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Notes on Strict Liability in Tort Law...

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CHAPTER 2: STRICT LIABILITY/TANGGUNGAN KERAS CHECKLIST A. INTRODUCTION I. THE RULE IN RYLANDS v FLETCHER [1866] - Rylands v Fletcher [1866] B. ELEMENTS (*ALL ELEMENTS MUST BE FULFILLED) I. ACCUMULATION/INTENTIONAL STORAGE - Ang Hock Tai v Tan Sum Lee & Anor [1957] II. DANGEROUS THINGS/THING LIKELY TO CAUSE DAMAGE IF IT ESCAPES -

Rainham Chemical Works v Belvedere Fish Guano [1921]

Giles v Walker (1890) Pontardawe RDC v Moore-Gwyn [1929] - Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) ESCAPE - Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd [1972] - Read v J Lyons & Co Ltd [1946] - Ponting v Noakes [1894] - Midwood & Co Ltd v Mayor, Aldermen, and Citizens of Manchaster [1905] - Milik Perusahaan Sdn Bhd v Kembang Masyhur Sdn Bhd [2003] NON-NATURAL USE OF LAND - Crowhurst v Amersham Burial Board [1878 - Yat Yueng Hong Co Ltd v Sheridanlea & Anor [1963 - Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978] - Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966] - Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia Consultants & Ors [1997] - British Celanese v AH Hunt [1969] - Transco plc v Stockport Metropolitan Borough Council [2004] FORESEEABILITY OF DAMAGE - Cambridge Water Co v Eastern Counties Leather plc [1994] -

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C. DEFENCES I. CONSENT OF THE PLAINTIFF - Sheikh Amin bin Salleh v Chop Hup Seng [1974] II. COMMON BENEFIT - Carstairs v Taylor [1871] - Dunne v North Western Gas Board [1964] III. ACT OF A 3RD PARTY - Box v Jubb [1879] - Rickards v Lothian [1913] INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18

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Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] ACT OF GOD (NATURAL DISASTER) - Nichols v Marsland [1876] - Greenock Corporation v Caleaonian Railway Co [1917] - AG v Cory Brothers Ltd [1921] - Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966] THE PLAINTIFF’S DEFAULT - Eastern and SA Telegraph Co Ltd v Cape Town Tramways Corporation [1902] - Hoare & Co v McAlpine [1923] STATUTORY AUTHORITY

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INTRODUCTION  

Originated from tort of private nuisance Strict liability: Term used to describe liability which is imposed on D without any proof of fault on his part

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Although D might have taken all reasonable precautions to avoid or minimise risks arising from his activity, he may still be found liable The mental state of D is irrelevant Not a requirement for D to have intention to do the alleged act

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THE RULE IN RYLANDS v FLETCHER [1866] Facts of the case:P was the lessee of mines. D was the owner of a mill standing on land adjoining that under which the mines were worked. D desired to construct a reservoir and employed competent persons (an engineer and a contractor) to construct it. P had worked his mines up to a spot where there were certain old passages of above, and which had also been out of use for years, and were apparently filled with marl and the earth of the surrounding land. No one was taken by the engineer or the contractor to block up these shafts and shortly after water had been introduced into the reservoir, it broke through some of the shafts, flowed through the passages and flooded P’s mine. Held: P was entitled to recover damages from D in respect of this injury 

Ds themselves weren’t negligent and neither were they vicariously liable for the negligence of their independent contractors but the HOL held them liable to P

RULE OF RYLANDS v FLETCHER Blackburn J: “We think that the true of law is, that the person who for his own purposes brings onto his lands and collects and keeps anything likely to do mischief if it escapes, must keep it in his peril, and if he does not do so, is prime facie answerable for all the damages which is natural consequences of its escape.” 

Lord Cairns approved this rule  added: the rule only applied where D had used his land for non-natural use

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B. ELEMENTS OF STRICT LIABILITY I.

