Some of the categories of such relationships are those between adjoining landowners in relation to work
threatening support or common walls, master and servant in relation to a safe system of work, hospital and
patient, school authority and principal and, arguably, occupier and invitee. A relationship of proximity exists
which is 'marked by special dependence or vulnerability' on the part of the person to whom the duty is owed.
Their Honors went on to state:
 9

It follows that the relationship of proximity which exists in the category of cases into which Rylands v Fletcher circum-
stances fall contains the central of control which generates in other categories of case, a special 'personal' or 'non-
delegable' duty of care under the ordinary law of negligence.113

This conclusion is supported by considerations of fairness and utility.

The concern that the kind of liability in a Rylands v Fletcher situation might not be adequately accommodated
by the principles of negligence is addressed by applying a variable standard of care.
3 MLJ i at xviii

Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reason-
able in the circumstances. It has been emphasized in many cases that the degree of care under that standard neces-
sarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident hap-
pening and the seriousness of the potential damage if an accident should occur.114 Even where a dangerous substance
or a dangerous activity or a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care re-
mains 'that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the cir-
cumstances'.115 In the case of such substances or activities, however, a reasonably prudent person would exercise a
higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of 'reasonable care' may
involve 'a degree of diligence so stringent as to amount practically to a guarantee of safety'. 116

Incorporation of the rule in Rylands v Fletcher into negligence

After a critical examination of the cases, the majority summarized their legal position as follows:

Once it is appreciated that the special relationship of proximity which exists in circumstances which would attract the
rule in Rylands v Fletcher gives rise to a non-delegable duty of care and that the dangerousness of the substance or
activity involved in such circumstances will heighten the degree of care which is reasonable, it becomes apparent, sub-
ject to one qualification, that the stage has been reached where it is highly unlikely that liability would exist under the
principles of ordinary negligence in any case where liability would exist under the rule in Rylands v Fletcher.117

Their Honors went on to consider, by way of illustration, two well-known cases118 where Rylands v Fletcher
liability was held to exist in the apparent absence of negligence and concluded that they lacked validity as
examples of circumstances where the application of the modern law of negligence and the rule in Rylands v
Fletcher would produce different results.
The court's restatement of the law, subject to there being some cases in which it is preferable to see a de-
fendant's liability lying in nuisance119 and not in negligence, is that:

... the rule in Rylands v Fletcher, with all its difficulties, uncertainties, qualifications and exceptions, should now be
seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary
3 MLJ i at xix
negligence. Under those principles, a person who takes advantage of his or her control of premises to introduce a dan-
gerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of rea-
sonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. In a case
where the person or property of the other person is lawfully in a place outside the premises that duty of care both varies
in degree according to the magnitude of the risk involved and extends to ensuring that such care is taken. 120

The dissenting judgments

Of the two minority judgments Brennan J's declared his opposition to the proposed abolition of Rylands v
Fletcher in favor of the law of negligence. He warned the result would be that:

....a plaintiff who suffers loss by the escape of a dangerous thing from the defendant's land would go remediless unless
the plaintiff could prove negligence contributing to the escape on the part of the defendant, his servant or agents or the
escape amounted to a nuisance.121

Furthermore it would:
 10

....depreciate the duty which Rylands v Fletcher imposes on the occupiers of land and premises and correspondingly to
diminish the security which that rule confers on their neighbours. 122

He held that the claim failed because the dangerous act of welding was a 'method of doing the work 'inci-
dentally employed by the contractor' and for such 'collateral negligence' the principal (appellant) was not lia-
ble.
The dissent of McHugh J is particularly worth noting. He drew attention to the potential danger of the path
taken by the majority and disputed their conclusion that the application of the modern law of negligence and
the rule in Rylands v Fletcher would produce similar results in the kind of cases in question. He said:

What is decisive for present purposes is that liability existed under Rylands v Fletcher even though the occupier had
not been negligent. As long as it remains the law that a person is not liable in negligence for a reasonably foreseeable
risk of injury unless a reasonably practicable alternative means of avoiding the risk was also available to the defendant,
liability will continue to exist under Rylands v Fletcher in cases where it does not exist in negligence.123

In practice, considerable difficulty would be encountered in trying to establish liability without the benefit of
strict liability.

If plaintiffs were deprived of the benefit of the rule in Rylands v Fletcher, they would often have difficulty in obtaining
compensation for their damage. It often happens that the cause of an escape of a harmful product either is
3 MLJ i at xx
unknown or cannot be established on the probabilities. In such cases, proof of negligence is impossible unless the
plaintiff can invoke the doctrine of res ipsa loquitur. Even when the cause of an escape can be identified, it does not
follow that negligence will be established. If the rule in Rylands v Fletcher is subsumed under negligence liability, it
seems inevitable that many defendants, liable under the rule, will escape liability if plaintiffs are confined to actions for
negligence and nuisance.124

Decision of the court

On the facts before it, the court held that there was a relationship of proximity between the appellant and the
respondent which imposed on the former a non-delegable duty, thereby making the appellant liable for the
negligence of its independent contractor.

Review of case
Having been 'absorbed by the ordinary principles of negligence,' the rule in Rylands v Fletcher has for all
practical purposes been abolished in Australia. The 'absorption' of what is seen as an outdated principle of
law by an ascendant one is not without precedent in the development of the Australian common law. There
are at least two other well-known examples. In the Burnie case itself, the High Court confirmed what had
been recognized in earlier cases, ie that the medieval rules (on strict liability) for the escape of fire had been
absorbed into the principles of Rylands v Fletcher.125 The other instance is in the area of occupier's liability
where the High Court in Australian Safeway Stores Pty Ltd v Zaluzna126 abolished the so-called special duties
resting on an occupier of land with respect to persons entering as invitees, licensees or trespassers in favour
of the principles of the common law of negligence. 127 This trend in the development of the Australian common
law has been characterized as 'the imperial expansion of the law of negligence.' 128
The advantages of dealing with erstwhile Rylands v Fletcher situations under the Burnie principle of negli-
gence, apart from not having to apply the old arcane rules, are manifold. The most important may be sum-
marized as follows. (a) The law of negligence has, since Donoghue v Stevenson129 been extensively and con-
tinuously developed over the past seventy years or so and has accumulated a very wide spectrum of de-
cided cases. (b) A defendant need not have any interest in the land from which the danger emanated as a
pre-condition of liability nor need a plaintiff be an adjacent
3 MLJ i at xxi
 11

