Otago Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Otago Law Review |
|
Last Updated: 7 December 2024
The Rylands Compromise
The Rylands Compromise
Maria Hook*
It is difficult to think of a more embattled tort than the rule in Rylands v Fletcher.1 In the 150 years since its inception, the rule has lost much of its potential2 and most of its defenders.3 It is portrayed as a rule that is unsound in theory and useless in practice. Although it has been a popular topic for scholars, there is limited evidence that scholarship has played a constructive role in its development. Authors have made the case for it to be reformed,4 to no avail; they have called for it to be abolished,5 with limited effect.6 Readers might be rightfully sceptical, therefore, whether the world needs another article on the subject.The goal of this article is relatively modest. It expands on existing views that the rule is a compromise, which is to impose a responsibility to pay in exchange for the defendant’s right to use their land. It then shows that this compromise can guide the future application of the rule, even in its current embattled form.
The hope is that this analysis may provide some assistance to Anglo-Commonwealth courts – and New Zealand courts in particular – who face the unenvious task of applying the rule. The rule continues to be pleaded.7 Courts have no choice but to try and apply the rule in a fair and reasoned manner, even if most claims are unlikely to succeed. They must grapple with the meaning of the different elements of the rule, to explain why a particular case falls outside of the boundaries of liability – or, exceptionally, within. In light of the heavy criticism that has been levelled at the rule over the years, and the restrictions that have been placed upon it, this is not an easy task. But it is an important one.
* Associate Professor, University of Otago.
SGCA 82.
II The Rule in Rylands as a Compromise
The purpose of this section is to unpack the compromise that underpins the rule in Rylands v Fletcher. This analysis must be read within the context of a body of case law that has left significant room for interpretation and, hence, scholarly debate. It would not be fruitful to wade into this debate any more than necessary.8 In particular, the article claims that the compromise is a valid explanation of the law, which is not, however, inconsistent with most other doctrinal Rylands theories. It draws on scholarship that links the rule with lawfulness, such as the work by John G Fleming, who described the rule as applying to activities that are “tolerated ... and could be deemed negligent as such but for their countervailing utility”.9 But it expands on this work by linking the rule more specifically to the right to use the land, and by providing a fuller explanatory account of the compromise than has been offered in the Anglo-Commonwealth literature to date.
A Overall Compromise
There are two components of the compromise: the right to use land, and a responsibility to pay. Before looking at each of these components in more detail, it is useful to provide a short overview of the compromise as a whole. The compromise recognises that the right to use land is extensive and therefore creates a risk of damage for others in the vicinity. The greater the freedom to use the land, the greater the potential for damage suffered by innocent parties. But it also preserves the right, because it does not require or declare the land use to have been wrong or unreasonable. It is concerned solely with the financial burden of any damage resulting from the use. In other words, the owner or occupier continues to enjoy their freedom to use the land, and in exchange they must pay for the harmful consequences of some of the riskier activities. They are free, say, to store significant amounts of chemicals on their land, provided they do so lawfully, but they must compensate their neighbours for any contamination caused by the chemicals because of the risks inherent in the activity. The right to use the land goes hand in hand with the responsibility to pay.
56 at 60.
B The Right to Use Land
A landowner has the right to use their land.10 This right is grounded in the common law, which has traditionally taken a liberal approach to property rights.11 Thus, courts have emphasised the common law right of landowners “to do what [they] like with [their] own”.12 This includes, for example, the right to “build whatever [they] like on [their] land”, which “can be restrained only” by competing property rights such as covenants or easements.13 It follows that ownership of land comes with a presumptive freedom to use the land – a “lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination”.14Of course, the freedom is not unlimited. The common law itself has placed limitations on the freedom of landowners. A land use that unduly interferes with the property rights of others amounts to a nuisance.15 Here, a defendant’s freedom to use the land is pitted against the plaintiff’s, necessitating a demarcation of their respective rights.16 Moreover, the law of negligence ensures that landowners are under a duty to act reasonably when using their land. Beyond the law of torts, planning law and environmental law impose significant restrictions.
Such limitations may trump the right to use one’s land. However, they do not affect the overall framing of the right as a presumptive liberty. The right is “open-ended”, which means a landowner is free to use their land unless their freedom has been specifically extinguished or limited.17 They might choose to engage in all sorts of activities – “grow[ing] mushrooms in the cellar; sing[ing] bawdy songs in the bath; paint[ing] the front door
luminous green; sunbath[ing] in the nude”18 – without experiencing a restriction of their freedom to do so.
