R v F model answer

• The tort of Rylands v Fletcher is a strict liability, land-based tort which comes situations where harm is done as a result of something dangerous escaping from neighbouring land. Blackburn J in Rylands v Fletcher defined the tort and said that 'anyone who brings onto his land and keeps there something likely to do mischief if it escapes, is answerable for all damage which is a natural consequence of its escape.' Lord Cairns added the element of non-natural use of the land, so there are four elements that have to be established for the C to be able to bring a claim under Rylands v Fletcher.
• The potential claimant is anyone with a legal interest in the affected land (Hunter v Canary Wharf).
• The potential defendant is the occupier or owner who has control over the land on which the material is stored (Read v Lyons).
• The first requirement is thar the defendant must bring onto the land and accumulate or store a substance that does not naturally occur there. There is no liability for something which arises naturally, such as thistles/weeds (Giles v Walker) or rainwater (Ellison v MOD).
• According to Rylands v Fletcher, the things that has been brought onto the land must be something likely to cause mischief (damage) if it escapes and the D must recognise or ought reasonably to recognise that, judged by the standards of the relevant time and place, there was an exceptionally high risk of danger should there be an escape - Transco v Stockport.
• Examples (although not exhaustive) of things that can cause mischief include: electricity, poisonous fumes, branches, fumes, gas (Bachelor v Tunbridge Wells) and a flag pole (Shiffman v Order St John). The thing does not need to be inherently hazardous, it is not the escape that must be foreseeable, only the damage (Hale v Jennings Bros).
• The D's use of their land must have been extraordinary and unusual having regard to all the circumstances of the time and place - Transco v Stockport. There must also be a non-natural use of the land. This is a matter for the courts to decide, considering what public benefit v risk there is from the use of the land and has been subject to change over the years. According to Cambridge Water v Easter Counties Leather, storage of chemicals in large quantities amounts to a non-natural use of land.
• Finally, the thing that was stored must escape and cause harm/damage. It was held in Read v Lyons that there must be 'escape from a place where the defendant has occupation or control over land to a place which is outside his occupation or control.' It must be the thing accumulated itself that must escape; Stannard v Gore shows this as it was the fire that had escaped, not the tyres which had been brought and stored on the land, the D was not liable. As illustrated in Cambridge Water v Easter Counties Leather, the damage/harm must be foreseeable.
• An action in Rylands v Fletcher is a species of nuisance and damages can only be claimed in relation to rights and enjoyment of land not personal injury or death - Transco v Stockport.
• A number of defences may be available to the defendant to avoid liability such as Act of a stranger, Volenti non fit injuria, Act of God, Statutory Authority and Contributory Negligence.
• The defence of Act of a stranger may apply, where the dangerous thing escaped because of the actions of a third party over which the defendant had no control (Rickards v Lothian/Perry v Kendricks). D would only be liable if the act of a stranger could be anticipated.
• If the C may be considered to have given permission (either expressly or impliedly) to the storage, then the D may argue the defence of volenti and that there was consent; Peters v Prince of Wales Theatre.
• Alternatively, the defence of Act of God may be raised. This is a defence where there are extreme weather conditions that 'no human foresight can provide against' (Nichols v Marsland/Greenock Corporation v Caledonian Railways Co). More recent cases have taken a firm line of this, so the Act of God must be extreme.
• Additionally, if an Act of Parliament authorised the Defendant's actions then the defence of statutory authority may be relevant although in Charing Cross Electricity Co v Hydraulic Co whilst the statute in question granted permission to the D to keep the water main at high pressure, there was no obligation to do so. The defence therefore failed.
• Lastly, if the claimant is partly responsible for the escape of the thing then the D may argue Contributor Negligence and under the Law Reform (Contributory Negligence) Act 1945, the Claimant's damages may be reduced by a percentage.
• To conclude subject to the use of the land being non-natural and the defences above, the C may be able to seek special damages, which can be calculated precisely, for the specific damage to the property (cost of repair or replacement).