landowner.130 (c) Personal injury claims for damages would no longer be subject to any further uncertainty, 131
even if only valid on purely logical grounds, that could be faced by plaintiffs basing their suits on the abol-
ished rule. (d) A defendant in an action will be put in an improved position in being entitled to require his al-
leged negligence to be proven by the plaintiff and also to plead contributory negligence on the part of the
plaintiff.132
The decision of the majority has attracted comment from detractors on a variety of issues. To begin with the
objections of McHugh J, one of the two dissenting judges, has received considerable attention. 133 Only time
will tell whether his Cassandran voice should have been heeded by the majority members of the High Court.
Among legal writers the most serious criticism has been reserved for the fact that the rationale of the deci-
sion was based on an extended applicability of doctrine of non-delegable duty of care.134 Even before Burnie,
non-delegable duty in negligence law had been frowned upon by academic commentators as an essentially
illogical doctrine135 or a 'logical fraud'136 because it holds a defendant liable in negligence where he has nei-
ther been personally negligent nor vicariously liable. As to the case itself, it has been said that the main prob-
lem with the majority's theory of non-delegable duty is that it is too wide rather than too narrow.

Finding a non-delegable duty when a defendant handed control of a dangerous substance to a third party might be
justified, but the majority in Burnie Port cast its net much further. The non-delegable duty theory produced the result the
majority wished to reach - the defendant is held liable on grounds of negligence liability instead of Rylands v Fletcher
but it is not one that should recommend itself to other courts. 137

The scope of this non-delegable duty category is wider than that covered by the rule in Rylands v Fletcher in
that it extends to dangerous activities as well
3 MLJ i at xxii
as dangerous substances and further there is no limitation to 'non-natural' use of land.138 The majority's ap-
proach possesses not inconsiderable capacity for uncertainty, especially if the imposition or otherwise of the
non-delegable duty is to be largely dependent upon the actual facts of each individual case. 139 There is, for
example, the theoretical possibility that an occupier may now avoid liability for an unforeseeable and there-
fore non-negligent 'escape' for which, under the old law, liability would attach. 140 Additionally, the concept of
'dangerousness' in relation to substances and activities, which the majority declined to restrict to things which
are 'inherently' dangerous and to operations which are inherently risky respectively, may prove as elusive as
the concept of 'non-natural' user of land.141 If the reading that Australian law is heading towards the recogni-
tion of a broad principle that a non-delegable duty of care is owed in respect of 'dangerous' activities is cor-
rect, then an 'unruly horse' has been let out of the stable.142
It has been suggested143 that the majority have confused the distinctly different roles of negligence and strict
liability in the law of tort. Negligence deals with the wrong way of carrying on an activity. Strict liability deals
with activities which even when carried out with due care retain an abnormal risk and could be deemed negli-
gent as such but for their countervailing utility. To bring both of these concepts under the same denominator
is to emulate Procrustes. 144

WHAT IS THE LAW IN M ALAYSIA?

In view of the importance of the Cambridge Water and Burnie cases, the overwhelming likelihood is that
courts in other Commonwealth jurisdictions, including Malaysia and Singapore, will follow one or the other of
the decisions.145 We now proceed to consider the likely effect of these two cases on Malaysian law by first
reviewing the local cases, then ascertaining whether the courts here are free to make a choice and then
weighing up the best options.

(a) A brief review of the local cases

It would be helpful to examine the limited number of local cases in which a cause of action under the rule in
Rylands v Fletcher was adjudicated upon by the courts and see if the future direction of the law here is better
3 MLJ i at xxiii
signposted by either Cambridge Water or Burnie. A tabulation of these cases is given below. The decision
of the court in each case is indicated under one or more of three torts.
 12

3 MLJ i at xxiv
Rylands Negligence Nuisance
FIRE
1. Ang Hock Hai Yes Yes No
[1957] MLJ 135
2. Sheikh Amin No Yes No
[1974] 2 MLJ 125
3. Abdul Rahman Yes Yes No
[1978] 2 MLJ 125
4. Lembaga Kema- Yes No No
juan [1997] 2 MLJ
783
WATER
5. Hoon Wee Thim Yes Yes No
[1966] 2 MLJ 240
and [1967] 2 MLJ
35 FC 7.77
6. Abdul Hamid Yes Yes Yes
[1991] 1 AMR 637
7. Hiap Lee [1974] 2 No No Yes
MLJ 1 PC
8. Steven Phoa
[2000] 4 MLJ 200
4th defendant No Yes Yes
5th defendant No Yes Yes
EARTH
9. Yat Yuen Hong Yes No No
[1963] MLJ 279
10. Milik Perusahaan Yes No No
Sdn Bhd [2003] 1
CLJ 12
GAS
11. Dato' Dr Harnam Yes No Yes
[1996] 1 CLJ 477
and [1997] 2 MLJ
373 CA
In eight of these eleven cases, the plaintiffs succeeded in either nuisance or negligence irrespective of
whether they also succeeded under the rule in Rylands v Fletcher. Two of the three146 exceptions are Lem-
baga Kemajuan and Yat Yuen Hong where the plaintiff in each case succeeded only under Rylands v
Fletcher. Were the facts in these two cases truly not susceptible to a finding in either nuisance or negli-
gence?
In Lembaga Kemajuan, the court found the defendant liable for damage done by two fires to the plaintiff's
adjoining rubber plantation scheme. It was shown that the burning vegetation on the defendant's land were
those (sic) that had been cut by its employees or agents and left lying there under hot dry weather conditions
prevailing at that time. The court found that the defendant ought to have known that fire could break out from
the combustible cut vegetation and, if ignited, such fire would certainly spread, as it did, to the plaintiff's
scheme. Given these findings, it could hardly be gainsaid that the act of leaving the combustible cuttings un-
attended was a negligent one.147
In the second case of Yat Yuen Hong, the defendants were found to have piled 44½ tons of loose earth on a
steep slope which slipped during heavy rain. The duty of care that necessarily arose from an operation in a
country prone to heavy rainfall is obvious and the defendants would very likely have
3 MLJ i at xxv
been found negligent as well. Indeed, the court cited a similar case148 where the defendant was found liable
for a landslide not only under the principle of Rylands v Fletcher but on the ground of negligence.
 13

The plaintiffs in these ten cases, had they chosen to pursue their claims in nuisance and/or negligence with-
out relying on Rylands v Fletcher, would in all probability have succeeded under either a Cambridge Water
(nuisance) or Burnie (negligence) scenario. On a theoretical level there is at least some tangible ground to
encourage the belief that the adoption of either approach in Malaysia would not require any unacceptable
rationalization or re-interpretation of our case authorities.