The right to use the land is usually attributed to landowners or persons with exclusive possession of the land. This makes sense, because such persons have the greatest presumptive freedom to use their land. However, the right need not be understood in strictly proprietary terms.19 The scenarios explored in this article involve a defendant whose land use has caused harm to another person, usually a neighbour. In other words, the right to use the land is a freedom vis-à-vis that person. From the plaintiff’s perspective, it is immaterial whether the defendant had a proprietary or even a contractual right to use the land. What matters to the plaintiff is whether the defendant was free to use the land, in the sense that the plaintiff has no basis for claiming that the land use was unlawful and should not have occurred. If a defendant is given, or has taken, control over land to engage in a particular land use, and the plaintiff has no claim against the defendant to say that the land use was wrong, the defendant is effectively exercising a “right” to use the land. It is, nevertheless, a freedom that is connected to ownership, in the sense
v Chief Constable of Northamptonshire [1985] 1 WLR 1242 at 1255; Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533. The majority in Burnie thought that the rule should include “any person in control”: Burnie Port Authority v General Jones Pty Ltd, above n 6, at 536. In principle, even a trespasser could potentially be held liable. Imagine the following scenario: Party A parks a trailer full of fireworks on land belonging to their neighbour, Party C, thinking – mistakenly – that the land falls within their own boundary. The fireworks explode in a freak accident and damage Party B’s shed. It eventually transpires that Party A was trespassing. Why should Party A be immune from a claim under the rule in Rylands, when they would have been potentially liable had the trailer been on their land?
that the landowner has the power to control it (for example, by granting a licence, or by tolerating or ejecting a trespasser using their land).
C With a Responsibility to Pay
This article starts from the premise that the rule in Rylands v Fletcher is a response to, but not a limitation on, the freedom to use one’s land. There are two parts to this claim. The first is that the rule introduces a responsibility to pay, as opposed to a duty to act or a rule of conduct. This point is reasonably well-established.20 Thus, unlike nuisance and negligence, the rule does not tell defendants that they were wrong to use their land in a certain way. It simply requires defendants to pay for the harm, in circumstances where their use of the land has led to unfair costs for others.The second part of the claim is that a defendant’s responsibility to pay is premised on their right to use the land.21 In this context, the right to use the land is a freedom vis-à-vis potential victims, in the sense that they cannot stop the use or, once damage has occurred, bring a claim for damages on the basis that the use was unlawful.22 The rule operates as a compromise. The owner gets to use their land but, in return, they may be liable for any harm they cause. They are free, for example, to store fireworks on their land, but they may have to pay for damage to their neighbour’s property if, through no fault of their own, the fireworks explode.
This part of the claim is more controversial. The case law – despite its opacity – offers support for it. It was Blackburn J himself, in the original decision of Rylands v Fletcher, who seemed to invoke the compromise. Referring to a defendant who “for his own purposes, brings on his land
and collects and keeps there anything likely to do mischief if it escapes”,23 Blackburn J was not speaking of a defendant somehow misusing their land. On the contrary, the defendant was entitled to collect water in a reservoir (or run a factory or keep cattle). However, a defendant engaging in such an activity had a duty to keep the dangerous thing in “at his peril”.24 This did not mean that the defendant in this case should have prevented the water from escaping from his land. (It was clear that he had not been negligent and that his role in causing the escape was immaterial.) Rather, the defendant had to accept that he would be liable to pay for any damage, because it was his choice of land use that had introduced the risk of flooding. The obligation was an obligation to pay, in recognition of the defendant’s freedom to use the land. The plaintiff could not “control the defendants, or hinder their building what reservoirs they liked, and storing up in them what water they pleased”.25 They had no control over “the uses to which the defendants should choose to apply their land” (and, by extension, the risks those uses gave rise to).26 Therefore, putting the onus to pay on the defendant was “reasonable and just”.27
The House of Lords agreed. Lord Cairns in particular drew a link between the risks arising from a defendant’s freedom to use their land, and the defendant’s responsibility to pay.28 Having pointed out that the defendant “might lawfully have used [their land] for any purpose for which it might in the ordinary course of the enjoyment be used”,29 he went on to draw a distinction between natural and non-natural uses of the land, with only the latter kind being subject to strict liability. Non-natural uses involved the introduction of a new and dangerous thing or substance onto the defendant’s land, and a defendant “desir[ing] to use” the land in this way would do so “at their own peril”. 30 A careful reading of the passage shows that Lord Cairns did not intend to juxtapose non-natural uses with lawful uses in “the ordinary course of the enjoyment” of land.31 On the contrary, the defendant was free to engage in a non-natural use of the land (here, the artificial collection of water in the reservoir). But if they did, they had to pay for any resulting harm.
Importantly, the compromise can sit alongside other explanations of the rule. For example, it is not inconsistent with Simpson’s view of the decision as a “jurisprudential diversion”32 to respond to a series of dam
557.
failures;33 or with Newark’s analysis that the decision was an extension of the law of nuisance to one-off escapes,34 in which case the compromise would be limited to harm to land. It is also, of course, consistent with the idea that Rylands was about internalising the risks of dangerous activities, even though the rule did not develop into a more general principle of strict liability as some had hoped.35 Thus, the case has been described as “an isolated victory for the internalisers”.36 Each of these explanations can co-exist with the idea that a defendant’s presumptive freedom to use the land bears uncertain or potentially significant risks, and that it may therefore be appropriate for the defendant to shoulder the costs of some of these risks.
