Rylands v Fletcher lives on

Transco plc v Stockport Metropolitan Borough Council HL TLR 20 November

A normal water pipe carried water at mains pressure to storage tanks in the basement of a multi-storey block of flats owned by the local authority for onward distribution of the water to the various flats. Without negligence on the part of the council, the pipe failed at a point within the block with the inevitable result that water escaped. Because, again without negligence, the failure of the pipe remained undetected for a prolonged period, the quantity of water which escaped was considerable. The lie and nature of the council’s land in the area was such that the large quantity of water that had escaped flowed some distance from the block and percolated into an embankment which supported the claimant’s 16’ high-pressure gas main, causing the embankment to collapse and leaving the gas main exposed and unsupported. There was an immediate and serious risk that the gas main might crack with potentially devastating consequences. Transco took prompt and effective remedial measures and now sought to recover from the council the agreed cost of taking them. Few cases in the law of tort, or perhaps any other field, are more familiar, or have attracted more academic and judicial discussion, than Rylands v Fletcher (1866) LR1 EX 265; (1868) LR3 HL 330. The rule of absolute liability in Rylands v Fletcher was a subspecies of nuisance which was itself a tort based on the interference of one occupier of land with the right in or enjoyment of land by another occupier of land as such. It was a necessary condition of liability under the rule that the thing which the defendant had brought onto his land had to be ‘something which … will naturally do mischief if it escapes out of his land’. The practical problem was to decide whether in any given case the thing that had escaped satisfied that mischief or danger test, a problem exacerbated by the fact that many things not ordinarily regarded as sources of mischief or danger might nonetheless be capable of proving to be such if they escaped. It was a test that should not be at all easily satisfied. It had to be shown that the defendant had done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape might have been thought to be. The rule was engaged only where the defendant’s use was thought to be extraordinary and unusual. By the end of the hearing, the dispute between the two parties had narrowed down to two questions: had the council brought onto its land something likely to cause danger or mischief if it escaped and, if so, was that an ordinary use of its land? Applying the principles outlined, it was quite clear that the first question had to be answered negatively and the second affirmatively. It was of course true that water in quantity was almost always capable of causing damage if it escaped. But the piping of a water supply from the mains to the storage tanks in the block was a routine function which would not have struck anyone as raising any special hazard. In truth, the council did not accumulate any water, it merely arranged a supply adequate to meet the residents’ needs. The situation did not stand comparison with the making by Mr Rylands of a substantial reservoir. Nor could the use by the council of its land be seen as in any way extraordinary or unusual. It was entirely normal and routine. The conditions to be met before strict liability could be imposed on the council were far from being met.