(b) Do our courts have power to change the law on Rylands v Fletcher?
The rule in Rylands v Fletcher is common law principle which is followed in this country by virtue of s 3 of the
Civil Law Act 1956149 which inter alia provides that the common law and the rules of equity as administered in
England on 7 April 1956 shall be applied in West Malaysia. 150 In Chung Khiaw Bank,151 the court explained
the effect of the section as follows:

Section 3 of the Civil Law Act 1956 directs the courts to apply the common law of England only in so far as the circum-
stances permit and save where no provision has been made by statute law. The development of the common law after
7 April 1956 (for the States of Malaya) is entirely in the hands of the courts of this country. We cannot just accept the
common law of England.

Notwithstanding the mandatory language of the provision requiring the court in West Malaysia to apply the
English common law and rules of equity as at 7 April 1956, it has been observed:

That does not mean that the common law and rules of equity as applied in this country must remain static and do not
develop.152

Indeed,

It is entirely up to our courts to develop our common law jurisprudence according to the needs of our local circum-
stances.153

3 MLJ i at xxvi
In Nepline,154 the court declared that in a case where there is no written law in force in Malaysia and local
conditions do not permit the application of the English law on that date 155 it is free to formulate Malaysia's own
common law. It elaborated its approach as follows:

In so doing, the Court is at liberty to look at any source of law, local or otherwise, be it common law of, or the rules of
equity as administered in England after 7 April 1956, principles of common law in other countries, Islamic law of com-
mon application or common customs of the people of Malaysia. 156

The cases157 cited clearly provide sufficient authority for the adoption of any principle of law from any source
when the pre-conditions of reception are satisfied. 158 The new law as enunciated in both Cambridge Water
and Burnie would appear to fall into this category in that they are the 'common law of, or rules of equity as
administered in England after 7 April 1956' and 'principles of common law in other countries' respectively.

(c) Basis of judicial choice

Which of the two decisions should a Malaysian court follow? Even though the decision in Burnie has gener-
ated more controversy than that in Cambridge Water, this is not a question to which there is a clear cut
3 MLJ i at xxvii
answer.159 The process of deciding on the merits may be assisted if we examine the two key concepts under-
pinning the respective ratio decidendi of the two decisions, i.e. non-delegable duty and foreseeability, in the
light of our own cases.

Foreseeability
 14

The requirement of foreseeability, whether in Cambridge Water or Burnie, is such that a plaintiff who fails to
prove it would find himself without a remedy even though he would have succeeded under the old law. 160 The
concept of foreseeability has been accepted and applied in the local law in respect of causes of action aris-
ing from negligence. In Pacific Tin,161 where damage was resulted from flooding when a bund gave way the
Federal Court, while holding the defendants negligent, said:

The magnitude of the damage, if it ever arose, was clearly foreseeable or ought to have been foreseen by them. 162

In a later case,163 the High Court considered the issue of remoteness of damage in negligence and stated the
applicable law as follows: 164

As enunciated by the Judicial Committee of the Privy Council in The Wagon Mound,165 in the law of negligence the test
is whether the consequences were reasonably foreseeable is a criterion alike of culpability (viz breach of duty to take
reasonable care) and of compensation. Thus, culpability and compensation are both governed by the rule of 'reasona-
ble foresight'. What has to be considered is whether any specific item of damage in respect of which the plaintiffs' claim
is such that at the time of the act or omission called in question the defendants ought to have foreseen the probability
of it.

Similarly, foreseeability is also part of our law as a requirement in actions arising from nuisance. This was
made clear in the case of Hiap Lee,166 where, in holding the respondents guilty of nuisance, the Privy Council
had this to say about the law of nuisance:167
3 MLJ i at xxviii

As Lord Reid pointed out in giving the judgment of the Board in The Wagon Mound (No 2)168 at p 639, negligence is not
an essential element in determining liability for nuisance. All that is necessary is that the possibility that the use which
he [ie a defendant] was making of his own land might interfere with the enjoyment by his neighbour of his land was
something that the defendant might reasonably have foreseen.

We have shown earlier that the local cases which have applied the principle Rylands v Fletcher were also
decided on the basis of either negligence or nuisance or could reasonably have been so decided. There is
clearly a considerable degree of overlap between Rylands v Fletcher on the one hand and negligence and
nuisance on the other. It is especially so in the case of nuisance. 169 This is not to say that all Rylands v
Fletcher cases can be disposed off by way of nuisance. Given the already intimate relationship between the
two, the infusion of foreseeability into the principle of Rylands v Fletcher into our law, as an additional ingre-
dient of liability, as is required in nuisance, is not a step that could be argued against with much cogency,
moral or philosophical objections to the fault theory of tortious liability aside. Put another way, if Cambridge
Water were a Malaysian decision it would as unobjectionable to us as it is in England. There is no clear indi-
cation that it would have any adverse effect on the continued development of the common law in Malaysia.

Non-delegable duty
On a broad view the Burnie decision was, as noted above, the latest development in the peculiar Australian
judicial trend of absorption into the law of negligence of various older common law principles. The first of
these was the ancient fire rule of ignus suus170 followed by the rules applicable to entrants onto premises in
the law of occupiers' liability171and finally the rule in Rylands v Fletcher.
The decision in Burnie itself hinged on an apparent extension of the law on non-delegable duty, as formu-
lated in Kondis172 and supported by other leading Australian cases.173 The general principle of law, as ex-
pressed in Kondis is not, however, the law in England.174 Further it has been said that
3 MLJ i at xxix
there is difficulty in reconciling the basis of liability of the building owner in Burnie with the position under
English common law in comparable circumstances.175 Non-delegable duty has been criticized as being a dis-
guised form of vicarious liability and especially difficult to explain in situations where the duty in merely to use
ordinary care but converted into the higher duty to assure that care is taken.176 Members of the Australian
High Court itself in a recent decision177 found it difficult to agree on the proper criteria to apply when asked to
 15

determine whether a particular situation gave rise to a non-delegable duty; nor was it keen to extend the cat-
egories of cases to which the duty was applicable. In Malaysia we have adopted the traditional English posi-
tion on the nature and scope of the exceptions to the general rule that an employer is not liable for the de-
fault or negligence of an independent contractor, these exceptions being known as non-delegable duties.178
These exceptions include liability under the rule in Rylands v Fletcher, liability of an extra-hazardous nature179
and the liability of an employer who engages a contractor to do work on a highway. 180 Since in Malaysia the
application of non-delegable duty has not departed from the principles established in the English common
law cases adoption of the Australian position would require our courts to apply a new line of case authorities.

