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Date:
Tue, 25 Jul 2006 08:24:49 +0100
From:
Andrew Dickinson
Subject:
The Rule in Rylands v Fletcher and Long Judgments
I
agree with Robert (and Peter Birks) on the growing problem for students
and practitioners of over long judgments, resulting from the vast
increase in available material and a judicial fear that appellate
courts, which are sometimes too proactive, will criticise a failure
to address an authority which they consider pertinent, if not decisive.
Perhaps one solution would be for lists of authorities referred
to (produced by advocates as a matter of course) to be annexed to
judgments, removing the need for unnecessary citation. I am also
attracted by the idea of a collection (perhaps annual) of judgments
(irrespective of source or subject matter) whose merit lies in the
brief and attractive expression of complex facts and/or legal ideas,
with an honorific prize for the best example. Any benefactors out
there?
Does
anyone have further details, or a copy, of Peter's Florence(?) lecture.
Kind
regards
Andrew
Andrew
Dickinson
Consultant
Clifford Chance
Limited Liability Partnership
10 Upper Bank Street London E14 5JJ
Telephone
(direct): +44 (0) 20 7006 8634
Telephone (switchboard): +44 (0) 20 7006 1000
Fax: +44 (0) 20 7006 5555
http://www.cliffordchance.com
-----Original
Message-----
To: Stephen Sugarman
Sent: Tue Jul 25 07:16:49 2006
Subject: Re: ODG: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.
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