Does Rylands v Fletcher serve any useful purpose in the modern day?

The case of Rylands v Fletcher is considered to be one of the landmark judgements in English law. The rule is said to have given the common law “one of the most widely discussed and influential generalisations” (Deakin, et al., 2012, p. 518). This generalisation relates to the principle of strict liability, an innovation at the time because it allowed liability to be imposed outside of the accepted tortious liability standards at the time.

Simply put, the rule in Rylands v Fletcher, provides that if any person in the course of non-natural use of his land accumulates on his land anything that is likely to do mischief if it escapes from the land, such a person is liable for any direct damage caused by such an escape (Rylands v Fletcher, (1868) LR 3 HL 330, 1868). As it was, the liability that was imposed in the Rylands case was an innovation because such a liability could not be imposed under the existing torts at the time. There could not be a trespass because the flooding caused by reservoir burst was not direct and immediate; nuisance could not apply because the nature of the act was not continuous and recurrent; negligence for the act of independent contractor was not applicable (Deakin, et al., 2012, p. 503).

There are four requirements for liability as provided by Blackburn J. judgement in Rylands v Fletcher. These requirements are:

1. Bringing of something onto the land where it is collected and kept;
2. Such collection and keeping of something is for the own purpose of the individual bringing it;
3. Likelihood of mischief if the thing collected escapes from the land; and
4. Damage caused by the escape is the natural consequence of such an escape (Steele, 2014, p. 668).

In more than the century and the half since the Rylands rule was first propounded, the law of nuisance as well as negligence has grown to a point where it is argued that the rule made in Rylands can be submerged within either of these categories of tort. This would imply that there is no modern significance for the rule of Rylands v Fletcher. In any case, it is contended that the twentieth century has shown that the Rylands rule has lost much of its significance (Nolan, 2005). In fact, the House of Lords denied the existence of any such rule (Read v Lyons [1947] AC 156, 1947). The House of Lords refused to abrogate the independent existence of the Rylands rule in order to assimilate it to the tort of negligence (Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 , 2004). At the same time, Lord Hoffman did remark that the counsel would be hard-pressed to find cases post the Second world war wherein a plaintiff had succeeded in a claim under the Rylands rule. As pointed out, the statement of Lord Hoffman was not actually accurate because there have been cases involving application of the Rylands’ rule where strict liability for fire was established by applying both the principles of the tort of negligence and the Rylands rule (Deakin, et al., 2012, p. 519). Thus, in a case, the court found both the negligence tort principles and the Rylands rule to be satisfied on the facts (LMS International Ltd. v Styrene Packaging & Insulation Ltd, [2006] BLR 50, 2006).

The House of Lords modified its position later but also held that at best the Rylands rule can be considered to be an offshoot of the private nuisance tort (Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53, 1994). This ‘offshoot theory’ was also accepted by the House of Lords more recently (Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 , 2004).

In the same year that Cambridge Water case was decided by the House of Lords, another Australian High Court case held that the Rylands rule should be considered to be part of negligence ( Burnie Port Authority v General Jones Pty Ltd, (1994) 179 C.L.R. 520, 1994). There is an early 19th century case, which seems to give support to the view point that negligence principles were aligned to the Rylands rule (Vaughn v Menlove (1837) 132 ER 490 (CP), 1837). In the Vaughn case, hay stacked on the property of the defendant caught fire and damaged the property of the plaintiff for which the plaintiff successfully brought action under the negligence law. It is relevant that at no point in the judgement in the Vaughn case, is strict liability mentioned (Simpson, 1984).

The offshoot theory propounded in Cambridge Water and reiterated in Transco plc, was also put forth by Newark in an article wherein he contended that the Rylands decision was wrongly appreciated and that the case was a rare example of the use of principles of nuisance to an isolated case of escape (Newark, 1949). Newark’s (1949) thesis argued that Rylands rule was a part of the ordinary nuisance law and indeed there is some judicial acceptance of this thesis. In one case soon after Cambridge Water, Judge Peter Bowsher Q.C. said that, “In view of the latest authority, it is difficult to separate off Rylands v Fletcher and nuisance” (Ellison v Ministry of Defence (1996) 81 B.L.R. 101, 1996, p. 117). In the English law, there is more acceptance of Rylands rule being a part of the law of nuisance as seen in the Cambridge Water judgement. The reason for more acceptance of inter connectivity of nuisance and Rylands principle is that both are centred in tort related to land (Murphy, 2004). However, an essential difference between the two is that However, an essential difference between the two is that Rylands principle does not require proprietary interest in land as opposed to nuisance law (Murphy, 2004, p. 646). In Rylands the emphasis was on the defendant’s land. Another difference is that the law of nuisance concerns enjoyment of land whereas concerns enjoyment of land whereas Rylands case concerns physical damage to the land (Murphy, 2004, p. 650). Finally, the reasonable user test involved in nuisance law is actually and manifestly different from non-natural user of land as seen in the Rylands rule (Murphy, 2004, p. 655).

