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.
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
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”.