Deconstructing Rylands v Fletcher

Journal of Environmental Law (2006) Vol 18 No 3, 423–442doi: 10.1093/jel/eql021. Advance Access publication 4 August 2006

Journal of Environmental Law Vol 18 No 3 © The Author [2006]. Published by Oxford University Press; all rights reserved.For Permissions, please email: [email protected]

DECONSTRUCTING THE RULE IN RYLANDS V FLETCHER

A.J. Waite*

1. Introduction

In 1860, as John Rylands contemplated the new reservoir constructed to supplywater to the Ainsworth Mill,1 he did not know that he had triggered a chain of eventswhich was to have a profound, if chaotic, effect on the development of the commonlaw of tort. The litigation resulting from the escape of water from the reservoir viaold mine shafts to Thomas Fletcher’s mines progressed sedately through the courtsfrom 1861 until 1868.2

The case began as an action for negligence, which was heard before Mellor J and aspecial jury in September 1862. A fictitious verdict was entered for the plaintiff, sub-ject to a reference to a barrister arbitrator.3 Following an order of Channell B inDecember 1864, a special case was stated by an arbitrator for the Court of Excheq-uer. The arbitrator found that the contractors, but not the defendants, had beennegligent. On that basis, the question for the Court of Exchequer was whether theplaintiff was entitled to recover damages against the defendants.

The Court of the Exchequer, by a majority (Pollock CB and Martin B), decided infavour of the defendants.4 Martin B held that in such a case there could be no liabil-ity without negligence, because otherwise the defendant would be an insurer, which,in his view, would be contrary to legal analogy and principle.5 Baron Bramwell dis-sented, holding that the defendant should be liable on the basis of strict liability.6

The case went on appeal to the Court of Exchequer Chamber, where Blackburn Jdelivered the judgment of the Court, finding for the plaintiff Mr Fletcher. Despitethe absence of proof of negligence on the part of Mr Rylands, he was held liableaccording to Blackburn J’s classic principle:

* Partner, Planning and Environment Department, Co-ordinator of the Environment Group, BerwinLeighton Paisner Solicitors, London; Vice President (and former President) of the European EnvironmentalLaw Association ([email protected]).

1 The facts and background are chronicled in A.W.B. Simpson, ‘Legal Liability for Bursting Reservoirs: TheHistorical Context of Rylands v Fletcher‘, 12 Journal of Legal Studies (1984) 209.

2 A.W.B. Simpson, above n 1 at 243–51 from which the following brief account is taken.3 Professor Simpson explains that the purpose of this procedure was to give the award of the arbitrator the

status of a court judgment: above n 1 at 243.4 (1865) 3 H & C 774; 159 ER 737.5 (1865) 159 ER 737 at 745.6 (1865) 159 ER 737 at 744.

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We think that the true rule of law is, that a person who for his own purposes brings on hislands and collects and keeps there anything likely to do mischief if it escapes, must keep it inat his peril, and, if he does not do so, is prima facie answerable for all the damage which is thenatural consequence of its escape . . . it seems but reasonable and just that the neighbour,who has brought something on his own property which was not naturally there, . . . but whichhe knows to be mischievous if it gets on his neighbour’s, should be obliged to make good thedamage which ensues if he does not succeed in confining it to his own property . . . he shouldat his peril keep it there . . . or answer for the natural and anticipated consequences.7

The defendants appealed in the House of Lords and the plaintiff was again suc-cessful.8 The speeches of the only two Lords who are recorded as having spoken—Lord Cairns LC and Lord Cranworth9—will be considered in more detail later.

2. The Temporary Ascendancy of Strict Liability

The triumph of strict liability is surprising because, even in 1866, the decision prob-ably appeared somewhat anachronistic.10 In an age of a general extension of liability,fault liability had made much progress.11 However, by the time Rylands v Fletcherclimbed through the court hierarchy, Blackburn J appeared to consider strict liabil-ity as the norm and fault liability as the exception. In his view, the latter applied intraffic accident cases where it could be said that those travelling on the highway vol-untarily assumed the inevitable risk of accident, except where the defendant hadbeen negligent.12

The question arises why was there a decision in favour of strict liability, given theadvances in the law of negligence? Rylands v Fletcher was decided against the backdropof public concern at the problem of bursting reservoir dams13 in the middle years ofthe nineteenth century, which caused major loss of life, injury and property damage.Lord Hoffmann has recognised Blackburn J’s rule as a judicial response to this con-cern, even though the judgment is ‘constructed in the traditional common law style ofdeducing principle from precedent without reference to questions of social policy’.14

Professor Simpson points, nonetheless, to an oblique reference to the dam disas-ters in Blackburn J’s judgment.15

7 (1866) LR 1 Ex 265 at 279–80.8 (1868) LR 3 HL 330 (HL).9 Professor Simpson records that Lord Cranworth died on 26 July 1868, only nine days after the House of

Lords speeches in Rylands v Fletcher were delivered: A.W.B. Simpson, above n 1 at 251 n 153. The identity of thethird Lord is a mystery: R.F.V. Heuston, Who was the Third Lord in Rylands v Fletcher?, 86 Law Quarterly Review(1970) 160.

10 A.W.B. Simpson, above n 1 at 214–6.11 That development is beyond the scope of this article but is explained in J.H. Baker, An Introduction to Eng-

lish Legal History (Butterworths, 2002, 4th edn) Chapter 23; D. Ibbetson, A Historical Introduction to the Law ofObligations (Oxford University Press, 1999) Chapter 9. See also Cornish and Clark, Law and Society in England1750–1950 (Sweet and Maxwell, 1989) 486–9; A.W.B. Simpson, above n 1 at 210–4.

12 (1866) LR 1 Ex 265, 286–7.13 A.W.B. Simpson, above n 1.14 Transco plc v Stockport MBC [2004] 1 All ER 589, 600.15 (1866) LR 1 Ex 265, 285–6; A.W.B. Simpson, above n 1 at 249–50. Other possible influences are dis-

cussed in Markesinis and Deakin, Tort Law (Oxford University Press, 2003, 5th edn), 533–4. See also F.H. Bohlen,‘The Rule in Rylands v Fletcher’, 59 University of Pennsylvania Law Review (1911) 298, 373, 423; cf R.T. Molloy,‘Fletcher v Rylands, A Re-examination of Juristic Origins’, 9 University of Chicago Law Review (1942) 266.

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Another factor that may have influenced the Court of Exchequer Chamber and theHouse of Lords was the relentless progress of the Industrial Revolution, which inevita-bly caused many deaths and accidents. Although the response of the law had oftenbeen to disallow claims on the part of injured workmen, on the basis that there hadbeen a voluntary assumption of risk,16 the powerful voice of Edwin Chadwick was callingfor strict liability to reduce injuries to workmen.17 Despite having no immediate effectin provoking legislation, it may be that his words struck a chord with the judiciary.

In any event, the scene was set for a struggle between the two opposing viewpoints.The imposition of strict liability in those circumstances may be considered as a victoryfor the view that the cost of industrial enterprise should be internalised and shouldnot be borne by the wider environment including, of course, neighbours.18 However,the protagonists of laissez-faire in the late nineteenth and early twentieth centurieswere stronger than the cost internalisers. Consequently, the rule in Rylands v Fletcherbecame hedged in by so many restrictions that there are no reported cases of claimswhich have succeeded solely on the basis of the rule since the Second World War.

3. Different Approaches to Rylands v Fletcher

The process of change has been an untidy one, leaving in its wake uncertainty as tothe true nature of the rule in Rylands v Fletcher and the field of its application. Thishas led to different approaches by judges and legal writers. In Hale v JenningsBrothers,19 Scott LJ referred to the rule as ‘a broad principle . . . that the liabilityattaches because of the occupier of the land bringing onto the land somethingwhich is likely to do damage if it escapes’.

On the contrary, nine years later Lord Macmillan stated in Read v Lyons20 that ‘thedoctrine of Rylands v Fletcher . . . derives from a conception of mutual duties ofadjoining landowners and its congeners are trespass and nuisance’.

