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April 2010Part B – Question 2The Bowpaul Company has a factory in Shah Alam where it manufactures highly dangerous chemicals. One evening, the factory's safety system which has been set up by a qualified independent expert, Taj, breaks down unexpectedly through no fault of the company. Highly toxic ...

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April 2010 Part B – Question 2 The Bowpaul Company has a factory in Shah Alam where it manufactures highly dangerous chemicals. One evening, the factory's safety system which has been set up by a qualified independent expert, Taj, breaks down unexpectedly through no fault of the company. Highly toxic fumes escape from the factory and cause serious injury to Amir, a neighbouring occupier, and Baba, a vagrant who sleeps rough in the adjoining fields. Chin, an engineer, is also seriously injured when he inhales chemicals on the premises of Bowpaul Company when attempting to stop the leak. Advise the parties. Would your answer to the above be different if the escape of the chemicals has been caused by the malicious act of Ivan, a rival of Bowpaul Company?

The issue here is whether the Bowpaul company can be held liable under strict liability. Strict liability is a liability imposed to a defendant without any proof on his part. Although the defendant has taken all reasonable precautions to avoid or minimize risks arising from his activity, he may still be found liable if the tort which has arisen fall under the category of strict liability of torts. The landmark case to show about strict liability is the case of Rylands v Fletcher where in the case the defendant employed independent contractors to construct a reservoir on their land. The contractors found disused mineshaft when digging but believed it was filled with earth and failed to seal them properly. They filled the reservoir with water. Unknown to the defendant or the contractors, this mineshaft connected to the claimant’s coalmine on neighboring land. It was held then, the defendants themselves were not negligent and neither were they vicariously liable for negligence of their independent contractors, but house of lords held them liable to the plaintiff. It was decided then by Blackburn J who delivered the judgment of the Court of Exchequer Chamber that to succeed in this tort the plaintiff must show firstly that the defendant had brought something onto his land. Second there should be a "non-natural use" of his land by the defendant. Third, the thing was something likely to do mischief if it escaped and lastly the thing did escape and cause damage. For the first element that the defendant must brought something on his land in accumulation where it means that the defendant must bring something on his/her land for his/her own purpose that does not naturally occur. In other word, this rule only applies to an object or thing which the defendant purposely keeps and collects for the defendant’s own purposes. The rule also a does not apply to things for example the natural accumulation. In Rainham Chemical Works v Belvedere Fish Guano. X and Y set up a company Z ltd, operating as a factory. The function of Z ltd was to perform a contract entered into by X and Y with another party, to manufacture explosive on X and Y land. So, Z ltd was a licensee. A catastrophic explosion occurred, which damage neighboring property and robbed many lives. The house of lord found Z ltd liable as the licensee which had accumulated the thing, X and Y as an occupier and landowner was also liable for the escape of the thing accumulated by their licenses as the accumulation was a discharge of X and Y contractual duty to another party.

