Judgments - Transco plc (formerly BG plc and BG Transco plc) (Appellants) v Stockport Metropolitan Borough Council (Respondents)

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    76.  In Read v J Lyons & Co Ltd [1947] AC 156 Viscount Simon identified "escape" as one of the two conditions on which strict liability under the rule in Rylands v Fletcher depended— the other was a "non-natural use" of the land (see p 167). He said that "escape":

    "means escape from a place where the defendant has occupation of or control over land to a place which is outside his occupation or control." (p 168)

Viscount Simon pointed out that on the facts in Read v Lyons there had been no escape. The explosion in the defendant's munitions factory had injured the plaintiff while she was on the factory premises. So the Rylands v Fletcher principle was inapplicable. The other members of the Appellate Committee made the same point (see pp 173-174, 177, 181 and 186). Accordingly, it is, in my opinion, established that whatever else may be said of the rule in Rylands v Fletcher the rule does not come into play unless there has been an escape from the defendant's land of whatever it is that has caused the damage.

    77.  That essential element of escape is absent in the present case. The water flowing from the fractured pipe accumulated in a part of the old landfill site and then made its way to the embankment. It began its "escape" on the council's property, accumulated on the council's property and eventually damaged the embankment, also the council's property. It is in respect of the damage to the embankment that Transco seeks damages.

    78.  The "escape" issue was specifically addressed by the trial judge. He noted that Transco had a proprietary right over the embankment in the form of an easement and held that interference with an easement was capable of founding an action in nuisance or under the rule in Rylands v Fletcher, that the crucial element in both nuisance and Ryland v Fletcher was "the wrongful invasion of a proprietary right" and that "escape was merely a useful way of describing that invasion in the usual sort of case" (p 48). The Court of Appeal did not deal with this particular point. In my respectful opinion, the judge was in error in his approach to the requirement of an escape. I would readily accept that if, in a case to which the rule in Rylands v Fletcher applies, the damage done by the escaped substance is damage to servient land over which there is an easement and the damage interferes with the enjoyment of the easement, the proprietor of the easement is as well entitled to claim the cost of repairing the servient land as is the owner of the land. But if the easement is an easement over the defendant's own land, the land onto which the defendant has brought the substance which has caused the damage, a Rylands v Fletcher claim is, in my opinion, barred by Read v Lyons. If the Read v Lyons plaintiff had left her car parked in the factory car park and the car had been damaged by the explosion, the reasoning of their Lordships would have barred her recovery for that damage. There would have been no "escape". Nor would the case have been any different if the parked car had belonged to someone else, a neighbour who had had an easement to park it on the factory car park. Proof of negligence would have been necessary for recovery.

    79.  In my opinion, therefore, Transco's Rylands v Fletcher case fails by reason of its failure to satisfy the "escape" condition of liability that was re-confirmed by this House in Read v Lyons.

    80.  The same conclusion can equally well be reached by considering the relationship between the council as servient owner and Transco as dominant owner of the easement under which Transco was entitled to maintain the gas main in the embankment. It is well established that a servient owner has, in general, no positive obligation to repair or keep in good condition the servient land. Entitlement to the easement carries with it the subsidiary right of the dominant owner to carry out any necessary repairs to the servient land (see generally Gale on Easements 17th ed (2002), pp 51-52, para 1-86). A deliberate act by the servient owner in damaging the servient land and thereby interfering with the enjoyment of the easement would be actionable in nuisance. In principle I can see no reason why a servient owner should not owe a duty of care to the dominant owner not to damage the servient land so as to interfere with the enjoyment of the easement. But it would, it seems to me, be contrary to principle to hold a servient owner liable to the dominant owner for damage to the servient land, or for any other interference with the easement, caused neither by a negligent act nor by an intentional act of the servient owner. For present purposes it is not necessary to go further than to say that the strict liability rule of Rylands v Fletcher has no application to an action by the dominant owner against the servient owner for damage to the servient land.