Since the decision in Rylands v Fletcher, courts have explicitly engaged with these other explanations for the rule.37 There is no explicit engagement with the compromise, although the case law implicitly gives effect to it. Courts have restricted the land uses that give rise to a responsibility to pay, mainly by equating the term “natural” with “ordinary”.38 There is no evidence that this should have affected the rule’s basic compromise – that responsibility flows from the right to use the land, in recognition of the risks associated with the right. Thus, in Rainham Chemical Works Ltd (in liq) v Belvedere Fish Guano Co Ltd, the defendants were liable not because their dangerous storage of chemicals was unlawful or even improper, but because their freedom to use the land in this “exceptional” manner had created the risk of explosion.39 In Hazelwood v Webber,40 burning off in the middle of summer was a non-natural use but not negligent, with the High Court of Australia noting that “[t]he full enjoyment of the occupation of land according to the reasonable standards of behaviour” invariably creates some risk for
neighbours.41 In Rickards v Lothian, on the other hand, the provision of domestic water supply in a block of flats was a natural use of the land because it was not only “reasonable” but “probably a duty”.42 Defendants who are acting out of duty, or in fulfilment of social expectations, are not defendants who are enjoying their freedom to use the land. There was no basis, therefore, for applying the compromise.
The lack of explicit engagement does raise the question, however: is the compromise a valid explanation of the law on Rylands v Fletcher as it stands today? Some would say that it is not. They would say that liability in tort never depends on lawfulness.43 Others disagree with that view, and characterise (some) strict liability as an obligation to repair harm that was “justifiably inflicted”.44 Others again might say that the compromise was once a valid explanation of the law, but that it is no longer persuasive, in light of the subsequent incursions that have been made on the “strictness” of the rule.45
The view that is adopted here is that the compromise is an important explanation of the law today. The main reason for this, which is explored in the next section, is that the compromise is able to explain the role of Rylands within its wider legal context. Legal analysis should strive to make sense of the law. Without the compromise, the rule would serve practically no purpose when placed next to negligence and nuisance. This potential incoherence is good evidence that the compromise is relevant. As for the more theoretical concern that liability in tort cannot depend on lawfulness, there may be no need to worry in practice. True, on the basis of the compromise, a defendant faces the possibility of strict liability to the extent that they are assumed to have made lawful use of their land. They have to pay in exchange for their freedom to store fireworks. However, this lawful use of the land is not a precondition for liability in the sense that it would need to be established by the plaintiff (which, admittedly, would be a strange thing indeed).46
41 At 277.
III The Compromise in Its Wider Legal Context
The purpose of the previous section was to show that the rule in Rylands v Fletcher strikes a compromise: it requires defendants to pay for damage caused by certain uses of land, because it recognises that rights to use land can be extensive and full of risk. The purpose of the present section is to substantiate this claim further – this time by reference to the wider legal context of the rule. In particular, the section shows that the compromise provides a coherent explanation of the rule in Rylands v Fletcher, as far as that is possible within the parameters of existing law. That is for two reasons. First, the compromise goes some way to addressing the “why Rylands?” question: why has the law of torts singled out non-natural uses of land as attracting strict liability, when fault is now the default standard of liability in most other areas? Second, the compromise explains why the rule can still serve a purpose – why it is not already, in practice, swallowed up by negligence and nuisance.
A Why Rylands?
Land is subject to competing interests. Let us say that Party A wants to use their land, and the particular use bears risks for Party A’s neighbour, Party B. Clearly, Party B wants to be free from harm. At the very least, Party B wants Party A to pay for any harm they may suffer as a result of Party A’s use of the land. It is up to the law to reconcile these interests. We have seen that the law places significant value on the right to use the land.47 Thus, it may protect Party A’s interest to use the land, even though the use is potentially dangerous to Party B. It may say, for example, that Party A’s storage of fireworks is neither inherently negligent nor a potential nuisance, so Party B cannot obtain an injunction. What is more, Party B is not entitled to damages if the fireworks explode in a freak accident and cause damage to Party B’s property.The rule in Rylands v Fletcher makes sure that Party B’s interests do not go entirely unprotected. The rule treats the right to use the land as part of a web of rights and duties connecting the stakeholders in the land. It recognises that the right to use land is a privilege that comes with responsibilities, and that the responsibility to pay need not be predicated on wrongful conduct. Through the imposition of strict liability, it compensates Party B for harm arising from the use of land, while
acknowledging Party A’s interest in using the land. This is the Rylands
compromise in action.48
It is often said that the rule is a relic of old times – that fault has replaced strict liability as the general principle, and that it makes no sense to hold on to strict liability here but not in other areas.49 However, the compromise can help us make sense of this status quo. It is not unusual for the responsibilities of land users to deviate from the norm.50 Take, for example, an occupier’s positive duty to remove or abate a nuisance caused by a trespasser or natural event.51 The reason we have dedicated rules to address land-related liability, is to do justice to the complex interests of parties connected to the land. There is an interesting parallel with the existence of environmental regimes regulating the use of land –and, indeed, grappling with the right to use one’s land – more generally.52 In this context, it is not surprising that the law of torts, too, should single out the area to delineate land users’ responsibilities – this time vis-à-vis potential victims, in the form of the Rylands compromise, which takes account of the potential risks inherent in the right to use one’s land.
