Strict Liability notes PDF

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Strict Liability1. Introduction Term used to describe liability which is imposed on the D without any proof of fault on his part. Means although D has taken all the reasonable precautions to avoid or minimise risk arose from his activity. Rules of Rylands v Fletcher Landmark case for torts law. F: D...

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Strict Liability

1. Introduction - Term used to describe liability which is imposed on the D without any proof of fault on his part. - Means although D has taken all the reasonable precautions to avoid or minimise risk arose from his activity. Rules of Rylands v Fletcher -

Landmark case for torts law.

F: D (mill owner) employed some independent contractors to build a reservoir. Under the reservoir, there were some iron shafts that went through the P’s mining area. The D didn’t know the existence of the iron shafts and the contractors were negligent in not blocking the shaft. The P’s mine was flooded when the reservoir was filled with water. The D were not negligent and neither were they vicariously liable for contractors negligence. But the House of Lords held D liable. H: Blackburn J in the Court of Exchequer Chamber: If the person who for his own purpose brings on his land and collects and keeps things which were likely to do mischief if it escapes, must keep it at his own risk. If he didn’t do so, he is prima facie answerable to all the damage. Unless he can prove that it was P’s own fault or act of God. Later, Lord Cairns in the HOL approved the rule but added that the rule is only applied when the D used the land for a non-natural use. (narrowed and restricted the rules)

2. Elements to Establish Liability

A. Dangerous things/ Things which are likely to cause damage if it escapes - Question of fact - Need not to be dangerous per se, but it must be dangerous if it escapes Ex: -

Gas (Batchelor v Tunbridge Wells Gas Co) Noxious fumes (Halsey v Esso Petroleum CO Ltd) Explosives (Rainham Chemical Works Ltd v Belvedere Fish Guano Co) Fire (Lembaga Kemajuan Tanah Persekutuan v Tenaga Nasional Berhad ) Electricity Water (Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia Consultants & Ors) Sewage

Whether the things is considered dangerous when it escapes is based on the ordinary experience of mankind Ang Hock Tai v Tan Sum Lee & Anor F: P rented a shophouse and lived on the first floor of the building. The D who had business at the ground floor stored petrol for business purpose. One day, D’s premise caught fire and killed the P’s wife and child. D was liable under the rule of Rylands v Fletcher as petrol was a dangerous thing. However, this element of the thing being described as dangerous thing is no longer accurate and practical by authors in England. This is because in the Cambridge Water case, it mentioned that the rule in Rylands will not be applicable unless the relevant damage is foreseeable. The thing itself is dangerous is not longer relevant.

B. Intentional Storage/ Accumulation - Rules only apply if the D purposely keeps and collects the thing -

Not applicable if the thing is brought unto D’s land by others without D’s authorization/ done in pursuance of contractual duty.

Rainham Chemical Works v Belvedere Fish Guano F: X and Y set up a company Z Ltd as a factory. Z Ltd entered a contract with X and Y to manufacture explosives. Z Ltd manufacture the explosives at X and Y land. Z is considered as licensee. Later, an explosion occurred which robbed many lives. H: Z Ltd is liable as licensee as it accumulated the things. While X and Y, as occupiers and landowners were also liable to the accumulation by their licensee as it was under the contractual duty.

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Not applicable if the thing is naturally on the land

Giles v Walker F: D ploughed his land but later left it unattended. Thistles grew on the land and later escaped to P’s land and seeded. H: D is not liable as the thistles were the natural growth of the D’s land. His liability may be sought under tort of nuisance or negligence.

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If the occupier intentionally caused something that is naturally found on the land to escape, he is still liable for damage caused to the P.

Whalley v Lancashire & Yorkshire Rly Co F: After heavy rain, water accumulated against the defendants’ railway embankment, endangering it. The defendants cut trenches to allow the water flowed through, where it then went on to the land of the plaintiff, on the far side of the embankment and at a lower level. H: Even though the D didn’t bring the water in, but they did not have the right to protect their land by transferring the mischief from their land to the plaintiff’s. So D is liable.

