Date: 24 July 2006 17:17:52

From: Lewis Klar

Subject: The Rule in Rylands v Fletcher

The principle of Rylands v Fletcher is still applicable in Canadian tort law, as a principle distinct from both nuisance and negligence, but is hardly ever employed. There are very few reported cases. I think the reasons for this are the following:

First, the non-natural user requirement has frequently eliminated from its purview activities which although dangerous are "ordinary". I do not think this interpretation of "non-natural use" is the only interpretation which can be ascribed to the term, and I would prefer non-natural use to refer to the level of danger posed by the activity, rather than the utility or ordinariness of the activity, but many courts do not seem to see it this way. This broader interpretation would give the principle more scope and utility.

Second, nuisance has been used in Canadian law to accidental one off escapes which cause property damage or even personal injury. This I think is regrettable and I would prefer the more classical view of nuisance, which would eliminate these "accidental" occurrences and relegate them to negligence law. But if Canadian courts persist in extending nuisance law to these accidental escape type cases, Rylands v Fletcher becomes more redundant.

Third, negligence law is clearly capable in most instances of dealing with abnormally dangerous activities. So again Rylands is displaced.

Lewis Klar
University of Alberta

>>> Jason Neyers 7/24/2006 6:33 AM >>>

For what it is worth, I think that the Australians have it right conceptually. As to why this is the case and why Transco is wrong, see Allan Beever "Lord Hoffmann's Mouse".

There are still cases that use Rylands in Canada but I can't really say that anyone pays much attention to them. Perhaps Lewis has more to say on this front.

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