There has been similar disharmony between the legal writers. In 1894 theAmerican jurist, Wigmore, wrote:

. . . What we have still to notice is the fate of those scattered classes of cases which neverbecame amenable to this test of Due Care under the Circumstances.

Briefly, they wandered about, unhoused and unshepherded, except for a casual attention,in the pathless fields of jurisprudence, until they were met some thirty years ago, by the mas-ter-mind of Mr Justice Blackburn, who guided them to the safe fold where they have sincerested. . . .

. . . What gave the exposition on this occasion its novelty and its permanent success wasthe broad scope of the principle announced, the strength of conviction of its expounder, andthe clearness of his exposition, and perhaps, too, the fact that the time was ripe for its accept-ance . . . it furnished a general category in which all such rules, whenever formed, could beplaced.21

16 J.H. Baker, above 11 at 416.17 Cornish and Clark, above n 11 at 515.18 This was the view of B. Bramwell when Rylands v Fletcher was heard in the Court of Exchequer: 3 H&C

(1865) 774. See the speech of Lord Hoffman in Transco plc v Stockport MBC [2004] 1 All ER 589, 600.19 [1938] 1 All ER 579 at 583 (CA).20 [1947] AC 156 at 173 (HL).21 J.H. Wigmore, ‘Responsibility for Tortious Acts: Its History’, 7 Harvard Law Review (1894) 315 at 454–5.

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In similar, though less eulogistic, vein, Sir Percy Winfield was of the opinion that:

. . . the rule in Rylands v Fletcher has been taken as the starting-point of a wider liability thanany preceding it.22

On the contrary, Professor Newark, writing in 1949, took a very different view:

. . . This case is generally regarded as an important landmark—indeed, a turning point—inthe law of tort; but an examination of the judgments shows that those who decided it werequite unconscious of any revolutionary or reactionary principles implicit in the decision.They thought of it as calling for no more than a restatement of settled principles, and LordCairns went so far as to describe those principles as ‘extremely simple’. And in fact the mainprinciple involved was extremely simple, being no more than the principle that negligence isnot an element in the tort of nuisance. . . .

. . . But the profession as a whole, whose conceptions of the boundaries of nuisance werenow becoming fogged, failed to see in Rylands v Fletcher a simple case of nuisance. Theyregarded it as an exceptional case—and the Rule in Rylands v Fletcher as a generalisation ofexceptional cases—where liability was to be strict on account of ‘the magnitude of the dan-ger, coupled with the difficulty of proving negligence’, rather than on account of the natureof the plaintiff’s interest which was invaded.23

In view of the obvious breadth of Blackburn J’s principle, it is tempting to wonderwhether it was Professor Newark’s conceptions which had become fogged. Be that asit may, he did have support from the House of Lords in Read v Lyons. In the event,Professor Newark’s view was sanctified by the House of Lords in Cambridge Water Co vEastern Counties Leather Plc24 and now forms the cornerstone of the modern view ofthe rule in Rylands v Fletcher.25

What is the explanation for this apparent juristic schizophrenia? The answer is sur-prising but simple: there is no single rule in Rylands v Fletcher, but rather two rules.The wide rule is that enunciated by Blackburn J and followed by Lord Cranworth inthe House of Lords. The narrow rule, relied on by Lord Cairns LC, is a species ofnuisance liability arising between neighbours for the escape of something not natu-rally on the defendant’s land which adversely affects the claimant’s enjoyment of hisland. Lord Cairns expressed it in this way:

. . . if the Defendants, not stopping at the natural use of their close, had desired to use it forany purpose which I may term a non-natural use, for the purpose of introducing into theclose that which in its natural condition was not in or upon it, for the purpose of introducingwater either above or below ground in quantities and in a manner not the result of any workor operation on or under the land—and if in consequence of their doing so, or in conse-quence of any imperfection in the mode of their doing so, the water came to escape and topass off into the close of the Plaintiff, then it appears to me that that which the Defendantswere doing they were doing at their own peril. . . .26

22 P.H. Winfield, ‘Nuisance as a Tort’, 4 Cambridge Law Journal 189 (1930–2) at 193.23 F.H. Newark, ‘The Boundaries of Nuisance’ 65 Law Quarterly Review (1949) 480, 487–8. See also G. Cross,

Does only the Careless Polluter Pay? A Fresh Examination of the Nature of Private Nuisance 111 Law QuarterlyReview (1995) 445.

24 [1994] 2 Weekly Law Reports 53, 73–4.25 See also Transco Plc v Stockport MBC [2004] 1 All ER 589, 591–2 (Lord Bingham); 601–2 (Lord

Hoffmann); J. Murphy, ‘The Merits of Rylands v Fletcher,’ 24 Oxford Journal of Legal Studies (2004) 643.26 (1868) LR 3HL 330, 339.


However, Lord Cairns went further. Although he considered that his narrow rulewas sufficient to dispose of the case, he also stated that ‘the same result is arrived aton the principles referred to by Mr Justice Blackburn . . .’.27 The significance of thatstatement is the clear recognition by the Lord Chancellor (who entirely concurredwith Blackburn J’s opinion) that Rylands v Fletcher could be decided under either thewide or the narrow rule.

A source of confusion has been the fact that the wide rule in Rylands v Fletcher andnuisance overlap at this point. In effect, liability under the narrow rule forms thecommon segment of the overlapping circles of the wide rule and the law of nui-sance. The wide rule is concerned with the escape of dangerous things from thedefendant’s land or control. On the contrary, the narrow rule is restricted to liabilityfor the escape of such things from the defendant’s land which adversely affect theclaimant’s land. This enabled Lord Cranworth to rely on Smith v Kenrick28 and Baird vWilliamson29 as illustrations of Blackburn J’s principle, although both were the foun-dation of Lord Cairns’ narrow rule.

The failure to appreciate that the distinction exists has led to a conflation of thetwo principles in practice, with some judges and writers leaning towards the widerule and others towards the narrow rule. The result has been confusion and uncer-tainty. That defect earned the wrath of the High Court of Australia, which soundedthe death knell of Rylands v Fletcher in that country.30

A better solution than the confusion that has prevailed during most of the lifetimeof Rylands v Fletcher is to acknowledge that the case fathered two rules and then makea policy choice between them. That process was begun in England and Wales in sev-eral dicta in Read v Lyons, in which the wide rule was noted but rejected. The clearestexample is by Viscount Simon, who said that:

The classic judgment of Blackburn J, besides deciding the issue before the court and layingdown the principle of duty between neighbouring occupiers of land on which the decisionwas based, sought to group under a single and wider proposition other instances in which lia-bility is independent of negligence, such for example as liability for the bite of a defendant’smonkey . . .31

However, he then proceeded to discountenance the wide rule in the followingterms:

There are instances, no doubt, in our law in which liability for damage may be establishedapart from proof of negligence, but it appears to me logically unnecessary and historicallyincorrect to refer to all these instances as deduced from one common principle.32

27 Ibid. In J P Porter Co Ltd v Bell, [1955] 1 Dominion Law Reports 62, Macdonald J. in the Nova Scotia SupremeCourt also noted that ‘the true situation seems to be that there is not one rule in Rylands v Fletcher but two; andthat Lord Blackburn’s version or Lord Cairns’ more flexible one is invoked according to the circumstances ofthe case in hand’. However, the judge did not elaborate further.

28 (1849) 7 CB 515.29 (1863) 15 CB (NS) 376.30 Burnie Port Authority v General Jones Pty Ltd [1994] 120 ALR 42. For a critique of that case, see J. Murphy,

above n 25; J. Swanton, (1994) 2 Torts Law Journal (1994) 101.31 [1947] AC 156 at 167. See also the speeches of Lord Macmillan at 173, Lord Porter at 178, Lord Simonds

at 181 and Lord Uthwatt at 185, which are to similar effect.32 Ibid.

