IN RYLANDS V FLETCHER) AND VICARIOUS LIABILITY The tort of strict liability under the rule in Rylands v Fletcher originated from the tort of nuisance The scope and applicability of the rule is now more restricted due to the decision of the House of Lords in Cambridge Water Co v Eastern Counties Leather PLC (1994) STRICT LIABILITY Is a term used to describe liability which is imposed on the defendant without any proof of fault on his part ie though the defendant might have taken all reasonable precautions to avoid or minimize risks arising from his activity he may still be found liable if the tort which has arisen falls under the category of strict liability torts The mental state of a defendant in a strict liability action is irrelevant The plaintiff need not prove that defendant must have intended to do an act alleged to give rise to a strict liability tort The rule in Rylands v Fletcher The landmark case is Rylands v Fletcher (1866) Facts : Defendant, a mill owner, employed independent contractors to construct a reservoir on their land which was separated from the plaintiffs colliery by intervening land. Unknown to defendants beneath the site of the reservoir there were some disused shafts connecting their land with the plaintiffs mine. The independent contractors were negligent in failing to discover this. Water from the reservoir burst through the shafts and flooded the plaintiffs mine. Defendants were held personally liable despite the absence of blame in themselves.
The defendants themselves were not negligent and neither were they vicariously liable for the negligence of the independent contractors but the House of Lords held them liable to the Plaintiff Blackburn J : 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 This statement is known as the rule in Rylands v Fletcher The defendant may avoid liability if he can prove that the escape was due to the plaintiffs own fault or that it was caused by an act of God The rule only applies where the defendant had used his land for a non natural purpose
In subsequent cases non natural use of land was a requirement to establish liability under the rule This narrowed the scope of the rule as what constitutes non natural use of land is seldom uncertain and unclear Elements to establish liability There are 4 elements to establish liability under the rule : 1. Dangerous things/things likely to cause damage if it escapes 2. Intentional storage/Accumulation 3. Escape 4.Non natural use of land 1. Dangerous things/Things likely to cause damage if it escapes
There must exist a dangerous thing The word dangerous has its own meaning under this tort What is dangerous is a question of fact The rule applies to anything that may cause damage if it escapes Only if the object/thing causes damage if it escapes will it fulfill the element of dangerous object
The object/thing need not be dangerous per se because there are objects which are safe if properly kept but become dangerous if they escape The principle had been successfully applied to gas, noxious fumes, explosive, fire, electricity, water, sewage and slug heaps Whether a thing is considered dangerous in that it may cause damage if it escapes is determined through ordinary human experience Ang Hock Tai v Tan Sum Lee & Anor (1957) Facts : plaintiff rented a shophouse and lived on first floor of the building. The ground floor was sublet to defendant whose business was repairing and distributing tyres. Defendant stored petrol for his business. One day defendants premises caught fire which spread to the first floor killing the plaintiffs wife and child. Held : the defendant liable under the rule as petrol was a dangerous thing Position in England In England the first element is no longer accurate There cannot be liability under the rule unless the relevant type of damage was foreseeable (decided by the House of Lords in Cambridge Water Co v Eastern Counties Leather PLC (1994)) Hence whether the thing is dangerous or not is irrelevant Cambridge Water Co v Eastern Counties Leather PLC (1994) Facts : The defendants, leather manufacturers, used a chlorinated solvent in degreasing pelts at their tannery which was situated some 1.3 miles from the plaintiffs' borehole where water was abstracted for domestic purposes. The water in the borehole became unfit for