Nuisance and the rule in Rylands v Fletcher - Thing likely to cause mischief if it escapes

Learning Outcomes

This article explains the rule in Rylands v Fletcher, a specific tort related to the escape of dangerous things from land. You will learn the essential elements required to establish liability under this rule, including the accumulation of a thing likely to cause mischief, non-natural use of land, escape, and resulting foreseeable damage. You will also understand the key defences available. This knowledge will assist you in applying the relevant legal principles to SQE1 assessment questions concerning liability for escaping substances.

SQE1 Syllabus

For SQE1, you need to understand the principles governing liability under the rule in Rylands v Fletcher. This involves applying the elements of the tort to specific factual scenarios and identifying relevant defences. Pay attention to:

• The requirement for the defendant to bring something onto their land for their own purposes.
• The nature of the thing being 'likely to do mischief if it escapes'.
• The concept of 'non-natural use' of land and how it has been interpreted.
• The necessity of an 'escape' from the defendant's land to land not under their control.
• The requirement that the damage caused by the escape must be reasonably foreseeable.
• The defences available to a claim under the rule.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which element is NOT required to establish liability under the rule in Rylands v Fletcher?
   1. Accumulation of a thing on the defendant's land.
   2. Non-natural use of the land.
   3. Negligence on the part of the defendant.
   4. Escape of the thing causing damage.
2. Following Cambridge Water Co v Eastern Counties Leather plc, what type of damage must be foreseeable for a claim under Rylands v Fletcher to succeed?
   1. Any type of damage.
   2. Only personal injury.
   3. The kind or type of damage that actually occurred.
   4. Only damage to the defendant's own land.
3. Which of the following constitutes a valid defence to a claim under Rylands v Fletcher?
   1. Coming to the nuisance.
   2. The escape was caused by an unforeseeable act of a stranger.
   3. The activity causing the escape was of public benefit.
   4. The defendant used reasonable care to prevent the escape.

Introduction

While private nuisance deals with ongoing interferences, the rule established in Rylands v Fletcher addresses liability for isolated escapes of things brought onto land. This distinct tort imposes strict liability, meaning the defendant can be liable even without negligence, provided certain conditions are met. Originating from the case Rylands v Fletcher [1868] LR 3 HL 330, the rule applies where something likely to cause mischief escapes from land under the defendant's control due to a non-natural use of that land, causing foreseeable damage. For the SQE1 exam, you must understand the components of this rule and how it differs from negligence and nuisance.

The Rule in Rylands v Fletcher

The House of Lords in Rylands v Fletcher established a principle of strict liability. Blackburn J, in the Court of Exchequer Chamber, stated the rule as: ‘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 own risk, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape’. Lord Cairns, in the House of Lords, added the requirement that the defendant must be making a 'non-natural use' of their land.

To establish liability under this rule, the claimant must prove the following elements:

1. The defendant brought something onto their land and accumulated it there.
2. The thing was likely to do mischief if it escaped.
3. The defendant made a non-natural use of their land.
4. The thing escaped from the defendant's land.
5. The escape caused foreseeable damage of the relevant type.

Bringing onto land and accumulation

The rule applies only to things that the defendant voluntarily brings onto and keeps on their land. It does not apply to things naturally present on the land.

Key Term: Accumulation
Deliberately bringing onto land and keeping a substance or thing which is not naturally there.

For example, liability could arise for large quantities of water artificially stored in a reservoir (as in Rylands itself), but not for the escape of rainwater that naturally accumulates on land. The accumulation must be for the defendant's own purposes.

Likely to do mischief if it escapes

This element focuses on the potential for harm if the accumulated substance escapes. The thing itself need not be inherently dangerous, but it must be likely to cause damage if it escapes the defendant's control.

Key Term: Likely to do mischief
Capable of causing damage or harm if it escapes from the land where it is kept.

Examples from case law include large volumes of water, electricity, gas, fumes, and even things like explosives or potentially harmful animals if kept in large numbers. The assessment depends on the circumstances; storing domestic quantities of water or fuel is unlikely to satisfy this, but storing industrial quantities might. In Transco plc v Stockport MBC [2004] 2 AC 1, the House of Lords held that water supplied in bulk through domestic pipes was not 'dangerous' or likely to do mischief in this context.

Non-natural use of land

This is a key control mechanism for the tort. Lord Cairns added this requirement in the House of Lords appeal of Rylands v Fletcher. It means the defendant's use of the land must be extraordinary, unusual, or special, bringing with it increased danger to others, compared to the ordinary use of land in that locality.

Key Term: Non-natural use
An extraordinary or unusual use of land bringing with it increased danger, judged according to the standards appropriate at the relevant time and place.