B Distinct Function
When the rule in Rylands is understood as a compromise, its function is to provide an open-ended liability to pay for damage caused by certain land uses that are (assumed to be) lawful vis-à-vis the plaintiff. This is a distinct function that is not already served – and that could not be served – by negligence or nuisance. Without the rule, the alternatives would be to make the land use unlawful or to excuse the defendant from all liability. The Rylands compromise offers another option: combining lawfulness with a responsibility to pay. In other words, if lawfulness
was not relevant under Rylands, we could simply rely on negligence and nuisance.
Negligence
Negligence is generally available to victims of land-based harm amounting to physical damage or personal injury. In Burnie Port Authority v General Jones Pty Ltd,53 the High Court of Australia concluded that the rule in Rylands had been absorbed by the law of negligence. The majority reasoned that, because the dangerousness of the activity heightens the degree of care that is reasonable, it would be highly unlikely that liability would exist under the rule in Rylands but not under the principles of ordinary negligence.54 For example, in Hazelwood v Webber,55 the High Court of Australia considered that burning off in the middle of summer amounted to a non-natural use of land for the purposes of the rule in Rylands. According to the majority in Burnie Port Authority, the finding of a non-natural use of land meant that the defendant would have been under a heightened duty of care, with the result that they should have been held negligent.56 Hence, there was no benefit in retaining the rule in Rylands.The compromise provides an answer to this reasoning.57 It recognises that the rule plays a distinct function that cannot be served by negligence.58 In other words, it provides a rational explanation why the rule exists despite the law of negligence. Negligence limits the occupier’s freedom to do what they like with their land, when the compromise helps to preserve that freedom. Thus, the right to use the land can be a relevant consideration against a finding of negligence. For example, depending on the land use in question, a court will be careful to tie liability to a finding that the defendant did not exercise sufficient care in the way they went about the activity, instead of concluding that they should not have undertaken the activity at all.59 This minimises the interference with the defendant’s right to use their land. It would not be palatable, say, to prohibit the storage of fireworks outright, on the basis that it is an inherently negligent activity. But this also leaves room, then – and
arguably creates a need for – a rule that imposes a responsibility to pay for the non-negligent storage of fireworks.
It is true that, in practice, courts have been reluctant to avail themselves of the compromise offered by the rule in Rylands.60 Courts also occasionally muddy the relationship between negligence and Rylands.61 The two can – and often are – pleaded at the same time, and a defendant may be liable under both (when engaged in a negligent execution of a land use that is in principle lawful but subject to strict liability). This does not mean, however, that they are functionally equivalent. Conceptually, they serve distinct functions, even though many of the factors relevant to negligence are also relevant to the rule in Rylands.62
Nuisance
Similar reasoning applies in relation to nuisance. There is significant overlap between Rylands and nuisance (at least to the extent that Rylands is treated as a subset of nuisance, and nuisance applies to physical damage).63 If the rule is understood as a compromise – requiring the defendant to pay in exchange for their right to use the land – then it offers a distinct function from the general law of nuisance. That is because the general law of nuisance is about the identification of unlawful interferences with land.64 A claim in nuisance alleges that the defendant should not have used the land in a way that caused harm to the plaintiff, or that the defendant should stop using the land in a way that causes, or will cause, harm to the plaintiff. The goal is to demarcate respective rights to use and enjoy land. The point of Rylands, on the other hand, is that defendants may be liable for damage that was caused in the rightful exercise of their freedom to use the land (and not just for damage that was caused by exceeding the permissible boundaries of the right to use the land).Conversely, if the lawfulness of the land use was immaterial under Rylands, it would be difficult to see the need for a rule that is distinct from the general law of nuisance. As in the case of negligence, the storage of fireworks itself could be enough to constitute the (potential) nuisance. The reason why the general law of nuisance does not apply, but the
Nelson A8/84, 12 March 1987.
rule in Rylands might, is that we do not want to make the storage of fireworks itself a (potential) nuisance. This point is consistent with the traditional framing of Rylands as “an extension of the law of nuisance to cases of isolated escapes from land”,65 which was really code for escapes that were neither intentional nor reasonably foreseeable.66 If the main substantive difference between Rylands and nuisance is that the latter requires reasonable foreseeability of harm (and, hence, unlawfulness),67 we can return to our answer to Burnie in order to explain the rule, which is that the question of lawfulness matters.