human consumption by reason of the solvent having seeped into the ground below the defendants' premises whence it was conveyed in percolating water in the direction of the borehole. The plaintiffs brought an action for damages on three alternative grounds, negligence, nuisance and the rule in Rylands v. Fletcher. The trial judge dismissed the action in negligence and nuisance because the defendants could not reasonably have foreseen that such damage would occur, and on the third ground because the solvent used in the defendants' business constituted in the circumstances a natural use of the defendants' land. On appeal by the plaintiffs in respect of the dismissal of their third cause of action, the Court of Appeal in allowing the appeal declined to determine it on the basis of the rule in Rylands v. Fletcher but held that there was a parallel rule of strict liability in nuisance in that where the nuisance was an interference with a natural right incident to ownership the liability was a strict one. Held (by the House of lords) allowing the appeal, that foreseeability of harm of the relevant type by the defendants was a prerequisite of the recovery of damages both in nuisance and under the rule in Rylands v. Fletcher; and that, accordingly, albeit (contrary to the judge's finding) the use of the solvent in the manufacturing process and its storage constituted a non-natural use of the defendants' land, since the plaintiffs were not able to establish that pollution of their water supply by the solvent was in the circumstances foreseeable, the action failed
2. Intentional storage/Accumulation
The rule only applies to an object or thing which the defendant purposely keeps and collects The defendant will only be liable if he has accumulated or authorised to accumulate the object Liability rests in those who have control over the thing
Miles v Forest Granite Co Ltd (1918) Facts : the defendant used some explosives to blast some rocks on his land. Some of the rocks fell onto the land below and injured the plaintiff Held : though the rocks were not purposely collected or kept on the land the explosives were. The defendant was liable for this deliberate accumulation which caused the escape of the rocks and for causing injury to the plaintiff through rock blasting which was not a natural use of the land The rule is not applicable to anything that is naturally on the land In Giles v Walker (1890) the defendant was found not liable under this rule when thistles from his land flew onto the plaintiffs land and seeded. The court held that the thistles were the natural growth of the defendants land despite the fact the thistles grew on his land due to his leaving it unattended after he ploughed it In cases like this liability may be sought under the tort of nuisance or negligence
3. Escape
Plaintiff must prove there has been an escape Escape means the object has escaped from a place where the defendant has control or authority to a place where the defendant has no control or authority Not necessary that defendant has proprietary interest in the land from which the object escapes Read v J Lyons & Co Ltd (1972) Facts : An inspector of ammunitions was injured when a shell that was being manufactured at the defendants factory where she was employed exploded and caused her substantial injuries Held : defendants not liable as there was no escape Ponting v Noakes (1894) Facts : The plaintiffs horse reached its head into the defendants land and ate the poisonous leaves of a yew tree which was planted on the defendants land Held : there was no escape as the tree and its leaves did not extend beyond the defendants boundary and so the plaintiff failed in his action
Meaning of escape has been extended to include situation where use of dangerous object causes/creates event from which damage is sustained See Miles v Forest Granite Co Ltd (1918)
Damage caused by the spread of fire Liability is imposed for the spread of fire if the spread was due to the default of the defendants servant, guest or independent contractor Lee Kee v Gui See & Anor Defendant was found liable when a third party whom he had hired to burn some rubbish on his land did so without taking any precautions which resulted in the fire spreading onto the plaintiffs land destroying the plaintiffs rubber trees.
