and other torts describe the common law and statutory liability for damage caused by fire evaluate the importance and relevance of strict liability in the modern law of tort.
STRICT LIABILITY
THE NATURE OF
STRICT LIABILITY
The notion of
strict liability in tort denotes liability without fault – i.e. a
defendant may be found liable without being proved to have been at fault in
causing the plaintiff’s damage. So, a defendant may be liable even though s/he:
did not intend the injury and was not negligent in causing it. The terms absolute
and strict liability are essentially synonymous and it seems overly
subtle to attempt to distinguish them. In
RYLANDS v FLETCHER, Blackburn J.
spoke of an ‘absolute duty’ but the term ‘ strict liability’ seems
preferable now
and it is this latter phrase which is adopted by Lord Goff in CAMBRIDGE WATER
CO LTD v EASTERN
COUNTIES LEATHER PLC [1994] 1 All ER 53 (in your casebook at p.463). In this
chapter, we will consider two examples of strict liability: RYLANDS v FLETCHER and fire
RYLANDS V FLETCHER Read the case of RYLANDS v FLETCHER (1868) LR 3 (HL) and then check your
understanding of what you have read by trying Self-assessment Question 1.
Self-assessment
Question 1
(a) Blackburn J
in RYLANDS v
FLETCHER gave three examples that he thought were analogous to the case itself.
These were: escaping cattle doing damage to a neighbour’s land horses that kick
and bulls that gore, and animals with vicious tendencies fumes and noxious
vapours that affect residents of an area of which torts do you think these are
examples?
(b) What was the
difficulty in holding the defendant in RYLANDS v FLETCHER vicariously liable for the
reservoir constructors’ negligence?
2
(c) Why couldn’t
the defendant in RYLANDS v FLETCHER
be liable in the torts of: trespass to land?
nuisance?
negligence?
(d) Blackburn J
laid down three conditions required for the new form of liability to arise, and
Lord
Cairns added a fourth. What are these conditions?
3
There are four
points to note about RYLANDS v
FLETCHER :
Whilst Blackburn J thought that he was simply applying a principle of existing tortuous liability (see his three examples), he was, until 1993, believed to have been creating a whole new tort (which is now called the tort of RYLANDS v FLETCHER). However, the new tort does resemble private nuisance in many ways. Liability for the new tort is described by Blackburn J as one of absolute liability (D ‘must keep it in at his peril’). However, Blackburn J did go on to suggest some defences to the tort and so it is better described as one of strict liability. The tortuous duty laid down is non-delegable – which is why the defendant was liable for the acts of his independent contractors.
The ratio
decidendi and definition of the tort, was that:
‘... a person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes, must
keep it in at his peril, and, if he does not do so, is prima facie answerable
for all damage which is the natural [now ‘direct’] consequence of its escape.’
To this we must
add Lord Cairns’ condition that the use be a non-natural one.
Now, we need to
consider the meaning (and development) of the four conditions for liability: escape artificial
accumulation non-natural use dangerous thing. We must bear in mind, however,
that ‘... by reasons of its many limitations and exceptions [the rule in RYLANDS
v FLETCHER] today
seldom forms the basis of a successful claim in the courts’: Law Commission,
Report No. 32 (1970). The effect of the rule in
RYLANDS v
FLETCHER has been further reduced by the decision of the House of Lords in CAMBRIDGE
WATER CO LTD v
EASTERN COUNTIES LEATHER PLC [1994] 1 All ER 53, which you should read in your
casebook at p.463.
Note in
particular Lord Goff’s comments on RYLANDS Fletcher . He said that Blackburn J. did not
regard the case as ‘a revolutionary decision’ but as a statement of existing
law and part of the general law of nuisance, save that it referred to an
isolated escape.
