Strict Liability — Rylands v Fletcher and Exceptions

The rule in Rylands v. Fletcher (1868) LR 3 HL 330 is one of those cases that every student of the law of torts learns first and remembers longest. It supplies the foundational doctrine of strict, no-fault liability in the common law: a person who, for his own purposes, brings on his land and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he fails, he is prima facie answerable for the natural consequences of its escape, even though he was not negligent. The doctrine sits between two different worlds — between the fault-based law of general defences in tort, where the defendant can excuse himself by proving care, and the absolute-liability regime later evolved by the Supreme Court of India in M.C. Mehta v. Union of India (1987), which is the subject of the next chapter and not of this one.

This chapter does three things. First, it lays out the rule in Rylands v. Fletcher and the three essentials — dangerous thing, escape, non-natural use of land. Secondly, it sets out the five exceptions recognised by the case itself and by later decisions. Thirdly, it traces how the rule has been received and adapted in India, including the agricultural-water exception recognised by the Privy Council and the dilution that has occurred (without being collapsed into absolute liability) since M.C. Mehta.

The case and its rule

The defendant got a reservoir constructed through independent contractors over his land for providing water to his mill. There were old, disused mine-shafts under the site, which the contractors failed to observe and so did not block. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal mines on the adjoining land. The defendant did not know of the shafts and had not himself been negligent — although the independent contractors had been. He was nevertheless held liable.

The basis of the liability was the rule propounded by Blackburn J. in the Court of Exchequer Chamber: “the person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” The justification was avowedly one of fairness as between neighbours: the person whose grass is eaten down by escaping cattle, whose mine is flooded by his neighbour’s reservoir, whose habitation is made unhealthy by his neighbour’s alkali works, “is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s, should be obliged to make good the damage”.

When the case reached the House of Lords, Lord Cairns added a critical qualification: the use of the land must be “non-natural”. The rule has therefore had three essentials ever since.

The three essentials

(1) Dangerous thing

The thing collected must be one which is likely to do mischief if it escapes. In Rylands itself the dangerous thing was a large body of water. The rule has since been applied to gas (Batcheller v. Tunbridge Wells Gas Co., (1901) 84 LT 765), electricity (National Telephone Co. v. Baker [1893] 2 Ch. 186), vibrations (Hoare & Co. v. McAlpine [1923] 1 Ch. 167), poisonous yew trees (Crowhurst v. Amersham Burial Board, (1878) 4 Ex. D. 5), sewage (Humphries v. Cousins, (1877) 2 CPD 239), a flag-pole (Shiffman v. The Order of St. John [1936] 1 All ER 557), explosives, noxious fumes and rusty wire. The list is not closed; the test is whether the thing is one likely to do mischief if it escapes.

(2) Escape

The thing causing damage must escape from the area within the occupation and control of the defendant to a place outside it. The textbook authority on the requirement of escape is Read v. J. Lyons & Co. Ltd. [1947] AC 156. The plaintiff was an inspector employed by the Ministry of Supply at the defendants’ munitions factory. While she was performing her duties inside the defendants’ premises, a shell being manufactured there exploded and injured her. There was no evidence of negligence. The House of Lords held the defendants not liable: the shell, although a dangerous thing, had not escaped from a place within the defendants’ occupation to a place outside; the rule did not apply.

An overhanging branch of a poisonous tree on the neighbour’s land amounts to an escape: cattle lawfully on the neighbour’s land that nibble the leaves and die ground a claim under the rule (Crowhurst). But where the plaintiff’s horse intrudes onto the defendant’s land and dies after nibbling the leaves of a poisonous tree there, there is no escape, and the rule does not apply (Ponting v. Noakes [1894] 2 QB 281).

(3) Non-natural use of land

The use of land must be non-natural — “some special use bringing with it increased danger to others, and ... not merely the ordinary use of land or such a use as is proper for the general benefit of the community” (Rickards v. Lothian [1913] AC 263). Storing a large body of water in a reservoir, as in Rylands v. Fletcher itself, is non-natural; storing water for ordinary domestic purposes is natural. Sochacki v. Sas [1947] 1 All ER 344 holds that the fire in a domestic grate is an ordinary, natural, everyday use of the fireplace; if it spreads to adjoining premises, the rule does not apply. Noble v. Harrison [1926] 2 KB 332 holds that growing trees (non-poisonous) on one’s land is not a non-natural use; the branch of a non-poisonous tree which suddenly broke off and fell on the plaintiff’s vehicle did not engage the rule. Domestic supply of gas in pipes, a domestic water installation and the wiring of a house are similarly natural uses.