The court held that if a person makes a fire on his land in order to burn something which is inflammable he must take reasonable steps to prevent the fire from spreading. This duty is absolute and non- delegable But liability will be excluded where the fire spread or occurred due to an act of nature or the act of a stranger or trespasser over whom the defendant has no control However knowledge of fire, though started by party not under defendants control, imposes duty on defendant to extinguish it within reasonable time 4. Non-natural use of land
Meaning of non natural use of land is shrouded in much uncertainty Examples of ordinary/natural use of land 1. erecting a house 2. installing water, electric wiring and gas pipes 3. constructing a fish pond (this is considered as natural use of land though it is artificial) The meaning of non-natural use of land was explained in the case of Rickards v Lothian (1913) Facts : property on the second floor of a building was damaged by an overflow of water from a basin on the top floor because the tap had been turned on and the water pipe plugged by a third person Held : by having on his premises a reasonable supply of water the defendant was only making an ordinary and proper use of his house and that he was not responsible for the wrongful act of a third party Lord Moulton : it is not every use to which land is put that brings into play that principle (i.e of Rylands v Fletcher). It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community No conclusive test as to what may constitute non natural use of land Factors such as time, location and ordinary human activities must be consider so that what constitute non natural use of land may differ in different circumstances Eg in the 17 th century the building of skyscrapers would probably constitute a non natural use of land but in 21 st century it is usual Factors which courts have taken into account include quantity of the thing, the way in which it was stored and location of defendants land Examples of non natural use of land Crowhurst v Amersham Burial Board (1878) Facts : defendant planted a yew tree on his land. The branches and leaves of the trees extended into the plaintiffs land. The leaves of the tree are poisonous to cows. The plaintiffs horse ate the leaves and died. Held : the defendant was liable as planting a poisonous tree is not a natural use of land This decision may be justified on the basis that an escape of the tree had occurred as the branches and leaves had encroached onto the plaintiffs land Yat Yuen Hong Co Ltd v Sheridanlea & Anor (1963) Facts : Appellants were developing their land which was adjacent to respondents land. Appellants land was situated on higher ground than respondents land. Some earth fell onto respondents land and damaged respondents nursery Held : piling loose earth on steep slope so that more flat land would be available was non natural use of land Abdul Rahman bin Che Ngah v Puteh bin Samat (1978) Facts : defendant was contractor engaged to clear irrigation canal which went through plaintiffs rubber estate. The work involved clearing bushes and weeds in the stream and on the banks. These bushes and weed were negligently set on fire by the defendant and the ignition escaped onto the plaintiffs land destroying plaintiffs rubber trees Held : defendant liable in negligence and also under the rule for the escape of fire resulting from non natural use of land DEFENCES 1. Consent of the Plaintiff If the plaintiff consents expressly/impliedly to the existence of the dangerous object and the defendant is not negligent in any way the defendant will not be liable for any escape and resulting damage This is a specific application of the defence of volenti non fit injuria In practice it has been often invoked when water from a top floor of a building affects the occupants of lower floors Examples Overflowing cisterns, bath tubs etc In most cases however it is not really necessary to fall back on this defence because defendant can always argue that existence of normal amounts of water is not a non natural use 2. Common benefit It is a defence that the source of danger is maintained for the common benefit of both plaintiff and defendant Carstairs v Taylor (1871) Plaintiff occupied ground floor of a building. The top floor was occupied by defendant. Rain water from roof was collected in a specially constructed box from which it was discharged into the drains. A rat gnawed a hole in the box and water drained into plaintiffs premises and damaged his goods. The defendant, not being negligent in any way, was held not liable. 3. Act of a Third party Test used to determine whether a person is a 3 rd party or otherwise is whether that person acts outside the defendants control or within defendants control Generally trespassers and those who act on land that does not belong to defendant are said to be 3 rd parties Unforeseeable act of a 3 rd party who is not under defendants control is a good defence Box v Jubb (1879) The defendants neighbours reservoir overflowed and flooded defendants reservoir causing defendants reservoir to overflow and damaged plaintiffs property. Held : since sequence of events were not foreseeable and defendant was not negligent defendant was not liable 4. Act of God This is available whenever an escape is caused by the operation of natural forces beyond human anticipation/avoidance Nichols v Marsland (1876) Defendant created artificial ornamental lakes by damming up natural stream. He was held not liable when rainfall greater and more violent than any within the memory of witnesses caused the embankments to collapse and the escaping water destroyed 4 nearby bridges. Nowadays however there is a tendency to restrict the ambit of this defence not least because of the increased ability to predict such occurrences 5. Default of Plaintiff This defence is applicable if the damage to the plaintiff is due entirely to his act or default Where this amounts to his own contributory negligence then his damages will be reduced in accordance with the general principles S12(1) of the Civil law Act 1956 provides that where any person suffers damage as a result partly of his own fault and partly of the fault of any other person(s) a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility of the damage