IV Turning to the Compromise for Guidance
In the previous two sections, I have argued that the rule in Rylands v Fletcher strikes a compromise – it imposes on the landholder a responsibility to pay for harm, in exchange for their freedom to use the land. In this section, I argue that the compromise can shed light on some of the uncertainties currently afflicting the rule. For example, there has been some uncertainty in New Zealand whether prohibitory injunctions are an available remedy under the rule.68 Based on the Rylands compromise, the answer must be a clear “no”. If liability is premised on a lawful use of the land, then there is no basis for enjoining it. The most difficult question, though, has been what kind of land use will trigger liability.
[27] and [33]. For a more detailed discussion of the relationship between foreseeability of harm and wrongfulness, see Maria Hook “Reasonable Foreseeability of Harm as an Element of Nuisance” (2016) 47 Victoria University of Wellington Law Review 267.
[100] (the question was not considered on appeal).
Courts have traditionally framed this question as an inquiry into the “natural” or “non-natural” use of the land. In Rickards v Lothian, a case of water damage caused by an overflowing water basin in an upstairs lavatory, Lord Moulton described the element of non-natural use as “some special use bringing with it increased danger to others” that is “not merely ... the ordinary use of the land or such a use as is proper for the general benefit of the community”.69 Although still cited by the courts,70 this test has been the subject of criticism. In Cambridge Water, Lord Goff considered that Lord Moulton’s exceptions to non-natural use had the potential to be too expansive, and concluded that the storage of large quantities of chemicals was “an almost classic case” of non-natural use.71 In Transco, the House of Lords doubted the helpfulness of Lord Moulton’s “benefit of the community” criterion.72 However, the concept of “ordinary use” met with approval, at least from Lord Bingham, who considered that it was preferable to the concept of natural use.73 There had to be an “extraordinary” or “unusual” use of the land. Both Lords Hoffmann and Bingham also emphasised that there had to be an “exceptional risk”.74
These questions have been approached with flexibility.75 Thus, instead of categorising certain land uses as either non-natural or natural, courts have taken into account a range of factors in the context of the particular case when determining whether a use qualifies as non-natural (or extraordinary). It is conceivable, for example, that the storage of fireworks could trigger a responsibility to pay in one case, but not in another.76 According to Lord Bingham, a use “may be extraordinary and unusual at one time or in one place but not so at another time or in another place”.77 More specifically, Lord Bingham considered that the question was “whether the defendant has done something which he recognises, or ought to recognise” as “giving rise to an exceptionally high risk of danger or mischief if there should be an escape” and as “being quite out of the ordinary in the place and at the time when he does it.”78
In light of this flexibility, it is inevitable that the law involves uncertainty. Uncertainty, however, is problematic if it leads to arbitrary
[11]; Nottingham Forest Trustee Ltd v Unison Networks Ltd, above n 7, at [79].
reasoning. That is why the meaning of concepts like “non-natural” or “extraordinary” must be assessed by reference to the purpose(s) of the rule.79 They are artificial constructs that are infused with policy.80 In these circumstances, the Rylands compromise can provide some guidance.
Thus, as a first – very basic – step, it is useful to remember that a defendant who engages in a “non-natural” or “extraordinary” use of the land is doing so “at their peril” because the particular land use, though lawful, introduces risks that cannot be fairly borne by others. The land use amounts to the kind of exercise of privilege that should be accompanied by a responsibility to pay. In light of the compromise to be reached, the main interests that are affected are the defendant’s ability to enjoy their land without having to fear the financial repercussions of any ensuing damage; and the plaintiff’s expectation to receive compensation for the damage, in light of the risk introduced by the particular use of the land. Consistent with Lord Bingham’s inquiry into the defendant’s reasonable expectations, the compromise tries to let the defendant make the call whether to assume the responsibility to pay. It is up to the defendant whether they wish to face the risk of damages by exercising their right to engage in the particular use of land.
With this general guidance in mind, it is now helpful to turn to some particular features of the inquiry that benefit from closer engagement with the Rylands compromise.