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Nonetheless, the wide rule refused to die, at least immediately. The Court ofAppeal in Perry v Kendricks Transport Ltd33 considered that the rule covered personalinjury despite the onslaught by the House of Lords in Read v Lyons. Eventually, thewide rule was unceremoniously dispatched by Lord Goff in Cambridge Water Co vEastern Counties Leather Plc34 and the coup de grace delivered by the House of Lordsin Transco Plc v Stockport MBC.35 Both cases relied not on the dicta in Read v Lyons buton Professor Newark’s analysis,36 which makes no mention of the wide rule. This isunfortunate because it disguises the fact that a real policy choice was available to theHouse of Lords without the need to change the law.37

At this point, it is necessary to explore the wide and narrow rules in more detail.

4. The Wide Rule in Rylands v Fletcher

It has been said that Blackburn J’s judgment is ‘an outstanding example of a creativegeneralisation’.38 To understand its scope and potential limitations, it is necessary toexamine its antecedents. Although Blackburn J’s judgment has been acknowledgedto have created new law,39 he himself disavowed any such intention.40 This may bebecause he believed that his ‘new’ wide rule had a secure historical foundation.

The twin pillars relied on by Blackburn J in formulating his principle were the oldlaw of liability for animals41 and nuisance, or at least the underlying principles of nui-sance. It is clear from Blackburn J’s judgment that he places more reliance on theformer. It is understandable that this should be so, because (a) it enabled his newprinciple to escape from any potential confinement as a tort to land; and (b) it couldencompass personal injury as well as property damage.

There were two strands to the old law of animals relied on by Blackburn J. Thefirst was cattle trespass. A person who kept cattle was bound to ensure that they didnot escape onto other people’s property and cause damage. The owner was strictlyliable for any damage so caused which was the natural consequence of the trespass.42

The second was the rule that a person keeping an animal of a species known to havea fierce nature, such as a bear or a lion, was bound to prevent it from causing injuryand was strictly liable if it did so.43 On the contrary, if the animal was not of a speciesknown to have a fierce nature, the owner was only liable for injury it caused if heknew (scienter) that that particular animal had vicious propensities.44 The two key

33 [1956] 1 All England Law Reports 154.34 [1994] 2 Weekly Law Reports 53.35 [2004] 1 All England Law Reports 589.36 (1949) 65 Law Quarterly Review 480, 487–8.37 See Markesinis and Deakin, above n 15 at 546: ‘The demolition of the strict liability rule may thus be nei-

ther as (historically) obvious nor as desirable as the House of Lords has recently made it out to be’.38 Markesinis and Deakin, above n 15 at 533.39 Ibid at footnote 9.40 Ross v Fedden (1872) 26 LT 966, 968.41 The classic work on this subject is G. Williams, Liability for Animals (1939).42 Ellis v Loftus Iron Co [1874] LR 10 CP 10; Theyer v Purnell [1918] 2 KB 333; Wormald v Cole [1954] 1 QB

614 (CA) (damages recoverable for personal injury). See G. Williams, above n 41 at Part 2 and particularly197–9 for a comparison between cattle trespass and Rylands v Fletcher.

43 Besozzi v Harris (1858) 2 F&F 92; Hale, Pleas of the Crown 430.44 May v Burdett (1846) 9 QB 101; Cox v Burbidge (1863) 13 CB (NS) 431; Hale, ibid; G. Williams, above n 41

at Part 5 and particularly 352–3 for comparison between the scienter action and Rylands v Fletcher.


aspects of these rules relating to animals were that (a) actionable damage was notrestricted to the plaintiff’s real estate and (b) compensation for personal injury wasnot excluded. These features provided the possibility for Blackburn J’s new wide ruleto escape from the straightjacket of nuisance and to blossom into a true doctrine ofstrict liability for dangerous things. That it did not do so is due to the restrictive ten-dencies of many judges, which have been noted above.

The other ‘pillar’ on which Blackburn J relied was the law of nuisance. Herefers to:

the person . . . whose mine is flooded by the water from his neighbour’s reservoir, or whosecellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthyby the fumes and noisome vapours of his neighbour’s alkali works . . .45

The main case he relied on in this area is Tenant v Goldwin.46 The wall of thedefendant’s ‘house of office’ collapsed due to want of repair, as a result of whichfilth flowed into the plaintiff’s cellar and contaminated his beer and coal supply.Holt CJ found for the plaintiff on the principle ‘that every one must so use his own,as not to do damage to another’. In doing so, he drew on the analogy of cattle tres-pass. Blackburn J noted that Holt CJ’s principle was very similar to that laid down ina cattle trespass case in 1480. The defendant’s cattle, which were pastured on com-mon land, strayed onto the plaintiff’s land. Brian CJ said:

It behoves him to use his common so that he shall do no hurt to another man, and if the landin which he has common be not enclosed, it behoves him to keep the beasts in the commonand out of the land of any other.47

It seems that although both Tenant v Goldwin and the Year Book case concerneddisputes between adjoining neighbours, Blackburn J’s interest was in the underlyingprinciple which was potentially much wider.

This point was elaborated further in the House of Lords by Lord Cranworth whofully supported Blackburn J’s principle:

In considering whether a Defendant is liable to a Plaintiff for damage which the Plaintiff mayhave sustained, the question in general is not whether the Defendant has acted with due careand caution, but whether his acts have occasioned the damage. . . . And the doctrine isfounded on good sense. For when one person, in managing his own affairs, causes, howeverinnocently, damage to another, it is obviously only just that he should be the party to suffer.He is bound sic uti suo ut non laedat alienum.48

Lord Cranworth relied on Lambert v Bessey,49 a case on trespass and false imprison-ment in which it was said that ‘in all civil acts the law doth not so much regard theintent of the actor, as the loss and damage of the party suffering’.50

Lambert v Bessey itself relies on the Case of Thorns,51 a Year Book case of 1466 inwhich the defendant whose land was bounded by a hedge of thorns cut the thorns so

45 (1866) LR 1 Ex 265, 280.46 (1704) 2 Ld Raym 1089, 6 Modern Reports 311.47 YB 20 Ed. IV 11, pl. 10, discussed by G. Williams, above n 41 at 142, 182.48 (1868) LR 3 HL 330, 341.49 (1682) Sir T. Raym 421.50 (1682) Sir T. Raym 421, 423.51 Hulle v Orynge (1466) Y.B. Mich. 6 Ed IV, 7 pl. 18.

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that some fell onto the plaintiff’s neighbouring land. The defendant was sued fortrespassing on the plaintiff’s land in going to collect the cut thorns. The defendantpleaded that the thorns fell against his will (ipso invito). The plaintiff demurred andwas successful. The court held that the defendant’s intention was relevant in crimi-nal law but not in actions for damages. Littleton J explained that ‘If a man suffersdamage it is right that he be compensated’. However, there was an interesting dis-cussion on the plea. Choke J indicated that ‘If he wants to make a good plea out ofthis, he should show what he did to prevent the thorns from falling, so that we canjudge whether he did enough to excuse himself’. Choke J’s example of a possibleexcuse in the circumstances of this case was a sudden gust of wind, in effect breakingthe chain of causation.

It has been pointed out52 that the case does not categorically imply strict liability.Although intention was held to be irrelevant, it would have been a good defence toshow that there was no reasonable opportunity to avoid the harm. It seems that thetype of defence suggested by Choke J became, four hundred years later, Blackburn J’sdefence of vis major or Act of God.53 On that basis, it is probably best to characterisethe position as one of strict liability qualified by justificatory defences and questionsof causation.54

It is possible that, in the mediaeval period, lack of negligence (or accident) couldalso be raised as a defence to trespass actions not on the pleadings but by way ofargument before the jury. However, in the absence of any record of what lay behindthe jury’s record, it is impossible to be certain.55

It seems, therefore, that there was a generally pervasive rule of strict liability in thelaw of tort as assumed by Lord Cranworth. Blackburn J took the same view when hedistinguished cases of road traffic accident and collision in which proof of negli-gence was a necessary ingredient by the nineteenth century.56 Accordingly, it can beasserted that the wide rule in Rylands v Fletcher is justified historically on the basis of abroad strict liability principle despite the denial of Viscount Simon in Read v Lyons.57

To the extent that it is a ‘bold judicial generalisation’,58 it may be considered as anattempt to stem the rising tide of negligence in the area of dangerous things.