Lord Goff went on to point out that ‘Blackburn J. spoke of “anything likely to
do mischief if it escapes”; and later he spoke of something “which he knows to
be mischievous if it gets on to his neighbour’s [property], 4and the liability to answer for the natural and anticipated consequences”. ...The general tenor of
his statement of principle is therefore that knowledge, or at least foresee
ability of the risk, is a prerequisite of the recovery of damages under the
principle; but that the principle is one of strict liability in the sense that
the defendant may be held liable notwithstanding that he has exercised all due
care to prevent the escape
from occurring.’ The decision is a blow for those who would urge what is,
apparently, the European Union concept of strict liability that is based on the
premise that ‘the polluter must pay’. Lord Goff went on to make one other
point. He would not have held the defendants to be exempt from liability on the
basis that their use of chemicals in an industrial estate was a natural user of
land. Non-natural user has long been enlisted by judges to control the effect
of RYLANDS v FLETCHER
and Lord Goff’s comment makes it clear that this rather artificial criterion,
adapted according to the perceived needs of an individual case, will no longer
be so significant. Foreseeability is now the major test. But, all in all, this
is small consolation for the environmentalist lobby. In CROWN RIVER CRUISES LTD
v KIMBELTON FIREWORK
LTD 1996 (Chapter 14) it has been held that there was a case for extending the
rule in RYLANDS v FLETCHER
to accumulations in a vessel on a river and to intentional releases, as well as
accidental escape,
provided the release was not deliberately intended to be aimed at the
plaintiff’s property. However, a finding of liability under RYLANDS v FLETCHER was not made in
this case.
ESCAPE
Read the case
of READ v LYONS [1947] AC 156. This is a major case
dealing with the tort of RYLANDS v
FLETCHER and you should read it very carefully. When you have done so, attempt
Self-assessment Question 2 to make sure that you have understood it.
Self-assessment
Question 2
(a)
Viscount Simon gives one reason
for holding that Ms Read had no action in RYLANDS v FLETCHER . Which element of the tort did he
feel was missing? Which element of the tort (claimed by the defendants to be
missing) did he feel it was not necessary to decide upon?
(b) (b) Lord Macmillan gives four reasons for holding that Ms Read had no action in RYLANDS v FLETCHER – what were they?
Chapter 15
(c) Lord Simonds gives one reason for holding
that Ms Read had no action. Which element of the tort did he think was missing?
Which element did he reserve judgment on? (d) Lord Uthwatt gives one reason for
holding that Ms Read had no action. Which element of the tort did he think was
missing? Which element did he reserve judgment on?
(e) What is the
ratio decidendi of READ v
LYONS? It might assist you to know that the fifth judge (Lord
Porter) agreed
with Viscount Simon. 7
Chapter 15
(f) How did their Lordships define ‘escape’ in READ v LYONS?
(g) In which
tort do you think Ms Read should have sued?
So, the thing
must escape to a
place outside D’s control. In cases where the escape is of, say, gas from a main, or filth
from a sewer under the highway, it is enough that the ‘thing ‘escapes from its
conduit rather than from ‘land’: see, for example, MIDWOOD v MANCHESTER CORPORATION
[1905] 2 KB 597 where gas escaped from D’s mains and caused a fire in P’s home. It is worth
noting that there was held to be a concurrent liability in nuisance in this
case.
ARTIFICIAL
ACCUMULATION
If the ‘thing’
is a natural phenomenon on the land then the defendant cannot, presumably, have
brought it on to the land, and so s/he has not ‘collected’ or ‘accumulated’ the
thing(s). Examples of such natural phenomena are natural water (lakes, streams,
etc.), vermin and ordinary trees. Thistles were peremptorily dismissed in an
action for nuisance in GILES v
WALKER (1890) 24 QBD 656. However, this decision appears to have been overruled
by the Court of Appeal in LEAKEY v
NATIONAL TRUST [1980] QB 485. Liability may, however, arise in nuisance, or in
negligence. It may be that liability would arise under RYLANDS v LETCHER if, say, weeds were planted
deliberately. In CROWHURST v AMERSHAM BURIAL BOARD
(1878) 4 Ex D 5 , the defendant planted yews, which eventually grew over its
boundary with the plaintiff’s meadow. The plaintiff’s horse ate some yew leaves
and died. The defendant was found liable in RYLANDS v FLETCHER (compare
PONTING v
NOAKES [1894] 2 QB 28 ). Note that, ordinarily, planting a tree would not be a
non-natural use of land but in CROWHURST the tree was of a poisonous nature.