A Ordinariness
As we have seen, the effect of Lord Moulton’s test was to treat ordinary use as a kind of exception to non-natural use. Since then, ordinary use seems to have become synonymous with natural use. Thus, for Lord Bingham in Transco, liability depended on there being an “extraordinary” or “unusual” use of the land; and the New Zealand Court of Appeal recently concluded that there was no liability under the rule because operating a commercial pine forest was not an unusual activity, especially in a rural area.81The meaning of “ordinariness” can be difficult to pin down. For example, is the storage of large quantities of chemicals in an industrial area sufficiently unusual to attract potential liability? Lord Goff in Cambridge Water thought so, but – like forestry in a rural area – the storage
of chemicals in an industrial setting can hardly be considered out of place. At first sight, these decisions may appear difficult to reconcile, and the concept of ordinariness unhelpfully vague. Indeed, some judges have been critical of the uncertainty that flows from the question of ordinary use.82
The Rylands compromise can help us cut through some of the confusion. Because its purpose is to preserve lawfulness – the freedom to use one’s land – in exchange for a responsibility to pay, it would be odd if extraordinary use (and hence liability under Rylands) required a conclusion that the land use was somehow irregular, undesirable, inappropriate, unreasonable or even unlawful.83 On the contrary, the fact that the land use was common practice in an industry, desirable, appropriate or reasonable might be the very reason why we do not want to take away the defendant’s freedom to engage in the use, despite it involving significant risks. The law has to make a good case for interfering with the defendant’s presumptive freedom to use their land. By the same token, a risky use that is also somehow irregular or inappropriate may be more likely to be unlawful (although it would be a particularly clear candidate for Rylands lability if it happened to be lawful).
It follows that Lord Goff’s conclusion in Cambridge Water was not an aberration. The storage of large quantities of chemicals in an industrial setting can be a non-natural or extraordinary use, even though it is not uncommon or irregular or out of place.84 It is an example of the kind of dangerous use that might be unlawful if (a) it was not so common and
(b) we did not have the option of strict liability. Another useful example involves the practice of burning-off: the deliberate lighting of a fire to control vegetation or waste on farmland. The fact that burning-off carries with it significant risks, even when done with great care, suggests that it might be the kind of practice that would be inherently negligent but for the respect accorded to a farmer’s right to use the land. Thus, in Hazelwood v Webber, the burning off of stubble was described as “a thing beneficial to the land which many farmers do”,85 but the fact it was so
dangerous when done in dry conditions meant that it attracted liability under the rule.86
So in what sense of the word must a land use be extraordinary, then, to attract liability under the rule? Why, say, might the Court of Appeal in Nottingham have been justified in concluding that forestry in a rural area is an ordinary use of land for the purpose of the rule? And why was the storage of chemicals in Cambridge Water non-natural or extraordinary? As we have seen, it is not because the rule requires a land use that is irregular or out of place in a general sense. Rather, there seems to be a link between ordinariness, reciprocity of risk,87 and lawfulness. The more non-reciprocal or disproportionate a risk, the more likely it is that a land use will be unlawful or, alternatively, lawful but subject to strict liability. The question of reciprocity is assessed as between the defendant and potentially affected parties.88 A land use that is commonly engaged in by both defendants and potential plaintiffs creates a reciprocal risk and is likely to be lawful and ordinary in a legal sense (for example, planting trees in a garden in a suburban area). By the same token, defendants and potential plaintiffs may engage in different land uses but create comparable – reciprocal – risks (for example, on one view, commercial forestry in a rural area creates a reciprocal risk when compared to other land uses ordinarily engaged in in such areas, like farming). So once again, the land use would be lawful and also ordinary in a legal sense. Finally, some non-reciprocal risks will lead to unlawfulness, but for those that do not, the Rylands compromise may come into play (for example, the use of large quantities of chemicals by a tannery is lawful but creates a disproportionate risk for other operators in the surrounding areas). Thus, the rule deals with land uses that are lawful but extraordinary (in a legal sense) because they give rise to disproportionate risks.
homeowners who claimed that the refinery’s emission of nickel particles over a number of decades had contaminated their land. The Court concluded that the refinery operated “in a heavily industrialized part of the city in a manner that was ordinary and usual and did not create risks beyond those incidental to virtually any industrial operation”. The more relevant question might have been whether reasonable persons in the plaintiffs’ position – homeowners in a residential area – would expect to bear the risks of standard industrial practices arising from a nearby industrial area.
To be clear, despite the relevance of reciprocity, ordinary use does not involve a mathematical assessment.89 It is, in effect, a shorthand for the question whether the defendant, in making use of their freedom to use the land, was potentially burdening others with the costs of the activity in a way that goes beyond what is commonly expected in the area. It may be helpful to frame the risks as being either “sufficiently reciprocal” or “unduly disproportionate though lawful”, with only the latter amounting to extraordinary use. As we will see later on,90 a key question in this context is how the particular land use is characterised. Is the relevant use the storage of chemicals in general, or the storage of large quantities of chemicals (or the storage of especially dangerous chemicals)? Is it the supply of water to a residential building, or is it the supply of water in an unusually large pipe?91 Is it commercial forestry in rural areas in general, or the planting of trees close to the boundary, or the practice of leaving large slash? If the characterisation is too general, the court will run the risk of treating an activity as ordinary even though the defendant is exercising the kind of privilege that, arguably, should come with a responsibility to pay.92
Finally, the Rylands compromise reinforces the basic proposition that uses of land that are required or expected of land users in the particular area are not uses the legitimacy of which can be conditional on a responsibility to pay. For example, where a defendant has installed domestic plumbing in a building in a residential area, there is no room for the compromise that is at the core of the rule in Rylands v Fletcher: that the defendant should only have the right to use their land in this way if they are willing to pay for it, otherwise the use might be considered unlawful.93 The defendant could hardly build a house without a toilet.