6. Statutory Authority Statute may exclude liability which would otherwise arise Green v The Chelsea Waterworks Co. (1894) Parliament authorised defendant to lay a water pipe which burst without defendants negligence and flooded plaintiffs premises. Since defendant was under statutory duty to maintain continuous supply of water through the pipes it was held that by necessary implication defendant were exempt from all liability where damage was not due to their negligence But in Charring Cross Electricity Co. v Hydraulic Power Co. (1914) where the facts were similar, plaintiff succeeded in his claim. Difference can be explained on ground that in this case defendant had only power to supply water and keep pumping it through the pipes but no duty to do so. If statute only gives discretionary power to defendant, defendant may still be held liable if defendant is found to be careless in exercising his discretionary power VICARIOUS LIABILITY The doctrine of vicarious liability applies to all forms of tort Definition : liability imposed on a master by a third party for the tort of his servant committed in the course of employment A relationship of master and servant, as distinct from employer and independent contractor, has to exist Vicarious liability is another instance of stricter liability in the sense that the master who is not at fault is saddled with the responsibility for the servants default It thereby gives injured party compensation from the person who is better able to pay and spread the cost of the injury, namely the master Example A is liable to C for damage/injury suffered by C due to negligence /other tort committed by B A need not have done anything wrongful A need not owe a duty of care to C The most important condition for imposing liability on A is the nature of the relationship between A and B This relationship is usually that of master and servant, employer and employee and principal and his agent Justification of the Doctrine of Vicarious Liability 1. a master must be liable for employing a negligent employee 2. a master must be liable for failing to control employee 3. master set whole thing in motion therefore master should bear consequences if 3 rd party suffers through servants wrongful conduct 4. Since master derives benefit from employees work he should be made liable for any tortious conduct of employee in performing his work 5. master in better financial standing to compensate 3 rd party 6. master in better position to spread the loss through insurance or price of his products Imperial Chemical Industries(I.C.I) Ltd. V Shatwell (1965) Lord Pearce : the doctrine of vicarious liability has not grown from any clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it Elements of Vicarious Liability 1. wrongful/tortious act 2. special relationship recognised by law between person alleged to be vicariously liable and tortfeasor 3. tort must have been committed within the course of employment 1. Wrongful/Tortious Act
Firstly court will decide whether a tort has been committed All the elements of the particular tort must be satisfied Once a tort is established nature of relationship between defendant and tort feasor will be examined ICI v Shatwell (1965) 2 brothers George and James were employed as shot firers. Safety regulations imposed on them personally required that tests of electrical circuits for shot firing should only be conducted from behind cover but rather than inconvenience themselves by having to comply with regulations they agreed to test circuit in the open. An explosion followed injuring both of them. George sued the company alleging that it was vicariously liable for the negligence and breach of regulations by his brother James. The House of Lords held the company not liable on the ground of consent. Since James himself would not have been liable to George for this reason the employer was entitled to the vicarious benefit of that defence just as they would have had to carry the vicarious liability in its absence Lord Pearce : unless the servant is liable the master is not liable for his acts, subject only to this, that the master cannot take advantage of an immunity from suit conferred on the servant Broom v Morgan (1953) Plaintiff and her husband were employed by the defendant. Plaintiff was injured through her husbands negligence. Plaintiff sued defendant. Defendant disputed vicarious liability contending that, as the law then stood, husband and wife could not sue each other in tort, and that if the husband was not liable to his wife defendant could not be liable either. But Court of Appeal held defendant liable since husbands immunity was only from suit not from responsibility for a tort 2. Special Relationship There must be special relationship recognised by law between person alleged to be vicariously liable and tortfeasor Such relationship usually exists between employer and employee If tort is committed on defendants premises but not by his employer defendant cannot be vicariously liable for the tort Possible for a person to be an employee of more than one employer provided master servant relationship is established between the parties