The accumulation must be for D’s own benefit/purposes. Thus, it was held in DUNNE
v NORTH WEST GAS
BOARD [1964]2 QB 806
that the gas
board was not liable for an escape
of gas because, as a nationalized industry, it did not accumulate for its own
purposes.
NON-NATURAL
USER OF LAND
Non-natural has
been defined as: ‘some special use bringing with it increased danger to
others... [not] the ordinary use of land or [that] proper for the general
benefit of the community’: RICKARDS v LOTHIAN [1913] AC 263, 280 (PC) per Lord Moulton. Thus,
ordinary domestic water, gas or electricity or a motorcar in a garage is
natural user. ‘Non-natural’ has come to mean unreasonable user and is a
flexible concept, manipulated to meet particular circumstances at particular
times in particular places: degree of risk and
benefit to the
community being key factors considered by the courts when considering whether
some activity attracts strict liability. What is natural therefore changes
according to social conditions. Thus in
RAINHAM
CHEMICALS v
BELVEDERE [1921] 2 AC 465 the court held that manufacturing explosives was a
non-natural use
of land and yet there seems to have been some doubt about whether this would
have been the case in war-time (in READ v LYONS (above)). In
BRITISH CELANESE v HUNT
[1969] (see Chapter 14), storing aluminium foil was held to be a natural user.
However, the words of Lord Goff in CAMBRIDGE WATER should now be noted
relegating, as they do, non-natural user to a minor role. With foreseeability
now the overriding test, the judicial need to have recourse to natural or
non-natural user as a device to reduce or extend liability should wither away.
DANGEROUS
THINGS
This was defined
in RYLANDS v
FLETCHER as something likely to do mischief if it escapes – for example,
gas, explosions, bulk-water, electricity, oil, smuts (see HALSEY v ESSO [1961] 1WLR 683),
poisonous vegetation (yew), vehicles with petrol or petrol vapour in their
tanks, a flagpole (SHIFFMAN v
ORDER OF
ST JOHN [1936] 1
All ER 557). Even human beings, like caravan
dwellers (in ATTORNEY-GENERAL v CORKE [1933] Ch 89 ), or the repulsive Scott family in SMITH
v SCOTT [1973] Ch
314 , for whose conduct towards their neighbour, the plaintiff, the local
authority responsible for letting the house to the Scotts, was held not liable
– apparently only because it did not exercise sufficient ‘control’ over the
tenants. Schoolboys were not RYLANDS v FLETCHER ‘things’ in MATHESON v NORTHCOTECOLLEGE [1975] 2 NZLR 106 (it was
said that children are not dangerous per se). Liability did lie in
nuisance, however.
WHO IS LIABLE?
The defendant is
the person in control of the premises or place from which the ‘thing’ escapes.
However, if the defendant is not actually the occupier, it may be enough that
s/he retains some control over the ‘vehicle of mischief’: for example, it is
enough that the defendant is the owner of a gas main under the street (
MIDWOOD & CO
v MANCHESTER
CORPORATION [1905] 2 KB 597 (CA) ) or the controller of CS gas canisters on the
highway (RIGBY v
CHIEF CONSTABLE OF NORTHANTS [1985] 2 All ER 985). In RIGBY it was held that
liability
existed where the escape
was voluntary but this enabled the defence of necessity to be used.
TITLE TO SUE
This requires a
consideration of the law before and after READ v LYONS. Prior to READ v LYONS, anyone affected by
the escape seemed
able to sue including people without an interest in the land affected and
people who suffered only personal injury. For example, in SHIFFMAN v THE ORDER OF ST JOHN [1936]
1 All ER 857P successfully sued in RYLANDS v FLETCHER for personal injury sustained as a
result of an escaping’ flagpole in Hyde Park. However, in READ v LYONS , both Lords Macmillan and Simonds seemed to be of
the view (obiter) that, because RYLANDS v FLETCHER grew from the tort of nuisance, the
plaintiff should have an interest in the land affected. Presumably, were this
to be satisfied, P would then be able to sue for personal injury and there is
Court of Appeal authority for this in HALE
v JENNINGS BROTHERS
[1938] 1 All ER 579 (which involved an escaping chair-o-plane which injured the
tenant of a fair stall). The real problem would be in the case of a
non-occupier: Lord Macmillan (with apparent support from Lord Simonds) felt
that an action in RYLANDS v
FLETCHER did not lie for pure personal injury without an interest in land.
