1) Elements of Liability

To establish liability under the rule in Rylands v. Fletcher, the plaintiff must show a non-natural use of land, an escape of something likely to do mischief from the land, and damage.

a) Non-natural Use of Land

A non-natural use of land is an essential element of strict liability in the rule in Rylands v. Fletcher. Today, however, non-natural use has a different meaning from that initially ascribed to it by Lord Cairns. It no longer means artificial, foreign, or not arising in the course of nature. It means dangerous, extraordinary, special, and of no general benefit to the community. The pivotal case in this development was Rickards v. Lothian, [Note 6: [1913] A.C. 263 (P.C.) [Rickards].] which dealt with the escape of water from a domestic plumbing system. The water escaped from a basin in a lavatory in an upper floor of the defendant's building to a lower floor, which was occupied by the plaintiff. The Privy Council held that the principle of strict liability was not applicable in these circumstances. The Court defined a non-natural use of land as a "special use [of land] bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community." [Note 7: Ibid. at 280.] The defendant's plumbing system was not special, dangerous, extraordinary, or for the general benefit of the community.

The seeds of future confusion and uncertainty about the meaning of non-natural use were sown in this case because there is no consistency among the descriptive terms - special, dangerous, extraordinary, and without general benefit to the community. Moreover, the factors listed in Rickards have received different degrees of emphasis from different judges at different times. It is now clear, however, that the one consistent factor in determining whether or not a land use is non-natural is the creation of an increased danger. The other factors play a more erratic role in decision making in the more marginal cases. This emphasis on danger is wise because it provides a defensible justification for the imposition of a strict liability. Nevertheless, the concept of non-natural use continues to be elusive and difficult to apply.

The cases indicate that there are two general categories of non-natural use: land use that has a great magnitude of danger independent of the particular circumstances of the case, and land use that is not always dangerous but is so in the particular circumstances of the case.

The first category includes uses of land that are commonly regarded by the public as dangerous in themselves. They include the storage of water in bulk, the manufacture and use of explosives, fumigation with poisonous gas, the bulk storage or transportation of natural gas, propane, dangerous chemicals, or gasoline, the storage or use of nuclear materials, and the storage or use of dangerous biological agents. In this category, there is little debate about the element of non- natural use and, consequently, there are few reported cases. These land uses are in almost all circumstances highly dangerous and they fully warrant the application of strict liability. The high degree of danger usually trumps any of the other Rickards factors to the contrary.

The second category includes uses of land that do not carry the same degree of danger. In this category of cases a more balanced consideration is given to all the relevant factors set out in Rickards, including the degree of danger of the land use, the utility and normality of the land use, and the circumstances of time and place. In this category it is difficult to predict what is and what is not a non-natural use of land. Mihalchuk v. Ratke [Note 8: (1966), 57 D.L.R. (2d) 269 (Sask. Q.B.).] and Gertsen v. Metropolitan Toronto (Municipality of) [Note 9: (1973), 2 O.R. (2d) 1 (H.C.J.). ] illustrate the point. In Mihalchuk, the defendant farmer sprayed herbicide on his land from an aircraft. Some of the herbicide drifted onto the plaintiff's land and damaged the plaintiff's crops. The Court held that the spraying of herbicide in this manner was a non-natural use of the defendant's land and liability was imposed. The Court emphasized that spraying herbicide from the air was an unusual operation at that time. The neighbours gathered to watch it take place. The use of an aircraft and the mixture of oil and herbicide also increased the danger of the herbicide drifting onto the plaintiff's crops. There was much less chance of drifting from the normal method of spraying by boom from a tractor. In Gertsen the defendant municipality disposed of garbage in a landfill adjacent to a residential area. As the organic material decomposed, it produced methane gas which drifted onto the plaintiff's property and accumulated in his garage. The gas ignited when he started his car and he was injured. The Court found that this was a non-natural use of land. Special emphasis was placed upon the time, place, and circumstances of the land use. The landfill was located in a small ravine in a residential neighbourhood and there was no compelling public need to have used this particular area. These decisions are typical of cases in this category of non-natural use. They are highly fact-specific and involve a juggling of the various Rickards factors in no fixed pattern. They have little precedential value.

The emphasis on the normality, utility, context, and circumstances of the land use in this second category of non-natural use tends to blur the distinction between the strict liability under the rule in Rylands v. Fletcher and the tort of negligence. A special land use that is dangerous because of the circumstances of time and place is likely to be found to be a negligent use of land. The rule in Rylands v. Fletcher, therefore, takes on some of the characteristics of a fault regime and is transformed into a loose fault-based liability. This is evidenced by the fact that in both Mihalchuk and Gertsen, the defendant was also found liable in negligence. The most dramatic illustration of this coalescence of the second category of non-natural use and the tort of negligence is found in Aldridge v. Van Patter. [Note 10: [1952] O.R. 595 (H.C.J.).] The case dealt with an accident on a stock-car race track. One of the cars went out of control and crashed through a light fence into an adjacent park where it injured the plaintiff. It was held that the race track was a non-natural use of land and liability was imposed under the rule in Rylands v. Fletcher. Emphasis was placed on the facts that it was a dirt track that produced a great deal of dust, the cars were travelling at high speed, the track was not banked, and there was no substantial barrier or fence around the track. The defendant was also held liable in negligence. The finding of negligence was supported by the same factors that had supported the conclusion that it was a non-natural use. There is in the judgment, however, no cross-reference or any indication of relationship between the independent findings of liability.