The Indian application is captured by T.C. Balakrishnan Menon v. T.R. Subramanian, AIR 1968 Mad. 151. The use of explosives in a maidan even on a day of festival was held to be non-natural use, because under the Indian Explosives Act the making and storing of explosive substances even on such occasions requires licences. The point is that anything for which the law itself recognises a special licensing regime is a strong candidate for non-natural use.

The rule and independent contractors

One of the doctrinal pay-offs of Rylands v. Fletcher is that the general rule about employers and independent contractors — that the employer is not liable for the contractor’s torts — does not apply. In Rylands itself the defendants were held liable even though the dangerous thing had been brought by independent contractors. The Indian application is the same: in Balakrishnan Menon, an explosive made out of a coconut shell filled with explosive substance, instead of rising into the sky, ran at a tangent into the crowd and exploded, causing serious injuries; the persons who had engaged the independent contractor for the firework exhibition were held liable. The duty of taking care of an extra-hazardous object is non-delegable.

The five exceptions

(i) Plaintiff’s own default

Damage caused by escape due to the plaintiff’s own intrusion on the defendant’s land is no ground for liability. Ponting v. Noakes serves the point twice over: the plaintiff’s horse intruded onto the defendant’s land and died of the leaves of a poisonous tree; the defendant was not liable, both because there was no escape and because the damage flowed from the plaintiff’s own default. The rule extends to the case where the damage results from the plaintiff’s unusually sensitive use of his property: Eastern and South African Telegraph Co. Ltd. v. Capetown Tramways Co. [1902] AC 381 — submarine cable transmissions disturbed by escape of electric current from the defendant’s tramways — held that “a man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure”.

(ii) Act of God

Act of God, or vis major, was recognised by Blackburn J. himself as a defence. The classical formulation is in Tennent v. Earl of Glasgow: “circumstances which no human foresight can provide against, and of which human prudence is not bound to recognise the possibility”. The textbook illustration is Nichols v. Marsland, (1876) 2 Ex. D. 1: the defendant created artificial lakes on his land by damming a natural stream; an extraordinary rainfall, the heaviest in human memory, swelled the stream and the lakes; the embankments, sufficiently strong for ordinary rainfall, gave way and washed away the plaintiff’s four bridges. There was no negligence. Held: the accident was caused by an act of God and the rule did not apply. The defence is the same as the general defence of act of God (vis major); the requirement of unforeseeable supernatural cause is the same.

(iii) Consent of the plaintiff

Where the plaintiff has consented to the accumulation of the dangerous thing, no liability arises. The principle is the general principle of volenti non fit injuria. Consent is implied where the source of danger is for the “common benefit” of plaintiff and defendant — the typical case being that of two persons living on different floors of the same building who are deemed to have consented to the installation of common utilities such as the water system, gas pipes or electric wiring. Carstairs v. Taylor, (1871) LR 6 Ex. 217 illustrates the point: water stored on the upper floor for the benefit of both occupants leaked without any negligence on the part of the upper occupant; held, no liability. The defence does not arise as between a public utility undertaking and its consumers, nor between organisers and spectators of a fireworks display.

(iv) Act of a third party

If the harm has been caused by the act of a stranger over whom the defendant has no control, the defendant is not liable. Box v. Jubb, (1879) 4 Ex. D. 76 illustrates the rule: an overflow from the defendant’s reservoir caused by the blocking of a drain by strangers; the defendant not liable. So too in Rickards v. Lothian: strangers blocked the waste pipes of a wash basin and turned on the tap; overflowing water damaged the plaintiff’s goods; the defendants not liable.

The defence is, however, narrow. If the act of the stranger could be foreseen and the damage prevented by reasonable care, the defendant must take that care. Northwestern Utilities Ltd. v. London Guarantee & Accident Co. [1936] AC 108 makes the point: a public utility company carrying gas at high pressure was liable when, during the construction of a sewer by city authorities, a gas pipe leaked and resulted in a fire that destroyed the hotel insured by the respondents — the operations of the city authorities were conspicuous and the danger to the gas pipes could have been reasonably foreseen.