Nuisance or negligence?
The question as to the preferred law for treating Rylands v Fletcher situations, ie using the principles of nui-
sance or the ordinary law of negligence, might in some ways be determined by the perceived degree of un-
certainty in applying the new law in each case.
3 MLJ i at xxx
A court viewing the rule as an extension of nuisance must bear in mind that though the distinction between
Rylands v Fletcher and nuisance is not easy to draw differences do exist.181 Consequent on the dicta ex-
pressed in the Cambridge Water the fear has been voiced that the reasonable user test in nuisance could be
equated with the non-natural user requirement in Rylands v Fletcher leaving the way open for nuisance to be
assailed by those same difficulties that have afflicted the rule as a result of the vagaries and uncertainties of
the non-natural use requirement.182 Nonetheless Rylands v Fletcher is still the law in England183 and indeed
the current state of the law on non-natural user has been outlined with some conviction which may lead to a
modest revival of the rule.184 In Cambridge Water, Lord Goff had adverted to the matter of environmental pol-
lution and made clear he was not in favour of any attempt that the common law should be developed or ren-
dered more strict to provide for liability in respect of such pollution 'given that so much well-informed and
carefully structured legislation is now being put in place for this purpose.' 185 That may well be the case in the
United Kingdom but in Malaysia186 there is hardly any legislation that provides for civil liability for such pollu-
tion, let alone one that spells out the determinative criteria or its consequences. This legislative void is per-
haps a sufficiently cogent argument at least for the retention of the rule.
In the case of negligence it is arguable that more uncertainty has been created by the Burnie decision. In the
first place, the proposed variable standard of care is at best an untried concept and by its very nature ex-
tremely protean. Secondly, it has been said that Burnie has thrown the law on non-delegable duty into much
confusion and a warning sounded that an 'unruly horse' has been let out of the stable.187 As been noted
above English law is not comfortable with the formulation of non-delegable duty in Kondis188 and inferentially
one might say that it is also not the law in Malaysia. Finally, although the Australian High Court has made a
bold attempt at streamlining common law principles189 and asserting that the
3 MLJ i at xxxi
absorption of Rylands into the law of negligence would promote certainty in the law, this has been seriously
doubted on the ground that it has merely replaced one set of uncertainties with another. 190 In Burnie itself,
McHugh J had referred to the 'inherent indeterminacy of negligence law' and cited the 'wavering history' in
relation to recovery of damages for purely economic loss as an example.191

CONCLUSION
The cardinal point that the decisions in Cambridge Water and Burnie on Rylands v Fletcher situations have
been the result of two different lines of judicial thinking is clear. In Cambridge Water the House of Lords has
sought to retain the concept of strict liability, even in an emaciated form, by placing emphasis on the origins
of the rule in Rylands v Fletcher and its close association with the law of nuisance. Burnie, on the other hand,
is the consummation of a line of leading Australian cases192 that had favoured the ordinary law of negligence
over strict liability. The question, as to which is the preferred principle of law, resolves itself into a choice be-
tween these two streams of judicial development.
Should a Malaysian court (a) continue to apply the rule in Rylands v Fletcher without modification to the re-
quirements of liability; or (b) follow the principle of law enunciated in one of these two cases? The first option
is not a seriously viable one as it implies a refusal to recognize the general progression of tort law towards
fault based liability in major common law jurisdictions and could result in our being deprived of the benefits of
 16

future developments there. That leaves the second option. Taking this option exposes us to the obvious ben-
efits to be gained from cross-jurisdictional fertilization of legal ideas.193 On this assumption, which of the two
principles is the better one?
3 MLJ i at xxxii
We have earlier said that a court in this country has power under s 3 of the Civil Law Act 1956, subject to the
guidelines provided by the decided cases, to follow either of the two decisions if it so wishes. Whether the
Cambridge Water or Burnie approach is adopted, this will necessarily involve acceptance of foreseeability as
an essential ingredient of liability in the Rylands v Fletcher category of cases. There is no intimation in the
foregoing discussion that such acceptance will conflict with any aspect of our case law. Following Cambridge
Water would ensure that we continue to be part of the mainstream of the English common law (parting ways
with it only over its apparent refusal to recognize liability for damage arising from personal injury194). On the
other hand, taking the path blazed by Burnie will compel acceptance of legal principles centred on the inter-
pretation of non-delegable duty in the Australian courts. The cases on which these principles have been de-
veloped were grounded on factual situations that arose within the distinctive social and climatic environ-
ment195 of Australia. With all the considerations outlined in this article in mind, the balance would seem to fa-
vour Cambridge Water as being able to dovetail better with the law in Malaysia as it stands.
This conclusion is at variance with that of the court in Steven Phoa.196 Since the grounds for the preference
exercised by the court in that case were given in the most general terms the issue is far from closed. In any
case, the principle in Rylands v Fletcher continues to be applied in Malaysia.197 The fact that this has hap-
pened is no cause for alarm or surprise since individual judges of the High Court are not bound by each oth-
er's decisions even though they are bound by decisions of courts above them. 198 It is imperative that this di-
chotomy be resolved by a higher court, the sooner the better, to re-establish certainty in the law.
3 MLJ i at xxxiii
Both Cambridge Water and Burnie were decided by the highest courts of two major common law jurisdictions
and are ipso facto cases deserving of the utmost respect. It would be appropriate that our equivalent tribunal,
the Federal Court, or at least the Court of Appeal, should show the way forward when the opportunity arises
in a future case.

1 Cambridge Water Co Ltd plc v Eastern Counties Leather plc [1994] 1 All ER 53 HL.

2 Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42 (also reported in [1994] 4 CLJ 1). The High Court of Aus-
tralia is the country's highest judicial tribunal.

3 (1868) LR 3 HL 330 (per Lords Cairns and Cranworth) affirming the judgment of Blackburn J in (1866) LR 1 Ex 265 (Court of
Exchequer Chamber) which had earlier reversed the majority decision of the Court of Exchequer (Bramwell, B dissenting).
Rylands has been described as 'a fundamental case in both the United States and in the common law community outside the
United States' in 'The End of Rylands v Fletcher?' by Professor Peter B Kutner in [1995] 31 Tort & Ins LJ 73.