5. The Narrow Rule in Rylands v Fletcher

Lord Cairns considered that two ‘simple principles’ governed the case of the burstingreservoir in Rylands v Fletcher. The first was that if in the ‘natural user’ of the defend-ant’s land any accumulation of water passed from there to the plaintiff’s land by

52 J.H. Baker, above 11 at 404–5.53 (1866) L R 1 Ex 265, 280.54 D.J. Ibbetson, above n 11 at 58–63. The scienter action may be an example of a stricter type of liability

than would otherwise have arisen: J.H. Baker, above 11 at 408.55 Until the early nineteenth century, the defendant could plead not guilty and explain the facts to the jury.

The issue would therefore not generally appear on the record. See J.H. Baker, above 11 at 404–5; S.C.F.Milsom, Historical Foundations of the Common Law (Oxford University Press, 1981, 2nd edn) at 295–300; D.J.Ibbetson, above n 11 at 58.

56 (1866) LR 1 Ex 265, 286–7.57 See Viscount Simon, Read v Lyons & Co [1947] AC 156, 167.58 Markesinis and Deakin, above n 15 at 544.


operation of the laws of nature, the plaintiff would have no cause of action. It is upto the claimant to guard against the operation of the laws of nature.

The second principle (quoted above) relates to a non-natural use of land for thepurpose of introducing onto the land water that was not present in the natural con-dition of the land and that escapes and causes damage on the plaintiff’s land. Insuch a case the defendant is liable.

The first principle had been decided by Smith v Kenrick59 and the second by Baird vWilliamson,60 both cases of water flowing from the defendant’s mine to that of theplaintiff. However, in the first case, the water had entered the defendant’s mine ofits own accord as a result of his working a seam of coal which formed a barrierbetween the body of water and the defendant’s mine. In the second case, thedefendant had pumped the water into his mine.

Lord Cairns decided nothing new in his narrow rule. Baird v Williamson is nothingmore than Tenant v Goldwin61 applied to the escape of water. The narrow rule wouldnot by itself warrant more than a footnote in the nuisance chapters of the standardtort textbooks, let alone a whole chapter.

The narrow rule was, as we have seen, given a favourable reception in Read v Lyons.It was later adopted by the House of Lords in Cambridge Water, where Lord Goffstated that ‘the rule in Rylands v Fletcher was essentially concerned with an extensionof the law of nuisance to cases of isolated escape’.62 That approach was duly con-firmed by the Transco case, in which Lord Bingham was of the view that ‘the rule inRylands v Fletcher is a sub-species of nuisance’,63 and Lord Hoffmann considered thatthe rule was ‘founded on the principles of nuisance’.64

6. The Incidents of the Rules in Rylands v Fletcher

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

59 (1849) 7 CB 515.60 (1863) 15 CB(NS) 317.61 (1704) 2 Ld Raym 1089, 6 Modern Reports 311.62 [1994] 2 Weekly Law Reports 53, 79. However, this development had already been achieved by Tenant v

Goldwin: J.H. Baker above 11 at 432.63 [2004] 1 All England Law Reports 589, 594.64 [2004] 1 All England Law Reports 589, 602.65 In Transco, Lord Hobhouse of Woodborough considered that ‘if the established common law principles of

the civil law of nuisance and the essentials of Blackburn J’s statement of the rule . . . had not been departedfrom, the confusions could have been avoided’: [2004] 1 All England Law Reports 589, 610. Those sentimentscan be applauded even though Lord Hobhouse makes no distinction between the wide and narrow rules.

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6.1 Dangerous Things

In Blackburn J’s formulation, the rule applies to bringing onto the defendant’s landthings likely to do mischief if they escape, which have been described as ‘dangerousthings’.66 The rule has been applied, e.g., to water,67 fire,68 a motor vehicle,69 gas,70

electricity,71 poison,72 paraffin,73 a blow lamp,74 colliery spoil tipped on a hillsidewithout drainage provision75 and raw polystyrene.76 However, the rule has been heldinapplicable to an aeroplane,77 an oil can,78 a boiler without a safety valve79 and waterpiped to a block of flats.80 Whilst it may seem difficult to extract a clear principlefrom these decisions, Lord Bingham has stated81 that the threshold for the mischieftest is a high one.

Bearing in mind the historical origins of the rule, and also that its effect is to impose liabilityin the absence of negligence for an isolated occurrence, I do not think the mischief or dan-ger test should be at all easily satisfied. It must be shown that the defendant has done some-thing which he recognised, or judged by the standards appropriate at the relevant place andtime, he ought reasonably to have recognised, as giving rise to an exceptionally high risk ofdanger or mischief if there should be an escape, however unlikely an escape may have beenthought to be.

The dangerous things principle clearly applies to both the wide and the narrowrule. What is not so clear is why Lord Bingham thought that the basis of the (nar-row) rule in nuisance implied a high-risk threshold. The answer is probably that he,like Lord Goff, conceived of the narrow rule as an extension of nuisance liability toisolated escapes, overlooking the fact that this step had already been taken in Tenant vGoldwin.82 Evidently, he was reluctant to apply that extension other than in fairlyexceptional cases. In Lord Bingham’s view, the ‘category of case . . . in which itseems just to impose liability even in the absence of fault’ includes catastrophes suchas that in Rylands v Fletcher itself, the Aberfan disaster, an explosion in a militaryexplosives factory83 and the escape of perchloroethene into groundwater in CambridgeWater. In applying that principle in Transco,84 Lord Bingham held that water piped to

66 Stallybrass points out that danger is relative and that the danger depends on the use and environment ofthe thing: W.T.S. Stallybrass, ‘Dangerous Things and the Non-Natural User of Land’, 3 Cambridge Law Journal(1929) 376, 386–7. Cf D. Wilkinson, ‘Cambridge Water Company v Eastern Counties Leather plc: Diluting Lia-bility for Continuing Escapes’, 57 Modern Law Review (1994) 799.

67 Rylands v Fletcher (water in a reservoir); Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 KB772 (water stored in a high pressure main).

68 Jones v Ffestiniog Railway (1868) LR 3 QB 733.69 Musgrove v Pandelis [1919] 2 KB 43 CA; Perry v Kendricks Transport Co [1956] 1 Weekly Law Reports 85 CA.70 Goodbody v Poplar BC [1915] 84 LJ KB 1230.71 National Telephone Co v Baker [1893] 2 Ch 186.72 West v Bristol Tramways Co [1908] 2 KB 14.73 Mulholland and Tedd Ltd v Baker [1939] 3 All England Law Reports 253.74 Balfour v Barty-King [1957] 1 QB 496, CA.75 A-G v Cory Bros [1921] 1 AC 521.76 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC).77 Fosbroke-Hobbes v Airwork Ltd [1937] 1 All England Law Reports 108.78 Wray v Essex CC [1936] 3 All England Law Reports 97.79 Ball v LCC [1949] 2 KB 159.80 Transco plc v Stockport MBC [2004] 1 All England Law Reports 589.81 Ibid at 595.82 [1704] 2 Ld Raym 1089, 6 Mod Rep 311. See J.H. Baker, above 11 at 432.83 Rainham Chemical Works v Belvedere Fish Guano Co Ltd [1921] 2 AC 465.84 [2004] 1 All England Law Reports 589, 596.


a block of flats was not something likely to cause danger or mischief if it escaped,unlike the water in the Ainsworth Mill reservoir, or the perchloroethene that affec-ted the Cambridge Water Company’s boreholes.

With respect, Lord Bingham’s conclusion that ‘the piping of a water supply fromthe mains to the storage tanks in the block [of flats] was a routine function whichwould not have struck anyone as raising any special hazard’ is questionable. As hehimself recognises, everyone knows that water in quantity is likely to cause damage ifit escapes. It matters little whether the water comes from fractured or leaking pipesor from a burst reservoir. That is the real issue, which should not be confused withwhether the operation is routine or otherwise. Lord Bingham’s conclusion risks con-fusing the dangerous things requirement with that of non-natural user.85 Blurringthis distinction has the effect of creating an additional (or at least higher) obstaclefor claimants to surmount, which was not apparently intended by Blackburn J inrelation to the wide rule in Rylands v Fletcher.