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If the defendant didn’t accumulate the thing naturally on the land and the escape was not caused by the D’s act, D will not be liable

Pontardawe RDC v Moore-Gwyn F: Due to the change of the weather, some rock from D’s land fell onto P’s land H: D was not liable as he did not accumulate the rocks and the escape was not caused by D’s act. Miles v Forest Rock Granite Co (Leicestershire) Ltd F: D used some explosives to blast some rocks on his land. Some of the rocks fell and injured P. H: Although the rocks were not purposely collected or kept, but the explosives were purposely collected and kept. D was liable for his accumulation which caused the escape of the rocks. Rock blasting is a non-natural use of land. (Which means the D ought to foreseen that the rock-blasting may result in the escapes of the dangerous things)

C. Escape - P must prove that there has been an escape Read v J Lyons & Co Ltd F: An inspector of munitions (explosive) was injured when a shell that was being manufactured at D’s factory when she was employed, exploded and she suffered injuries. H: D not liable as there was no escape. It must be escape from one place to another. Escape means the thing has escaped from a place which D has control and authority to a place over which D has no control and authority Ponting v Noakes F: P’s horse went to D’s land and at the poisonous leaves planted in D’s land. H: There was no escape as the tree and leaves did not extend beyond the D’s boundary.

Crowhurst v Amersham Burial Board F: The leaves/ branches (poisonous) went into the P’s land, the cow ate and died H: Liable for strict liability because there was an escape from D’s to P’s land

Midwood & Co Ltd v Mayor, Aldermen, and Citizens of Manchester H: D was liable as explosion on D’s property caused inflammable gas to escape into P’s house and later P’s house was set in fire.

Milik Perusahaan Sdn Bhd v Kembang Masyhur Sdn Bhd H: D was found liable when the earthwork activities conducted on its land resulted in a mudslide and the soil deposits were made on the P’s adjoining, lower-level land.

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The meaning of escape has extended to include a situation where the use of the dangerous thing causes an event from which damage is sustained. (Miles v Forest Rock Granite Co)

Damage caused by the spread of fire Common law presumption: Man is answerable for the damage that is caused by the fire began on his property. (But does not apply in Malaysia) -

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P still need to prove that D or the person for whose conduct he was answerable has been negligent and the negligence must be either the start of the fire or the spreading of the fire to P’s land. Or P may prove that D has permitted or caused the source of fire danger to exist in his premise. (which caused injury to P)

If no escape of anything brought onto the D’s land, D could still be found liable if P able to prove conditions laid down:

Lembaga Kemajuan Tanah Persekutuan v TNB (following Musgrove v Pandelis) F: P’s rubber trees were destroyed by fires which started from D’s land. H: Burning vegetation on D’s land had been cut down and left lying on the ground in hot, dry weather. D should have known that the fire could break out and spread to P’s property. Besides, D’s use of the land was found to be a non-natural use. Rules: 1. Firstly, D had brought onto their land things which likely to catch fire and kept them in such a condition which it will ignite and likely to spread to P’s land 2. D had brought the things onto his land in the course for non- natural use of land

3. Things had ignited and the fire spread.

Lee Kee v Gui See & Anor F: D was found liable when the third party he hired to burn some rubbish on his land without any precaution, which caused the fire to spread to D’s land, destroying the rubber trees. H: If the person made fire on his land to burn something inflammable, need to take reasonable steps to prevent fire from spreading.

D. Non-natural use of land - D will only be liable if he brings or accumulates the thing onto his land and makes a non-natural use of the land - It must be something brought and increased danger to the others and must not merely be the ordinary use of the land or use as for the general benefit of the community (Rickards v Lothian) Rylands v Fletcher H: The D must put his land to a non-natural use Natural use: Ordinary use although “artificial” Non-natural use: Extraordinary use

Read v Lyons & Co Ltd H: All factors such as time, location and the ordinary activities of mankind must be taken into consideration, so that what is dangerous or considered as non-natural use of land may differ in different circumstances. Ex: In 17th Century, the buildings of skyscrapers was probably a dangerous activity and constituted a non-natural use of land. However in 21st Century it is considered as usual and is arguably a natural use of land.

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Public benefit can constitute to natural use Non-natural use of land has been equated with unreasonable risk in the tort of negligence. Balance the probability of damage occurring plus the seriousness of the probable damage compared to the social benefit derived from it. (Winfield & Jolowicz) Not conclusive test. The factors court will take account were the quantity of the thing, the way it was stored and the location of D’s land.

