The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher should be abolished and absorbed within negligence or alternatively should be generously applied and the scope of strict liability extended. Discuss. - Justin Santiago

The principle of the decision in Rylands v Fletcher was expressed in the famous words of Blackburne J:

“The person who brings on his land for his own purposes, and collects and keeps there, anything liable to do mischief if it escapes, must keep it in at his peril...”'

The rule in Rylands v Fletcher applied the doctrine of strict liability into the tort and the primary justification for this was premised upon the belief that the rights of individuals should not be sacrificed in the furtherance of the public interest in cases where the acts were "one off" and therefor difficult to be liable under nuisance which requires the acts to be continuous or where it was difficult to prove that the defendant had not taken all reasonable precautions to prevent the mischief since the escape would not have been foreseeable.

The application of strict liability, that is, liability without fault is contentious because it looks at the harmful result rather than to the kind of conduct. This is very different from the traditional fault-based formulation in negligence.

However, the situation is quite a lot more complicated than it first appears, because true strict liability would be extremely burdensome. Consequently, the courts, just like in the law of nuisance, have imported fault elements into the rule in other guises. To succeed in the rule under Rylands v Fletcher, the claimant has to show that the defendant's activities amounts to a `non-natural' user of land. Clearly this will be easier if the defendant's activities are inherently unreasonable. In addition, it appears that a remoteness test applies to this tort as it does for nuisance.

In Cambridge Water v Eastern Counties Leather 1994, the House held that the concept of `non-natural user' was a valid one, and what the defendants had been engaged in did constitute a non-natural use; nevertheless, the same tests for remoteness as applied in negligence also applied to the rule. The loss suffered by the claimants was not of a type forseeable by the defendants, and the damage was therefore too remote. Under strict liability it would not matter whether the loss was foreseeable or not. So, even if the defendant's activities amount to `unreasonable user', he may still escape liability if he could not reasonably be expected to foresee the type of damage that would result.

In short, Ryands v Fletcher is not subject to an explicit test for fault as negligence is, but it has features which at least overlap with a test for fault. The main procedural difference is that the claimant does not have the burden of proving that the defendant was at fault - this is assessed by the court with regard to the reasonable user and remoteness considerations.

Whether this warrants that the rule be absorbed into negligence is debatable because under negligence there would be several more elements that may be difficult to prove by the claimants who would be deprived of the right to use their land. The rule itself, said the House of Lords in Transco v Stockport MBC, fulfilled an important social objective, in making people think very carefully about the ways they used their land.