Introduction
The rule in Rylands v Fletcher (1868) is a principle of English tort law that imposes liability on a person for damage caused by the escape of a dangerous item from their land. Originating in the industrial revolution, it was created to deal with the new dangers arising from industrial and other activities involving the accumulation of hazardous substances. It has often been described as a tort of 'strict liability', meaning that the defendant could be liable even if they were not negligent. However, over its 150-year history, the scope and nature of this tort have been significantly debated and refined by the courts.
This essay will explain the rule as it was first established in the case of Rylands v Fletcher, outlining the key elements that a claimant must prove and the main defences available to a defendant. It will then proceed to discuss how the scope of the rule has been substantially restricted by subsequent judicial decisions, particularly in the landmark cases of Cambridge Water Co v Eastern Counties Leather plc [1994] and Transco plc v Stockport Metropolitan Borough Council [2004]. The essay will conclude by considering the modern status of the rule and questioning its continued relevance as an independent tort in the landscape of English law.
The Origins and Formulation of the Rule
The rule derives its name from the House of Lords case Rylands v Fletcher (1868). The defendant, a mill owner, had employed independent contractors to construct a reservoir on his land to supply water to his mill. During the construction, the contractors discovered old, disused mine shafts, which they failed to seal properly. These shafts were unknowingly connected to the claimant’s neighbouring coal mine. When the reservoir was filled, the water burst through the old shafts and flooded the claimant's mine, causing significant damage. The claimant sued the mill owner.
At first instance, the court found for the defendant as there was no negligence on his part, and the harm was not direct enough for trespass. However, on appeal to the Court of Exchequer Chamber, a new principle was formulated by Blackburn J. He stated:
> We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape (Fletcher v Rylands (1866) LR 1 Ex 265, 279-280).
When the case reached the House of Lords, this principle was upheld, but Lord Cairns added a significant qualification. He stated that the rule only applied where the defendant was making a "non-natural use" of their land (Rylands v Fletcher (1868) LR 3 HL 330). This established a distinct tort that sat somewhere between private nuisance and negligence.
The Elements of the Tort
For a claimant to succeed in an action under the rule in Rylands v Fletcher, several conditions must be met. These have been developed through case law since the original decision.
Bringing onto the land and accumulation
The defendant must have brought the dangerous thing onto their land and kept it there. The rule does not apply to things that are naturally present on the land. For example, in Giles v Walker (1890) 24 QBD 656, the defendant was not liable for thistles that spread from his land onto the claimant's, as they grew there naturally. The defendant must have made a conscious decision to collect and accumulate the substance in question.
A thing 'likely to do mischief if it escapes'
The thing accumulated must be something that is ‘likely to do mischief’ if it escapes. This is not about the thing being dangerous in itself, but rather that it poses a foreseeable risk of harm if it escapes from the defendant's control. The courts have recognised a wide variety of things as falling into this category, including water in large quantities (Rylands), gas, electricity, chemicals (Cambridge Water), and even people in a fairground ride that became detached (Hale v Jennings [1938] 1 All ER 579). The key is the foreseeable danger posed by an escape, not the escape itself being foreseeable.
Escape
There must be an 'escape' of the dangerous thing from land under the defendant's control to land outside their control. This was confirmed in Read v J Lyons & Co Ltd [1947] AC 156, where an inspector at a munitions factory was injured by an explosion that occurred on the factory premises. Her claim under Rylands v Fletcher failed because the explosion was contained within the defendant’s property and nothing had ‘escaped’ from it. Therefore, if the damage occurs entirely within the boundaries of the defendant’s land, the rule cannot apply.
Non-natural use of land
This is one of the most difficult and debated elements of the tort. As introduced by Lord Cairns, liability is only imposed if the defendant’s use of the land is ‘non-natural’. What constitutes a ‘non-natural’ use has evolved over time. In Rickards v Lothian [1913] AC 263, Lord Moulton defined it as "some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community."
More recently, the courts have significantly narrowed this requirement. In Transco plc v Stockport MBC [2004] 2 AC 1, the House of Lords considered a claim where a high-pressure water pipe supplying a block of flats burst, causing a landslip that exposed the claimant’s gas pipeline. The claim failed because the provision of piped water to a residential building was held to be an entirely ordinary and routine use of land. Lord Bingham stated that the rule would only apply where the defendant's use of land was "extraordinary and unusual". This has made it much harder for claimants to satisfy this element.