DANGEROUS THING/THING LIKELY TO CAUSE DAMAGE IF IT ESCAPES  

There must exist a dangerous thing (what is dangerous?  question of fact) It applies to anything that can cause danger if it escapes

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The object need not to be dangerous per se because there are objects which are safe if properly kept, but are dangerous if they escape Examples: Gas, noxious fumes, explosives, fire, electricity, water and sewage Whether the thing is considered dangerous in that it may cause damage if it escapes  determined through the ordinary experience of mankind Cambridge Water v Eastern Counties Leather Plc:Winfield: There can’t be liability under the rule in Rylands v Fletcher unless the relevant type of damage was foreseeable  whether the thing is dangerous or not would be irrelevant *Malaysian judgements still refer to this requirement (dangerous thing) in determining liability under the rule

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Case: Ang Hock Tai v Tan Sum Lee & Anor [1957] Facts of the case:- P rented a shop house and lived on the 1st floor of the building - The ground floor was sublet to the D, who was in the business of repairing & distributing tyres - D stored petrol for the purposes of his business  D’s premises caught fire  spread to the 1st floor  P’s wife & children died Court held:D liable under the rule in Ryland v Fletcher  petrol was a dangerous thing

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II.

ACCUMULATION/INTENTIONAL STORAGE     

Only apply to an object/thing which D purposely keeps & collects The storing of the thing must be for D’s own purpose If the thing is brought onto D’s land by or for the use of another person  THE RULE ISN’T APPLICABLE Licensee will liable: o If he accumulates the thing on the land  the thing escapes  causes damage Landowner will liable: o If the licensee accumulates the thing with the authorisation of the owner OR o If the accumulation was done in pursuance of a contractual duty owed by the owner to a 3rd party

Case: Rainham Chemical Works v Belvedere Fish Guano [1921] Facts of the case:In August, 1915, directors of the Rainham Chemical Works F. (Feldman) and P. (Partridge), who were interested in a novel process for making picric acid, a high explosive, from dinitrophenol (D.N.P.), entered into an agreement with the Minister of Munitions to manufacture for him picric acid at Rainham, Essex. The contractors as agents for the Minister were to erect works for the purpose, the buildings, plant and machinery to be paid for by the Minister and to remain his property. The Minister was to deliver D.N.P. to the contractors, who were on their sole responsibility, and at their risk, to convert it into picric acid at an agreed price. In September, 1915, F. and P. entered into an agreement for the tenancy of the land on which the factory was to be established and thereby covenanted not to assign or underlet or part with the possession of the premises without the previous consent of the landlords except to a Government Department. In March, 1916, a private company formed by F. and P. for the purpose of acquiring and carrying on the undertaking, entered into agreements with F. and P. for the sale to the company, first, of the rights of the vendors under their agreement with the Minister of Munitions, and secondly of the benefit of the tenancy agreement and of the buildings erected by the vendors, completion to take place on payment of the consideration (which was never paid). The vendors also agreed to allow the company to go into and remain in occupation of the premises as tenants until the purchase consideration had been paid, but until payment the company were to be deemed to be in possession of the premises, machinery and plant as agents for the vendors. F. & P. never obtained the consent of the landlords under the tenancy agreement to the assignment or parting with possession of the premises. The company carried on the manufacture of explosives on the premises and large quantities of D.N.P. were delivered at the factory by the Minister and were stored there close to other inflammable materials, and as a result an explosion occurred which INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18

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caused damage to neighbouring property. In an action for damages by the owners against the company and F. and P.:Court held:1) That the company were liable on the principle of Fletcher v. Rylands (1866) L. R. 1 Ex. 265; (1868) L. R. 3 H. L. 330 for the damage caused by storing dangerous substances on land of which they were in actual physical possession; 2) That F. and P. had not effectively divested themselves of the occupation which they held under the tenancy agreement, and that they also were liable on the same principle as occupiers. SUMMARY - X & Y set up a company Z Ltd  operating as a factory - The functions of Z Ltd was to perform a contract entered into by both X & Y with another party  manufacture explosives - Z Ltd was a licensee  Z Ltd was to manufacture the explosives on X & Y’s land - A big explosion happened  damaging neighbouring property & killed many people Court held:1) Z Ltd liable as the licensee which had accumulated the thing 2) X & Y (as occupiers & landowners) were also liable for the escape of the thing accumulated by their licensee  the accumulation was a discharge of X and Y’s contractual duty to another party

