The Law Of Tort Law General Essay

Published Date: 02 Nov 2017

The doctrine of strict liability was embraced in Blackburn J’s judgment in the renowned case of Rylands v Fletcher. The defendants were mill owners who hired independent contractors to build a reservoir. Unbeknownst to them the contractors built the reservoir over a disused mineshaft, which collapsed and flooded the plaintiff’s coal mine. In 1860, when John Rylands anticipated building a water reservoir for his mill, he was unaware of the effect that this would have on the common law of tort for centuries to come. The chaotic litigation relating to the escape of water from Rylands’ reservoir to Fletcher’s mine continued in the courts from 1861-1868.

The rule in Rylands v Fletcher, as stated by Blackburn J, is as follows: "We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape."

For the defendant to be held liable under this rule, negligence need not be established, rather the following elements must be satisfied:

a person brings something on his land and accumulates / keeps it there;

this is done for his or her own purpose;

the thing in question is likely to do mischief should it escape;

the damage done is a natural consequence of the escape.

The judgment of Blackburn J was approved by the House of Lords. Lord Cairns added the criterion of the ‘non-natural user’, which has subsequently been taken to be an additional requirement for the application of the rule. Now however, the non-natural user criterion has become the main mechanism for setting some appropriate limits to the rule. Its consent may now be in the process of developing in a manner uncluttered by confusion over the origins, purpose, and nature of the rule. But because of other limitations to the rule – particularly in the form of defences, but also through the close association with other forms of nuisance – this development is probably too late to convert Rylands v Fletcher into a workable rule of strict liability.

As in nuisance, which is also a strict liability tort, there are various defences available to the defendant under the rule in Rylands v Fletcher. These defences limit the rule as a strict liability. Should the plaintiff consent; through the plaintiff’s own default; the act of a third party; an Act of God; or with Statutory Authority, strict liability is not applicable.

In order to be found liable under the rule in Rylands v Fletcher, an escape is required. This is one of the most artificial requirements of the rule, and the retention of this requirement illustrates clearly that the rule has not developed into a general principle of strict liability. In Read v Lyons, the court decided that an incident that occurs within the confines of a person’s land will not satisfy the requirements of the rule. Fleming described this as ending the possibility of a general rule developing based on Rylands v Fletcher: "The most damaging aspect of the decision in Read v Lyons was that it prematurely stunted the development of a general theory of strict liability for ultra-hazardous activities." [1] 

Blackburn J expressly differentiated this ‘true rule of law’ from the alternative possibility that liability in the case might have been based upon proof of negligence. The contradiction between negligence liability and the rule in Rylands v Fletcher requires some attention to detail. The manner in which the rule was stated by Blackburn J seems designed to appeal to a simple sense of fairness: the thing that escapes is accumulated for the defendant’s own purpose; therefore the defendant – not the plaintiff – must take the consequences should that thing escape. Negligence liability as seen in Donoghue v Stevenson also had simple intuitive appeal. In terms of intuitive fairness, the rule in Rylands v Fletcher makes sense with its idea of ‘keeping things at one’s peril’. We do not primarily regard the damage as the result of an escape. This is critically different to nuisance, where the interference is a result – sometimes an inevitable result – of the conflict between two uses of land. The rule in Rylands v Fletcher differs from both negligence and nuisance in suggesting that the risks in question may legitimately be run.

_____ Cambridge water co

The rule in Rylands v Fletcher has developed immensely since its origin in 1868? It is seen as a limb of the tort of private nuisance in the English and Welsh courts. Australian courts have merged the rule with negligence, giving an alternative route to liability without personal fault in the realm of certain hazardous activities. The United States of America established a separate specific and limited principle of strict liability regarding dangerous activities. This is evidential that the rule in Rylands v Fletcher has indeed developed since the 1800s.

START HERE: During its 1993-94 session, the British House of Lords decided what one observer has described as "the most important legal case in the UK this century." n13 This seminal decision, Cambridge Water Co. v. Eastern Counties Leather plc, n14 not only redefined the limits of the common law tort rule in Rylands v Fletcher, n15 it also established the extent to which common law torts could be used to establish strict liability in English cases of historic pollution. n16 In a surprise decision, a unanimous House of Lords, speaking through Lord Goff, introduced a foreseeability test into the strict liability rule in Rylands v.Fletcher. n17

Lord Goff's formulation of an objective foreseeability test to limit strict liability under Rylands v. Fletcher and private nuisance law is instructive for judges and legislators on both sides of the Atlantic. The foreseeability test provides a fair and reasonable standard for applying retroactive strict liability. In Cambridge Water, Lord Goff sets out the framework to a sound policy for addressing liability in cases of historic pollution.