Mason v Levy Auto Parts of England Ltd F: The defendants had a store of machinery in inflammable packings, together with a quantity of petroleum, acetylene and paints. A neighbour claimed from fire damage. H: He found that the circumstances of the storage amounted to a non-natural user and therefore liable.

Examples of non-natural use of land: Crowhurst v Amersham Burial Board F: D planted a yew tree on his land. The branches and leaves extended to P’s land. Yew leaves are poisonous to cows. P’s horses died. H: Planting poisonous tree is not natural use of land. (escape of things)

Yat Yuen Hong Co Ltd v Sheridanlea & Anor F: D were developing their land which was beside P’s land. The D’s land was situated higher than P’s land. Some earth fell onto P’s land and damaged P’s nursery. H: Piling loose earth on a slope so that more flat land would be available is a non-natural use of land.

Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat F: D was a contractor engaged to clear an irrigation (灌溉) canal which went through P’s land. The bushes and weeds negligently set on fire by D and escaped to P’s land. H: D liable as there is an escape of fire because of the non-natural use of land.

Hoon Wee Thim v Pacific Tin Consolidated Corporation F: D built a reservoir on their land which was above ground level. A heavy rainfall caused the water-bunds to collapse and killed the deceased. P claimed for damages. H: Using sand-bunds to separate ponds of water is a dangerous and non-natural use of land. D used the land in a special way which brings danger to others. Even if he used for natural use, does not means that he can conduct hazardous activities.

Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia Consultants & Ors H: Artificial accumulation of rainwater on higher ground, which then seeped underground, causing increased infiltration rate and saturation of soil is a non-natural use of land. And this caused landslide to occur.

Examples of natural use of land: British Celanese v AH Hunt F: P claimed that the foil strips from D’s factory caused a disruption to the electrical power and supply to that area which caused damage to P. H: D’s factory was in industrial area and what he did suits the purpose of area. He will be charged under negligence and nuisance but not strict liability as the use of land was not a non-natural use.

Transco plc v Stockport Metropolitan Borough Council F: The defendant council were responsible for the maintenance of the pipe work supplying water to a block of flats. A leak developed which was undetected for some time. The water collected at an embankment which housed the claimant’s high pressure gas main. The water caused the embankment to collapse and left the gas main exposed and unsupported. This was a serious and immediate risk and the claimant took action to avoid the potential danger. H: Not liable for strict liability as the water in a pipe is not dangerous thing and is not an unusual or non-natural use of land.

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Foreseeability of damage D wont be liable for all consequential damage that result from an escape. The type of damage must be foreseeable This concept is laid down in the case of Wagon Mound is applicable in the tort of strict liability and this is confirmed by the House of Lord’s decision in Cambridge Water Co Ltd v Eastern Countries Leather plc.

Cambridge Water Co Ltd v Eastern Countries Leather plc F: D who was a leather manufacturer used a chemical, PCE to process. The chemical spilled little by little on the concrete floor of the factory. It is not soluble in water and seeped through the factory floor until 50m below the ground. Then it spread at the rate of 8m per day until it reached P’s area to pump to water to the residents. The distance between D’s factory and P’s area was 1.3 miles (2km) and taken 9 months to reach the P’s area. P need to spend 1 million to find and operate another borehole. H: In the claim of negligence, nuisance and strict liability under the rule of Rylands v Fletcher, High Court dismissed the claims for negligence and nuisance as it was unforeseeable to cause damage to P. While for strict liability, HC held that D’s activity was not a non-natural use of land taking into the public benefit (employment) from the activity. Besides, the rule is inapplicable unless the damage is foreseeable as a result of an escape and D didn’t take any precautionary steps. COA  nuisance

However, in the House of Lords, it affirms high court decision added that D’s use of the land was not exactly natural use but the damage was not foreseeable so they cannot be liable.  After this case, it makes P harder to succeed in strict liability. - Have to prove that there is a dangerous thing, the thing has been accumulated, foreseeable to escape and there is an escape, the land used is for non-natural use and the damage suffered is reasonably foreseeable - In Cambridge case, Lord Goff in holding that the seepage of the chemical was unforeseeable seemed to suggest that the escape also need to be foreseeable.