What constitutes non-natural use is judged by the standards prevailing at the time. In Rickards v Lothian [1913] AC 263, water escaping from ordinary domestic plumbing was held to be a natural use. The House of Lords in Transco confirmed that the piping of water to a block of flats was a natural use. Contrast this with the storage of industrial chemicals (Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264) or bulk storage of water in Rylands itself, which were considered non-natural uses. The use must involve bringing exceptional risk.

Escape

There must be an 'escape' of the mischievous thing from land over which the defendant has control to land over which they do not have control.

Key Term: Escape
The movement of the accumulated thing from the defendant's premises to a place outside their occupation or control.

In Read v J Lyons & Co Ltd [1947] AC 156, an explosion occurred within the defendant's munitions factory, injuring an inspector. There was no liability under Rylands v Fletcher because the explosion (the dangerous thing) did not escape the confines of the defendant's premises.

Foreseeable Damage

Following Cambridge Water, the defendant is only liable for damage that is a reasonably foreseeable consequence of the escape. The type of damage must be foreseeable, even if the exact way it occurs is not.

In Cambridge Water, the defendant stored chemicals for its leather tanning business. Over time, small spills seeped through the factory floor into the ground, eventually polluting the claimant's water supply borehole miles away. The House of Lords held that while the storage was a non-natural use, the resulting damage was not foreseeable when the spills occurred. Therefore, the defendant was not liable under Rylands v Fletcher.

Worked Example 1.1

Ahmed operates a small chemical storage facility on his land, adjacent to Beatrice's organic farm. He stores industrial solvents in large tanks. Due to unusually heavy rainfall causing unexpected ground subsidence, one tank ruptures, and solvents leak onto Beatrice's land, contaminating her soil and crops. Beatrice wants to sue Ahmed.

Assuming the storage of large quantities of solvents is deemed 'non-natural use', is Ahmed likely to be liable under Rylands v Fletcher?

Answer: Yes, potentially. Ahmed brought the solvents (likely to do mischief) onto his land and accumulated them. This storage could be considered non-natural use. The solvents escaped and caused damage. The key remaining issue is foreseeability of damage. If contamination of adjacent land by escaping solvents was a reasonably foreseeable type of damage, Ahmed could be liable under the rule, even if the specific cause (subsidence due to rain) was perhaps unusual. He might raise the defence of Act of God if the rainfall was truly exceptional and unforeseeable.

Defences

Even if the elements of the tort are established, several defences are available:

1. Consent of the Claimant: If the claimant expressly or impliedly consented to the presence of the thing accumulated by the defendant, they cannot sue if it escapes. This often arises where the accumulation benefits both claimant and defendant (e.g., water supply for a block of flats).
2. Act of God: An escape caused by natural forces so exceptional and unforeseeable that no reasonable human foresight could anticipate or guard against it (e.g., truly unprecedented rainfall or earthquake). See Nichols v Marsland (1876).
3. Act of a Stranger: If the escape is caused by the unforeseeable act of a third party over whom the defendant has no control. See Perry v Kendricks Transport Ltd [1956].
4. Statutory Authority: If the defendant's activity is authorised by statute, this may provide a defence, provided the escape is an inevitable consequence of that activity. See Green v Chelsea Waterworks Co (1894).
5. Default of the Claimant: If the escape is caused wholly by the claimant's own fault, this is a complete defence. If the claimant contributed to the damage through their own fault, damages may be reduced for contributory negligence (Law Reform (Contributory Negligence) Act 1945).

Exam Warning

Remember that liability under Rylands v Fletcher is strict, not absolute. The defendant is liable without proof of negligence, but only if all elements of the tort are met, and subject to defences. Also, since Cambridge Water, the damage must be of a foreseeable type. Do not confuse strict liability with liability in all circumstances.

Revision Tip

Focus on distinguishing Rylands v Fletcher from private nuisance. Key differences include the need for an 'escape' in Rylands and the fact that Rylands can apply to isolated incidents, whereas nuisance usually requires a continuing state of affairs. Also, note that personal injury is not recoverable under Rylands.

Key Point Checklist

This article has covered the following key knowledge points:

• The rule in Rylands v Fletcher imposes strict liability for damage caused by the escape of dangerous things from land.
• The defendant must have brought something onto their land for their own purposes and accumulated it.
• The thing accumulated must be likely to do mischief if it escapes.
• The use of land must be non-natural (extraordinary or unusual).
• There must be an escape from the defendant's land to land outside their control.
• The damage caused must be of a type that was reasonably foreseeable.
• Personal injury is not recoverable under the rule.
• Defences include consent, Act of God, act of a stranger, statutory authority, and claimant default/contributory negligence.

Key Terms and Concepts

• Accumulation
• Likely to do mischief
• Non-natural use
• Escape