Rylands v Fletcher (1868)

Rylands v Fletcher is the source of strict liability in the common law — liability without proof of fault. It made a defendant pay for damage caused by contractors whose negligence he neither knew of nor could have prevented, where he himself had done nothing wrong at all. It is the parent of a family of modern liability — escaping fire, gas, electricity, sewage, chemicals — and, in India, of the stricter rule in M.C. Mehta. For this paper it is a near-certain question: the 2021 paper asked for the rule, the strict/absolute distinction and the exceptions — sixteen marks out of eighty from one case.

Near Ainsworth in Lancashire, Rylands and a partner owned a mill and wanted a better water supply. They obtained permission from Lord Wilton, who owned the land, to build a reservoir close to the mill, and engaged reputable engineers and contractors to do the work. Rylands took no part in the construction and had no idea anything was wrong with it.

Unknown to him, Fletcher held a mineral lease from the same Lord Wilton and was working a coal-mine nearby, the two properties being separated by land in the hands of third parties.

While excavating, the contractors came upon five disused vertical mine shafts, filled with soil and marl. They noticed them. They did not seal them properly. The shafts connected, through old workings, with Fletcher's mine.

The reservoir was finished and filled. The weight of the water pressed on the imperfectly filled shafts and they gave way. Water poured down them, into the workings beneath Rylands' land, along those workings into Fletcher's colliery, and flooded his mine. The damage was agreed at £937.

Three findings drive the case:

• The contractors were negligent — they saw the shafts and did not deal with them.
• Rylands was not. Lord Cairns LC: "Personally, the defendants appear to have taken no part in the works, or to have been aware of any want of security connected with them."
• The contractors were independent contractors, not servants — so vicarious liability could not reach Rylands.

That is why the case had to be decided on a principle of strict liability, or not at all.

The route through the courts is worth a sentence, because students get it wrong. The Court of Exchequer found for the defendants (Bramwell B dissenting). On a writ of error the Court of Exchequer Chamber unanimously reversed, in the judgment of Blackburn J. The House of Lords dismissed the defendants' appeal. Note that the name flips: it is Fletcher v Rylands below.

1. Where a person lawfully brings on his land something harmless while it stays there but mischievous if it escapes, is his duty an absolute duty to keep it in at his peril, or only a duty to take reasonable precautions?
2. If only reasonable care is required, is he nevertheless answerable for the want of care of the independent contractors he employed?

Blackburn J answered the first in a way that made the second unnecessary to decide.

For Rylands. Liability for damage to property, outside trespass, requires fault — as in the collision cases, the runaway horse in Hammack v White, the falling bale in Scott v London Dock Co. He was entitled to build a reservoir, he employed competent men, and they were independent contractors. To hold him liable is to make him an insurer.

For Fletcher. He was blameless too, someone must bear the loss, and he had no control over what Rylands chose to do with his land. The old authorities on straying cattle, on filth from a privy and on fumes from alkali works all proceed on the footing that a man who brings something dangerous on to his land keeps it there at his peril.

Appeal dismissed. Rylands was liable, though personally free from fault, because he had brought on to his land something likely to do mischief if it escaped, and it escaped and did damage.

Blackburn J in the Court of Exchequer Chamber — the passage every examiner wants, adopted word for word by Lord Cairns in the House of Lords:

"We think that the true rule of law is, that the person who, for his own purposes, brings on his land 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. He can excuse himself by showing that the escape was owing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."

His reason: the neighbour "who has brought something on his own property (which was not naturally there)... but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues" — and this is the law "whether the things so brought be beasts, or water, or filth, or stenches."

Lord Cairns LC's gloss — "non-natural use". He agreed but added the qualification that has governed the rule ever since. Where in "the natural user of that land" an accumulation of water passes off by the operation of the laws of nature, "the plaintiff could not have complained". But:

"if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it... and if in consequence of their doing so... the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril."

Lord Cranworth put it at its shortest: a person who accumulates on his land anything which if it escapes may damage his neighbour "does so at his peril... he is responsible, however careful he may have been, and whatever precautions he may have taken."

The four elements, distilled:

1. The defendant brought something on to his land and kept it there, "for his own purposes"; things naturally present are outside the rule.
2. The thing is likely to do mischief if it escapes — water, gas, electricity, fire, explosives, chemicals, sewage.
3. It escapes — from a place in the defendant's occupation or control to a place outside it.
4. The use of the land is non-natural, and damage results.

Blackburn J's difficulty was that fault-based liability was already the rule in the obvious cases: Martin B had pressed the point that when damage is done by collision, negligence must be shown. His answer is the most instructive part of the judgment. He accepted that in those cases negligence must be proved, and explained why: they are situations of mutual and unavoidable risk voluntarily assumed. Traffic on the highways "cannot be conducted without exposing those whose persons or property are near it to some inevitable risk", so highway users take that risk on themselves. Then the distinction: "But there is no ground for saying that the plaintiff here took upon himself any risk arising from the uses to which the defendants should choose to apply their land."