    81.  The bulk of the argument on this appeal has been directed to the second of Viscount Simon's conditions on which liability under the rule in Rylands v Fletcher depends, namely, that the use of the land be a "non-natural use". As Viscount Simon noted, a large variety of epithets have been judicially employed, sometimes as synonyms for, sometimes as extensions of and sometimes as restrictions on the concept of "non-natural use". These "judicial alterations and qualifications" have, as the majority of the High Court of Australia noted in Burnie Port Authority v General Jones Property Ltd (1994) 120 ALR 42 "introduced and exacerbated uncertainties about its [ie the Ryland v Fletcher rules] content and application" (p 52). The solution adopted by the High Court was simply to treat the rule as having become absorbed by the developed principles of ordinary negligence.

    82.  My Lords, I do not believe that that rather drastic solution is necessary in this jurisdiction. It is certainly not necessary for the purpose of disposing of this particular case. The concept of non-natural user of land, as enunciated in this House by Lord Cairns (LR 3 HL 330, 339), is to be contrasted with what Lord Cairns (at p 388) had referred to as a use "for which [the land] might in the ordinary course of the enjoyment of land be used". In Rickards v Lothian [1913] AC 263, 280 Lord Moulton, explaining the concept, said:

    "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 the land or such a use as is proper for the general benefit of the community."

    83.  The above passage was cited by Lord Goff of Chieveley in Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 in drawing attention to the similarity of function between the concept of natural user or ordinary user in Rylands v Fletcher cases and the concept of reasonable user as applied in the tort of nuisance. He said, at p 306, that:

    "It would …. lead to a more coherent body of common law principles if the [Rylands v Fletcher] rule were to be regarded essentially as an extension of the law of nuisance to cases of isolated escapes from land …."

    84.  The House held, in the Cambridge Water Co case, that the use of land for the storage of chemicals in substantial quantities could not be described as a "natural or ordinary" use of land so as to exclude the application of the Rylands v Fletcher rule (p 309) but held, also, that, as in nuisance cases, foreseeability of the damage was a prerequisite of liability. The House thereby added to the two conditions formulated in Read v Lyons a third condition on which liability under the rule in Rylands v Fletcher would depend.

    85.  Just as in Cambridge Water the House found it impossible to regard the storage of chemicals in substantial quantities as a natural or ordinary use of land so, in the present case, it is in my opinion equally impossible to regard the supply by the council of water to the block of flats as anything other than a natural or ordinary use.

    86.  Indeed, the council was under a statutory obligation to provide a suitable supply of water for domestic purposes to the occupiers of the 66 flats. Nobody has suggested that the means by which the council did so could have been satisfactorily achieved by some other practicable method which would have carried with it a lesser risk of serious flood.

    87.  There is no doubt that the rule in Rylands v Fletcher can be excluded by statute. In Green v Chelsea Waterworks Co (1894) 70 LT 547 a water main belonging to a waterworks company, which had been authorized by Parliament to lay the main, burst. There had been no negligence on the part of the waterworks company. The claimants' premises were flooded but the waterworks company was held to have no liability. The case was applied in this House in Longhurst v Metropolitan Water Board [1948] 2 All ER 834, a case in which water had leaked from a main and disturbed paving stones in the highway. The water board had had no knowledge of or reason to suspect any danger to the public at the place in question. The House, affirming the Court of Appeal, held that since the board was acting under statutory authority in maintaining the main, they were not liable in the absence of negligence. And more recently, Lord Wilberforce in Allen v Gulf Oil Refining Ltd [1981] AC 1001, 1011 reaffirmed the point. He said:

    "It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorized with immunity from any action based on nuisance. The right of action is taken away …. To this there is made the qualification, or condition, that the statutory powers are exercised without "negligence"— that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons."

    88.  These principles regarding statutory authority and immunity from action are not directly applicable in the present case. There was no specific statutory authority for the council to build the block of flats. But it had a statutory function in regard to housing and the building of the block of flats was in discharge of that statutory function. There was no specific statutory authority for the council to lay the supply pipe where it did in order to provide a water supply to the block of flats. But it did have a statutory duty by some suitable means or other to provide a supply of water for domestic purposes to the flats and no one has suggested that the laying of the supply pipe was not a proper discharge of that duty. In these circumstances the remarks of Lord Wilberforce, although not directly applicable, are in my opinion highly relevant to the question whether the laying and maintaining by the council of the supply pipe was, for Rylands v Fletcher purposes, a "natural" or "ordinary" use of its land so as to exempt it from liability resulting therefrom in the absence of negligence.