The Indian application is M.P. Electricity Board v. Shail Kumar, (2002) 2 SCC 162. A snapped live electric wire was lying on a road. There was rain; the road was partially inundated; a 37-year-old cyclist returning from his factory could not notice the wire and was electrocuted. The Supreme Court applied the rule of strict liability and rejected the Board’s defence that the snapping was due to the act of a stranger trying to pilfer electricity. Such an act, the Court said, should have been foreseen by the Board, and at any rate its consequences should have been prevented. “Authorities handling such dangerous resources have an extra duty to chalk out measures to prevent such mishaps.”

(v) Statutory authority

An act done under the authority of a statute is a defence to the rule, just as it is a general defence in tort. Green v. Chelsea Waterworks Co., (1894) 70 LT 547 is the classical authority: the company had a statutory duty to maintain a continuous supply of water; a main burst without negligence; the company was not liable. But statutory authority cannot be pleaded where there is negligence: that limit applies in the same way as it does to the more general defence of unavoidable accident in tort and the related doctrines.

Position in India — extension and limitation

The rule of strict liability is applicable in India as much as in England, and the Indian courts have recognised both extensions of its scope and limitations on it.

Extensions — no-fault liability under statute

The Motor Vehicles Act, 1988 (Section 140) recognises a limited no-fault liability for accidents involving motor vehicles: in case of death of the victim, a fixed sum (originally Rs. 50,000); in case of permanent disability, Rs. 25,000 (originally Rs. 22,000) — payable without proof of fault. The defence of contributory negligence cannot be pleaded for these fixed sums; for any larger claim, the ordinary fault-based regime applies. The carriage of goods by railway, since amendments to the Indian Railways Act in 1961, is on the footing of an insurer rather than a bailee — a deliberate move away from the older fault-based regime studied alongside the chapter on the distinction between tort and contract. The carriage of goods by land under the Carriers Act, 1865 places a common carrier on the footing of an insurer. These statutory regimes amount to extensions, in defined fields, of strict liability into areas which had previously been governed by fault.

Limitation — agricultural water in India

The most important Indian limitation on the rule is the agricultural-water exception. Madras Railway Co. v. The Zamindar of Carvatenagaram, (1874) LR 1 IA 364 is the seminal Privy Council authority. There was an escape of water from two ancient tanks situated on the respondent zamindar’s land — tanks which had existed for ages, not merely for the benefit of the zamindar but for the benefit of thousands of his ryots. Heavy rain caused the tanks to burst and the escaping water destroyed three of the railway company’s bridges. The Privy Council held that under the peculiar conditions of India, the storage of water for agricultural purposes was not subject to strict liability — the owner was liable only on proof of negligence: “considering that, in this district at least, their existence is an absolute and positive necessity, for without them the land would be wilderness and the country a desert ... it would be inequitable to impose upon the owners of the land, on which these tanks are situated, a greater obligation than to use all ordinary precautions to prevent the water from escaping”.

The Andhra Pradesh High Court followed the same reasoning in K. Nagireddi v. Government of Andhra Pradesh, AIR 1982 AP 119: an irrigation canal under the Nagarjuna Sagar project; seepage and percolation killed the plaintiff’s 285 fruit trees; the court held the State not liable, observing that “in India, the question to be asked is ‘how could people live if there was no water’ in tanks and reservoirs”. Necessity is a relative concept; what is non-natural in England may be natural in India; the rule is read with that adjustment.

Strict liability is not absolute liability

It is essential not to collapse strict liability into absolute liability. Strict liability under Rylands v. Fletcher is qualified by the five exceptions set out above. Absolute liability, evolved by the Supreme Court of India in M.C. Mehta v. Union of India (1987) for hazardous and inherently dangerous industries, is expressly not subject to those exceptions. The rule in Rylands remains good Indian law for cases of escape from ordinary non-natural uses of land — reservoirs, gas mains, electric wires, explosive displays. The doctrine of absolute liability, which lies in the next chapter, applies only where the activity is hazardous or inherently dangerous on the M.C. Mehta standard. Treating the two as one would lose the carefully calibrated structure of exceptions which strict liability still preserves.