Whether a person is an employee and whether there is special relationship is dependent on determination whether relationship is one based on contract of service or contract for services contract of service special relationship exists, person is an employee contract for services - special relationship does not exist, person is an independent contractor General rule : employer not liable for torts of his independent contractors Determining existence of contract of service and employer-employee relationship 1. The Control Test 4 factors to consider in determining existence of contract of service 1. power of selection by employer 2. power in determining salary/remuneration 3. power of employer to control method of work 4. power to terminate workers service But nowadays element of control no longer accurate test to determine existence of employer-employee relationship But this does not mean control test no longer valid Must bear in mind that lack of control does not necessarily mean a person is not an employee and not in contract of service with his employer
2. Organisation Test Easy to identify a contract of service but not easy to know difference between contract of service and contract for service A common element is that in a contract of service the person concerned works as part of an organisation and his work forms an integral part of that organisation whereas in contract for service though the work is done for the organization it is not integrated into it but only accessory to it So if a worker is in business on his own account then it is more likely that he will not be deemed to be an employee
3. Multiple Test Control test difficult to apply due to lack of control of employers over method in which work is to be done Organisation test is criticised for not being able to present clear answer in many situations These led courts to prefer 3 rd test ie multiple/mixed test
Ready Mixed Concrete Ltd v Minister of Pensions and National Insurance (1968) 3 factors need to be fulfilled before a contract of service is established 1. employee agrees that he will use his own expertise and employer pays him either in monetary form or other form of remuneration 2. employee agrees that he will be bound by employers instruction 3. all other conditions in the agreement are consistent with nature of the job In Malaysia courts generally favour the Control Test Workers have been held to be non employees on basis that defendant was not responsible for payment of wages and did not have control over manner in which work was to be performed
Other factors : Not involved in determining working hours, leave and selection of workers Generally not difficult to determine whether worker is employee or not eg for clerical staff, live in domestic help, factory workers Examples of independent contractors = house builders, grass cutters, workers at car service centres
Grey areas i. Hospital staff Some dissatisfaction associated with the control test was the vicarious liability of hospitals for the negligence of their staff Surgeons and consultants are experts in their own fields and it seems absurd to describe the hospital as controlling the work of these professionals This uncertainty was settled when a series of cases held that nurses, radiographers, house surgeons and assistant medical officers were employees of the hospital for purposes of vicarious liability In Cassidy v Ministry of Health (1951) and Roe v Minister of Health (1954) the courts held that if negligence occurs in a hospital and the tortfeasor cannot be identified the hospital will be vicariously liable for the negligence Cassidy v Ministry of Health (1951) A hospitals liability for the professional negligence of its permanent medical staff was unequivocally established. In this case it was unclear whether the negligence that resulted in the plaintiffs injury was that of the assistant medical officer, the house surgeon or one of the nurses. The Court of Appeal held that it was unnecessary to pin point whose negligence had caused the harm, the hospital was vicariously liable for the professional negligence of its staff ii. Lending a Worker If B who is As employee is lent to C and B subsequently commits a tort, the general principle is that A will be vicariously liable for the tort committed by B unless A has divested himself of all possession and control Mersey Dock and Harbour Board v Coggins and Griffith (Liverpool) Ltd (1947) A harbour authority hired out to X, a firm of stevedores, a mobile crane with its operator. The contract expressly provided that the operator was to work for the time being as the servant of X although the harbour authority retained the power of dismissal. The question was whether the harbour authority or X was vicariously liable to the plaintiff who was injured by the negligence of the operator It was held that the harbour authority was liable as it still control the manner in which the crane was worked 3. The Tort must occur within the course of employment
An employer will only be vicariously liable for the tort of his employee if the tort occurs in the course of employment An act is within the course of employment if 1. it is expressly/impliedly allowed by the employer, or 2. when the employeee does something that is authorised in an unauthorised manner, or 3. the employee does something that is closely connected to what he is employed to do in the course of doing the job A) Carelessness of worker in the performance of his job The commission of a careless act may still be within the course of employment provided the worker is not on a frolic of his own Employer is liable if employee is careless with regard to the mode of doing authorised work Employer not liable if employee careless in doing something that he is not employed to do in the first place
