DIRECT PROPERTY DAMAGE WHERE LIABILITY IS STRICT

Summary of this section

Strict liability in cases of direct physical damage – Rylands v. Fletcher – damage as a result of some accumulation constituting a hazardous state of affairs – the ‘non-natural’ – foreseeability of damage – a plea to ‘reasonableness’ is not available.

Note: rules and principles relevant to the following will be found elsewhere on these pages: (i) who can constitute a claimant, (ii) defences and (iii) remedies.

Introduction

Where physical damage is directly caused to a claimant’s property, then liability under this form of private nuisance is strict. (These claims are described in the introduction to this section of this website as ‘category 1’ claims.) These will be cases in which the defendant will have brought about some state of affairs which gives rise to serious damage to neighbouring property. Examples are provided below.

‘Category 1’ claims include claims which have been traditionally brought under what is known as the principle in Rylands v. Fletcher. Under this principle, it had to be shown that there was some ‘non-natural’ (extraordinary) user of land and that an item collected on to the land had escaped, causing damage (see Stockport MBC), These cases are generally thought today to be only a particular form of strict liability claims.

This category of private nuisance should to be distinguished from those cases in which a defendant has failed to act to abate or prevent a nuisance which the landowner has not directly brought about on its land. Those cases must be framed in the context of the ‘measured duty of care’, otherwise known as the ‘Leakey’ duty or as ‘category 3’ claims. These are cases where there is a liability in negligence, ancillary to the claim in nuisance. The measured duty of care is applicable because the landowner did not bring about the hazard which gave rise to the damage. Less is to be expected of a landowner which is liable for an omission to take steps to abate or prevent a nuisance for which that landowner is not directly responsible.

Liability is strict in ‘category 1’ claims because (a) they reflect some ‘non-natural’ or unusual use of land by a defendant, and because (b) the nature of the damage is physical, structural damage. These considerations are also considered in more detail below, as is the requirement that the type of damage must be foreseeable.

There is little doubt that lawyers are likely to contest more of these cases today on grounds of negligence rather than on the basis of strict liability in nuisance. Indeed, the Court of Appeal in Gore (2012) in effect removed claims for damage caused by fire entirely from the ambit of strict liability ‘category 1’ claims. Fire claims had previously been brought within the rule of Rylands, but the Court of Appeal made this practicably impossible. This was because it decided that when it came to the need to show that there has been an ‘escape’ from land (which is necessary under this principle), it was not the fire itself which had to be shown to have escaped, but rather the thing itself which subsequently caught fire (for instance tyres or wood products brought on to the land which ignited). (Fire claims may still fall within the rubric of ‘category 3’, i.e. the Leakey ‘measured duty of care’.)

The underlying state of affairs

It has been said that most cases of nuisance which cause physical damage are the result of some “long-standing condition”. “Long-standing” is not a term of art, but is a means of explaining that the immediate cause of the damage which ensued was some dangerous ‘state of affairs‘ brought about by the defendant.

It is sufficient to give a series of examples. The ‘state of affairs’ might consist of a heavy weight of water, an accumulation of gas or vapour, pile-driving over some period of time, a collection of metal strips, or any other number of such conditions. Some ‘states of affairs’ or conditions of land do not take long to become hazardous.

Rylands (1868) was concerned with weight of a body of water as it gradually filled up a new reservoir. The pressure of the water caused it, finally, to burst through some disused, poorly filled, mine shafts. The water flooded the claimant’s mine.

Midwood (1905) concerned a gradual accumulation of explosive gas from bitumen heated by overheated electric wires. The accumulation of the gas went on for some three hours before it exploded. A senior judge said that “If that was not a nuisance I do not know what would be one.”

In Hoare & Co (1922) defendant contractors drove a very large number of piles into the ground when preparing a site. This gave rise to very heavy vibrations which resulted in seriously damaged superstructure.

In British Celanese (1969) the defendants had collected and kept on their site strips of metal foil up to several feet in length. These strips were light enough to be blown about in the wind, and when they escaped they caused a power failure by interfering with an electricity sub-station.

In Cambridge Water (1993) (which failed on the issue of foreseeability) the defendant leather manufacturers used a chlorinated solvent at their tannery, 1.3 miles from the claimant’s borehole. The water in the borehole became unfit for human consumption because the solvent seeped into the ground and percolated into the borehole.

In Shell UK Ltd (2010) a fuel storage tank was overfilled. This led to the creation of a large hydrocarbon rich vapour cloud which then ignited.

Foreseeability and Reasonableness

Notwithstanding that liability is strict, it is now settled that in a ‘category 1’ claim (including a Rylands case), the type of damage sustained must have been foreseeable by the defendant. See Cambridge Water above (1993): it was not foreseeable that the quality of the claimant’s water in its treatment plant would have been damaged in all the circumstances of the case. A tanning chemical was allowed to spill from time-to-time on to a concrete platform. This chemical escaped on to ground at the top of a hill and then took some nine months to travel underground into the treatment plant.

The law of nuisance has been said to consist of overlapping themes (Arscott, 2004). These include the relation between a ‘natural’ use of land and the notion of a ‘reasonable’ use of land. It has also suggested (in the same case) that “a landowner will not be liable in nuisance for the consequences of what would be recognised as a natural use of his land by him, unless the quality or extent of that use by him was unreasonable” and that “if [a landowner] pursues a non-natural use, then generally no appeal to reasonableness will help”.

Where a landowner has brought about some dangerous use of land, for instance some unusual use, and this has caused damage, then that party can hardly claim that the balance of reasonableness might be determined in its favour. The control mechanisms applicable in ‘category 2’ cases are not appropriate (see ‘Plagues of Egypt’). It is not appropriate, for instance to argue that the particular type of activity is common in the area so that the defendant should be excused. In addition it is not possible to rely on a want of care: the defendant cannot set a duty of care with a view to arguing that it did not breach that duty.

In particular the rule described as the rule in Rylands v. Fletcher is understandably thought to be particularly strict, even though today it is considered just as a species of a ‘category 1’ claim. For this reason it is a defence to prove in a Rylands case, that the matter from which there has been an escape of some substance is but an ordinary everyday item and not such as to constitute some exceptional use of land (a wash basin is one example as to where the defence succeeded). No Rylands case appears to have succeeded since the Second World War.

In a ‘category 1’ case of direct damage, liability is strict in the sense that an unchecked hazard brought about by a defendant will result in a finding of nuisance, unless a defendant can find some lawful defence. These tend to be limited to any defences which have their source in legislation (such as the defence of statutory authority). There is no need to establish any duty of care.

In summary, and referring back to Arscott (2004, above), private nuisance is concerned with a “constellation of themes”. In ‘category 1’ claims there is “a bias (effectively a conclusive rule) against non-natural user where that involves the escape of something noxious onto a neighbour’s land; a bias against the harbouring of a danger, a hazard, on one’s own land whether the hazard is natural or man-made. And in no case will there be liability without reasonable foreseeability of damage”.

DIRECT PROPERTY DAMAGE WHERE LIABILITY IS STRICT