6.2 Non-Natural User

Over the years, Rylands v Fletcher has been restricted by the notion of ‘non-natural use of land’.86 This requirement was first laid down in the House of Lordsby Lord Cairns LC in Rylands v Fletcher itself. In Cambridge Water, Lord Goffconsidered that it was probably only by way of explanation of Blackburn J’s state-ment of the rule involving bringing on to the land something which was not nat-urally there.87

In fact, this was an area in which the wide and narrow rules converged until thesecond half of the twentieth century. The non-natural use to which Lord Cairnsrefers is bringing something onto land which was not there in its natural condition.88

The point is confirmed by his contrast between Smith v Kenrick89 (natural user) andBaird v Williamson90 (non-natural user). As indicated above, the difference betweenthe two cases is that in the latter the defendant actively pumped water into his mine,whereas in the former it flowed in of its own accord, even though as a result of thedefendant’s mining activity. In 1868 nuisance law did not extend to liability for any-thing occurring naturally.91 That position has since changed.92

However, the matter did not rest there. By 1913, this controlling mechanism hadexpanded. In Rickards v Lothian93, Lord Moulton explained that for the rule to apply,there

85 However, Lord Bingham considered that the ‘dangerous thing’ requirement could not ‘be viewed in com-plete isolation from the non-natural user condition’: [2004] 1 All England Law Reports 589, 595. Lord Walker ofGestingthorpe took the same view: ibid at 621–2. On the relationship between the two requirements, seebelow.

86 W.T.S. Stallybrass, above n 66; A.L. Goodhart, ‘Liability for Things Naturally on the Land’, 4 CambridgeLaw Journal (1932) 13; F.H. Newark, ‘Non-Natural User and Rylands v Fletcher’, 24 Modern Law Review (1961)557; D.W. Williams, ‘Non-Natural Use of Land’, 32 Cambridge Law Journal (1973) 310.

87 [1994] 2 Weekly Law Reports 53, 82. See F.H. Newark, above n 86 at 557, 560–2.88 [1868] LR 3 HL 330, 338–9.89 (1849) 7 CB 515.90 (1863) 15 CB(NS) 317.91 Giles v Walker [1890] 24 QBD 656; Pontardawe UDC v Moore-Gwyn [1929] 1 Ch 656.92 Goldman v Hargrave [1967] 1 AC 645; Leakey v National Trust [1980] QB 485.93 [1913] AC 263 at 280.

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

The non-natural user test had become a restatement of the rule in nuisance thatliability is not imposed where the activity in question is reasonable94 and not exces-sive or abnormal95 on the give and take principle. This is relevant to the narrow rule,but there is no reason why it should apply to the wide rule.

Since then, the ordinary user concept has been applied to many uses, includingthe manufacture of explosives in wartime96 and the storage of metal foil strips usedin the manufacture of electrical components.97 In Cambridge Water, however, LordGoff (although denying that he was redefining the concept of natural or ordinaryuse) said that the storage of chemicals in substantial quantities and their use in thetanning process did not fall within the natural user exception. In his view:

. . . the storage of substantial quantities of chemicals on industrial premises should beregarded as an almost classic case of non-natural use.98

By this deft footwork, the House of Lords gave the narrow rule in Rylands v Fletchera potential new lease of life.

However, ten years later in Transco, the House of Lords reverted to a more restric-tive approach. Lord Bingham considered that non-natural user is equivalent toextraordinary or unusual circumstances. He said that ‘the question is whether thedefendant has done something which he recognises, or ought to recognise, as beingquite out of the ordinary in the place and at the time when he does it’.99 In the viewof Lord Hoffmann, a useful guide to whether the user is non-natural is whether theoccupier could reasonably be expected to have insured against the damage arisingfrom it.100 On that basis, the House of Lords held in Transco that supplying water to ablock of flats through a high-pressure pipe was not a non-natural user, because it wasa routine function creating no great risk.

It appears, therefore, that the non-natural user principle in its original conceptionby Lord Cairns was no more than a reworking, in the context of the narrow rule, ofBlackburn J’s dangerous things requirement. However, because the narrow rule wasmerely a type of nuisance, the non-natural user principle evolved into the give andtake principle of the law of nuisance by the time of its reincarnation in Rickards vLothian. That being so, it seems that the non-natural user requirement has no placein the wide rule which, as we have seen, has a broader foundation than the law ofnuisance.

94 Bamford v Turnley (1862) 3 B & S 62; Winfield and Jolowicz on Tort (Sweet & Maxwell, 2002, 17th edn)para 14.6; W.T.S. Stallybrass, above n 66 at 376, 393.

95 Clerk & Lindsell on Torts (Sweet & Maxwell, 2000, 18th edn) para 19-19.96 Read v J Lyons & Co Ltd (1947) AC 156, 169–70 per Viscount Simon and 174 per Lord Macmillan.97 British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 1 Weekly Law Reports at 959.98 [1994] 2 Weekly Law Reports 53, 79. For a contrary view, see P.R. Ghandi [1994] Conv 309.99 Transco plc v Stockport MBC [2004] 1 All England Law Reports 589, 596. However, the use of premises for the

manufacture of polystyrene products has recently been held to be non-natural: LMS International Ltd v StyrenePacking and Insulation Ltd [2005] EWHC 2065 (TCC). The opposite conclusion was reached in relation to con-struction works on a disused airfield: Ellison v Ministry of Defence (1997) 81 Building Law Reports at 101.

100 Ibid at 605. That view was criticised by Lord Hobhouse in the same case. See Christopher McNall [2004]Conv 240.


6.3 Foreseeability

In a major development, the House of Lords in Cambridge Water Co v Eastern CountiesLeather Plc101 held that the requirement of foreseeability of damage (as opposed toforeseeability of the escape) is a prerequisite of liability under the rule in Rylands vFletcher.102 Blackburn J’s statement of the rule in the Court of Exchequer Chamberwas quoted by Lord Goff. By focussing on the words: ‘likely to do mischief if itescapes’, ‘which he knows to be mischievous’ and ‘he should at his peril keep it there. . . or answer for the natural and anticipated consequences’,103 Lord Goff concludedthat according to Blackburn J, foreseeability of damage is a prerequisite for recoveryof damages under the (wide) rule in Rylands v Fletcher.104

The next question was whether the law of nuisance should serve as a model forthe rule in Rylands v Fletcher. Critically, as we have seen, Lord Goff accepted theview that the rule was no more than an extension of the law of nuisance to cases ofisolated escape.105 In doing so, he shackled English law firmly to the narrow rule inRylands v Fletcher. Concepts of negligence had intruded into certain areas of nui-sance, such as the continuance or adoption of a nuisance, bringing with them therequirement of foreseeability.106 The Privy Council in The Wagon Mound (No.2)107

held that foreseeability of damage should be a necessary element in all categoriesof nuisance, on the basis that it could not be right to discriminate between differ-ent cases of nuisance. In view of the close connection between nuisance and thenarrow rule in Rylands v Fletcher, Lord Goff extended the same foreseeabilityrequirement to the narrow rule. He pointed out that it would be unjust in thatrespect to make it easier to establish liability in cases of property damage than forpersonal injuries.108

The foreseeability requirement is, as Lord Goff has demonstrated, integral tothe concept of dangerous substances as enunciated by Blackburn J. Its functionis to elucidate the point that dangerous things are not those considered danger-ous per se, but those which are dangerous in relation to foreseeable types ofdamage. Accordingly, foreseeability should also be a requirement under thewide rule.

101 [1994] 2 Weekly Law Reports 53 (HL). See R.F.V. Heuston [1994] Law Quarterly Review 185. The CambridgeWater case concerned liability for spillages of solvents in small quantities over a long period which had perco-lated through the underground chalk layers and polluted the water abstracted for drinking water purposesfrom the plaintiffs’ borehole. Since it was not foreseeable at the time of the spillages that they might lead todamage of the kind which occurred, the defendants were held to be not liable.

