2) Defences

The application of the rule in Rylands v. Fletcher has been substantially diminished by numerous defences. Some of the defences, including act of God and default of the plaintiff, were established in the case of Rylands v. Fletcher. Others, such as consent and the act of a third person, seem to have been borrowed from the nineteenth-century law of negligence. Collectively the defences reflect the lack of any consistent theory of strict liability and a fundamental ambivalence about the intensity of the strict liability established in Rylands v. Fletcher. The courts have not, therefore, been eager to reduce the number of defences or to restrict them in any significant manner. This is in marked contrast to the erosion of the defences to the negligence action.

a) Consent

There is no liability where the plaintiff either expressly or impliedly consented to the defendant's non-natural use of land. In this context, consent has been interpreted loosely. It appears to be sufficient that the plaintiff knew of the dangerous use of land and entered or remained in a place of danger. Taking possession of land that is adjacent to a known non-natural land use or leasing a part of a building in which the defendant conducts a non-natural use seems to be sufficient to establish the consent of the plaintiff. In Peters v. Prince of Wales Theatre (Birmingham) Ltd., [Note 17: [1943] 1 K.B. 73 (C.A.).] for example, the plaintiff leased part of a building from the defendant. The plaintiff knew that the building had a sprinkler fire prevention system. Taking possession with knowledge of the system was sufficient to establish the defence of consent when a malfunction caused flooding damage to the plaintiff. This emphasis on consent to the physical risk of damage is reminiscent of the way voluntary assumption of risk was defined in nineteenth-century negligence law. By way of contrast, modern negligence law interprets the defence strictly, requiring proof that the plaintiff agreed to consent to both the physical and the legal risk of damage and thereby abandoned legal recourse in respect of damage caused by a lack of care. If that approach was applied to the rule in Rylands v. Fletcher, it would be necessary to show that the plaintiff agreed to bear the loss arising from any accidental failure to prevent a damaging escape from the non-natural use of land, a much more difficult task.

b) Mutual Benefit

It is well accepted that the general benefit or utility of the defendant's land use is relevant in deciding if the land use is non-natural. The Supreme Court has, for example, been unwilling to regard a municipal sewer system as a non-natural use of land. [Note 18: Tock v. St. John's (City) Metropolitan Area Board, [1989] 2 S.C.R. 1181.] There is less agreement, however, on whether or not proof that the plaintiff benefited from the defendant's land use is an independent defence. The older cases, which support that view, commonly dealt with situations where the plaintiff and defendant shared the use of premises and the plaintiff suffered loss from activities that today would not be regarded as a non-natural use of land. The mutual benefit defence may, therefore, have developed as an early recognition that strict liability is not applicable to the ordinary use of land. The more modern view is that mutual benefit is not an independent defence. At most it is an evidentiary factor in establishing the defence of consent because it is, normally, not possible to take a benefit from the land use without having the degree of knowledge and acceptance of the land use which is conventionally sufficient to establish the defence of consent.

c) Default of the Plaintiff

No liability arises where the escape is caused by the default of the plaintiff. The defence mirrors the nineteenth-century negligence rule that contributory negligence of the plaintiff is a complete bar to an action. Legislation has since introduced apportionment into negligence law but the drafters of that legislation do not appear to have intended that it apply to strict liability. [Note 19: The legislation normally applies to the situations where the defendant is negligent or at fault.] Consequently, default of the plaintiff continues to be a complete bar to liability under the rule in Rylands v. Fletcher. [Note 20: Some flexibility on this issue may be signalled by the Supreme Court decision in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210. In a negligence action governed by maritime law, the Court changed the common law to permit apportionment.]

d) Act of a Stranger and Act of God

These two defences are grouped together because each excludes liability where the escape is caused by a particular kind of unforeseeable intervening act. To this extent they operate in a way that is similar to intervening acts (novus actus interveniens) in negligence law. Where the escape is caused by the deliberate and unforeseeable act of a person over whom the defendant has no control, such as a trespasser, or by a natural event of such intensity that no reasonable person could be expected to foresee it and guard against it, there is no liability under the rule in Rylands v. Fletcher. A common element of the two situations is that the intervening events that cause the loss are so unforeseeable that the defendant could not have guarded against them and he is, therefore, totally free of negligence. In theory a "no negligence" defence is incompatible with strict liability, the purpose of which is to allocate losses on the basis of cause alone. Its acceptance indicates the general ambivalence towards strict liability and the modern tendency to blur the line between strict liability and fault liability.

e) Statutory Authority

Some of the land use that is subject to the rule in Rylands v. Fletcher is authorized by legislation. It is most common in respect of public services carried on by government and public bodies. Typically, the legislation is permissive in nature and does not expressly indicate how it affects the strict liability of the service provider. That task has been left to the judiciary. In the nineteenth and early twentieth centuries, the courts were quite protective of statutorily authorized land use. Today, the pendulum is swinging back in favour of plaintiffs and there is a greater willingness to impose liability. The defendant is normally a better loss distributor and there is more sympathy for the idea that the public should pay for individual losses caused by activities and services from which the whole community benefits.