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If the thing is natural on the land  THE RULE ISN’T APPLICABLE

Case: Giles v Walker (1890) Facts of the case:D ploughed his land but thereafter left it unattended  thistles grew on the land  escaped to P’s land & seeded Court held:- The thistles were natural growth of D’s land  he couldn’t be found liable - In cases like this  liability maybe sought under tort of negligence & nuisance 

If the occupier of the land hasn’t accumulated it & the escape was independent of D’s conduct  THE OCCUPIER WON’T BE HELD LIABLE FOR DAMAGE CAUSED BY THE ESCAPE OF A THING NATURALLY ON THE LAND

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Case: Pontardawe RDC v Moore-Gwyn [1929] Facts of the case:-

Some rocks from D’s land fell onto P’s land due to changes in the weather D was held not liable as he didn’t accumulate the rocks The escape wasn’t caused by D’s act

Case: Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) Facts of the case:-

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D used some explosives to blast some rocks on his lands  some of the rocks fell onto the land below & injured P The court found that although the rocks weren’t purposely collected/kept on the land, the explosives were purposely collected & kept D was held liable for this deliberate accumulation which caused the escape of the rocks and also because the way in which the injury was sustained (through rock-blasting)  held to be non-natural use of land It was the accumulation that gave rise to liability  the explosives (if they escaped) would likely to cause damage  dangerous thing They’re deliberately collected & stored by D There’s an escape as the use of the explosives caused the rocks to fall away from D’s land  the damage was caused to P D ought to have foreseen that their rock-blasting activity may result in the escape of rocks which may in turn cause damage If the thing that escapes is the dangerous thing itself  liability is rather straightforward If what escapes isn’t the dangerous thing itself but another object arising from the use of the dangerous thing  the occupier of the land may still be held liable provided the escape occurs during a non-natural use of land

The rule is only applicable where the occupier brings, collects or keeps something on his land When something that is naturally on the land escapes & causes damage  the occupier won’t be liable unless:- He intentionally allows the escape to occur OR - The escape is foreseeable & yet D does nothing to prevent the probable escape

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III.   

ESCAPE P must prove that there has been an escape Escape: The thing has escaped from a place over which D has control & authority to a place over which the D has no control & authority It isn’t necessary that D has a proprietary interest in the land which the escape occurs

Case: Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd [1972] Court held: Escape must be proven before the principle in Rylands v Fletcher is applicable

Case: Read v J Lyons & Co Ltd [1946] Facts of the case:An inspector of munitions was injured when a shell that was being manufactured at D’s factory where she was employed, exploded & caused her substantial injuries Court held: D wasn’t liable as there’s no escape

Case: Ponting v Noakes [1894] Facts of the case:P’s horse reached its head into D’s land  ate poisonous leaves of a yew tree which was planted on D’s land Court held: There’s no escape as the tree & it leaves didn’t extend beyond D’s boundary  P’s failed in his action

Case: Midwood & Co Ltd v Mayor, Aldermen, and Citizens of Manchaster [1905] Facts of the case:Ds were held liable when an explosion on their property caused inflammable gas to escape into P’s house & set fire to P’s property

Case: Milik Perusahaan Sdn Bhd v Kembang Masyhur Sdn Bhd [2003] Facts of the case:D was found liable when earthwork activities conducted on its land resulted in a mudslide & considerable soil deposits were made on P’s adjoining (lower-level land)

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 

The meaning of escape  extended to include a situation where the use of dangerous thing causes/creates an event from which damage is sustained Allowing an escape to occur from one’s own land onto another person’s property over which one has no control isn’t the same as damage incurred by a 3rd party as a result of one’s action in preventing danger from occurring on one’s land  liability will be imposed in the former situation but not in the latter

