3.2. Rylands V Fletcher

A broad principle of risk-based liability could have been created in English law by virtue of the principle in Rylands v Fletcher.¹⁷⁹ This nineteenth century case established strict liability for escaping things. Liability may arise when a person in a non-natural use of land ‘for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes’.

The scope of the tort has been restricted in various ways. We will first examine the general conditions of this tort, and then the specific conditions applicable in claims against defendant public authorities. The offending thing or substance must have escaped from the defendant's property, so that an explosion at a munitions factory injuring an employee failed on this ground.¹⁸⁰ An ordinary use of land will not be tortious: there is a requirement under the Rylands v Fletcher principle that the land in question was put to a non-natural use. There is no cast-iron objective test of non-natural use,¹⁸¹ but the courts have decided that the storage of substantial quantities of chemicals,¹⁸² or gas,¹⁸³ and even water¹⁸⁴ is a non-natural use of land. On the other hand, this requirement is unlikely to be satisfied by ordinary or domestic uses of potentially dangerous things such as household water uses.¹⁸⁵

Claimants have faced extra difficulties when bringing claims based on Rylands v Fletcher against public bodies. First, there is the possibility of exclusion of liability due to statutory authority. The courts have drawn a distinction between statutory empowerment and statutory obligation. Where there is a statutory duty, a public body will not be liable for anything which it is expressly obliged to do under statute or which is reasonably incidental to that requirement, as long as it was done without negligence.¹⁸⁶ On the other hand, if the statutory authority is permissive, (p.157) then the body may be liable if there is a clause imposing liability in nuisance.¹⁸⁷ Where there is no such clause, liability will not arise, provided there is no negligence.¹⁸⁸ In practice, these rules have afforded considerable protection to public bodies.¹⁸⁹ Various principles underpin this restrictive approach. Parallels may be drawn with the defence of statutory authority in respect of the tort of nuisance, according to which, as we have seen, any damage which is the inevitable result of the exercise of a statutory power or duty will not be actionable.¹⁹⁰ If a body is required or authorized to act—and by implication to cause the loss—then liability should not arise.¹⁹¹ The difference with the French approach is therefore striking. Whereas in English law the statutory authority to act precludes the payment of damages, the lawfulness of the activity has not prevented the French courts from providing compensation for exceptional burdens imposed upon citizens by the ordinary operation of public buildings and facilities. Another element which has underpinned the defence of statutory authorization in respect of public bodies is the fact that a public service is being provided for the benefit of the community.¹⁹² This brings us to the next point.

Secondly, the fact that the loss was caused by a public service activity has been a significant factor when considering the application of the Rylands v Fletcher principle to claims against public bodies.¹⁹³ The notion of public benefit has sometimes been invoked to preclude an action. Certainly, no action will arise if the cause of danger is actually used for the common benefit of the defendant and the claimant.¹⁹⁴ At one stage, the rule seemed to extend further. In Richards v Lothian it was held that for a claim to succeed the defendant's activities ‘must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community’.¹⁹⁵ This was taken up in Dunne v North Western Gas Board, where it was indicated that the defence of benefit to the community might have a broad application:

Gas, water and also electricity services are well-nigh a necessity of modern life, or at least are generally demanded as a requirement for the common good, and one or more are being taken with considerable despatch to every village and hamlet in the country with either statutory compulsion or sanction. It would seem odd (p.158) that facilities so much sought after by the community and approved by their legislators should be actionable at common law because they have been brought to the places where they are required and have escaped without negligence by an unforeseen sequence of mishaps.¹⁹⁶

Such an approach would severely reduce the utility of the Rylands v Fletcher principle in respect of public authorities.¹⁹⁷ In comparative law terms, this reasoning contrasts starkly with French administrative law. Indeed, the concept of community benefit is applied in French law to attain the opposite result. Rather than exculpating public authorities, acting in the public interest is viewed as the very reason for imposing liability. When the public as a whole benefits from public service activities, then it should bear any accompanying costs and burdens, rather than allowing the loss to lie upon an unfortunate individual.

In fact, the English courts have not all uniformly accepted the reasoning in Dunne v North Western Gas Board. Other cases have illustrated a more cautious approach to the argument that benefit to the community should preclude an action in Rylands v Fletcher. For instance it was held that this could not be a reason for refusing to consider an action against a local authority which used land for sewerage collection.¹⁹⁸ Indeed, recent authority suggests that the argument may now have a limited impact. In the Cambridge Water decision, the House of Lords indicated that the ‘benefit to the community’ argument should not be applied broadly to exclude Rylands v Fletcher liability.¹⁹⁹

Cases in which the Rylands v Fletcher principle has been successfully invoked by claimants are relatively rare.²⁰⁰ The major reappraisal of Rylands v Fletcher in Cambridge Water disappointed those who had hoped it would evolve into a broad principle of strict liability for hazardous activities.²⁰¹ The House of Lords favoured a more conservative approach.²⁰² Lord Goff argued that it was more appropriate for strict liability arising from high-risk activities to be imposed by Parliament rather than by the courts.²⁰³