Barry j. Reiter Melanie a. Shishler

Joint Ventures

(1999)

PART THREE, Implementing the Business Plan

CHAPTER 5, STRICT LIABILITY

B. THE RULE IN RYLANDS v. FLETCHER

The litigation in Rylands v. Fletcher [Note 2: (1868), L.R. 3 H.L. 330, aff'g (sub nom. Fletcher v. Rylands) (1866), L.R. 1 Ex. 265 (Ex. Ch.).] gave rise to the most significant rule of strict liability in tort law. The case dealt with an earthen water reservoir that failed and flooded the plaintiff's coal mine. The reservoir had been built by contractors on land occupied by the defendant. The contractors were negligent. They built the reservoir over disused mine shafts that led to the plaintiff's mining operation. The contractors, however, were not sued and, because they were not employees of the defendant, he was not vicariously liable for their negligence. [Note 3: No claim was available in trespass to land because the intrusion was indirect, and private nuisance was not available, at that time, because there was an isolated escape of water.] The plaintiff's claim, therefore, depended on the recognition of a strict liability for the escape of water. Although the courts at this time were increasingly attracted to fault as the basis of tort liability, the Exchequer Chamber, in a unanimous judgment delivered by Blackburn J., imposed a strict liability on the defendant. The Court may have been influenced by a number of reservoir failures in England a few years earlier which caused a significant loss of life and property, [Note 4: A.W.B. Simpson, "Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v. Fletcher" (1984) 13 J. Legal Stud. 209.] but Blackburn J., typically, made no reference to those events. He drew on the ancient strict liability for damage caused by dangerous animals, cattle trespass, and some early nuisance cases to fashion a general principle of strict liability. He stated:

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 consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God. [Note 5: Rylands v. Fletcher, above note 2 at 279-80.]

The House of Lords dismissed the defendant's appeal but, in the course of his judgment, Lord Cairns introduced the concept of a non-natural use of land. He emphasized that no liability could be imposed for the natural run-off of water from higher land to the lower land. In Rylands, however, the defendant had collected water artificially and a strict liability was appropriate for this non-natural use of land. This concept of non-natural use has played a central role in the evolution of the tort.

The rule in Rylands v. Fletcher, as originally formulated, was a strict liability tort of considerable scope and it was applicable to a wide range of land use. It was inevitable, therefore, that there would be some tension between this special rule of strict liability and the emerging tort of negligence. The rule in Rylands v. Fletcher, in fact, proved to be no match for the burgeoning tort of negligence and, in the twentieth century, it was progressively restricted both by a modification of its essential elements of liability and by a proliferation of defences. It now operates within a narrow compass and rarely leads to a liability that could not have been established under the torts of nuisance or negligence.