4 For a historical survey of the earlier cases up to Rickards v Lothian [1913] AC 262, see Professor FH Newark's article 'Non-
natural user and Rylands v Fletcher' in [1961] 24 MLR 557and generally The Law of Torts by John G Fleming (9th Edn, 1998),
Chapter 16. A brief overview of the applicability of strict liability in the United States, India, Pakistan, Canada, Australia, New
Zealand, France and Germany is found in 'Strict Liability under Attack: The Need to Protect it' by Muhammad Naeem in [1994] 4
CLJ ci at cvii - cix.

5 'Absolute liability' is sometimes use synonymously but this is less than appropriate 'in view of some half dozen exceptions
which are admitted as qualifications' of the rule: see Percy H. Winfield in 'The Myth of Absolute Liability' [1926] 42 LQR 37 at 51.

6 See Ang Hock Hai v Tan Sum Lee & Anor (1957) 23 MLJ 135(escape of petrol or other inflammable material which caught
fire).

7 Hoon Wee Thim v Pacific Tin Consolidated Corporation[1966] 2 MLJ 240, upheld in the Federal Court sub nom Pacific Tin
Corporation v Hoon Wee Thim [1967] 2 MLJ 35 FC.

8 Ibid at p 251. This section is now s 3 of the Civil Law Act 1956.

9 These cases are discussed under 'Scope of the rule as applied in Malaysia', infra.
 17

10 One clear exception is that damages for personal injury have been held to be recoverable in Malaysia whereas the position
in England appears to be to the contrary. See discussion below.

11 Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors [2000] 4 MLJ 200. The case went on appeal but the
issue of Rylands v Fletcher was not referred to at all in the judgment of the Court of Appeal which based its decision on negli-
gence and nuisance: see Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors [2003] 1 MLJ 567 CA.

12 Burnie, supra note 2.

13 At p 218, per James Foong J. (The quotation here is reproduced verbatim).

14 The full sentence reads: 'We think that the true rule of law is, that the 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.'

15 Pacific Tin Consolidated, supra note 7.

16 Pacific Tin Consolidated, supra note 7, at 43 per Ong Hock Thye FJ and Barakbah LP.

17 See note 3 above for a summary of the course of proceedings.

18 See note 14 above.

19 Where Lord Cairns, in his judgment, wittingly or unwittingly added what was subsequently interpreted as the requirement of
'non-natural' use of land as a precondition for liability.

20 Rylands v Fletcher (1868) LR 3 HL 330 and Lembaga Kemajuan Tanah Persekutuan v Tenaga Nasional Bhd [1997] 2 MLJ
783.

21 Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978] 1 MLJ 225 at p 228 (burning of rubber land dumping).

22 [1947] AC 156.

23 Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 at pp 75 and 76. Exceptionally, persons with
no proprietary interest in land had on occasion been found liable: see Rigby v Chief Constable of Northamptonshire [1985] 2 All
ER 985 at p 996 and Powell v Fall (1880) 5 QBD 597 for example.

24 Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978] 1 MLJ 225 at p 227.

25 [1996] 1 BLJ 477 (or [1996] 1 AMR 1157) and [1997] 3 CLJ 225 CA (or [1997] 3 AMR 2430 CA).

26 [1996] 1 BLJ 477 at p 483.

27 Sheikh Amin bin Salleh v Chop Hup Seng [1974] 2 MLJ 125 at p 130 and Abdul Rahman bin Che Ngah, Ibid at p 227.

28 Ang Hock Hai, supra note 6.

29 Hoon Wee Thim, supra note 7 and Dr Abdul Hamid Abdul Rashid v Jurusan Malaysia Consultants [1997] 3 MLJ 546.

30 Lembaga Kemajuan Tanah, supra note 20.

31 Dato' Dr Harnam Singh, supra note 25.

32 Yat Yuen Hong Co Ltd v Sheridan-Lea & Anor [1963] MLJ 279 CA (Singapore) and Milik Perusahaan Sdn Bhd [2003] 1 CLJ
12.

33 Koh Seok Choo (mw) v Sim Chiow Moh [1952] MLJ 32 Singapore (plaintiff succeeded in nuisance), cited with approval in
Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd [1996] 4 CLJ 355 at 363 (and Hotel Continental Sdn Bhd v
Cheong Fatt Tze Mansion Sdn Bhd [2002] 3 MLJ 529 CA).

34 Hiap Lee (Cheong Leong & Sons) Brickmakers Ltd v Weng Lok Mining Company Ltd [1974] 2 MLJ 1 PC at p 4.

35 [1913] AC 263 at 280. The italicized limb of this statement has been doubted in Cambridge Water, ibid at p 79.
 18

36 [1947] AC 156.

37 Supra note 34, per Lord Cross at p 4.

38 Hoon Wee Thim, supra note 7.

39 Dr Abdul Hamid Abdul Rashid, supra note 29.

40 Yat Yuen Hong, supra note 32.

41 Dato Dr Harnam, supra note 25.

42 Abdul Rahman bin Che Ngah, supra note 21 and Lembaga Kemajuan Tanah, supra note 20.

43 Ang Hock Hai, supra note 6.

44 Sheikh Amin bin Salleh, supra note 27 (defence of consent succeeded).

45 Hiap Lee, supra note 34 (no evidence to show whether methods employed to construct mining reservoir were in any way
unusual).

46 Read v Lyons [1947] AC 156.

47 Woon Tan Kan (Deceased) & Seven Ors v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 2299 (escape of dangerous radioactive
gases from factory).

48 The value of this exercise will be limited by the fact, as noted earlier, that the number of cases which have been decided by
the courts is small. Even in England it 'has comparatively rarely been the basis of a successful claim in the English courts since
1900.' See Winfield and Jolowicz on Tort (16th Edn, 2002) at p 551. This statement may not be a true measure of the rule's
importance considering the volume of legal commentary generated recently all over the common law world, including the mate-
rials cited in this article.

49 Four cases. The case of Lee Kee v Gui See & Anor [1972] 1 MLJ 33 is not included because even though the facts are sug-
gestive of a Rylands v Fletcher situation it was clearly decided on negligence.