Rylands v. Fletcher has been traditionally understood in both England and the United States to stand for the proposition that anyone who brings onto her land something likely to cause damage if it escapes is strictly liable to any person suffering loss or damage resulting from an escape. n18 According to this formulation, if the rule in Rylands v. Fletcher was deemed to apply, then a plaintiff did not have to prove that the damage in question was foreseeable, as it was a strict liability tort. n19 Cambridge Water turns on its head this traditional understanding of foreseeability in the context of Rylands v. Fletcher.

The House of Lords, in Cambridge Water, ultimately concluded that "it would… lead to a more coherent body of common law principles if the rule [in Rylands] were to be regarded essentially as an extension of the law of nuisance…"n56  Cambridge Water effectively holds that "Rylands v Fletcher was not a separate cause of action in its own right, but was, in fact, a specific application of the law of nuisance." n57 Following Cambridge Water, establishing foreseeability becomes fundamental to establishing liability under the rule in Rylands v Fletcher.

In reaching his decision, Lord Goff first examined the "close relationship between nuisance and the rule in Rylands v Fletcher."n58 He found striking similarities in the "reasonable user" requirement in nuisance and the "non-natural use" principle in the rule in Rylands v Fletcher. n59 He analysed the role of foreseeability of damage in nuisance law:

"…it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user. But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in the past sixty years points strongly towards a requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence."n60

Thus, the House of Lords surmised that "foreseeability of damage of the relevant type was a condition precedent for liability." n61 Lord Goff then considered the appropriateness of foreseeability under the strict liability rule in Rylands v Fletcher.

Typically, the rule in Rylands v Fletcher has been understood to mean that the plaintiff does not have to prove fault or foreseeability to prove liability. n62 However, Lord Goff's interpretation departs from this understanding. Rather than looking simply to the historical interpretation of the Rylands case, Lord Goff looked to Justice Blackburn's opinion in Fletcher v. Rylands, which was affirmed by the House of Lords.n63 The Lords noted that the basis for strict liability under the rule in Rylands v. Fletcher comes from Justice Blackburn's conclusion on the true rule of law.

However, as noted by Lord Goff, in that same passage Justice Blackburn also "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],' and the liability to 'answer for the natural and anticipatedconsequences.'" n65 This leads Lord Goff to observe that:

"the general tenor of [Justice Blackburn's] statement of principle is therefore that knowledge, or at least foreseeability 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." n66

Thus, Lord Goff concludes that it is "appropriate now to take the view that foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in damages under the rule [in Rylands v Fletcher]." n67 This qualification certainly weakens the threat of strict liability, particularly for historic contamination.

In addition to determining that foreseeability was a prerequisite to liability under Rylands v Fletcher, the House of Lords also considered whether Rylands v Fletcher should be "treated as a developing principle of strict liability from which can be derived a general rule of strict liability for damage caused by ultra-hazardous operations…"n68 Lord Goff noted the development of such a regime in the United States "as can be seen from § 519 of the Restatement of Torts (2d) vol 3 (1977)." n69 He concluded  that the House of Lords decision in Read v. J. Lyons & Co. n70 effectively limited the application of Rylands v. Fletcher to injuries "caused by an escape from land under the control of the defendant."n71 Finally, rather than developing a separate strict liability principle for ultrahazardous activities out of Rylands v Fletcher, the House of Lords effectively reincorporated it back into the law of nuisance: "It would moreover lead to a more coherent body of common law principles if the rule were to be regarded essentially as an extension of the law of nuisance to cases of isolated escapes from land…"n72 The House of Lords in England therefore completely restructured the rule in Rylands v Fletcher.

On the contrary, the majority of the High Court of Australia decided in Burnie Port Authority v General Jones Pty Co123 that the time had come to abolish the rule in Rylands v Fletcher in Australia. Henceforward, the rule was to be absorbed by the principles of ordinary negligence. The reasons given for this drastic step were (a) the uncertainties as to the content and application of the rule; (b) its progressive weakening by restricting 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 supplanted it.