The point can be sharpened with an exam-friendly contrast. Suppose a chemical-plant operator stores ammonia at high pressure and a tanker bursts, releasing the gas into a residential neighbourhood. If the operator can prove that the burst was caused by the act of a stranger — an outsider tampering with a valve — the rule in Rylands v. Fletcher would prima facie release him from liability under the third-party-act exception. The rule of absolute liability under M.C. Mehta, by contrast, would not. Hazardous and inherently dangerous activity attracts liability whose justification, in the words of the Supreme Court, lies in two propositions: first, that an enterprise carrying on such activity for private profit has a social obligation to compensate those suffering therefrom and to absorb the loss as an item of its overheads; second, that the enterprise alone has the resources to discover and guard against such hazards. The doctrines therefore answer different policy questions, and the demarcation between them must be respected when applying them to a fact-pattern. Indian courts have not been shy of articulating this difference in subsequent decisions on environmental hazards and the State’s parallel duties under the vicarious liability of the State framework.

Connecting threads

The rule in Rylands v. Fletcher is a milestone in the slow shift of the law of torts from an exclusively fault-based regime to one in which liability without fault has a recognised place. The shift continues today through statutory regimes (Motor Vehicles Act, Public Liability Insurance Act, Workmen’s Compensation Act) and through the Indian doctrine of absolute liability for hazardous industries. The doctrine sits alongside the older general defences — private defence, inevitable accident and act of God — and it shares the requirement of legal damage common to the entire field, set out in the chapter on essentials of tort. The interaction with the question of capacity in tort is also worth noting — corporations, as artificial persons, can be liable under Rylands just as a natural person can.

Two final reminders for the exam. First, the rule has three essentials and five exceptions. Mastery is mostly a matter of being able to apply each to a given fact-pattern in two or three sentences. Secondly, do not extend the rule beyond its proper boundaries. Where there is no escape, no rule. Where the use is natural, no rule. Where one of the five exceptions is available on the facts, no liability. The rule is rigorous, but it is also bounded.

Frequently asked questions

What are the three essentials of the rule in Rylands v. Fletcher?

Three: (i) some dangerous thing — a thing likely to do mischief if it escapes — must have been brought by the defendant on his land; (ii) that thing must escape from the area within the defendant's occupation and control to a place outside it; and (iii) the use of the land must be non-natural — a special use bringing with it increased danger to others, not the ordinary use of land. All three must be satisfied. Read v. Lyons illustrates the second; Sochacki v. Sas and Noble v. Harrison illustrate the third.

What is the difference between strict liability under Rylands v. Fletcher and absolute liability under M.C. Mehta?

Strict liability under Rylands v. Fletcher is subject to five exceptions — plaintiff's own default, act of God, consent of the plaintiff, act of a third party, and statutory authority. Absolute liability, as evolved by the Supreme Court in M.C. Mehta v. Union of India (1987) for hazardous and inherently dangerous industries, is not subject to any of those exceptions. The two doctrines apply to different fact patterns: strict liability to ordinary non-natural uses of land, absolute liability to hazardous industries. They must not be conflated.

Why are independent contractors no defence under Rylands v. Fletcher?

Because the duty to keep the dangerous thing in is treated as non-delegable. In Rylands itself the reservoir was constructed by independent contractors and the defendant was nevertheless liable. In the Indian case T.C. Balakrishnan Menon v. T.R. Subramanian, the persons who engaged an independent fireworks contractor were liable for the contractor's negligence — the use of an extra-hazardous object attracts a non-delegable duty. The general rule that an employer is not liable for the torts of an independent contractor therefore yields to the rule of strict liability.

Is the storage of water for agricultural purposes covered by Rylands v. Fletcher in India?

No, not on the strict-liability footing. The Privy Council held in Madras Railway Co. v. The Zamindar that under the peculiar conditions of India, the storage of water for agricultural purposes is a natural and necessary use — without these tanks the land would be wilderness and the country a desert. The owner is therefore liable only on proof of negligence, not under Rylands v. Fletcher. The Andhra Pradesh High Court followed the same reasoning in K. Nagireddi v. Government of Andhra Pradesh in respect of irrigation-canal seepage.

Does the act of a stranger always defeat liability under Rylands?

No. The defence is narrow. If the act of the stranger could reasonably have been foreseen and its consequences prevented, the defence fails. Northwestern Utilities Ltd. v. London Guarantee & Accident Co. illustrates the failure: a public utility company carrying gas at high pressure was liable when sewer construction by city authorities, conspicuous and obviously dangerous to the gas pipes, was not guarded against. M.P. Electricity Board v. Shail Kumar applies the same approach in India: snapping of a live electric wire on a road, attributed to a stranger trying to pilfer electricity, did not absolve the Board, which had a duty to foresee and prevent.