50 Two cases.

51 Three cases.

52 One case.

53 Woon Tan Kan (deceased), supra note 47.

54 Fletcher v Rylands (1866) LR 1 Ex 265 at 279.

55 Damages for 'pure economic loss' was held to be claimable in an action for negligence against one of the defendants in Dr
Abdul Hamid Abdul Rashid, supra note 27, but did not appear to have been extended to another defendant who was found lia-
ble under the rule in Rylands v Fletcher. It would appear that such loss is irrecoverable: see Clerk and Lindsell on Torts (18th
Edn, 2000) at pp 1048 and 1049, art 20.15.

56 Milik Perusahaan Sdn Bhd v Kembang Masyur Sdn Bhd [2003] 1 CLJ 12 CA (assessment by registrar for damage caused
by mudslide based on reinstatement principle upheld).

57 [1974] 2 MLJ 125 (liability under the rule in Rylands failed as the court found there was consent to the user by the plaintiff).

58 Ie, the heads of loss to be taken into account.

59 Ibid at pp 131 and 132.

60 [1978] 1 MLJ 225.

61 Supra note 32 (Claim for destruction of plants, fencing, bower, stands and other equipment).
 19

62 Nor has it been followed in Australia where the position before the Burnie case was similar to that in Malaysia: see Benning v
Wong (1969) 122 CLR 249.

63 [1966] 2 MLJ 240 per Gill J at p 251.

64 [1947] AC 156.

65 (1868) LR3 HL 330.

66 (1918) 34 TLR 500.

67 [1936] 1 All ER 557.

68 [1938] 1 All ER 579.

69 Supra note 7.

70 Supra note 25.

71 Supra note 6.

72 Rickards v Lothian [1913] AC 263 (unidentified vandal blocked basin and left water running thereby causing neighbour's
premises to be flooded).

73 Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.

74 A matter on which interpretation of the statute is necessary: Green v Chelsea Waterworks Co (1894) 70 LT 547 and
Smeaton v Ilford Corporation [1954] Ch 450.

75 Peters v Prince of Wales Theatre (Birmingham) Ltd [1943] KB 73 and Gilson v Kerrier Rural District Council [1976] 2 All ER
343. The defence of consent could embrace as well a situation where the user in question was for the common benefit of both
plaintiff and defendant: Carstairs v Taylor (1871) LR 6 Ex 217.

76 [1974] 2 MLJ 125.

77 Ibid at p 130.

78 [1966] 2 MLJ 240 at p 251 where it was noted that the position in England was probably similar. For an interesting comment
on rainfall, see infra note 195.

79 Thus the strict liability approach to accidents on the highway was rejected by the Court of Appeal long ago in the definitive
case of Wing v LGOC [1909] 2 KB 652; see the highly interesting article 'Motor-Cars and the Rule in Rylands v Fletcher' by JR
Spencer in (1983) Camb LJ 65.

80 Burnie, supra note 2, at p 58.

81 [1994] 1 All ER 53 HL, supra note 1.

82 TCE (Trichloroethene or Trichloroethylene).

83 See his article 'The Boundaries of Nuisance' (1949) 65 LQR 480.

84 West v Bristol Tramways Co [1908] 2 KB 14 and Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC
465, which Lord Goff said 'provide a very fragile base for any firm conclusion that foreseeability of damage has been authorita-
tively rejected as a prerequisite of the recovery of damages under the rule in Rylands v Fletcher.'

85 In such legislation 'the relevant activities can be identified, and those concerned can know where they stand.' Besides, con-
siderable 'well-informed and carefully structured legislation is now being put in place' so that there is less need for the courts to
develop a common law principle to achieve the same end.

86 [1994] 1 All ER 53 at 79.

 20

87 'The Demise of the Rule in Rylands v Fletcher?' by Margaret Fordham in [1995] Singapore Journal of Legal Studies 1 at 25.
This comment is redolent of what Blackburn J said about his 'true rule' in Ross v Fedden (1872) 26 LT 966 at 968: 'I wasted
much time in the preparation of the judgment in Rylands v Fletcher if I did not succeed in showing that the law held to govern it
had been law for at least 300 years.'

88 Clerk and Lindsell on Torts (18th Edn, 2000) at p 1043, art 20.05.

89 Salmond and Heuston on the Law of Torts (21st Edn, 1996) at p 309. In other words, strict liability 'does not require causal
connection between the defendant and the fact of his fault or negligence': see Muhammad Naeem at p cxii, op cit, supra at note
4.

90 Kutner, op cit, supra note 3, at p 101.

91 See passage in Hunter & Ors v Canary Wharf and another appeal [1997] 2 All ER 426 at 438, cited in Steven Phoa, supra
note 11, at p 265.

92 Hussain v Lancaster City Council [2000] QB 1 at 23 (Court of Appeal).

93 Clerk and Lindsell on Tort (18th Edn, 2000) at p 1049, art 20-16.

94 His rationale (neither quoted nor explicitly endorsed by Lord Goff in his judgment) reads: 'Since true nuisance is a tort to the
enjoyment of rights in land it follows that damage to the person or chattels of the plaintiff cannot by itself amount to a nuisance.
The proper remedies for damage to the person or chattels are the actions of trespass and negligence.' See 'The Boundaries of
Nuisance' 65 LQR 480 at 490. This view has been endorsed by the House of Lords in Huntley v Canary Wharf Ltd [1997] AC
655.

95 'Cases' by David Wilkinson (1994) 57 MLR 799 at p 806.

96 See 'The Fall of a Crippled Giant' by John G Fleming in (1995) 3 Tort Law Review 56 at 58. Lord Goff said in Cambridge
Water, supra note 1, at p 76, that 'it is more appropriate for strict liability in respect of operations of high risk to be imposed by
Parliament, than by the courts'.

97 'Rylands v Fletcher in New Zealand' by Margaret Vennell in [2000] NZLJ February 33.

98 Fleming op cit, supra note 97, at p 61.

99 This reads: '(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or
chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (2) This strict
liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.' The American Restate-
ments have been formulated by very eminent jurists under the aegis of the American Law Institute. Though unauthoritative they
have frequently been referred to in the courts and have had persuasive influence on judicial decisions in the United States.

100 Tort Law (4th Edn, 1999) by Markesinis & Deakin, at p 507.

101 'Does Only the Careless Polluter Pay?' by Gerry Cross in (1995) 111 LQR 445 at 472 and 473.

102 (1994) 120 ALR 42, supra note 2.

103 [1998] Tas R (NC) 12.

104 [1991] Tas R 203.