B Public Benefit
According to Lord Moulton in Rickards v Lothian, a use could not attract liability under the rule if it was a use that was “proper for the general benefit of the community”.94 Expressed as an alternative to “ordinary use”, this “general benefit” criterion was a key component of Lord Moulton’s test. Thus, in Rickards, Lord Moulton considered it relevant
that water supply to a house was “desirable in the interests of the community”.95
Since then, courts have questioned the meaning and relevance of the general benefit criterion. Lord Goff thought it could be given “some content” if it was understood to refer to such matters as the provision of services to a local community or to industrial premises, but that it should not be extended to “the wider interests of the local community or the general benefit of the community at large”.96 In Transco, Lord Bingham thought that “little help is gained (and unnecessary confusion perhaps caused) by considering whether the use is proper for the general benefit of the community”.97 Lord Hoffmann was similarly critical.98
When evaluated against the Rylands compromise, a categorical approach to general benefit really does seem to be unhelpful. It is possible to envisage scenarios where a defendant should expect to pay for their right to put others at risk, even though the use of land benefits others. An obvious example would be a socially beneficial activity taking place in a location that is not ideally suited to it – for example, the operation of a rubbish tip close to a residential area.99 More generally, as we have already seen, the utility of the activity might be the very reason why there is a need for compromise. Instead of making socially desirable –but dangerous – activities inherently unlawful, the defendant is strictly liable to pay for any damage.
There is an interesting interrelationship with negligence and nuisance here. If public benefit is not a permissible factor to conclude that a particular use of land is lawful, but the court takes account of public interest factors in awarding damages instead of an injunction,100 there is less scope for the rule in Rylands. If operation of a rubbish tip in a residential area is unlawful, despite its value to the public, but the court awards damages instead of stopping the operation so that the operation can continue to benefit the public, there is no need to invoke the Rylands compromise. Courts should be careful, however, not to rely on an award of damages (in negligence or nuisance) to preserve what is more appropriately conceived as a right to use the land (as opposed to an unlawful activity).
C Manner of Use
There has been some confusion to what extent it is appropriate to take into account the manner of the defendant’s use of the land when determining
95 At 281.
whether it amounts to a non-natural use. In Burnie Port Authority, the majority pointed out that liability under the rule had “come to depend on all the circumstances surrounding the introduction, production, retention or accumulation of the relevant substance”.101 The result was that the question of negligence “may intrude as a relevant factor in determining whether the use of land is a ‘special’ and ‘not ordinary’ one”,102 which was ultimately a reason why the majority considered that the rule had been absorbed by the law of negligence. McHugh J, in a minority judgment, maintained that, while “[c]ircumstances are relevant to the issue of non-natural use”, “manner of performance is not”.103 The court had to determine whether the “class of activity” constituted a natural use having regard to “the time, place and circumstances including the conduct of other members of the relevant community”.104 The risk involved was relevant, as was “the risk of escape from the class of activity”, but there could be no “close examination of the specifics”. For example, “[i]n a fire case, the Court does not examine how many hydrants or hoses were available”.105
In Nottingham Forest Trustee Ltd v Unison Networks Ltd, the New Zealand Court of Appeal concluded that it was wrong to look at the way commercial pine trees had been planted (or were positioned) when determining whether the operator of the forest was strictly liable for damage caused by tree falls.106 It was immaterial that the trees had grown to a height greater than their distance from a power line, because “[t]he issue of whether an activity can be described as an ordinary use of land cannot depend on such fine distinctions” as the height of the trees.107 If the question of whether the land use is an ordinary one is not kept distinct from the events that resulted in the damage, then “any activity which involves actions taken by a landowner resulting in damage to a neighbouring property might be brought within the ambit of Rylands v Fletcher”.108
When evaluating the potential role of the defendant’s manner of the use, it is important to bear in mind the relationship between Rylands v Fletcher and negligence. The first point is that, if the manner of the use makes the defendant’s conduct negligent, then there is no need for liability under Rylands. That is because, as shown in this article, strict liability under Rylands is a compromise that preserves the defendant’s freedom to use the land. If the maintenance of tall trees close to a power line amounts to negligence, then there is no longer a role for the Rylands compromise covering this specific scenario. It is only on the assumption
that there is no negligence that the specifics of the defendant’s use may be relevant to non-natural use.