There is a third point of view, which sees the Rylands rule as having a capacity to be a distinct rule within the tort law (Nolan, 2005). Two arguments are advanced within this perspective: first, placing Rylands rule within the confines of nuisance law will add to the confusion within the already intellectually confusing area of the law of nuisance, and second, subsuming the Rylands rule within the negligence law will deprive claimants of legal weaponry for actions falling within the Rylands rule (Murphy, 2004).

In recent times, the English courts had an opportunity to use the Rylands rule for the purpose of remedying a loss felt by a claimant by the leak of water from the defendant’s land (Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 , 2004). However, the court refused to apply the principle saying that the claim did not fall within the scope of the rule (Bagshaw, 2004). Nor was the court prepared to submerge the rule with the principles of negligence (Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 , 2004). The court instead held that the rule was properly a part of the law of nuisance. However, treating the Rylands rule to be a part of nuisance law may not be a solution to certain cases.

The Rylands rule was designed to meet the particular needs of claimants under specific circumstances and these needs are still relevant in the present times (Murphy, 2004). The increasing use of hazardous activities and processes expose people to the injuries that can sometimes be compensated under the law of tort, by applying the peculiar principles of strict liability that were laid down in Rylands. An example can be seen in the GM seeds usage and possibility of escape of seeds and consequent harm to organic farmers whose entire USP is based on the non-use of GM seeds and a focus on natural organic methods of farming (Lee & Burrell, 2002). It is contended that such farmers would fail to get remedy under the law of negligence because property damage would not be evident for the law to apply (Lee & Burrell, 2002). The farmers may however, get reprieve under either the nuisance law or the Rylands rule. However, under the nuisance law, reasonable user test may not be successfully applied for by the farmer as the non GM farmer would have to show that their enjoyment of farm has been interfered with, which is not the case here (Murphy, 2004). Therefore, ordinary nuisance law may also not provide a solution to the problem of the non GM farmer or others. It is concluded that Rylands should be allowed to develop independently.

Bibliography

• Bagshaw, R., 2004. Case Comment Rylands confined. Law Quarterly Review .
• Burnie Port Authority v General Jones Pty Ltd, (1994) 179 C.L.R. 520 (1994).
• Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 (1994).
• Deakin, S. F., Johnston, A. & Markesinis, B., 2012. Markesinis and Deakin's Tort Law. 7 ed. Oxford: Oxford University Press.
• Ellison v Ministry of Defence (1996) 81 B.L.R. 101 (1996).
• Lee, M. & Burrell, R., 2002. Liability for the escape of GM Seeds: pursuing the ‘victim’?. The Modern Law Review, 65(4), pp. 517-537.
• LMS International Ltd. v Styrene Packaging & Insulation Ltd, [2006] BLR 50 (2006).
• Murphy, J., 2004. The merits of Rylands v Fletcher. Oxford Journal of Legal Studies, pp. 643-669.
• Newark, F., 1949. The boundaries of nuisance. Law Quarterly Review, 65(260), pp. 480-490.
• Nolan, D., 2005. The distinctiveness of Rylands v Fletcher. Law Quarterly Review , Volume 121, p. 421.
• Read v Lyons [1947] AC 156 (1947).
• Rylands v Fletcher, (1868) LR 3 HL 330 (1868).
• Steele, J., 2014. Tort Law: Text, Cases, and Materials. 3 ed. Oxford : Oxford University Press.
• Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 (2004).
• Simpson, A., 1984. Legal Liability for Bursting Reservoirs: The Historical Context of" Rylands v. Fletcher". The Journal of Legal Studies, 13(2), pp. 209-264.
• Vaughn v Menlove (1837) 132 ER 490 (CP) (1837).

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