105 The other is whether the old English rule relating to liability for the escape of fire (the ignis suus rule) was part of the com-
mon law of Australia to which the court answered unanimously in the negative.

106 Burnie, supra note 99, at p 52.

107 Ibid at p 54.

108 Ibid at pp 54 and 55.

109 Ibid at p 59.

 21

110 Ibid at p 61. The similar view of Winfield and Jolowicz on Tort expressed by the editors of the previous five editions was
cited in support.

111 Ibid at p 61, relying on the article 'Liability without Fault' (1916) 29 Harv LR by Professor ER Thayer.

112 Ibid at p 62, see Kondis v State Transport Authority [1984] 154 CLR 672 at 687.

113 Ibid at p 63.

114 See, eg, Thompson v Bankstown Corp (1953) 87 CLR 619 at p 645; Wyong Shire Council v Shirt (1980) 146 CLR 40 at pp
47-48.

115 Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514at 523.

116 Burnie, supra note 2, at p 65.

117 Ibid at p 65.

118 Hazelwood v Webber (1934) 52 CLR 268 and West v Bristol Tramways Co [1908] 2 KB 14.

119 Cambridge Water was cited as an example but no explanation was given by their Honors in relation to this qualification.

120 (1994) 120 ALR 42 at 67.

121 Ibid at pp 76 and 77.

122 Ibid at p 78.

123 Ibid at p 94.

124 Ibid at p 94.

125 See The Law of Torts by John Fleming (9th Edn, 1998) at p 392. See also note 105 above.

126 [1987] 69 ALR 615 at p 620.

127 See The Law of Torts in Australia by Trindade & Cane (3rd Edn, 1999) at pp 411 and 412.

128 Burnie, supra note 2 at p 77.

129 [1932] AC 502.

130 This is not the case under the principles enunciated in Cambridge Water. See Winfield and Jolowicz, op cit, supra note 46,
at p 556, art 15.8.

131 See Winfield and Jolowicz, op cit, supra note 48, at pp 556 and 557, art 15.9 and Clerk and Lindsell, op cit, supra note 88,
at p 1049, art 20-16.

132 McDonald and Swanton in 'The Common Lawyer' (1995) 69 Aust LJ 323 at 327.

133 Fleming, supra note 97, at pp 59 and 60. Some avowedly more sympathetic comments are found in Kutner, 'The End of
Rylands v Fletcher - II' (1995) 31 Tort & Insurance LJ 663 at pp 674-676 and 678-680, and in 'Formalism Forever Thwarted:
Rylands v Fletcher in Australia' by S Dziobon and R Mullender in (1995) Camb LJ 23 at pp 24 and 25.

134 Winfield and Jolowicz, op cit, supra note 48, at p 732 footnote 30, is a little sceptical about this and observes that the duty
imposed seems more an enhanced duty of care than a true non-delegable duty.

135 Glanville Williams in 'Liability for Independent Contractors' (1956) 14 Camb LJ 180 at 193.

136 John G Fleming's The Law of Torts (8th Edn, 1992), at p 390, note 192.

137 Kutner, op cit, supra note 133 at pp 683 and 684.

 22

138 McDonald and Swanton, op cit, supra note 132 at p 325.

139 Clerk and Lindsell, supra note 88, at p [1043], art 20-05.

140 MacDonald and Swanton, op cit, supra note 132 at p 326.

141 Jane Swanton in 'Another Conquest in the Imperial Expansion of the Law of Negligence' (1994) 2 Tort LJ 101 at 114.

142 Ibid, at p 116.

143 John G Fleming, op cit, supra note 97 at p 60.

144 In Greek mythology, a robber who stretched or amputated the limbs of travellers to make them conform to the length of his
bed (Writer's note).

145 Margaret Fordham, op cit, supra note 87 at pp 27 and 28.

146 The third case, Milik Perusahaan Sdn Bhd, is not considered as there is insufficient factual information in the report.

147 The situation in Sheikh Amin [1974] 2 MLJ 125 where negligence was attributed to the act of leaving the fire in an oven
unguarded and unattended seems analogous.

148 Attorney-General v Cory Bros & Co [1921] AC 521.

149 See supra notes 7 and 8.

150 The corresponding date in Sabah is 1 December 1951 and in Sarawak 12 December 1949.

151 Chung Khiaw Bank Ltd v Hotel Rasa Sayang [1990] 1 CLJ 675 SC at 682.

152 Commonwealth of Australia v Midford (Malaysia) Sdn Bhd [1990] 1 MLJ 475 SC at 480 (legal immunity of foreign sover-
eign).

153 Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors [2003] 1 MLJ 273 CA at p 285 per Gopal Sri Ram JCA.

154 Nepline Sdn Bhd v Jones Lang Wootton [1995] 1 CLJ 865at 871 (extension of concept of duty of care to include liability for
omission, ie non-disclosure of foreclosure proceedings by estate agent). This is a bold decision inasmuch as it breaks new legal
ground. It may be contrasted with the conservative approach in Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn
Bhd & Ors [1999] 4 MLJ 9 where the court felt constrained not to accept Leakey v National Trust [1980] QB 485 as part of the
local law on nuisance but no reasons were given. Leakey had been followed in Wisma Punca Emas v O' Holohan [1987] 1 MLJ
393 SC on the issue of whether nuisance needed to be pleaded where sufficient facts had been disclosed.

155 See, for example, the case of Syarikat Batu Sinar Sdn Bhd & 2 Ors v UMBC Finance Berhad & 2 Ors [1990] 2 CLJ 691
where the court declined to follow Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 in view of our distinctive system of
registration of ownership claims under the Road Traffic Ordinance 1958.

156 Nepline, supra note 154, at p 871.

157 For more cases, see The Annotated Statutes of Malaysia (MLJ), Vol 5 (Civil Law).

158 See Kamalam a/p Raman & Ors v Eastern Plantation Agency & Anor [1996] 4 MLJ 674 and Tan Ah Kau v The Government
of Malaysia [1997] 2 CLJ Supp 168 for a recent example of acceptance of a new principle of law in medical negligence cases
that was enunciated by the Australian High Court in Rogers v Whittaker (1992) 109 ALR 625, [1993] CLJ 449 (duty of doctor to
warn patient of material risk inherent in treatment).

159 Examined from a broad perspective, the expansion of negligence and increasing uniformity in tort are not self-evidently
good, just as fault-based liability is not self-evidently better than strict liability: see David Wilkinson in 'Cambridge Water Com-
pany v Eastern Counties Leather plc: Diluting Liability for Continuing Escapes' (1994) 57 MLR 799 at p 810.

