Date: Amirthalingam Kumaralingam

From: Tue, 25 Jul 2006 10:09:45 +0800

Subject: The Rule in Rylands v Fletcher

For a recent Singapore take on this issue, see Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd [2006] SGHC 73. Singapore has retained the Rylands rule, preferring the Transco approach over Burnie. A summary is extracted below.

Facts

The plaintiff and the defendant occupied adjoining premises. The defendant operated a container storage depot on its premises and had stacked several rows of 40-foot containers side-by-side, creating a large mono-block of containers (which was the standard practice). The two highest rows were stacked up to seven tiers and were nearest the perimeter fence separating the plaintiff’s and defendant’s properties. On the material date, during a heavy thunderstorm in the area, some containers fell into and damaged the plaintiff’s property. The plaintiff commenced proceedings against the defendant in nuisance, under the rule in Rylands v Fletcher (1868) LR 3 HL 330 ("the Rule") as well as in negligence. The plaintiffs also relied on the doctrine of res ipsa loquitur. The defendant argued that the defence of force majeure applied.

Held, allowing the claim:

(1) The mere storage of containers in the defendant’s premises could not be regarded as an unreasonable use of the premises for the purposes of ascertaining whether there was liability under the tort of nuisance. In the broad context of nuisance, the storage of containers itself attracted no liability. Liability would only attach if the stacking of the containers as done by the defendant was unsafe in the circumstances: at [6].

(2) With regards to the "non-natural use" element of the Rule, the stacking of containers of such weight and size as those on the defendant’s premises to a height of seven tiers was a non-natural use of the land, even though the land was designated for industrial use. Additionally, the collapse of the containers into the plaintiff’s yard constituted an escape of a thing brought by the defendant onto its land. Finally, damage and injury were foreseeable should the defendant’s containers fall onto the neighbouring land and therefore the collapse of the containers into the plaintiff’s premises attracted the application of the Rule: at [7] and [9].

(3) With regard to the applicability of the tort of negligence, in determining whether a duty of care existed, one did not calculate the probabilities of the event occurring alone. The costs of averting the danger, as well as the degree of severity of harm, or damage that might result should the event occur were other factors to be considered. The danger posed by falling containers stacked as they were was reasonably foreseeable – if not by common sense, then by the knowledge of such incidents that operators in that industry possessed. Further, the danger could have been minimised, if not averted, in a number of ways. In the circumstances, the defendant was under a duty to take reasonable precautions and measures to ensure that the plaintiff was not injured by and did not suffer damage to its goods or property from containers falling from the defendant’s premises onto the plaintiff’s: at [13] and [14].

(4) The standard practice of stacking containers was a factor that had to be examined in the context of safety and the foreseeability of danger from mishaps arising from a collapse of the stacks. The fact that one might readily apprehend that should a stack of containers collapse, people might be injured does not imply that the cause of such collapse was irrelevant. On a balance of probabilities, the collapse of the stack of containers was caused by a sudden gust of strong wind during the thunderstorm that occurred at the material time. The next relevant question was whether the danger of the containers collapsing in strong wind was a foreseeable one: at [16] to [18].

(5) The defence of force majeure generally applied in "cataclysms of nature such as earthquakes or inundations following tidal surges of unprecedented heights". In the present case, although the sudden gust of wind at the material time was in itself unusual, it was not so extraordinary to constitute an event of force majeure when looked at in conjunction with the way the defendant had stacked its containers: at [19].

(6) The doctrine of res ipsa loquitur shifted the burden of proof from the plaintiff to the defendant where the plaintiff could not reasonably be expected to explain the occurrence of the accident in which he became injured. In the present case, the doctrine did not apply as there was ample evidence as to causation: at [21].

___________________________
Kumaralingam Amirthalingam
Associate Professor
Director, International Programmes
Faculty of Law
13 Law Link
National University of Singapore
SINGAPORE 117590

Tel: +65 6516 1518
Fax: +65 6779 0979

-----Original Message-----
From: Neil Foster
Sent: Tuesday, July 25, 2006 8:10 AM
Subject: Re: ODG: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.

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