Tort of escape, case law, term ordinary and natural PDF

Preview

Summary

Tort of escape, case law, term ordinary and natural...

Description

Escape It is essential that there be an escape of a dangerous thing from the defendant’s land or control. Case: Transco plc v Stockport Metropolitan Borough Council (2004) Facts: Water for domestic use was carried by pipes throughout the defendants’ block of flats. A pipe failed, without negligence on the defendants’ part, and a substantial leak occurred, which remained undetected for a long period of time. The water escaped from the building and seeped into a bank of earth which was supporting the claimants’ gas pipe. The bank collapsed, the gas pipe lost support and was at risk of cracking, which could have led to the potential escape of gas. This involved the claimants in an urgent and expensive repair operation. Lord Bingham addressed the question as follows: Held: the rule in Rylands v Fletcher is engaged only where the defendant’s use is shown to be extraordinary and unusual. This is not a test to be inflexibly applied: a use may be extraordinary and unusual at one time or in one place but not so at another time or in another place …. I also doubt whether a test of reasonable user is helpful, since a user may well be quite out of the ordinary but not unreasonable …. Lord Bingham agreed with Lord Goff in Cambridge Water that the question of general benefit to the community adds little and may cause confusion. He concluded that the rule in Rylands v Fletcher was not applicable in this case for the following reasons: ● the ‘danger or mischief test’ was not satisfied–piping a domestic water supply from the mains to storage tanks would not appear to anyone as particularly hazardous; ● it was questionable whether the defendants had been accumulating rather than simply supplying the water; and ● the use of its land by the Council was ‘entirely normal and routine’. The requirement of non-natural use was not fulfilled. Case: Read v J Lyons & Co Ltd (1947) In this case (see also 13.1.4 Non-natural use), an explosion in a munitions factory during World War II killed an inspector working on the premises. As there was held to be no ‘escape from a place where the defendant has occupation of or control over land to a place which is outside his occupation or control’, Rylands v Fletcher did not apply. It was thought that the ‘thing’ which is accumulated need not always be the thing which escapes. In Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) there was Rylands liability when explosives were stored on the defendant’s land and led to the escape of rocks in a blast. But more recently, the Court of Appeal in Stannard (t/a Wyvern Tyres) v Gore (2012) held that Rylands did not apply when flammable tyres were stored in large quantities on the defendant’s land and then ignited, causing a fire which spread to neighbouring premises. The things collected were tyres, but what escaped was fire Non-natural use The requirement of non-natural use of his land by the defendant emerged when the rule, first set out by Blackburn J in a lower court, was restated by Lord Cairns LC in the House of Lords. The non-natural use in Rylands itself was the construction of a reservoir, at a time when Professor Simpson tells us that such developments were seen as dangerous following the bursting of a reservoir in 1864 that caused great loss of life. Its meaning was further considered in Rickards v Lothian (1913), where Lord Moulton observed: - It is not every use to which land is put that brings into play that principle It must be

some special use bringing with it increased danger to others and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community. Case: According to Lord Porter in Read v Lyons (1947): All the circumstances of time and practice of mankind must be taken into consideration so that what may be regarded as dangerous or non-natural may vary according to the circumstances. A review of the cases indicates most vividly that what has been treated as non-natural use at one point in time may be seen as extremely ordinary at another. A surprising example is Musgrove v Pandelis (1919), where the fact that the motorcar was a relative newcomer to the transport scene must explain why its presence in a garage with petrol in its tank was considered non-natural use for the purposes of Rylands v Fletcher liability. The operation of a wartime munitions factory was held to constitute non-natural use in Rainham Chemical Works v Belvedere Fish Guano Co Ltd (1921), but the same point was doubted in the later case of Read v Lyons. In Transco v Stockport, Lord Bingham put it another way: Does the term ‘ordinary’ rather than ‘natural’ make it easier to determine what activity would create Rylands v Fletcher liability? I think it clear that ordinary user is a preferable test to natural user, making it clear that the rule in Rylands v Fletcher is engaged only where the defendant’s use is shown to be extraordinary and unusual. This is not a test to be inflexibly applied: a use may be extraordinary and unusual at one time or in one place but not so at another time or in another time (although I would question whether, even in wartime, the manufacture of explosives could ever be regarded as an ordinary use of land …). The amount of the substance collected and its conditions of storage will be relevant to the assessment of non-natural use in that it may determine the risk which the defendant’s activity poses to others. In Mason v Levy Autoparts of England Ltd (1967) the fact that the combustible items were being stored in such large quantities contributed to the conclusion that this was nonnatural use. Stannard (see 13.4.2 Default of the claimant or contributory negligence) calls Mason into question. A similar storage of auto parts might not be considered non-natural user today. The question of wider benefit does not seem to be significant, despite Rickards v Lothian (1913). There, where ‘ordinary plumbing’ did not constitute non-natural use, Lord Moulton said: It is not every use to which land is put that brings into play [Rylands v Fletcher]. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of land or such use as is proper for the general benefit of the community. In Cambridge Water Lord Goff expressed dissatisfaction with the element of community benefit, which he felt might be unnecessarily expansionist. He considered the issue of powerful chemicals stored in drums for use in the tanning process: I cannot think that it would be right … to exempt [the defendants] from liability under the rule in Rylands v Fletcher on the ground that the use was natural or ordinary. The mere fact that the use is common in the tanning industry cannot, in my opinion, be enough to bring the use within the exception, nor the fact that Sawston contains a small industrial community which is worthy of encouragement or support. Indeed I feel bound to say that the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use; and I find it very difficult to think that it should be thought objectionable to impose strict liability for damage caused in the event of their escape. Lord Goff did however acknowledge the ‘lack of precision’ in the concept of non-natural user