That is the moral core of strict liability, and the sentence to quote if asked to justify the rule: a person who creates an abnormal risk for his own benefit, in a way his neighbour cannot control or avoid, should bear the loss when it materialises. The rule allocates risk to the party who created and profited from it; it is not a finding of blame.

Escape — Read v J Lyons & Co (1947). An inspector was injured by an explosion inside a munitions factory where she worked. The House of Lords held Rylands inapplicable: there had been no escape to a place outside the defendant's occupation or control. Two limits follow — escape is essential, and Rylands is a tort about the use of land, not a general principle of liability for ultra-hazardous activity. Hence the rule gave nothing to a person hurt inside a factory, a gap M.C. Mehta later closed.

Non-natural use — Rickards v Lothian (1913). A third party blocked a wash-basin on the defendant's premises and turned on the tap; water damaged the plaintiff's stock below. The Privy Council held the defendant not liable on two grounds: the act of a stranger, and — more importantly — that the ordinary domestic water supply of a building is not a non-natural use. Lord Moulton's test is the one to reproduce: the use must be some special use bringing with it increased danger to others, not merely the ordinary use of the land or a use proper for the general benefit of the community. Since most industry can be so described, that test drained the life out of the rule in England.

India — Madras Railway Co v Zemindar of Carvatenagarum (1874) LR 1 IA 364 (PC). The Zemindar maintained ancient irrigation tanks on his estate. After extraordinary rainfall they burst and the water washed away the Madras Railway Company's tracks. The Privy Council held him not liable, for two examinable reasons. First, he had not "brought" the water: the tanks were ancient, and storing water for irrigation in India is an ordinary and natural use of land. Second, the cause was rainfall that burst tanks all over the district — vis major. The same activity may be natural in one country and non-natural in another.

India — M.P. Electricity Board v Shail Kumar, AIR 2002 SC 551. A workman cycling home on a rainy night rode over a live electric wire lying on a flooded road and was electrocuted. The Board pleaded that a third party had tapped the main line to steal electricity — the act of a stranger. The Supreme Court rejected the defence. Thomas J held that the primary liability rests on the supplier: "So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy". Pilferage was foreseeable, and the current should have cut out when the wire snapped. A stranger's act is no answer if it ought to have been anticipated (North Western Utilities Ltd v London Guarantee and Accident Co (1936)).

Displacement for hazardous industry — M.C. Mehta v Union of India, AIR 1987 SC 1086. After the oleum leak from Shriram's Delhi plant, a Constitution Bench refused to be bound by a nineteenth-century rule which "cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy": "We no longer need the crutches of a foreign legal order." It laid down absolute liability, which "is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v Fletcher." Rylands survives in India for ordinary escapes from land; for hazardous enterprise it has been superseded.

These are why the rule is called strict and not absolute.

1. Plaintiff's own default — Blackburn J allowed this in terms; also where the damage is due to the abnormal sensitiveness of the plaintiff's property (Ponting v Noakes).
2. Act of God / vis major — natural forces so exceptional that no human foresight could provide against them (Nichols v Marsland; Madras Railway Co). The standard is high: Greenock Corporation v Caledonian Railway shows that anticipatable rainfall is not act of God.
3. Act of a stranger — the unforeseeable deliberate act of a third party beyond the defendant's control (Rickards v Lothian); heavily qualified, since if the act ought to have been anticipated the defence fails (Shail Kumar).
4. Consent of the plaintiff, and common benefit — typically an installation maintained for both parties in a shared building, absent negligence.
5. Statutory authority — where the accumulation is authorised by statute and the escape occurs without negligence; its extent turns on the words of the Act (Green v Chelsea Waterworks Co).
6. Natural use, and things naturally on the land — strictly the absence of an element rather than a defence (Giles v Walker).

Some writers count seven, splitting consent from common benefit.

Commit to your answer before reading each response.

1. What if the water had flooded only Rylands' own land, injuring a visiting surveyor?

No Rylands liability: the rule fires on escape — the thing must leave the defendant's land and do mischief outside it. Injury within the boundary is negligence-or-occupier's-liability territory. (This is the exact gate the House of Lords applied in Read v Lyons: a shell exploding inside the munitions factory was no escape.)

2. What if a trespasser had opened the reservoir's sluice gates at night?

The act-of-a-stranger exception answers: liability without fault still presupposes the defendant's use caused the escape; a third party's deliberate, unforeseeable act breaks that attribution. But watch the qualification — if the stranger's interference was foreseeable and guardable-against, failing to guard is ordinary negligence.

3. What if the reservoir were a government water tank built under statutory authority?

Statutory authority is a recognised defence to Rylands — the legislature has sanctioned the accumulation, so the non-natural-use premise falls away, and liability requires negligence. And if the "tank" were instead a hazardous industrial plant? Then India departs from the whole framework: under M.C. Mehta, absolute liability admits no exceptions at all — not act of God, not stranger, not statutory authority.