The second point is that, if the manner of the use does not render it negligent, it may be relevant to the extent that it forms part of a defendant’s right to use the land (and hence is consistent with the Rylands compromise). For example, a defendant may claim that they had a right to maintain tall trees close to the boundary, so this could be a relevant factor going towards non-natural use. On the other hand, a defendant would not claim a right to release chemicals onto their neighbour’s garden, so the fact that they accidentally did so – say, because the barrels containing the chemicals were corroded – would not form part of the question of non-natural use. The relevant question to ask is whether a reasonable defendant, having regard to the reasonable expectations of potential victims, would have claimed a right to engage in the particular manner of use – maintaining tall trees close to the boundary, storing chemicals in corrodible barrels – in return for the responsibility to pay for any damage.
The upshot is that, contrary to the fear expressed by the New Zealand Court of Appeal,109 taking into account the manner of the use does not necessarily equate the use with the event causing the damage. There is a guiding principle to distinguish relevant circumstances from irrelevant circumstances, which is whether they form part of the proposed right to use the land. This question is assessed from the perspective of the reasonable defendant at the time of the use.110
Thus, if the defendant did not have (constructive) knowledge that the barrels were corrodible, this factor would not form part of the proposed right to use the land and therefore should not feature in assessing non-natural use. Rather, the plaintiff will have to argue that the storage of chemicals as such amounted to a non-natural use of the land. Alternatively, if the defendant did have constructive knowledge of the corrosion but claims that the storage of chemicals in this way was nevertheless lawful, then the plaintiff should be able to rely on the corrodible nature of the barrels in establishing non-natural use (assuming the storage of chemicals as such does not already amount to a non-natural use). In other words, if a circumstance that increases the risk of an activity does not support a finding of negligence, because the law prefers to protect the defendant’s freedom to engage in the activity, then there is nothing wrong in principle with taking it into account when assessing the question of strict liability.
To be clear, it is not up to the plaintiff to establish lawfulness, and Rylands and negligence can be pleaded together. For example, a plaintiff who does not want to argue that the maintenance of trees close to the boundary is inherently negligent, may rely on Rylands instead, proceeding
on the assumption that this particular practice is lawful in principle. Any circumstances that increased the risk of tree falls will only be relevant to the extent that the defendant was, or should have been, aware of them. What is more, a conclusion that the practice was extraordinary for the purposes of Rylands would not prevent an argument in a future case that the practice is, in fact, inherently negligent. Alternatively, a plaintiff may plead the actions in the alternative (the maintenance of trees close to the boundary is either negligent or an extraordinary use), or they may argue that the defendant is liable both in negligence and in Rylands (because the maintenance of trees close to the boundary was negligent and, more generally, commercial forestry is an extraordinary use of land).
D Statutory Authority
It is often said that an activity that is authorised or required by statute will not expose the actor to strict liability.111 When applied to the rule in Rylands, however, this proposition raises some questions. It makes sense that a defendant who is required to engage in an activity should not face strict liability under the rule, considering the rule is concerned with the defendant’s freedom to use the land, and with the risks flowing from that freedom. But why is it that liability under the rule should be unavailable simply because the defendant had statutory authority to engage in the use, when the very purpose of the rule is to shift the cost of lawful activities to the defendant? In other words, unlike in nuisance,112 liability under Rylands is not premised on a conclusion that the defendant’s use of land was wrong or inappropriate. The idea of strict liability under the rule is not logically inconsistent with statutory permission to engage in the use.113 A more nuanced approach is necessary, therefore, when assessing the relevance of a statute regulating the defendant’s use of land.
V Conclusion
The rule in Rylands v Fletcher introduces a responsibility to pay that is premised on the defendant’s right to use the land. The rule operates as a compromise: the defendant gets to use the land but, in return, they may be liable for any harm they cause. This compromise offers a persuasive doctrinal theory of the law, as far as that is possible within the parameters of existing law. It can also co-exist with other explanations for the rule, including the view that the rule is an offshoot of the law of nuisance.
[89] per Lord Scott.
When faced with the rule in Rylands, courts may turn to the compromise for guidance. In particular, the compromise clarifies that: (1) a land use may be common yet extraordinary for the purposes of Rylands, if it involves a lawful but unduly disproportionate risk (that is because preserving the freedom to use the land may be especially important in the case of well-established uses); (2) similar reasoning applies to land uses that are in the public interest; (3) the manner of use may be relevant to the extent it forms part of the defendant’s (assumed) right to use the land; (4) a land use that is authorised by statute may nevertheless attract liability under Rylands, depending on an interpretation of the particular statute, because the compromise is concerned with lawful uses; and (5) injunctions are not an available remedy. It follows that, in a case like Nottingham, the fact that commercial forestry is widespread in rural areas is not, on its own, determinative, and the circumstances leading to any damage – including the maintenance of trees close to the boundary – are relevant if they form part of the (hypothetical) claim to use the land. If courts were reluctant to conclude that this practice is unlawful, despite the inevitability of tree falls and – hence – damage, then Rylands offers another option – an award of damages, but no injunction, to recognise the unduly disproportionate but lawful risk of harm inflicted on the operator of the power lines.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/OtaLawRw/2023/5.html