He concluded however, that it would not be his responsibility to refine the concept in the instant case, due to the conclusion that liability under Rylands would be denied on the grounds of foreseeability of damage cause. Instead, the challenge was adopted by the House of Lords in Transco v Stockport Metropolitan Borough Council

Parties Lord Macmillan in Read v Lyons described Rylands v Fletcher as: ‘a principle applicable between occupiers in respect of their land’.

Who may be sued under the rule? An owner, or occupier of land, including whoever stores or collects the substance in question, can be sued. In Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd (1921), the House of Lords held that both the licensee who collects the harmful substance (here explosives) and the landlord could be liable.

Who may sue under the rule? Case: In Rylands v Fletcher, and in many subsequent cases, the plaintiff’s claim was derived from his interest in land and based upon damage to that interest or physical harm to possessions on that land. In Hale v Jennings (1938), a chair from a fairground ride flew off and injured another stallholder. Her Rylands v Fletcher claim was based upon the tenancy of her stall. As in Hale, several other cases have indicated that plaintiffs could recover in Rylands v Fletcher for personal injuries. Case: In Perry v Kendricks (1956), the claim was unconnected to any interest in land. The court assumed that passers-by on a highway who were injured by an explosion were entitled to bring an action under Rylands v Fletcher, although their claim failed on other grounds. However, the close relationship with nuisance has led to the more recent conclusion that, in parallel with the House of Lords decision in Hunter v Canary Wharf, actions in Rylands v Fletcher cannot be based on personal injury. That should be the province of the law of negligence. Rather, Rylands v Fletcher actions will address damage to land, loss of value, and damage to things on the land. In Transco, Rylands v Fletcher was described as ‘a remedy for damage to land or interests in land. It must … follow that damages for personal injuries are not recoverable under the rule.’ Case: Cambridge Water Co v Eastern Counties Leather plc (1994) Facts: In this case the House of Lords thoroughly reviewed the status of Rylands when dealing with a case of historic pollution. The defendants had for many years operated a tannery in an ‘industrial village’. They used a chemical (PCE) to degrease animal skins and had stored it on the premises in 40-gallon drums. The plaintiffs were the owners of a borehole through which water was pumped from its underground sources in order to be supplied to water customers in the Cambridge area. The borehole was located just over a mile away from the tannery. In 1982, an EC Directive required new standards for testing water for human consumption and the claimants’ water was found to be unfit. The source of the pollution was the borehole, which had been contaminated by PCE from the defendant’s tannery. Spillage had occurred in transferring the chemical into containers or in piping it through the plant and PCE had seeped down into the underground water supply. It was suggested that this contamination had been occurring for up to 30 years. The plaintiffs incurred great expense in finding alternative sources of water and sued in negligence, nuisance, and Rylands v Fletcher. The trial judge dismissed the actions in negligence and nuisance on the grounds that the defendant could not have reasonably foreseen the pollution as a result of the spillages of the chemical and said that Rylands v Fletcher could not apply because the use of land was not nont l I th C t fA l th li t l h ld Wh th

reached the House of Lords, however, Lord Goff stated that ‘storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use’. He was unimpressed with the argument that the creation of local employment might establish the tannery as a natural use of land. His opinion on this point must, however, be regarded as obiter because the Lords went on to reject Rylands v Fletcher liability for other reasons. Lord Goff believed that the origins of the rule and its interpretation in precedent and academic writing indicated that Rylands v Fletcher liability is an extension of the law of nuisance, as applied to isolated escapes. As ‘foreseeability of damage of the relevant type’ was confirmed as essential to an action in nuisance in The Wagon Mound (No 1) (1967), then it should be likewise a requirement for liability in Rylands v Fletcher. At the time of the collection of PCE on the defendant’s land, the damage which it caused to the water supply was not reasonably foreseeable and therefore the plaintiffs were unsuccessful. In such cases the escape itself, however, need not be reasonably foreseeable to establish liability and it is this aspect of the rule which maintains its ‘strict liability’ nature.

Lord Bingham, in Transco, considered the foreseeability aspect of the tort: It must be shown that the defendant has done something which he recognized, or judged by the standards appropriate at the relevant place or time, or ought reasonably to have recognized, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be. He acknowledged that the ‘danger or mischief’ requirement was closely related to the issue of non-natural use....