Since READ v LYONS ,
there has been obiter dicta support for rejecting the claim of someone
without an interest in land: see WELLER v FOOT & MOUTH INSTITUTE (1966) (above in Chapter 5). Equally though, there
has been obiter support for the view that a non-occupier can sue for
personal injury: see PERRY v
KENDRICKS [1956]
1 All ER 154 (below) and BRITISH CELANESE v HUNT [1969] 2 All ER 1252. All that can be
said for sure is that the issue has not yet been resolved.
DEFENCES
CONSENT
If P consents to
the accumulation, or it is for both P and D’s benefit, then D may have a
defence: see DUNNE v
NORTH WESTERN GAS BOARD (1964) (above).
PLAINTIFF’ S
OWN FAULT
Blackburn J
himself in RYLANDS v
FLETCHER (1866) LR 1 Ex 265 at p. 279 contemplated this as a defence. So, if
the only reason that P suffers damage is because of P’s own conduct or abnormal
sensitivity, D has a defence: see EASTERN & SOUTH AFRICAN TELEGRAPH v CAPETOWN TRAMS [1902] AC
381 and HOARE v
McALPINE [1923] Ch. 167 .
ACT OF GOD
Like nuisance,
if the escape is due
to the operation of non-human forces ‘, which no human foresight can guard]
against...’ (Lord Westbury in TENNENT v EARL OF GLASGOW (1864) 2M (HL) 22), then D may have a
defence. The only English case in which it has ever succeeded as a defence is NICHOLS
v MARSLAND (1876) 2
Ex D 1 in which an unprecedentedly heavy rainstorm caused the defendant’s pools
to burst and wash
away the
plaintiff’s bridges.
ACT OF A
STRANGER
D is liable for
escapes caused by servants (vicariously) or by independent contractors
(non-delegable duty), but D is not liable if the escape was due to the intervention of some third
party over whom the defendant has no control and whose actions could not
reasonably have been foreseen. This defence succeeded in
BOX v JUBB (1879) 4 Ex D 76 where
a third party caused the defendant’s reservoir to overflow, but not in
SHIFFMAN [1936]
1 All ER 557 in which it should have been foreseeable that mischievous boys
would cut the guys of the flagpole. In PERRY v KENDRICKS [1956] 1 WLR 85 , D was not liable
for an explosion caused by young boys throwing a match into his car petrol tank
after an unknown person had removed the petrol cap. In RICKARDS v LOTHIAN [1913] AC 263 (casebook
p.465) D was not liable for the water escape caused by a
stranger
blocking his overflow pipe.
STATUTORY
AUTHORITY
This defence
depends on a construction of the statute in question. (See the discussion in
Chapter 13: similar
considerations
apply.) Normally, if the defendant acts negligently the defence fails: CHARING
CROSS ELECTRICITY CO v
HYDRAULIC POWER [1914]3 KB 772 See the distinction between this case and GREEN v
CHELSEA
WATERWORKS CO (1894) 70 LT 547 . See also P EARSON v NORTH WESTERN GAS BOARD [1968] 2 All ER 699. 1Although RYLANDS v FLETCHER, as a tort of strict liability, is
unpopular with the courts that generally prefer to compensate a plaintiff where
the defendant is in any way responsible for the injury caused, it may remain
useful as an alternative cause of action alongside nuisance and negligence.
Despite the need to show foresight, once established, the liability remains
strict and no amount of care on the defendant’s part will exonerate him. In
that sense RYLANDS v FLETCHER
remains a strict liability tort.