Century Insurance Co. Ltd v Northern Ireland Road Transport Board (1942) The driver of a petrol lorry negligently threw down a lighted match while petrol was being transferred from the lorry to a tank. An explosion and fire ensued Viscount Simon : no doubt that his act was in the course of employment-negligence in starting smoking and throwing away a lighted match in that moment is plainly negligence in the discharge of the duties upon which he was employed
B) Unauthorised mode of doing something authorised/Mistake of Worker
If employee commits mistake in the course of performing his job the court will generally hold the employer liable The mistake will be construed as doing something authorised in an unauthorised manner
Bayley v The Manchester, Sheffield and Lincolnshire Railway Co. (1873) A porter in a companys service forcibly removed the plaintiff from a train erroneously believing that he was in the wrong carriage. It was the duty of porters to ensure that passengers were in their right carriages. The company was held liable. The porters tort was held to have been committed within the scope of his employment since he was doing clumsily what he was employed to do namely to see that passengers were in the right carriages. Lister v Hesley Hall Ltd (2001) Employer was found vicariously liable for their wardens acts of sexual abuse on boys in a residential school C. Tort committed in protection of employers property General rule : if worker commits tort to protect employers property employer will be vicariously liable But if employees conduct excessive employer may escape liability Poland v Parr & Sons (1927) Facts : Defendants worker reasonably believed that a boy was stealing sugar which belonged to his employer. He struck the boy who fell and consequently had to have his leg amputated Held : defendants liable, though employers act was somewhat excessive it was not sufficient to make it fall outside the scope of employment D. Worker delegating his responsibility Servant does not have power to delegate his responsibility to a 3 rd party even in emergency situation Thus employer not liable if 3 rd party commits a tort But must contrast delegation with negligent conduct Ilkiw v Samuels (1963) A lorry driver who was working for defendant had allowed a 3 rd party to drive the lorry. The 3 rd party was negligent and accident occurred. Defendant was held liable not for 3 rd partys negligence but because his employee was negligent in the course of his employment by allowing a 3 rd
party to drive the lorry
E. Worker acting for his own benefit If worker does an act for his own benefit it does not necessarily mean that he has acted outside the scope of his employment Zakaria b. Che Soh v Chooi Kum Loon & Anor. Defendant was driver with research institute in Ipoh. After sending the director home he drove home for lunch. An accident occurred on the way. The court found the state government liable. Though the purpose of the trip did not have anything to do with his employer but it was something that was expected to be done in the course of his employment and thus the accident occurred within the course of his employment
The test is whether the conduct of the worker is reasonable in that it is not too remote from the contemplation of both parties as to take the act out of the employment For example if a driver had driven 100 km for his lunch the employer would not be vicariously liable F. Acting against employers express prohibition If worker acts contrary to express prohibition of his employer it does not necessarily mean that he is acting outside the scope of his employment If he has done something which he is not employed to do it is more likely that the court would construe him to be acting outside the scope of his employment But if he is doing something which is expressly forbidden by his employer but the conduct was related to the mode of performing his job the court might construe it to be within the course of employment Twine v Beans Express The employee acting contrary to his employers instructions gave a lift to a 3 rd party who was subsequently injured due to the negligence of the employee. The court held the employer not vicariously liable as giving free lifts was not the job the employee was employed to do and therefore he was acting outside the scope of his employment G. Employee acting on a frolic of his own General principle : if employees act intended to benefit himself alone that is sufficient to prevent the tort from being within the course of employment Eg if employee uses his employers vehicle for his own purpose, any tort that occurs during that time cannot be the liability of his employer The classical formulation is that of Parke B in Joel v Morrison (1834) If the driver was going out of his way, against his masters implied commands, when driving on his masters business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his masters business, the master will not be liable
D) Fraud of Worker
Lloyd v Grace, Smith & Co. (1912) A firm of solicitors employed an administrative clerk who was responsible for conveyancing matters. His duties were not under the supervision of the defendants. The plaintiff who had some difficulties in handling her property went to the defendants office and the clerk fraudulently transferred some of her properties into his own name. He then disposed off the properties for his own benefit. The House of Lords held the defendants vicariously liable due to the position in which they had placed the clerk so as to enable him to do what he did. His act was within the scope of apparent or ostensible authority which had been given to him by the defendants