Date: Tue, 25 Jul 2006 10:10:11 +1000

From: Neil Foster

Subject: The Rule in Rylands v Fletcher

Dear Colleagues;

If I can offer a heretical view from Australia; unlike Jason I think that the majority of the High Court got it wrong in Burnie Port Authority, and that Australian law should still recognise the existence of the action. The judgement of McHugh J in BPA in dissent is to my mind pretty convincing. John Murphy may be too polite to mention it here (or on vacation!) but I think his article "The Merits of Rylands v Fletcher" (2004) 24 Oxford Jnl of Legal Studies 643-669 is an excellent defence of the action. As he notes, it is particularly unfortunate that it is being spoken of now as a species of nuisance - after all, a key element of liability in nuisance is that the plaintiff must have an interest in land which has been interfered with - whereas in Rylands v Fletcher it is the defendant who must be a landowner. John makes a very interesting and in my view fairly compelling case why the action is useful and shouldn't be "collapsed" into negligence; as he points out, in cases involving big corporations and pollution, it may sometimes be quite difficult for small claimants to make out a claim in negligence, where it is easier under Rylands v Fletcher.

The action was developed at a time when private individuals were being asked to bear the burden of the dangers created by worthwhile but high-risk enterprises such as the damming of large amounts of water for industry; it seems to have lost none of its relevance now!

(I think AWB Simpson's account, in his book Leading Cases in the Common Law, in ch 8 "Bursting Reservoirs and Victorian Tort Law: Rylands v Fletcher (1868)", is fairly convincing. Simpson notes that the decision was handed down in the shadow of the bursting of a major dam at Sheffield in 1864, with the loss of 238 lives, which itself had followed a previous dam bursting at Holmfirth in 1852, killing 78 people. The judges were conscious of these new large bodies of water being erected to service not only the growing populations of the towns of the Industrial Revolution, but the industry itself. If large dams like these were to be built, it seemed a fair rule that they should be built at the risk of those who would profit from them, rather than the innocent neighbours who might be harmed by their bursting. Rylands's dam itself was built by him for the purposes of his very profitable cotton mill.)

Still, we in Australia have to get along without the action now. While the name might suggest an Australian connection, there is none so far as I am aware in the most recent English case I have seen applying the doctrine, LMS International Ltd, Wallaby Investments Ltd and anor v Styrene Packaging and Insulation Ltd & ors [2005] EWHC 2065 (Judge Richard Havery QC in the Queen’s Bench Division) - I can't remember whether this case was noticed here on this list previously or not. There is a good summary of the law at paras [12]-[33] and the ultimate result was a finding in favour of the plaintiff based on Rylands (though on the facts other actions based on negligence or nuisance might also have succeeded.)

In the interests of full disclosure I should mention that the opposing view (that the HCA got it right) is put in Nolan "The Distinctiveness of Rylands v Fletcher" (2005) 121 Law Quarterly Review 421-451.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Lewis KLAR 25/07/06 3:17 >>>

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.

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