Strict Liability and the Nature of the Rule in Rylands v Fletcher

It is perhaps
not surprising that counsel could not find a reported case since the second
world war in which anyone had succeeded in a claim under the rule.  It is hard to escape the conclusion that the
intellectual effort devoted to the rule by judges and writers over many years
has brought forth a mouse
was Lord Hoffmann’s description in Transco
v Stockport MBC
of the rule in Rylands
v Fletcher
(it is another matter that India has moved on to absolute
liability). In its recent 
in Mark Stannard v
, the Court of Appeal has considered two important
about the rule: (a) whether the inherently dangerous thing must itself “escape” or may contribute to the
escape of something else (such as “fire”); and (b) whether there is a special
rule for liability arising out of a fire. The judgments of Ward, Etherton and
Lewison, LJJ contain a careful and instructive analysis of the law on this
subject, and is another example of the importance of incremental reasoning in
the common law. As another great judge (Lord Greene MR) once put it in a
different context, the temptation to do “what
may appear to be fair in an individual case
” must be resisted because “principles of construction are not to be
” (see Hankey v Clavering [1942]
2 KB 326, overruled on the substantive point it decided in Mannai Ltd v Eagle Star Life Assurance [1997] AC 749).

Stannard ran a tyre business. He kept more than 3,000 tyres in his compound and
in the space between his compound and the plaintiff, Mr Gore’s compound at the
rear. On 4 February 2008, a fire broke out in Mr Stannard’s premises because of
faulty wiring. The tyres, which are ordinarily not combustible, caused the fire
to spread rapidly and Mr Gore’s property was entirely destroyed and reduced to
rubble the following day. Mr Gore naturally felt that he was blameless (which
he was) and sued Mr Stannard for compensation. The claim was put in two ways:
ordinary negligence, and strict liability. The negligence claim was destined to
fail, which it did once the Recorder found that Mr Stannard had done all he
could to ensure that the electricity system was as it should be. The case
therefore turned entirely on Rylands v
, the Recorder holding that the plaintiff was entitled to judgment
since Mr Stannard had, within that rule, kept combustible tyres that could
cause a fire to break out at his peril. Of course, the “tyres” had not escaped –
they had stoked the fire, which had.

Stannard appealed. The first point in the Court of Appeal was that the Recorder
had failed to distinguish between the escape of the dangerous “thing” which a
defendant must keep or collect on his land to fall within the rule, and the
escape of a fire that was stoked by something which did not itself escape.

LJ’s review of the authorities (the leading post-Ryland cases are Cambridge Water Co and
established that the rule had never been invoked in respect of a fire that had
broken out accidentally, since, by definition, nothing had “escaped” the land.
There was one exception, and that is the case of Musgrove v Pandelis [1919] 2 KB 43, in which the defendant’s
servant failed to shut off the supply of petrol to a burning car that was in a
garage below the plaintiff’s property. This led to a fire that destroyed the
car and the plaintiff’s property. Bankes LJ in the Court of Appeal had
expressed the view that the car was
the dangerous thing (apparently overlooking that the “car” was very much in the
land, it was the “fire” which had escaped). Ward LJ notices the criticism to
which Musgrove has subsequently been
subjected, and explains that if the Rylands
rule at all applies to fire, it is confined to fire that is deliberately kindled. In that case it
does no more than reaffirm the ancient English custom of the realm (ignis suus) by which an occupier of land
was liable for “his” fire unless it was caused by a stranger (a person who
entered without his leave) – in other words, deliberately by himself or who
entered his property with his leave.

and Lewison LJJ go even further. Etherton LJ holds that it is impossible to
apply Rylands v Fletcher to “fire”
cases because the first condition that the inherently dangerous thing must have
been “kept” or “collected” in one’s land can never be satisfied; the defendant
in such cases does not keep the fire, he keeps the thing that starts or stokes the
fire. Lewison LJ holds that Musgrove was
wrongly decided. The judgments of Ward and Lewison LJJ contain a valuable historical
analysis of liability for fire, and of the influence (in this area of the law
as in many others) of the old forms of action on the modern law.

the most important point that emerges from this judgment is that Rylands v Fletcher is a principle of
limited application: after Transco
and Stannard, it is confined to cases
in which a defendant keeps a thing that he knows will cause exceptional damage
if it escapes, and it can be said that keeping that thing was as an
exceptionally unusual use of his land given the context of the land and general
practices. It is sometimes tempting for a court to compensate a “victim” by
fastening liability on the person from whose land or because of whom (in a “but
for” sense) the loss emerged; this judgment emphasises that this approach is
not correct, for liability, if any, can arise only on a recognised cause of
action in accordance with existing principles of law.

About the author

V. Niranjan

1 comment

  • The arguments advanced (both for and against the propositions framed for adjudication) and the case law, in individual’s altruistic perception, but founded on wisdom gathered in hindsight, go to demonstrate essentially two obnoxious facts of life:
    1. The limitless extent or extremes the faculty of legal acumen could be summoned to rescue, exercised (exorcised ?), or travel, in dealing with, and resolving, any such point of dispute; albeit prima facie a very simple one of its kind.

    2. The tenaciousness with which the age old saying, – LAW IS AN ASS , – has, as always before, continued to remain an imponderable in its truistic sense; in that, there is no knowing what that precisely conveys (or intended to convey); or wheher the basic proposition itself is RIGHT OR WRONG, OR NEITHER (!)

    Over to legal luminaries for more altruistic thoughts!.

    V. Swaminathan

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