Damage caused by fire    

P still required to prove either D himself/a person whose conduct he was answerable has been negligent  through act/omission The negligence must have caused either the start of the fire/of its spreading to P’s premises Alternative – P may prove that D has caused/permitted to exist on his premises a source of fire danger which constituted a material injury to P’s property If there’s no escape of anything brought onto D’s land  D could still be found liable if P is able to prove (as laid down in Lembaga Kemajuan Tanah Persekutuan v TNB [1997] – following Musgrove v Pandelis [1919]):o D had brought onto their land things likely to catch fire, and kept them there in such a condition that if they did ignite, the fire would be likely to spread to P’s land o D had brought the things onto his land in the course of some non-natural use of land o The things had ignited & the fire spread

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Cases:1. Lembaga Kemajuan Tanah Persekutuan v TNB 2. Lee Kee v Gui See & Anor Liability is imposed for the spread of fire if the spread was due to the default of D’s servant, his guest & independent contractor Liability will be excluded where the fire spread/occurred due to an act of nature/the act of a stranger/trespasser over whom the D has no control Liable – if he has knowledge about the fire though started by another party whom D has no control

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IV.

NON-NATURAL USE OF LAND  D will only liable if in bringing or accumulating the thing onto his land  he makes a non-natural use of the land  Meaning of “non-natural use of land”:Lord Moulton – Rickards v Lothian [1913] “It must be some special use bringing with it increased danger to others and must not merely be ordinary use of the land or such a use as is proper for the general benefit of the community.” 

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Lord Porter – Read v Lyons & Co Ltd [1947]  all factors such as time, location and the ordinary activities of mankind must be taken into consideration  what is dangerous/constitutes a non-natural use of land may differ in different circumstances Court will consider public benefit of an activity but has to be weighed against the extent of risk that arises from that activity Courts will balance the probability of damage occurring + the seriousness of the probable damage compared to the social benefit derived from the activity Factors that will be taken into account by the courts:o The quantity of the thing o The way in which it was stored o The location of D’s land Cases:CASE Crowhurst v Amersham Burial Board [1878]

Yat Yueng Hong Co Ltd v Sheridanlea & Anor [1963]

FACTS OF THE CASE D planted a yew tree on his land (yew leaves are poisonous)  branches & leaves of the tree extended into P’s land  P’s horse died upon eating the leaves Court held: D liable as planting a poisonous tree isn’t a natural use of a land. This decision may be justified on the basis that an ‘escape’ of the tree had occurred as the branches & leaves had encroached onto P’s land As were developing their land which was adjacent to R’s land. As’ land was situated on higher ground than R’s land  some earth fell onto R’s land & damaged R’s nursery Court held: Piling loose earth on a steep slope so that more flat land would be available was a non-natural use of land. Rylands v Fletcher applied

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Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978]

Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966]

Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia Consultants & Ors [1997]

D was a contractor engaged to clear an irrigation canal which went through P’s rubber estate  the work involved clearing bushes & weeds in the stream & on the banks  these bushes & weeds were negligently set on fire by D & the ignition escaped on to P’s land & destroying the rubber trees on it Court held: D liable in negligence & under the rule in Rylands v Fletcher for the escape of fire resulting from a non-natural use of the land Ds had built a reservoir on their land which was above ground level  a heavy rainfall caused the water-bounds to collapse as a result of which water escaped onto the adjacent land & the deceased drowned  the administrator of the deceased’s estate claim for damages Court held: Using sand-bunds to separate ponds of water constituted a dangerous & non-natural use of land & any resulting damage would be caught under the rule in Rylands v Fletcher. As the reservoir as situated close to an area which was thickly populated, Ds were using their land in a special way bringing with it increased danger to others. Court added: Even if a landowner uses his property for natural use, it doesn’t mean that he may conduct hazardous activities causing adverse effects to his neighbours *Non-natural use of land: Artificial accumulation of rainwater on higher ground which was then sipped underground causing increased infiltration rate and saturation of soil A landslide occurred & damaged P’s house  the accumulation of water was held to be a non-natural use as the excavation of a trench purportedly for the foundation of retaining wall, constituted an alteration to the nature of the land  it interfered with the natural flow of water

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British Celanese v AH Hunt [1969] Transco plc v Stockport Metropolitan Borough Council [2004] 

Water in a pipe isn’t a dangerous thing & isn’t an unusual/non-natural use of land

Test of “non-natural use”:o Lord Bingham  the Ordi...