102 The principle relates to remoteness of damage.103 (1866) LR 1 Ex 265 at 279–80.104 Lord Goff adopted the narrow rule (see above). However, his analysis of Blackburn J’s judgment clearly

applies to the wide rule. For the view that foreseeability is relevant to the determination of what things shouldbe classed as dangerous and to the concept of non-natural use as well as remoteness of damage, seeP.R. Ghandi [1994] Conv. 309.

105 [1994] 2 Weekly Law Reports 53, 74 and 79; F.H. Newark, ‘The Boundaries of Nuisance’, 65 Law QuarterlyReview (1949) 480; F. McManus, 3 Environmental Law Review (2001) 186.

106 Clerk & Lindsell on Torts, above n 95 at para 7-01, 19-01.107 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No.2) [1967] 1 AC 617 at 640.108 [1994] 2 Weekly Law Reports 53, 75. However, despite the requirement of foreseeability, nuisance is still a

‘strict liability’ tort, whereas in negligence claims for personal injuries, it is necessary to demonstrate breach ofa duty of care.

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6.4 Damage to the Claimant’s Interest in Land

This and liability for personal injury mark the greatest practical distinction betweenthe wide and narrow rules. The narrow rule being a sub-species of nuisance onlyapplies to damage to the claimant’s interest in land.109 No such restriction applies tothe wide rule.110

6.5 Liability for Personal Injury

As noted above, it follows that there can be no liability for personal injury under thenarrow rule in Rylands v Fletcher,111 although such liability can arise under the widerule.112

6.6 Escape

The requirement of escape is central to Blackburn J’s principle and was the basis ofthe House of Lords decision in Read v Lyons.113 However, escape had sometimes beentaken to mean escape from control, whereas in Read v Lyons the House of Lordsinterpreted the requirement to mean escape from the defendant’s land. Thatapproach accords with the narrow rule in Rylands v Fletcher but is unnecessary in thecontext of the wide rule. By retaining this strict interpretation of ‘escape’, courtshave rejected the opportunity to develop the wide rule in Rylands v Fletcher into abroader strict liability tort relating to hazardous substances or activities. Such a stephas been taken in American tort law. The Restatement (Second) of Torts containsno requirement of escape.114

6.7 Defences

In Rylands v Fletcher, Blackburn J mentioned the claimant’s default, and vis major orthe act of God115 as possible defences. Subsequently, the act of a third party116 and

109 Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 Weekly Law Reports 53; Hunter v Canary WharfLtd [1997] AC 655; Transco plc v Stockport MBC [2004] 1 All England Law Reports 589, 594 (Lord Bingham),607 (Lord Hobhouse).

110 Miles v Forest Rock Granite Co [1918] 34 TLR 500; Shiffman v Order of St. John [1936] 1 All England LawReports 557; J. Murphy, above n 25.

111 Transco plc v Stockport MBC [2004] 1 All England Law Reports 589, 594 (Lord Bingham), 602 (Lord Hoffmann).112 Miles v Forest Rock Granite Co [1918] 34 TLR 500; Shiffman v Order of St. John [1936] 1 All England Law

Reports 557 (obiter); Hale v Jennings Bros [1938] 1 All England Law Reports 579 (CA); Perry v Kendricks Transport[1956] 1 Weekly Law Reports 85. See also Benning v Wong [1969] 122 CLR 249. See J. Murphy, above n 25;K.A. Warner, Juridical Review (1998) 201, 216–7.

113 [1947] 156. In Transco, Lord Scott of Foscote held that the claim failed due to the absence of any escapefrom the defendant’s land. The land through which Transco’s pipeline ran and over which Transco had aneasement belonged to the defendant. However, it has been noted that prior to Read v Lyons, the requirement ofescape was ‘soft’ in the sense that escape from the defendant’s land was not always necessary: K.A. Warner,Juridical Review (1998) 201, 206–8.

114 Section 519. The Restatement (Third) of Torts is in draft.115 Carstairs v Taylor (1871) LR 6 Ex 217, 221 per Kelly CB (rat gnawing a hole in a wooden gutter box);

Nichols v Marsland (1876) LR 6 Ex D 1 (exceptionally heavy rainstorm); Superquinn Ltd v Bray UDC [1998] 3 IR542; cf Greenock Corporation v Caledonian Railway [1917] AC 556. See generally C.G. Hall (1993) 13 Ox Jo LegStud. 227. For a discussion of this defence in relation to cattle trespass and the scienter action, see G. Williams,above n 41 at 184, 336.

116 Rickards v Lothian [1913] AC 263 (act of a vandal who blocked a washbasin and turned on the tap). For a dis-cussion of this defence in relation to cattle trespass and the scienter action, see G. Williams, above n 41 at 181, 334.


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

7. Future Directions

As a result of the various weaknesses identified in Rylands v Fletcher, and without accept-ing that there are two rules in the case, the highest courts in the United Kingdom andAustralia have considered calls for its further development or abolition. In CambridgeWater, Lord Goff addressed the question of whether the rule in Rylands v Fletcher should:

. . . be treated as a developing principle of strict liability for damage caused by ultra-hazardousoperations, on the basis of which persons conducting such operations may properly be heldstrictly liable for the extraordinary risk to others involved in such operations?118

Lord Goff declined to follow this path for three reasons. First, such a developed rulewould logically apply to all damage resulting from the ultra-hazardous operations.However, (as we have seen) the earlier House of Lords decision in Read v J Lyons & CoLtd119 had effectively precluded such a development by confining liability underRylands v Fletcher to cases where the injury is caused by an escape from land under thedefendant’s control.120 Second, the Law Commission had expressed doubt about thedesirability of adopting a rule of strict liability for especially dangerous or ultra-hazardousactivity on the ground that uncertainties inherent in those concepts would make sucha rule too difficult to apply.121 Lord Goff considered that judges should not proceeddown a path where the Law Commission had feared to tread. Third, he observed that‘the protection and preservation of the environment is now perceived as being of cru-cial importance to the future of mankind’. In view of the volume and quality of legisla-tion being put in place in this field, he considered that developments in this areashould be left to Parliament rather than the common law.122

On the contrary, the majority of the High Court of Australia decided in Burnie PortAuthority v General Jones Pty Co123 that the time had come to abolish the rule in Rylands v

117 Green v Chelsea Waterworks Co (1894) 70 LT 547; Dunne v North Western Gas Board [1964] 2 QB 806.118 [1994] 2 Weekly Law Reports 53, 79.119 [1947] AC 156.120 Damages for personal injuries are no longer recoverable under the rule in Rylands v Fletcher: see Transco

above.121 Report of the Law Commission on Civil Liability for Dangerous Things and Activities (1970) (Law Com.

No 32) para 14–6. Fleming on the Law of Torts (LBC, 1992, 8th edn) at 327–8 favours such a development on thebasis that the cost of damage from such hazardous operations would have to be absorbed as part of theoverheads of the business rather than borne, in the absence of negligence, by the victim. See now Fleming(LBC, 1997, 9th edn) at 368–71.

122 Some support for Lord Goff’s approach comes from Markesinis and Deakin, above n 15 at 56: ‘For tack-ling these [complex problems which confront our modern society] we need new approaches, new ideas, andnew techniques. Thus, it may well be that in these days of “common law fatigue” the initiative must pass on tothe legislator’. Amongst other recent developments in Europe at that time were the Lugano Convention (theCouncil of Europe Convention on Civil Liability for Damage resulting from Activities Dangerous to the Envi-ronment), 21 June 1993, and the EC Green Paper on Remedying Environmental Damage [COM(93) 47final]. The letter eventually bore fruit as the Directive on Environmental Liability with regard to the Preventionand Remedying of Environmental Damage (2004/35/CE), but does not cover civil liability.