3. Defences A. Consent of the Plaintiff - Expressly or impliedly consents to the existence of the dangerous thing and D is not negligent Sheikh Amin bin Salleh v Chop Hup Seng F: P owned a land which had built 8 terrace houses and 4 were rented by D. D used the premises for a bakery which is known by P. Later, because of D’s negligence, the fire had destroyed the 8 houses. H: P assented the use of D’s premises as a bakery. So the rule of strict liability cannot be applied.

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Implied consent can be raised for example: where different floors of the same building are occupied by different people who are aware, but didn’t complain of the activity conducted by them.

B. Common Benefit - If the dangerous thing is allowed to exist for the common benefit for both P and D, D will not be liable if it escapes and causes damage.

Carstairs v Taylor F: P rented a ground floor factory from D who occupied above. Water from roof was collected through gutters which connected to a box, and from the box flow into the drain. Rats had made holes in the box and water dripped into and damaged P’s property. H: D was not negligent and even the method of disposing water is dangerous, but D is not liable as the box was made for common benefit.

C. Act of a third party - To determine whether the person is third party or not, is to test whether the person acts outside the D’s control. - D can still be liable if he can foresee the act of third party (Hale v Jennings Bros) - Ex: Trespassers (employee employed not)

Box v Jubb F: The D’s reservoir overflowed and damaged D’s property. The cause is because of the overflowing of the D’s neighbour’s reservoir. H: Since the sequence of the events were not foreseeable and D was not negligent, D was not liable.

Rickards v Lothian F: Third party purposely blocked the waste-pipe of a lavatory basin in D’s premises and turned on the tap. The water overflowed and damaged P’s property which was situated below. H: D not liable.

Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd H: D not liable under the rule of Rylands v Fletcher for failing to inspect whether is there damage to the main gas supply which exploded when the third party constructed a sewerage nearby which caused P’s hotel to suffer damage. However, they are liable for negligence for failing to foresee that non-inspection of their pipes might lead to foreseeable injury.

D. Act of God - Natural causes which are unforeseeable and occur without human intervention. Nichols v Marsland F: D owned many artificial lakes. A heavy rainfall caused the artificial embarkments of the lake to collapse and water from the lake swept away 4 bridges. H: D not liable as he was not negligent and it was not foreseeable and was act of God.

Greenock Corporation v Caledonian Railway Co F: Heavy rainfall caused the D’s pool to flood. The water flowed to highway and onto P’s land, causing damage to the property. H: D is liable because in collecting and damming up the water of a stream. It has duty to ensure that people who are staying lower ground would not be affected by their activities.

E. The Plaintiff’s default - Plaintiff’s own action - Contributory negligence under s.12(1) of the Civil Law Act 1956 Eastern and SA Telegraph Co Ltd v Cape Town Tramways Corpn F: Ds’ tramway operation has affected the sending of messages by P through their submarine cable. H: D not liable as didn’t cause damage to their cable. The court stated that a person cannot impose liability to another as he used his property in a special way.

Hoare & Co v McAlpine H: Tremors under the earth caused by D’s activities had caused damage to the structure of the P’s hotel and the D was held liable. Defence that the hotel is unstable due to age is not acceptable.

F. Statutory Liability - Statutes exclude liability for the acts - If statute just give D power of discretion, D will be still liable if he exercise carelessly.

4. Who may sue Miles v Forest Rock Granite Co: anyone may maintain a claim and a person no need to have interest in land. (those who have interest in land sure can)  If not legal, like trespasser, cannot

5. Who may be sued - D need not to be the owner of the land on which the dangerous thing is accumulated. - Who is responsible to the accumulation of the dangerous thing and has control on it when it escaped. 6. Claims for Pure Economic Loss - Damage to land and property can be recoverable - It can be recoverable (pure economic loss) if it is direct consequences of the escape and is foreseeable. 7. Claims for Personal Injuries Hale v Jennings Bros H: P who was a tenant of a stall in a fair was compensated for personal injuries as a result of the escape of D’s chair o plane. (P has interest on the land)...