160 Margaret Fordham, op cit, supra note 87, at p 27.

161 [1967] 2 MLJ 35 FC. See supra note 7.

 23

162 Ibid at p 40. The Wagon Mound (No 2) [1966] 3 WLR 498, [1967] 1 AC 617 and Bolton v Stone [1951] AC 850 were cited
by the court at pp 40 and 41.

163 Ang Chai Ha & Ors v Sri Jaya Transport Co (PTM) Bhd [1974] 1 MLJ 87 (carriage of tins of petrol in a car boot held not
outside realm of reasonable foresight), upheld on appeal, see [1974] 2 MLJ 92 FC.

164 Ibid at p 88.

165 [1961] 1 All ER 404, [1961] AC 388. This is now referred to as The Wagon Mound (No 1).

166 [1974] 2 MLJ 1 PC

167 Ibid at p 4.

168 Supra note 162.

169 A further example where an arguably Rylands v Fletcher situation was decided on the law of nuisance is Liow Sang & Anor
v Hang Chap Yam, Kolam Ikan [1984] 2 CLJ 177 (flooding caused by defendant's dam).

170 See supra notes 105 and 125.

171 See supra note 127. In New Zealand, the position is different as its Occupiers' Liability Act 1962 is modelled on the English
Act. See Trindade & Cane, op cit, supra note 127 at p 412.

172 See supra note 112.

173 See Burnie, supra note 2, at pp 61-65.

174 See 'Vicarious Liability and Independent Contractors - A Re-examination' by Ewan McKendrick [1990] 53 MLR 770 at p
774.

175 See Jane Swanton, op. cit., supra note 138 at p 114 citing D & F Estates v Church Commissioners for England [1989] AC
177 but it has to be added that the factual situations are somewhat different as the defective plastering work done by the sub-
contractor complained of in this case was discovered before any personal injury or property damage was caused. (D & F Es-
tates was followed in Teh Khew On & Anor v Wu Development Sdn Bhd & Ors [1995] 2 MLJ 663, but not in Dr Abdul Hamid
Abdul Rashid, supra note 27 on the question of damages for pure economic loss).

176 Fleming, op cit, supra note 136 at pp 434 and 435.

177 Northern Sandblasting Pty Ltd v Harris (1997) 146 ALR 572 (duty of landlord of residential premises to repair electrical fault
not non-delegable); see in particular the discussion of the issue by Kirby J.

178 See Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor [1993] 2 MLJ 234 SC for all the exceptions
and the leading cases referred to at pp 239 and 240. These cases include Honeywell & Stein Ltd v Larkin Brothers Ltd [1934] 1
KB 191which was said by one of the judges in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 6 ALR 513 to be not part of
Australian law.

179 Steven Phoa, supra note 11, at p 250.

180 Yu Mea Lian & Anor v Government of Terengganu & Ors [1997] 4 CLJ Supp 453 where the English law was applied.

181 See Tort Law, supra note 101 at p 504 where six differences are listed including the fact that Rylands v Fletcher (a) is a tort
of strict liability, (b) depends on non-natural use of land by the defendant and (c) requires 'accumulation' and 'escape', (d) does
not cover obstruction of light or noise and (e) imposes strict liability on a defendant for the negligence of his independent con-
tractor.

182 Gerry Cross, op cit, supra note 101 at pp 455 and 458.

183 Apparently also in New Zealand; see 'Rylands v Fletcher in New Zealand' by Margaret Vennell in (2000) NZLJ February 33,
citing dicta in Court of Appeal case of Hamilton v Papakura District Council and Watercare (1999) unreported CA 242/98).

184 Winfield & Jolowicz, op cit, supra note 48 at pp 558 to 560.

 24

185 Cambridge Water, supra note 1, at p 76.

186 For a brief survey see 'Environmental Issues: Major Case Law and Environmental Management' by Janet Looi [2002] 3
MLJ cclxxxvii.

187 Jane Swanton, op cit, supra note 141 at pp 115 and 116.

188 Supra notes 112 and 172.

189 Jane Swanton, op cit, supra note 141 at p 115.

190 Dziobon and Mullender in 'Formalism Forever Thwarted: Rylands v Fletcher in Australia' in (1995) Camb LJ 23 at 25, aug-
menting the criticism of McHugh J regarding the 'indeterminacy of the action of negligence'.

191 Supra note 2 at p 95.

192 See, for example, Stevens v Brodribb Sawmilling Co Pty Ltd, supra note 173, where Wilson and Dawson JJ of the Austral-
ian High Court said: 'The direction taken in this Court has also been away from strict liability for tortious behaviour. There is a
preference for a view which is more in harmony with the ordinary principles governing liability for negligence, namely, that the
extent of a duty of care will depend upon the magnitude of the risk involved and its degree of probability.' For discussion of
these cases see Burnie, supra note 2 at p 62 and Northern Sandblasting v Harris (1997) 146 ALR 572.

193 The English law now looks to Europe in addition to the traditional areas of the United States and the Commonwealth for
new influences: see Winfield & Jolowicz, op cit, note 48 p 51, art 2.7.

194 See dicta in Read v Lyons [1947] AC 156, per Lord Macmillan and more recently in Hunter v Canary Wharf Ltd [1997] AC
655, per Lord Lloyd. See also discussion in Scope of the rule as applied in Malaysia (Personal Injury), supra and supra note 94.

195 An American judge once remarked that the rule in Rylands v Fletcher, where storage of water was held to be a non-natural
use, was founded in the meteorological conditions in England: 'England is a pluvial country, where constant streams and abun-
dant rains make the storage of water unnecessary for ordinary or general purposes.... In Texas we have conditions very differ-
ent from those in England.... The country is almost without streams....' See Turner v Big Lake Oil Co (1936) 128 Tex. 155, 96
SW (2d) 221 at 225-226, per Cureton CJ, cited in Salmond on the Law of Torts (14th Edn, 1965) at p 451 note 54. Most of Aus-
tralia, like Texas and unlike England and Malaysia, is dry and lacking in rainfall.

196 Supra, note 11.

197 See Milik Perusahaan Sdn Bhd & Anor v Kembang Masyur Sdn Bhd [2003] 1 CLJ 12 CA.

198 Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211FC and Arab-Malaysian Credit Bhd v Dominance Resources Sdn
Bhd & Anor [2001] 2 CLJ 268.