    89.  Before answering that question it is, I think, worth reflecting on why it is that an activity authorized, or required, by statute to be carried on will not, in the absence of negligence, expose the actor to strict liability in nuisance or under the rule in Rylands v Fletcher. The reason, in my opinion, is that members of the public are expected to put up with any adverse side-effects of such an activity provided always that it is carried on with due care. The use of the land for carrying on the activity cannot be characterised as unreasonable if it has been authorized or required by statute. Viewed against the fact of the statutory authority, the user is a natural and ordinary use of the land. This approach applies in my opinion, to the present case. The council had no alternative, given its statutory obligations to the occupiers of the flats, but to lay on a water supply. Strict liability cannot be attached to it for having done so.

    90.  So, to return to the question whether the council's use of its land was a natural and ordinary use that did not attract strict liability under the rule in Rylands v Fletcher, or, for that matter, in nuisance, there can in my opinion, be only one answer. It did not.

    91.  For these reasons, as well as those given by my noble and learned friends Lord Bingham of Cornhill, Lord Hoffmann and Lord Walker of Gestingthorpe I would dismiss this appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

    92.  On three occasions within the last decade your Lordships' House has had to consider different aspects of the inter-relationship between strict liability under the principle in Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330, nuisance and negligence. In the first case, Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 ("Cambridge Water"), the House confirmed that strict liability under Rylands v Fletcher should be regarded as a species, or special case, of nuisance, and confirmed or established that both for the genus and for the species it is normally a prerequisite of liability that damage (of the type actually suffered) was foreseeable. The second case, Hunter v Canary Wharf Ltd [1997] AC 655 ("Hunter"), was concerned with annoyance caused by dust, and by interference with television reception, by a major redevelopment in London's Docklands. The House (Lord Cooke of Thorndon dissenting) reaffirmed that the essence of private nuisance is a wrong committed by one landowner against a neighbouring landowner, so that to succeed in nuisance a claimant must have a sufficient proprietary (or at least possessory) interest in the land affected. In the third case, Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321 ("Delaware Mansions") the House considered damage to a block of flats caused by the spread of tree roots from the local authority's land. It decided (in a speech by Lord Cooke in which all concurred) that the liability of the local authority (which on grounds of amenity had declined to remove the offending tree) was based on its failure, after learning of the foreseeable danger, to act reasonably. Lord Cooke stated (p 333, paras 31 and 32) that in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 AC 617 and Goldman v Hargrave [1967] 1 AC 645, the judgments:

    "… are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it.

    Even in the field of Rylands v Fletcher (1868) LR 3HL 330 strict liability the House of Lords in [Cambridge Water] has stressed the principles of reasonable user and reasonable foreseeability: see the speech of Lord Goff of Chieveley, at pp 299-301. It was the absence of reasonable foreseeability of harm of the relevant type that excluded liability in that case".

    93.  It is also convenient to refer at the outset to the important decision of the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42 ("Burnie"). Judgment was given in that case on 24 March 1994, more than a year after the High Court had reserved judgment and a little more than three months after the House decided Cambridge Water, which is noted but not extensively discussed in the judgments (see footnotes 71, 73, 82, 161, 210 and 215). The majority of the High Court, led by Mason CJ, concluded in a tightly-argued judgment that subject to certain qualifications (p 67):

    "the rule in Rylands v Fletcher, with all its difficulties, uncertainties, qualifications and exceptions, should now be seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence".

    Burnie was not apparently cited in Hunter or Delaware Mansions, but it has been cited and relied on (at any rate as an alternative submission) by Mr Turner QC for the respondent in this appeal.

    94.  Despite the attention which your Lordships' House has devoted to these questions in the three cases mentioned above, and although it might be possible to dispose of this present appeal on comparatively narrow grounds, the respondent's reliance on Burnie makes it appropriate to address the matter broadly. I will start with the genus of nuisance, taking as read what Lord Goff of Chieveley said in Cambridge Water (pp 299-306) about the inter-relationship of Rylands v Fletcher and nuisance.

