Rylands V Fletcher in the 21st Century

Does the Rule in Rylands v Fletcher still have any useful role to play in the 21st Century? To define specifically what a field of law encompasses, be it tort or any of the other fields that the law branches into, can tend to be rather difficult. The definition of the law of tort can be interpreted as an on-going materialization of our civil wrongs and its effects on our society. Our modern society is ever-changing, which in turn means that the issues that arise in our society are also changing. Due to the unpredictability of these issues, the law has to merge and evolve to meet the requirements imposed on by our society. The decision that arose from the dispute in Rylands v Fletcher[1] ushered in and established a new area in the law of tort in order to remedy the disputes that arose in regards to strict liability. Controversy in regards to the ruling that arose from Rylands and Fletcher has been on-going since the late 19th century as more and more disputes in regards to strict liability have used the rule in Rylands for their claims. While some very recent cases have seen the rule in Rylands being used, many scholars and judges condemn its use and role in our modern day society and cite that it would harm us economically and that the ruling arose from the case was poor. Countries such Australia have completely abolished the ruling and instead depend on the tort of nuisance to find a ruling in regards to similar disputes[2]. By assessing the reasoning behind the ruling, merits and demerits/faults in Rylands v Fletcher with the use of relevant case law, statues and legal journals a clearer consensus in regards to its usefulness in the 21st century can be drawn out. As the law was developing in the late 19th century multiple aspects of society were developing as-well. The industrial revolution had started and multiple incidents that included deaths, accidents and damage to property had occurred[3]. Fault liability, a liability in which the claimant must prove that the defendant’s conduct was intentional[4], had made progress in the law as it was used more regularly than strict liability. By the time the ruling in Rylands and Fetcher had come, reconsideration in regards to the importance of the liabilities had commenced. Influenced by the industrial revolution and events that had occurred in regards to water reservoirs[5], Lord Hoffmann and Lord Cairns recognized the necessity for such a controversial ruling and agreed with Blackburn J’s reasoning but altered it slightly by adding the requirement that the use be non-natural[6].This Judgement courted controversy throughout the 20th century with scholars debating its interpretation, but had a common understanding of the pressures the Judges had during the 19th century to further develop the Law of tort. American jurist Wigmore in 1984 wrote: “What gave the exposition on this occasion its novelty and its permanent success was the broad scope of the principle announced, the strength of conviction of its expounder, and the clearness of his exposition, and perhaps, too, the fact that the time was ripe for its acceptance”[7]. While some legal writers debated the interpretation of the ruling in Rylands by closely relating it to trespass and nuisance, others argued that nuisance itself related to the loss of enjoyment to land and the ruling had focused on physical damage and the reasonableness test was not applicable in Rylands. After additional debate Professor Newark in 1949 argued that the Judges at the time of the ruling had not been aware of its grave importance and effect on the law and stated that: “This case is generally regarded as an important landmark—indeed, a turning point—in the law of tort; but an examination of the judgments shows that those who decided it were quite unconscious of any revolutionary or reactionary principles implicit in the decision. They thought of it as calling for no more than a restatement of settled principles, and Lord Cairns went so far as to describe those principles as ‘extremely simple’”[8]. And that the case was: "A simple case of nuisance"[9] Implying that the Judges could not have foreseen the changes the society would undertake and the somewhat impracticability of their ruling in our modern day society. Interpretations of the case during the 20th century had taken odd turns that forced Judges to question the rulings usefulness. In cases such as Hale v Jennings Bros, Judges upheld the claimants claim in that it utilized the ruling in Rylands to find the defendant liable for personal injury. Further controversy had amounted with the ruling as this was the first time Rylands was used for personal injury. Legal writers found that while utilizing Rylands narrow rule, personal injury was attainable, however under a wider rule it was not the case. Blackburn J had based his ruling on the law of liability for animals, which allowed the ruling to encompass personal injury as well[10]. What the ruling in Hale outlined, was that the case the was initially utilised for damage to land had been broadened to encompass areas that did not closely relate to the original ruling, bringing forth ambiguity in regards to the utilisation of the ruling in Rylands. As with most precedents, the ruling in Rylands had been developed to slowly accommodate the issues that arose in cases such as Cambridge Water Co Ltd v Eastern Counties Leather plc[11] and Transco plc v Stockport Metropolitan Borough Council[12]. Benefits and limitations had started to be outlined by Judges and scrutinized in order to clarify some shortcomings with the broadness of the ruling[13]. Lord Goff in Cambridge Water had looked closely at the implication of strict liability in Rylands and utilized some of Professor Newark’s reasoning to conclude that the Rylands was essentially an extension to the law of nuisance[14]. By implying a foreseeably test to the ruling, Rylands had taken dramatic stride in order to accommodate the ambiguity of the original ruling. Lord Goff had also abolished the wider rule in Rylands in order to further clarify the usefulness of the ruling, which helped indicate a clearer direction for the ruling in the future. In Transco plc, Lord Bingham held that ruling in Rylands could be” engaged only where the defendant's use is shown to be extraordinary and unusual.”[15] The Judges in Transco were also faced with the questions of either following the Australian example of abolishing the ruling or further clarifying the ruling and giving it greater certainty[16]. The Judges chose the latter indicating that, there was a niche number of cases that would require the use of strict liability and that enforcing fault liability might remedy some issues by approximating the law with neighbouring countries, however it would widen the gap between other nations that still utilise strict liability (i.e. USA (for extra-hazardous actions)).The changes that occurred in the aforementioned cases can be seen as a clarification of the ruling in Rylands, as the Judges of both cases had now started to develop the ruling for the modern era and have indicated that the rule is here to say for the time being. Some scholars have even linked the ruling in Rylands with environmental cases, citing that it would create an incentive to avoid harming the environment by forcing those who undertake dangerous activities to be more self-aware and that they should bear consequences irrespective of negligence’s presence during an event.[17] It can be argued that there is legislation already in place to adequately resolve disputes in regards to environmental malpractice, but since there might be aspects that the legislation doesn’t cover, which case law (Rylands) can prove to be very useful as it allows for more flexibility in regards to finding a ruling. While most people argue against the ruling in Rylands v Fletcher by stating that it does not have usefulness in our day and age, it should be relatively clear that the ruling has advanced through the years to slowly but eventually accommodate the issues of the modern era. It might be argued that utilisation of strict liability is “un-fair” and impartial as it does not take into consideration negligence or the intention of the defendant, but since it is only invoked in a niche number of cases it should be held that strict liability should not be abolished and that rather than removing the ruling from English common law, it could be better integrated more cohesively into the fields the law of tort encompasses. References Goff R, 'Cases, Materials And Text On National, Supranational And International Tort Law. By Gerven Walter Van, Lever Jeremy, And Larouche Pierre. [Oxford: Hart Publishing. 2000. Xcix + 963 Pp. ISBN 1–84113–139–3. Price Not Given. (PBk).]' (2001) 50 International & Comparative Law Quarterly Nolan D, 'The Distinctiveness Of Rylands V Fletcher' [2005] Westlaw Oxfordreference.com, 'Fault Liability - Oxford Reference' (2015) <https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095812106> accessed 20 March 2015 The Industrial Revolution, 'Working And Living Conditions' (2015) <https://firstindustrialrevolution.weebly.com/working-and-living-conditions.html> accessed 18 March 2015 Waite A, 'Deconstructing The Rule In Rylands V Fletcher' (2006) 18 Journal of Environmental Law Wigmore J, 'Responsibility For Tortious Acts: Its History' (1894) 7 Harvard Law Review