123 (1994) 120 ALR 42. See R.F.V. Heuston and R.A. Buckley, Law Quarterly Review (1994) 506; S. Dziobonand R. Mullender, Cambridge Law Journal (1995) 23; E. Fisher Journal of Environmental Law (1995) 216;K.A. Warner, Juridical Review (1998) 201; J. Murphy, above n 25.

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Fletcher in Australia. Henceforward, the rule was to be absorbed by the principles ofordinary negligence. The reasons given for this drastic step were (a) the uncertain-ties as to the content and application of the rule; (b) its progressive weakening byrestricting its scope largely by means of the non-natural user requirement;124 and(c) that the law of negligence had developed since Rylands v Fletcher and largely sup-planted it.

According to Mason CJ, the non-delegable duty of care which arose in many situa-tions and the fact that the standard of care required under the law of negligence var-ies with the risk involved meant it was highly unlikely that liability would not exist innegligence where it would exist under Rylands v Fletcher. Indeed, he pointed to LordMacmillan’s statement in Donoghue v Stephenson125 that depending on the magnitudeof the danger, the standard of care may involve ‘a degree of diligence so strict as toamount practically to a guarantee of safety’.

The approach taken in Burnie is all the more surprising because Australia had earl-ier espoused the wide rule in Rylands v Fletcher. In Benning v Wong,126 Windeyer J saidthat:

. . . to regard negligence as the normal requirement of responsibility in tort, and to look uponstrict liability as anomalous and unjust, seems to me to mistake present values as well as pasthistory. In an age when insurance against all forms of liability is commonplace, it is surely notsurprising or unjust if the law makes persons who carry on some kind of hazardous undertak-ing liable for the harm they do, unless they can excuse or justify it on some recognisedgrounds.

In the Transco case127 in 2003, the House of Lords faced the three-fold choice offollowing the Australian example and abolishing the rule in Rylands v Fletcher,extending the rule to a general principle of strict liability for hazardous substancesor activities, or retaining the rule while giving it as much certainty as possible. Per-haps unsurprisingly, the House of Lords chose the third course. The reasons givenby Lord Bingham for not going down the abolition route are as follows:

(a) There is a category of case, however small, in which it is just to impose liability withoutfault. An example is Cambridge Water if the damage had been foreseeable.

(b) Strict liabilities have been created by statute against a backdrop of the existing commonlaw. Examples are section 209 of the Water Industry Act 1991, which imposes strict liabil-ity on water undertakers, and Schedule 2 to the Reservoirs Act 1975, which assumes strictliability in the circumstances of Rylands v Fletcher.128

(c) ‘Stop-go’ is generally a bad approach to legal development. The House of Lords, there-fore, preferred to follow the lead taken in Cambridge Water.

124 This ignores the clarification of the non-natural user requirement by Lord Goff in Cambridge Water.125 [1932] AC 562 at 612.126 [1969] 122 CLR 249 at 304.127 [2004] 1 All England Law Reports 589.128 Lord Hoffman also referred to the examples of liability for pollution by the escape of waste: section 73(6)

of the Environmental Protection Act 1990, and liability for the escape of nuclear matter: section 7 of theNuclear Installations Act 1965. He thought that ‘it may have to be considered whether these and similar provi-sions create an exhaustive code of liability for a particular form of escape which excludes the rule in Rylands vFletcher’: Transco at 605. It should be noted that in general liability under section 7 of the NIA 1965 excludesany other liability: section 12(2). However, no such statutory exclusion applies under the other provisionsreferred to.


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

The upshot of the perceived uncertainties surrounding Rylands v Fletcher is that ithas had a chequered history in common law jurisdictions. However, only in Australiahas it been discarded entirely. In other common law jurisdictions such as Canada,Ireland and New Zealand, cases based on the rule in Rylands v Fletcher continue tocome before the courts. The general approach has been to follow the lead given bythe English courts in Cambridge Water.130 Consequently, the cases have been decidedunder the narrow rule only. There have been two successful claims in Canada inrecent years,131 whilst others have foundered on the traditional rocks which besetRylands v Fletcher litigation.132

Clearly, a niche has been found for the narrow rule in the common law world.Even in England, a recent case133 shows that it is possible for a claimant to succeedon the basis of Rylands v Fletcher, despite the cold water of the Transco case. On thecontrary, it seems that the wide rule has been consigned to the dustbin of legalhistory.

In the United States, however, the wide rule has had more success. As Flemingnotes, ‘after an at first cool reception, strict liability is now generally applied to“abnormally dangerous” activities; that is, those with inherent risks that cannot be

129 See Van Gerven, Lever and Larouche, Cases, Materials and Text on National, Supranational and Inter-national Tort Law (Hart Publishing, 2000) at 204–5. It is interesting that, despite the criticisms of Rylands vFletcher made in common-law jurisdictions, Van Gerven considers that ‘it is under English law that the mostdeveloped of these regimes can be found, consisting in the tort of nuisance and the rule in Rylands v Fletcher’.However, he continues that ‘the relationship of [these torts] with one another and with the tort of negli-gence is only now being authoritatively settled through cases such as Cambridge Water Co and Hunter v CanaryWharf’.

130 See, e.g., Smith Bros Excavating Windsor Ltd v Price Waterhouse Ltd [1994] Ont. Sup CJ LEXIS 1034(Canada); Hamilton v Papakura DC [2002] 3 New Zealand Law Reports 308 (New Zealand); and Superquinn Ltd vBray UDC [1998] 3 IR 542 (Ireland).

131 Croft v Nova Scotia Power Inc [2003] 125 All Canada Weekly Summaries (3d) 740 (Award of damages upheldby the Nova Scotia Supreme Court. The plaintiff’s fishing equipment on his own land was damaged by floodingcaused by a sudden rise in the river level due to the operation of the company’s dam and reservoir system);Morassutti v Lanoue (2000) 96 All Canada Weekly Summaries (3d) 1084 (Damages awarded by the Ontario Supe-rior Court of Justice because the plaintiff’s tomatoes ripened late due to spray from a herbicide, glyphosphate,spread non-negligently by the defendant on its own land, drifting to the plaintiff’s land).

132 Hoffman v Monsanto Canada Inc [2005] 139 All Canada Weekly Summaries (3d) 436 (Genetically modifiedcanola seed was held by the Saskatchewan Queen’s Bench not to be a dangerous substance); Alberta v Hay[2002] 112 All Canada Weekly Summaries (3d) 655 (Fire for the purpose of normal husbandry was held by theAlberta Queen’s Bench to be natural user); John Campbell Law Corp v Strata Plan 1350 [2001] 108 All CanadaWeekly Summaries (3d) 930 (The British Columbia Supreme Court held that the use of a sewer pipe whichbecame blocked was a natural user of the defendant’s land); Hamilton v Papakura DC [2002] 3 New Zealand LawReports at 308 PC (Damage was caused to cherry tomato crops by hormone herbicides present in the water sup-ply. This was due to contractors spraying gorse in the catchment area for the town’s water supply. The PrivyCouncil held that the damage was not foreseeable); BP Oil New Zealand Ltd v Ports of Auckland Ltd [2004] 2 NewZealand Law Reports at 208 (A claim by a landlord against a tenant in relation to contamination of the tenantedland failed under Rylands v Fletcher in the High Court of New Zealand—though it succeeded on othergrounds—on the basis that there had been no escape); Superquinn Ltd v Bray UDC [1998] 3 IR 542 (The failureof a dam due to a violent storm which increased the volume of water in a river and thereby contributed toflooding was held by the Irish High Court not to give rise to liability under Rylands v Fletcher on the ground thatthe Act of God defence applied).

133 LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065 (TCC).

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eliminated by the exercise of reasonable care’.134 A notable feature of the rule is thatliability arises ‘for harm to the person, land or chattels of another resulting from theactivity’ despite the exercise of the utmost care.

If it is appreciated that there are two rules in Rylands v Fletcher rather than onlyone, many of the difficulties and uncertainties which so troubled Mason CJ in Burniefall away. A clearer picture emerges which should enable courts to make a principledchoice between the wide and narrow rules which best serves the needs and environ-mental circumstances of their jurisdiction.