    95.  Nuisance has been described as "protean" (Lord Hope of Craighead in Hunter, at p 723, echoing Lord Wright in Sedleigh-Denfield v O'Callaghan [1940] AC 880, 903). Lord Wilberforce said in Goldman v Hargrave [1967] 1 AC 645, 657:

    "… the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive".

    Lord Lloyd of Berwick (in Hunter, at p 695) provided a simple classification:

    "Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour's land; (2) nuisance by direct physical injury to a neighbour's land; and (3) nuisance by interference with a neighbour's quiet enjoyment of his land".

    Encroachment by the branches or (as in Delaware Mansions) roots of trees is an example of the first category. The second category can be seen as including (but is certainly not limited to) the emission or escape of dangerous substances. Within this category at least, nuisance and Rylands v Fletcher are "congeners" (as it was put by Lord Macmillan in Read v J Lyons & Co Ltd [1947] AC 156, 173). Nuisance by noise or smell is an example of the third category and it is in this category that the principle of "give and take, live and let live" has most part to play (see Bramwell B in Bamford v Turnley (1862) 3 B & S 62, 84). The unifying factor in all three categories is that there is some sort of invasion of the claimant's land, or his enjoyment of it.

    96.  Although the boundaries of nuisance are uncertain (and perhaps shifting) it is possible to sketch in some salient features of particular relevance to this appeal. One part of the territory overlaps with (indeed, is a sort of condominium with) that of negligence. That is particularly the case where a failure to take reasonable care may result in the owner or occupier of land "adopting" or "continuing" a nuisance for which he was not initially responsible. Here the line of authority includes Job Edwards Ltd v Birmingham Navigations Proprietors [1924] 1 KB 341; Sedleigh-Denfield v O'Callaghan [1940] AC 880; Goldman v Hargrave [1967] 1 AC 645; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485; Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836 and Delaware Mansions [2002] 1 AC 321. In the factual situations in those cases (an accumulation of burning refuse, a blocked drain, a redgum tree struck by lightning, and so on) the defendant's actual neighbour was also his neighbour for the purposes of the principle in Donoghue v Stevenson [1932] AC 562, 580.

    97.  Elsewhere in nuisance's extensive territory, however, negligence (in the sense of a demonstrable failure to take reasonable care) has traditionally been regarded as irrelevant. If the noise and smell from stabling for two hundred horses (used to pull trams) is intolerable in a densely-populated residential neighbourhood, it is no defence that the defendant has used all reasonable care to minimise the annoyance: Rapier v London Tramways Co [1893] 2 Ch 588, 600. That was reaffirmed by your Lordships' House in Cambridge Water (at p 300, where Lord Goff referred to the relevant control mechanism being that of reasonable user). And when the focus moves to the species of nuisance known as the principle in Rylands v Fletcher, strict liability is its essential characteristic: liability arises (apart from particular defences) without the need for proof of negligence.

    98.  On what grounds, then, did the majority of the High Court of Australia decide in Burnie, that strict liability under Rylands v Fletcher should be regarded as having been absorbed into the principle of ordinary negligence? The majority judgment is a tour de force, extending to 25 pages of the report, and containing some scorching criticism both of the rule as originally enunciated by Blackburn J ("largely bereft of current authority or validity"—p 51) and of its subsequent vicissitudes ("if the problems of the rule in Rylands v Fletcher were confined to the uncertainties of its content and application, it would be necessary for the courts to continue their so far spectacularly unsatisfactory efforts to resolve them"—p 54). The whole of the judgment calls for careful study and does not admit of brief summary. But the central points made and developed are (i) that there is a "critical obscurity . . . in the twin requirements of 'dangerous substance' and 'non-natural use'" (p 52); (ii) that the rule has been "progressively weakened and confined from within and the area of its effective operation, in the sense of the area in which it applies to impose liability where it would not otherwise exist, has been progressively diminished by increasing assault from without" (p 54); and (iii) that "the main consideration favouring preservation of the rule in Rylands v Fletcher, namely, that the rule imposes liability in cases where it would not otherwise exist, lacks practical substance" (p 67).