The current scope of the defence is quite narrow. First, careful consideration must be given to the enabling legislation to determine if the land use is authorized. The defendant must then prove that the damage caused was an inevitable and unavoidable consequence of the authorized activity. It is not sufficient to show that reasonable care was taken. It must be shown that it was practically impossible to avoid the damage.

It may be argued that statutory authorization should not be a defence at all. There is, quite apart from the loss distribution point mentioned earlier, the argument that it is always within the legislature's power to expressly immunize an activity from tort liability and, if the legislature fails to take that step, it indicates that the full tort rights of citizens are not affected. This would also be consistent with the broader responsibility of government in respect to operational matters in the tort of negligence. This view has not, however, been adopted by the courts either with respect to the rule in Rylands v. Fletcher or nuisance.

3) The Rule in Rylands v. Fletcher, Negligence, and Nuisance

The rule in Rylands v. Fletcher, negligence, and nuisance are not mutually exclusive causes of action. Plaintiffs commonly allege liability under all three heads of liability. The availability of alternative causes of action has also contributed to the courts' determination to keep strict liability on a tight rein.

Barry J. Reiter Melanie A. Shishler

Joint Ventures

(1999)

PART THREE, Implementing the Business Plan

CHAPTER 5, STRICT LIABILITY

C. FIRE

Many centuries before the rule in Rylands v. Fletcher was formulated, there was, in the common law, a special action on the case imposing strict liability on an occupier of land for damage caused by the escape of a fire under his control. The intensity of that strict liability is a matter of debate, but it was probably not applicable to a fire started by an act of God or the act of a stranger, since fires arising from those sources could not be characterized as fires under the occupier's control. In 1774 the Fires Prevention (Metropolis) Act [Note 21: (U.K.), 14 Geo. III, c. 78, s. 86.] was passed. The Act sought to relieve occupiers from liability for fires that began accidentally on their land. Its general purpose was to inject some degree of fault as an essential element of liability for the escape of fire, but it was poorly drafted and its interpretation has been the subject of a great deal of unresolved debate.

The special action for the escape of fire has long since been overtaken by more modern tort principles and is no longer of any consequence in Canada. Liability for the escape of fire must now be established on one of the standard heads of tort liability such as the rule in Rylands v. Fletcher, negligence, or nuisance. The application of modern principles has, however, been complicated by the fact that the Fires Prevention (Metropolis) Act or its equivalent remains in force in all provinces west of Quebec. The courts have, therefore, felt obliged to interpret an ancient statute that was designed to modify a common law action that is no longer of any consequence in Canada. Predictably, the courts have not allowed the statute to interfere with the modern principles of loss allocation. The statute has been simply construed as protecting a defendant from liability wherever that is consistent with modern tort principles. In terms of its power to shape liability for the escape of fire, the legislation is a dead letter.

Strict liability for the escape of fire may now be established under the rule in Rylands v. Fletcher. Consideration must, of course, be given as to whether the fire arose in respect of a non-natural use of land. Fires for heating, cooking, or other domestic purposes are unlikely to be considered as amounting to a non-natural use. Opinion is divided on the use of fire for agricultural purposes. Liability also extends to fires that arise spontaneously from a land use that qualifies as a dangerous fire hazard.

The tort of negligence also imposes a heavy responsibility for damage caused by the escape of fire. Stringent standards of care coupled with the generous use of circumstantial evidence facilitate the imposition of liability on occupiers in respect of fires that are negligently lit or escape because of a lack of continuing vigilance or control. There is some degree of covert strict liability under the guise of the application of the tort of negligence. An occupier is also held liable for the negligence of his employees, independent contractors, guests, and others who are under his control. An occupier is even under a duty to take reasonable steps to control or extinguish a fire arising on his land from any source, including an act of a stranger or an act of God. The latter situation arose in the Australian case of Goldman v. Hargrave [Note 22: [1967] 1 A.C. 645 (P.C.).] where a landowner failed to take sufficient measures to extinguish a fire caused by a lightning strike in a gum tree. The tree was felled but the fire was not put out. A few days later it spread and damaged the plaintiffs' land.

The tort of private nuisance is often overlooked in respect of liability for the escape of fire. Nevertheless, the infliction of damage by the escape of fire from a neighbouring property may amount to a nuisance. Private nuisance may apply to a single escape of fire, and negligence is not an essential element of liability unless the fire arises from the act of a stranger or an act of God.