It remains to consider whether there should be a place in the legal firmament forstrict liability similar to the wide rule. If so, how does it relate to the general schemeof environmental law? It is suggested that strict liability does have a role to play inthe sphere of dangerous activities, a view espoused by several academic writers135 aswell as the Pearson Commission.136 The reasons are five-fold. First, as a matter of jus-tice, those who undertake dangerous activities rather than the victim, should bear therisk of resulting harm, irrespective of whether negligence can be established. Sec-ond, internalising the costs of dangerous activities promotes economic efficiency byencouraging the operator to minimise those costs. Third, strict liability is consistentwith the ‘polluter pays’ principle in the environmental arena. Most of the case lawon Rylands v Fletcher deals with environmental questions. Fourth, strict liability mayprovide a better incentive for avoiding environmental harm from dangerous activi-ties than a fault-based liability regime.137 Fifth, the current position creates an anom-aly whereby a dangerous activity can give rise to strict liability for property damageunder the narrow rule in Rylands v Fletcher and nuisance, but only fault-based liabilityfor personal injury.138 That position places more value on real property than humanlife.

Inevitably, some of this reasoning runs into a hail of criticism. With regard to thefirst point, it is said that it is not clear why an activity should attract strict liabilityrather than fault liability simply because it is extra-hazardous.139 Indeed, that line ofthought has driven Fleming to suggest the wisdom of extending strict liability tocommon hazards such as motoring and flying.140 However, there does seem to be jus-tice in distinguishing between dangerous/extra-hazardous activities on the one

134 Fleming on the Law of Torts, above n 121. C.O. Gregory (1951) 37 Virginia LR 359; see also Prosser Wadeand Schwarz, Cases and Materials on Torts (Foundation Press, 1982, 7th edn) Chapter 14, which even carriesphotographs of Blackburn J. and Lord Cairns; E. Reid, ‘Liability for Dangerous Activities: A Comparative Anal-ysis’, 48 International and Comparative Law Quarterly (1999) 731.

135 For example Fleming on the Law of Torts, above n 121 at 368–71; Markesinis and Deakin, above n 15 at544–7; Waite, ‘The Quest for Environmental Law Equilibrium’, 7 Environmental Law Review (2005) 34–62, 60.For the opposite view, see P. Cane, ‘Are Environmental Harms Special?’, 13 Journal of Environmental Law(2001) 3, 13.

136 Cmnd 7054—I (1978).137 Evidence for this assertion is hard to come by. However, the removal of the proof of fault requirement

inevitably makes liability a more likely prospect. In the UK, although civil claims for environmental damage arelikely to be less frequent than regulatory action, levels of damages may be much higher than expenditure oncompliance with regulatory requirements. In Blue Circle Industries Plc v Ministry of Defence [1999] EnvironmentalLaw Reports 22 (CA), damages in the region of £6 million were awarded in respect of losses consequent on dam-age caused by pollution originating on adjoining property. The cost of clean-up was about half a millionpounds.

138 Transco plc v Stockton MBC [2004] 1 All England Law Reports 589, 594 (Lord Bingham); 602 (LordHoffmann).

139 P. Cane, above n 135 at 13.140 Fleming on the Law of Torts, above n 121 at 370.


hand (which may cause harm even if carefully conducted) and ordinary activities(which are safe if carefully carried out) on the other. The difficulty (and this isanother criticism) is where to draw the line.141

Such problems are inherent in the vague formulation in the US law whichimposes strict liability for damage caused by any ‘abnormally dangerous activity’ withimprecise criteria such as a high degree of risk of harm and the likelihood that anyharm will be great.142 That objection led the Pearson Commission to propose twocategories where strict liability should be imposed: those which require supervisionbecause of their unusually dangerous nature, and those which pose a risk of seriousand extensive casualties, e.g. public bridges and stadiums. To overcome the difficultyof imprecision, the Commission proposed listing that included activities covered bystatute.143

It can still be said that whether categories are vague, requiring precision through caselaw, or are detailed in regulation, the problem of uncertainty at the fringes will remain.However, that is a fact of life in any legal system which attempts to make distinctions. Itshould not be a reason for avoiding principled distinctions where appropriate.

Another possibility (similar to the Pearson Commission’s proposal) which mayreduce the grey areas would be to impose strict liability in relation to activities whichare controlled under particular environmental legislation. A limited approach couldbe taken by including only those activities controlled under IPPC144 or COMAH.145

Alternatively, a wider selection of environmental legislation could be used, such asthat in Annex III of the Environmental Liability Directive.146 The former approach ismore likely to be acceptable politically, and is arguably more in keeping with thespirit of Rylands v Fletcher. In any case, reservoirs147 and water mains,148 should also beincluded to maintain consistency with the present coverage of the rule.

A version of the wide rule along these lines (or the statutory equivalent) would notrepresent a confusion of the regulatory and compensatory functions of the law, butrather a degree of alignment which would benefit both. Strict civil liability mayencourage compliance with regulatory law. On the contrary, regulatory controls mayhelp to ensure that sufficient controls are in place to prevent the harm which wouldgive rise to strict civil liability.

This proposal is consistent with the piecemeal statutory strict liability introducedon a sectoral basis in several environmental statutes.149 It is notable that these statu-tory provisions were introduced before the demolition of the wide rule in Rylands vFletcher by the House of Lords in the Cambridge Water and Transco cases. It is, therefore,

141 It is arguable that driving motor cars should attract strict liability on that basis. On the other hand, driv-ing cars is such an integral part of everyday life that it can be argued that people should bear the risk of non-negligent accidents.

142 The Restatement (Second) of Torts, s 519 and 520.143 Cmnd 7054—I (1978) s 1656. The Lugano Convention (the Council of Europe Convention on Civil Lia-

bility for Damage resulting from Activities Dangerous to the Environment) 21 June 1993, also provides for lia-bility in respect of a tightly drawn list of ‘dangerous activities’.

144 Directive 91/61/EC; Pollution Prevention and Control (England and Wales) Regulations 2000, SI 2000,No 1973 (as amended).

145 Directive on the control of major accident hazards involving dangerous substances (96/82/EC); Controlof Major Accident Hazards Regulations 1999, SI 1999, No 743.

146 Directive 2004/35/CE.147 Reservoirs Act 1975, Schedule 2.148 Liability already arises under Section 209 Water Industry Act 1991.149 See footnote 128 and text thereto.

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not surprising that in each case strict liability applies for personal injury as well as forother types of damage.150 Lord Bingham in Transco considered these statutory liabili-ties were created against a backdrop of the existing common law. As we have seen,he considered them to be one reason for not abolishing the (narrow) rule in Rylands vFletcher altogether. He might, perhaps with greater force, have suggested their exist-ence as a reason for maintaining (or rather restoring) the wide rule.

Nonetheless, action from the English courts is probably unlikely in view of therecent emphatic pronouncements on the subject by the House of Lords.151 In theabsence of bold action from the judiciary, legislation will be required if the wide rulein Rylands v Fletcher is ever to rise, Phoenix-like, from the funeral pyres of CambridgeWater and Transco.

150 In the case of waste and nuclear matter, liability for personal injury is expressly imposed by s 73(6) of theEnvironmental Protection Act 1990 and s 7 of the Nuclear Installations Act 1965 respectively. Liability undersection 209 of the Water Industry Act 1991 is for ‘loss or damage’ which seems wide enough to include per-sonal injury. However, the only reported case on section 209, Aerospace Publishing Ltd v Thames Water Utilities[2006] All England Law Reports(D)39 (Jan) deals with damage to chattels. On the other hand, the ReservoirsAct 1975, Schedule 2 merely precludes the statutory authority defence in actions for damage or injury in pro-ceedings where liability would otherwise have arisen. That presumes the existence of the wide rule in Rylands vFletcher.

151 However, signs of ‘common law fatigue’ in this area must be seen in the context of much greater agilitywhen judges consider that there is a serious lacuna in the common law. A good example is the relaxation of therules on causation in mesothelioma cases: Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32.

Deconstructing Rylands v Fletcher

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