Applying to the case of Bowpaul Company, they had brought something on his land where their factory produces chemicals which for their own profit and benefit. The factory also is not being built naturally as it is being built by Bowpaul Company itself for their chemicals manufacturing project. This shows the company had purposely bring something to the land for their own purposes and this follows the case of Rainham Chemical Works where the defendant also had set up a factory. Then, the second element is the non-natural use. This requirement is shrouded in much uncertainty. The defendant will only be liable if in bringing or accumulating the thing onto his land, he makes a non-natural use of the land. The meaning of non-natural use of land was explained in the case of Rickards v Lothian where Lord Moulton stated it must be some special use bringing with it increased danger to others and must not be merely the ordinary use of the land or such a use as is proper for the general benefit of the community. As according to Lord Poter in the case of Read v Lyons & Co Ltd said that all factors such as time location and the ordinary activities of mankind must be taken into consideration, so that what is dangerous or constitutes a non-natural use of land may differ in different circumstances. The public benefit of an activity will probably be considered by courts to constitute a natural use of the land but this has to weighed against the extent risk that arises from that activity. Examples of non-natural use of land can be seen in the case of Crowhurst v Amersham Burial Board. The defendant planted a yew tree on his land. The branches and leaves of the trees extended into the plaintiff land. Yew leaves are poisonous to cows. The plaintiff’s hores died upon eating the leaves. The court held that the defendant was liable as planting poisonous tree is not natural use of the land. Applying to the recent case, the manufacturing factory of Bowpaul company can be considered as non-natural use of the land. This is because when, The Bowpaul Company factory manufactures the dangerous chemical it is constitutes non-natural use of land. Follows the words by Lord Moulton the Chemical manufactures will bring more dangerous towards the other people and it is not bring benefit for the community at all. As in the case of Crowhurst the chemical manufacturing is the same as the poisonous tree where it will bring danger towards other citizens and this shows that manufacturing dangerous chemical by the factory is a non-natural use of the land. Next the third element is the foreseeability to cause damage it the thing escape or likely to do mischief if the thing escaped. Under this element it must be foreseeable that the thing brought onto the land is likely to do mischief if it escapes. There must be exist a dangerous ‘thing’ and the word dangerous has its own meaning under this tort. The rule applies to anything that may cause damage if it escapes. Once this element is fulfilled then the ‘thing’ is a ‘dangerous thing’. The object or ‘thing’ need not be dangerous per se because there are objects which are safe if properly kept but are dangerous if they escape. This principle has successfully applied to gas, noxious fumes, explosive, fire, electricity, water and sewage. In the case of Ang Hock Tai v Tan Sum Lee & Anor where the plaintiff rented a shophouse and lived on the first floor of the building. The ground floor was sublet to the defendant who was in the business of repairing and distributing tyres. The defendant stored petrol for the purposes of his business. One morning the premises caught fire. The fire spread to the first floor and the plaintiff’s wife and child died due to the tragedy. The court found that the defendant was held liable under the rule in Rylands v Fletcher as petrol is a dangerous thing.

Applying to the case of Bowpaul company, they are manufacturing dangerous chemical. So it’s clear that if the chemical escape it would cause danger and damage to other person. As chemical is a toxic that can caused danger to people if it reached the human living. It is also had been highlighted that chemical may lead to worst damage such as fumes, fire and explosion if its escape. As following to the decided case, the chemical will definitely cause damage if it escape. The last element is that the ‘thing’ did escape and caused the damage. Escape means thins has escaped from a place over which the defendant has control and authority to a place over which the defendant has no control and authority. It is not necessary that the defendant has a proprietary interest in the land from which the escape occurs. In Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd the court held that escape must be proven. Applying to the recent case, it is clearly shows that the chemical which is dangerous had escaped and caused danger to others. This can be proved when there are people who injured by the escaped of the chemical from the factory which had caused toxic fumes. As the thing had escaped and clearly show caused injury to others this prove that this forth elements is fulfilled. As for conclusion, Bowpaul Company was held liable towards Taj, Amir, Baba and Chin as all the elements under strict liability has been fulfilled by the Bowpaul Company Negligence.

However then if the escape of chemical is caused by the third party, the defence of act of stranger may be raised. The court in the case of Perry v Kendricks Transport Ltd then went on to deal with the defence of Act of Stranger. They said that a stranger was a person over whose acts the occupier of the land had no control. They then went on to say that the defense will not be applicable if the act of this stranger was one which the defendant could reasonably have anticipated and guarded against. It was not sufficient to show that the defendants knew that the children played in the vehicle park. The plaintiff must show “that the defendants reasonably should have anticipated an act of a kind which would cause the escape.” The appeal was dismissed and the defendant was allowed to rely on the act of a stranger defence to escape liability. This defence shows that it can be raised if the escape of the chemicals is caused by Ivan as his act is malicious and it is out of Bowpaul Company to control his rival act....