Date: Tue, 25 Jul 2006 07:16:49 +0100

From: Robert Stevens

Subject: The Rule in Rylands v Fletcher and Long Judgments

Nuisance law in the US, in my view, requires either that D was at fault (in the negligence sense -- either for carrying out an unreasonable activity or for doing a reasonable act in a careless manner) or that D's conduct was an ultrahazardous activity that calls for strict liability as just described. Apart perhaps from some special cases of truly intentional harm that Professor Wright alluded to.

(1) I would have thought that the intent to carry out the activity which constitutes the nuisance suffices, even if the defendant is wholly blameless. So if I run a pig farm, honestly and reasonably believing that it does not constitute a nuisance, this will not avail me if it does.

(2) The barminess of Burnie is illustrated that by the fact that the majority who abolished the 'strict' liability rule of Rylands found the defendant liable, whilst the minority who would have retained it would have found for the defendant. The majority managed to do this by introducing an anomalous form of vicarious liability for independent contractors for hazardous activities on land, despite earlier High Court authority rejecting vicarious liability for hazardous activities by contractors.

The rule in the 2nd and 3rd American Restatement is clearly preferable, and, in my view, right. For me, it turns upon the abnormality of the activity, not its dangerousness per se. I wonder if there are legislative examples still in place in Australia? In England, we have strict liability for dangerous animals enshrined in legislation for example. The strict (statutory) liability of nuclear installations is the same idea: running a nuclear power plant is outside the normal give and take of risks which neighbours impose upon one another.

(3) One of Peter Birks' last lectures was (in Florence?), bemoaning the fact that the common law was doomed if we carried on with cases as long as Fairchild. It used to be available online, but has disappeared.

There are of course first instance decisions which are even longer. Megarry VC in Tito v Wadell [1976] Ch runs to over 250 pages, but most of that is factual. (Students in contract exams have been known to cite Tito v Waddell for legal propositions, confident in the knowledge that no examiner would be able to remember, or would bother checking, whether Megarry had said any such thing.)

There are worse things than length. Great chunks of quotation and multiple judgments add to the malaise. Having had to read Lord Phillips in Gregg v Scott several times to ensure I understand what he is saying, I'd rather gnaw my own arm off than read that speech again.

Robert Stevens
Barrister
University of Oxford

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