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[1] Rylands v Fletcher[1868]UKHL 1 [2] Burnie Port Authority v General Jones Pty Ltd(1994) 179 CLR 520 [3] The Industrial Revolution, 'Working And Living Conditions' (2015) <https://firstindustrialrevolution.weebly.com/working-and-living-conditions.html> accessed 18 March 2015. [4] Oxfordreference.com, 'Fault Liability - Oxford Reference' (2015) <https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095812106> accessed 20 March 2015. [5]A.J. Waite, 'Deconstructing The Rule In Rylands V Fletcher' (2006) 18 Journal of Environmental Law. [6] Rylands v Fletcher[1868]UKHL 1 [7] John H. Wigmore, 'Responsibility For Tortious Acts: Its History' (1894) 7 Harvard Law Review. [8] A.J. Waite, 'Deconstructing The Rule In Rylands V Fletcher' (2006) 18 Journal of Environmental Law. [9] ibid [10] Rylands v Fletcher[1868]UKHL 1 [11] Cambridge Water Co Ltd v Eastern Counties Leather plc[1994] [12] Transco plc v Stockport Metropolitan Borough Council[2003]UKHL 61 [13] Donal Nolan, 'The Distinctiveness Of Rylands V Fletcher' [2005] Westlaw. [14] Cambridge Water Co Ltd v Eastern Counties Leather plc[1994] [15]Transco plc v Stockport Metropolitan Borough Council[2003]UKHL 61 [16] A.J. Waite, 'Deconstructing The Rule In Rylands V Fletcher' (2006) 18 Journal of Environmental Law. [17] Robert Goff, 'Cases, Materials And Text On National, Supranational And International Tort Law. By Gerven Walter Van, Lever Jeremy, And Larouche Pierre. [Oxford: Hart Publishing. 2000. Xcix + 963 Pp. ISBN 1–84113–139–3. Price Not Given. (PBk).]' (2001) 50 International & Comparative Law Quarterly.

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