Foreseeability of Damage
A major restriction on the rule was introduced in Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264. In this case, small quantities of a chemical solvent used by the defendant in its tanning business had seeped into the ground over many years, eventually polluting the claimant's borehole from which it extracted water for public supply. Lord Goff held that, despite the tort being one of strict liability, the defendant could only be liable for damage if the type of damage was a reasonably foreseeable consequence of the escape. Since it was not foreseeable in the early 1970s that such small spillages would cause environmental damage so far away, the claim failed. This decision aligned the rule more closely with nuisance and moved it away from its original ‘strict liability’ character.
Defences to a Claim
Even if a claimant can establish all the elements of the tort, a defendant may be able to rely on one of several established defences:
- Consent of the claimant: If the claimant has expressly or impliedly consented to the presence of the dangerous thing, they cannot later sue if it escapes. This often applies in cases of "common benefit," such as where a water tank serves several flats in a building.
- Act of a stranger: If the escape is caused by the unforeseeable act of a third party over whom the defendant has no control, the defendant will not be liable. This was the successful defence in Rickards v Lothian, where a malicious person deliberately blocked a sink, causing a flood.
- Act of God: This defence applies where the escape is caused by extreme and unforeseeable natural forces, such as an extraordinary storm. However, the courts have interpreted this defence very narrowly, and it is rarely successful in modern times.
- Statutory Authority: If the defendant’s activity is authorised by an Act of Parliament, this provides a defence, provided the defendant has not been negligent in carrying out that activity.
- Default of the claimant: If the escape is caused entirely by the fault of the claimant, this is a complete defence.
The Modern Status of the Rule
The decisions in Cambridge Water and Transco have had a profound impact on the rule in Rylands v Fletcher. The House of Lords in Transco seriously considered whether the rule should be abolished and absorbed into the tort of negligence. However, they decided to retain it, but in a very restricted form.
Lord Bingham in Transco confirmed that the rule is best seen as a "sub-species of nuisance" and, like nuisance, a claimant must have an interest in the land affected to bring a claim. This means that claims for personal injury are not recoverable under the rule (Hunter v Canary Wharf Ltd [1997] AC 655). Furthermore, liability is now clearly dependent on the foreseeability of the relevant type of damage. This has led many academics to question whether the rule can still be described as ‘strict liability’ in any meaningful sense (Nolan, 2005).
The combined effect of these restrictions is that the rule now has a very limited field of application. A successful claim would require a defendant to have brought something onto their land which represents an "extraordinary and unusual" use, for that thing to escape, and for it to cause a foreseeable type of property damage to a person with an interest in the affected land. It is difficult to imagine a scenario where these conditions are met but where a claim in negligence or nuisance would not also be available and likely easier to prove. The main remaining benefit of the rule is that it does not require proof of fault in the cause of the escape, only that the resulting damage was foreseeable.
Conclusion
In conclusion, the rule in Rylands v Fletcher was created as a seemingly powerful principle of strict liability to protect landowners from the consequences of dangerous activities on neighbouring land. However, its history has been one of continual judicial restriction. The original formulation by Blackburn J has been qualified by the requirements of ‘non-natural use’ and, more recently and significantly, the need for the damage to be foreseeable. The House of Lords' decisions in Cambridge Water and Transco have confirmed its status as a narrow and limited tort, closely related to private nuisance, which applies only in exceptional circumstances. While not formally abolished, the rule is a shadow of its former self, and its practical utility in modern tort law is questionable. It remains a part of English law, but one that occupies a very small and increasingly overlooked corner.
References
Horsey, K. and Rackley, E. (2021) Tort Law. 7th edn. Oxford: Oxford University Press.
Nolan, D. (2005) 'The distinctiveness of Rylands v Fletcher', Law Quarterly Review, 121, pp. 421-451.
Cases
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264
Fletcher v Rylands (1866) LR 1 Ex 265
Giles v Walker (1890) 24 QBD 656
Hale v Jennings [1938] 1 All ER 579
Hunter v Canary Wharf Ltd [1997] AC 655
Read v J Lyons & Co Ltd [1947] AC 156
Rickards v Lothian [1913] AC 263
Rylands v Fletcher (1868) LR 3 HL 330
Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, [2004] 2 AC 1