    99.  These criticisms, coming from such a distinguished source, command close and respectful consideration. They are in my opinion a salutary reminder of the serious difficulties which beset this area of the law, and a helpful guide to the way forward (even if much of the assistance is in telling us which way not to go). But they do not in my opinion make out the case for writing off Rylands v Fletcher as a dead letter. Its scope for operation has no doubt been restricted (and perhaps severely restricted, to judge by reported cases) by the growth of statutory regulation of hazardous activities, on the one hand, and the continuing development of the law of negligence, on the other hand. But it would be premature to conclude that the principle is for practical purposes obsolete.

    100.  The majority judgment in Burnie traces the history, through well-known authorities, of the twin requirements of "dangerous substance" and "non-natural use". It recognises the observations of Lord Moulton in Rickards v Lothian [1913] AC 263, 280 as the most influential explanation or restatement of the requirements:

    "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 the land or such a use as is proper for the general benefit of the community".

    These observations were approved by your Lordships' House in Read v J Lyons & Co Ltd [1947] AC 156, 169, 176, 187.

    101.  In Cambridge Water Lord Goff (with whom the other members of the House agreed) cited Lord Moulton and added (at p 308):

    "Rickards v Lothian itself was concerned with a use of a domestic kind, viz the overflow of water from a basin whose runaway had become blocked. But over the years the concept of natural use, in the sense of ordinary use, has been extended to embrace a wide variety of uses, including not only domestic uses but also recreational uses and even some industrial uses.

    It is obvious that the expression 'ordinary use of the land' in Lord Moulton's statement of the law is one which is lacking in precision. There are some writers who welcome the flexibility which has thus been introduced into this branch of the law, on the ground that it enables judges to mould and adapt the principle of strict liability to the changing needs of society; whereas others regret the perceived absence of principle in so vague a concept, and fear that the whole idea of strict liability may as a result be undermined. A particular doubt is introduced by Lord Moulton's alternative criterion—"or such a use as is proper for the general benefit of the community". If these words are understood to refer to a local community, they can be given some content as intended to refer to such matters as, for example, the provision of services; indeed the same idea can, without too much difficulty, be extended to, for example, the provision of services to industrial premises, as in a business park or an industrial estate. But if the words are extended to embrace the wider interests of the local community or the general benefit of the community at large, it is difficult to see how the exception can be kept within reasonable bounds".

    102.  The majority in Burnie followed the same line of thought, but took it further and expressed it a good deal more vigorously (at p 54):

    "Obviously, the question whether there has been a non-natural use in a particular case is a mixed question of fact and law which involves both ascertainment and assessment of relevant facts and identification of the content of the legal concept of a 'non-natural' use. Indeed, it is one of those questions which may be misleadingly converted into a pure question of fact or a pure question of law by an unexpressed assumption that either the precise content of applicable legal concepts or the relevant facts and factual conclusions are manifest and certain. Be that as it may, and regardless of whether one emphasises the legal or factual aspect of the question of non-natural use, the introduction of the descriptions 'special' and 'not ordinary' as alternatives to 'non-natural', without any identification of a standard or norm, goes a long way towards depriving the requirement of 'non-natural use' of objective content [the footnote refers to Webber v Hazelwood (1934) 34 SR (NSW) 155, 159 per Jordan CJ 'the adjectives which have been used in this connection do not of themselves supply a solution'].

    In Read v J Lyons & Co Ltd, Lord Porter referred [at p 176; there is also a reference to a passage in Cambridge Water now reported at p 308] to a possible future need 'to lay down principles' for determining whether the twin requirements of 'something which is dangerous' and 'non-natural use' have been satisfied. We are unable to extract any such principles from the decided cases. Indeed, if the rule in Rylands v Fletcher is regarded as constituting a discrete area of the law of torts, it seems to us that the effect of past cases is that no such principles exist. In the absence of such principles, those twin requirements compound the other difficulties about the content of the 'rule' to such an extent that there is quite unacceptable uncertainty about the circumstances which give rise to its so-called 'strict liability'. The result is that the practical application of the rule in a case involving damage caused by the escape of a substance is likely to degenerate into an essentially unprincipled and ad hoc subjective determination of whether the particular facts of the case fall within undefined notions of what is 'special' or 'not ordinary'."

 
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