Self-assessment
Question 3
(a) What is the
difference, if any, between RYLANDS v FLETCHER and private nuisance?
(b) What is the
difference, if any, between RYLANDS v FLETCHER and trespass to land?
Chapter 15
(c) What is the difference, if any, between RYLANDS
v FLETCHER and
negligence?
FIRE
Liability is
old: an action on the case for escape
of fire tam
negligenter ac improvide dates from at least 1401. But the starting point
of modern difficulties was s.86 Fires Prevention(Metropolis) Act, 1774 (which
applies everywhere). The section provides that there should be no liability for
a fire, which is
begun ‘accidentally’. Under the Act it is for the plaintiff to prove that the fire was caused other than
accidentally. Liability does arise where negligence, willfulness or nuisance is
proved: FILLITER v
PHIPPARD (1847) 11 QB 347,357 .
LIABILITY
Liability may
also lie for any of the following:
willfully
causing fire: trespass
negligently
starting a fire: as in FILLITER (1847) 11 QB 347
negligently
allowing a fire to spread: this form evolved to avoid s.86 In STURGE v HACKETT [1962] 1 WLR 1257,the defendant
lit a paraffin rag and applied it, as a deterrent, to a sparrow’s nest outside
the window of his flat. He was liable, as occupier, for the resultant
conflagration. Compare GOLDMAN v
HARGRAVE [1967] 1 AC 645; MUSGROVE
v PANDELIS [1919] 2 KB 43 (CA).
nuisance: SPICER v
SMEE [1946] 1 All ER 489 RYLANDS v
FLETCHER
The test in
cases of fire is
slightly different. Three conditions must be satisfied: the defendant must have
brought on to his land things likely to ignite (and kept them there in such
conditions that if they did ignite the fire would be likely to spread to the plaintiff’s land)
which constitute non-natural user, and which did ignite and spread to the
plaintiff’s property: per MacKenna J in MASON
v LEVY AUTOPARTS
[1967] 2 QB 530
(see p. 477 of
your casebook). Note: An occupier of premises from which fire spreads may be liable
notwithstanding that the fire
was caused by someone else: BALFOUR v BARTY-KING [1957] 1 QB 496
.
See also H &
N EMANUEL LTD v
GREATER LONDON COUNCIL [1971] 2 All ER 835 and HONEYWILL & STEIN LTD v LARKIN BROS LTD [1934] 1 KB
191.
ANIMALS
Liability for
animals has now been removed from the syllabus and so no detailed attention to
this area is required. However, you may wish to note that liability for damage
done by animals is now governed principally by the Animals Act, 1971although
the common law provided strict liability for what are now called dangerous
species of animal and dangerous animals of a tame species.
CASES
REFERRED TO IN THIS CHAPTER
MAJOR CASES
RYLANDS v FLETCHER 1868
CAMBRIDGE WATER
CO LTD v EASTERN
COUNTIES LEATHER PLC
1994
READ v LYONS 1947
DUNNE v NORTH WESTERN GAS BOARD
1964
RICKARDS v LOTHIAN 1913
SHIFFMAN v ORDER OF ST JOHN 1936
PERRY v KENDRICKS 1956
EASTERN &
SOUTH AFRICAN TELEGRAPH v
CAPETOWN 1902
NICHOLS v MARSLAND 1876
CHARING CROSS v HYDRAULIC POWER CO 1914
GREEN v CHELSEA WATERWORKS CO 1894
PEARSON v NORTH WESTERN GAS BOARD
1968
Fire
MUSGROVE v PANDELIS 1919
MASON v LEVY AUTOPARTS 1967
FILLITER v PHIPPARD 1847
STURGE v HACKETT 1962
GOLDMAN v HARGRAVE 1967
SPICER v SMEE 1946
BALFOUR v BARTY-KING 1957
H & N
EMANUEL v GLC 1971
HONEYWILL &
STEIN v LARKIN 1934
SEMPLE PIGGOT
ROCHEZ
LECTURE NOTES OBTAINED FROM THE INTERNET
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17
Chapter 15
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