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The case of RylandsVFletcher1868 created a new tort. To succeed in an ActionOnTheCase (this was before the law of negligence took its modern form) the plaintiff would generally have to show some fault on the part of the defendant. In Rylands, the defendant had constructed a well, which collapsed and flooded the plaintiff's mineworkings. The plaintiff was not at fault in his construction of the well, nor was it unreasonable that he should have constructed a well in the first place. So was the defendant liable to compensate the plaintiff? In the absence of fault, one would have thought not. However, in a judgement that has remained contentious for a century and a half, the HouseOfLords upheld the decision of the trial judge that the well-owner should cough up. The principle of the decision was expressed in the famous words of Blackburne J:
``The person who brings on his land for his own purposes, and collects and keeps there, anything liable to do michief if it escapes, must keep it in at his peril... ''
The judge went on to limit the principle to things brought onto land that were `not naturally there', and this concept of `non-natural user' has caused a great deal of difficulty over the years.
The rule in Rylands v Fletcher is contentious because it creates a form of StrictLiability, that is, liability without fault. In the ordinary law of negligence, it is essential if a claim is to succeed that the defendant be in breach of a DutyOfCare, that is, he has done something that a reasonable person would not have done, or neglected to do something that a reasonable person would not have neglected. However, the law of tort is not concerned with punishing people for their wrongdoings, it is concerned with making people liable for the consequences of their own actions, and there is no reason in principle why there should not be torts of strict liability.
Whatever the jurisprudential arguments, over the years the courts and Parliament have limited the effect of the rule, and there are regular calls for it to be disposed of. Other jurisdictions that accept much of the English law of negligence have already abandonned it (Australia, for example). However, the House of Lords holds to the rule in principle, while circumventing it by one device or another whenever it actually comes up for consideration. In CambridgeWaterVEasternCountiesLeather1994, the House held that the concept of `non-natural user' was a valid one, and what the defendants had been engaged in did consitute a non-natural user; nevertheless, the same tests for causation as apply in negligence also apply to the rule. The loss suffered by the claimants was not of a type forseeable by the defendants, and the damage was therefore too remote.
At the time of writing, the most recent House of Lords case was TranscoVStockportMBC2003. Here the claimant's gas pipework was badly, and expensively, damaged by an escape of water from the defendant local authority's pipes. It was conceded that the defendant had not been negligent -- it had to run pipes, and had done so carefully and in accordance with the usual standards. However, following CambridgeWaterVEasternCountiesLeather1994, the claimants suggested that the accumulation of water was a `non-natural user' of land; consequently the defendants were liable under the rule in Rylands v Fletcher even if they were a band of angels led by an archangel. For their part, the defendants suggested that the rule was an anachronism, and its principles should be subsumed into the general law of negligence.
The House refused to overrule Rylands, but held in this case that it did not apply. Why? Well, despite Cambridge Water, accumulating water on land is now hardly a `non-natural user of land'. The rule itself, said the House, fulfilled an important social objective, in making people think very carefully about the ways they used their land. It had stood for nearly 150 years, and it was up to Parliament to get rid of it, not the judiciary.
So, in short, the rule is important, but ways can be found to circumvent it in nearly all cases.
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