The uneven evolution in the interpretation of non-natural use has left a residue of inconsistent cases, some of which may no longer be reliable. It has on occasion been applied to seemingly normal activities that in most circumstances generate no special, increased danger, such as a flagpole, a carnival ride, street Christmas decorations, painting operations on a bridge, and, most improbably, the activities of a group of gypsies. [Note 11: See A.M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at 506-7. ] The lack of consistency in the interpretation of non-natural use may be traced to the cobbling together of disparate factors in the definition of non-natural use in Rickards and differing judicial attitudes to strict liability.

b) The Escape of Something Likely to Cause Mischief

The escape of something likely to cause mischief from land controlled by the defendant has always been an essential element of the rule of Rylands v. Fletcher. There are two components to this element: mischievous things and escape. The former is largely superfluous now that the concept of non-natural use carries the connotation of special danger. Consequently, there are few occasions where the component of mischief warrants independent consideration. The same cannot be said for the requirement of an escape from the land occupied by the defendant.

Although the requirement of an escape from land in the occupation of the defendant has on occasion been construed quite liberally, [Note 12: Both Linden, ibid. at 509, and L.N. Klar, Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996) at 461, point out that the requirement has been given a liberal interpretation in Canada, and is satisfied by an escape from one part of a building to another and from pipes, cables, and tanks controlled by the defendant.] it remains an essential element to liability. The only serious challenge to it was made in the case of Read v. J. Lyons & Co. [Note 13: [1947] A.C. 156 (H.L.) [Read].] In that case, the plaintiff was a government inspector who was carrying out her duties in the defendant's munitions factory in the middle of the Second World War. A high-explosive shell detonated and she was injured. Being unable to prove negligence, she relied on the rule in Rylands v. Fletcher. The defendant argued that strict liability was inapplicable on the facts because the plaintiff was on the defendant's land. The plaintiff's argument appealed to both logic and policy. It was argued that, if the reason for strict liability is the ultra-hazardous nature of the activity, the defendant should, logically, be responsible for all the losses arising from the non-natural use of land and not just for losses arising beyond the property. Furthermore, a maintenance of the escape requirement would result in greater protection being given to the property interests of a neighbour than to the personal security interests of a visitor to the defendant's premises. Preferring property interests to the interest in personal safety does not appear to be good policy. The rule of strict liability, it was argued, should rest solely on the ultra-hazardous nature of the activity rather than on the location of the plaintiff. The impressive logic and good sense of the argument did not fall on sympathetic ears. The House of Lords displayed an ill-concealed hostility to the whole concept of strict liability and insisted on the requirement of an escape from the defendant's premises. The Court's policy preference for fault as the general touchstone of tort liability was advanced by keeping the rule in Rylands v. Fletcher within narrow parameters.

The refusal of the House of Lords in Read to extend strict liability to all losses generated by a non-natural use of land effectively marginalized the rule in Rylands v. Fletcher. It was left without any consistent or coherent policy rationale. Occasionally, Canadian courts have flirted with the idea of a broad responsibility for all losses generated by ultra- hazardous activities, but the need to establish some sort of an escape continues to be an essential and confining component of liability. [Note 14: Linden, above note 11 at 511-15 argues strongly in favour of strict liability for abnormally dangerous activities, "free of the historic restraints of non-natural use, escape and mischief." (511)]

In retrospect, Read was the wrong case at the wrong time to promote and develop a broader-based doctrine of strict liability for dangerous activities. At the time the case was decided, fault as a basis of civil liability was in the ascendancy. Strict liability was discounted as an anachronism, an idea whose time had passed. Furthermore, the Second World War produced a catastrophic loss of life, health, and property, almost all of which went uncompensated. Mrs. Read was one casualty of the war effort. This was not a good time to claim that the manufacturer of munitions essential to the war effort owed her a more stringent duty than reasonable care.

c) Damage

Blackburn J. spoke of liability for the natural consequences of the escape of something likely to cause mischief. Few difficulties have arisen in respect of this element of liability. Most of the cases deal with damage to neighbouring property. The House of Lords in Read expressed some doubt if damages for personal injury were recoverable under the rule in Rylands v. Fletcher. Their lordships suggested that the tort applied solely to adjust property losses between neighbours. That view has been firmly rejected in Canada. There is little authority in respect of relational economic loss but indeterminacy problems arising from the escape of toxic fumes, radiation, or biological agents are likely to persuade courts to limit liability.

There has also been little discussion in Canada about the extent of liability and the applicable rule of remoteness of damage. It was generally assumed that liability would extend to all the direct consequences of an escape, whether foreseeable or not, but a recent decision of the House of Lords, in Cambridge Water Co. v. Eastern Counties Leather Plc., [Note 15: [1994] 2 A.C. 264 (H.L.).] has thrown some doubt on that proposition. The defendant in that case had for many years operated a tannery. In the course of its operation, chemicals used in the tanning process had occasionally spilled on the ground. These chemicals had, over the years, percolated down into the underground water aquifers, polluting the water. The plaintiff, whose business involved drawing water from these aquifers for the purpose of supplying drinking water to the public, suffered loss as a consequence of the pollution. At the time the chemicals were spilled, it was not foreseeable that they would have an adverse impact on the underground water. The House of Lords held that the defendant's business was a non-natural use of land but there was no liability for the unforeseeable consequences of the escape of chemicals. The adoption of reasonable foreseeability as the remoteness rule further erodes the strength of strict liability and moves the tort another step closer to the tort of negligence. [Note 16: The High Court of Australia, in Burnie Port Authority v. General Jones Pty. Ltd. (1994), 179 C.L.R. 520, abolished the rule in Rylands v. Fletcher on the grounds that it has attracted too many difficulties, uncertainties, qualifications, and exceptions. Liability must be established under the other heads of tortious liability, including negligence and nuisance.]