Date: Tue, 25 Jul 2006 09:01:07 +0100

From: John Murphy

Subject: Burnie and Lengthy judgments

Dear All,

Ken Oliphant was right - tort lawyers all seem to fall victim, at some point in the in career to what he called RylandsandFletcheritis. Speaking as someone who is (a) nearly cured of the disease and (b) on holiday, I thought I'd just add to what Robert said by pointing stressing the point only implicit in what he says about the "barminess of Burnie": namely, that there is something deeply silly about going to great length to reject one form of strict liability only to replace it with another what Robert calls "an anomalous form of vicarious liability".

On lengthy judgments he's also right: there are worse things than lengthy judgments. Try short mistaken ones, for size. Cambridge Water was a case on Rylands liability. Everyone wondered whether it was dead; the House of Lords didn't hadn't considered it for a long time and there was heaps that had been confusing tort tutors and students alike for years. For example: is Rylands a subset of nuisance and what is a non-natural use? Given the confusion what did the HL do: they gave us four Law Lords saying not much more than "Lord Goff's right" plus Lord Goff saying not much more than "Newark was right half a century ago when giving us his academic view of the PLACE OF RYLANDS as SUBSIDIARY ISSUE in an article that was actually about nuisance".

I'd take a long judgment or two over this kind of stuff, any day -- especially if I get a ringside seat to see Robert gnawing off his own arm.

John Murphy

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