Strict Liability: Rylands v Fletcher and Its Exceptions
Chapter Twenty-One
Syllabus topic 1, "General Laws on Environmental Concern"
Pages 81 to 84 of 913
In one line
Strict liability makes a person answer for the escape of something dangerous he kept on his land, whether or not he was careless, and it has five exceptions that swallow it.
In the wording a student can write in an examination: the rule in Rylands v. Fletcher is that a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it 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, subject to the exceptions of the plaintiff's own default, the plaintiff's consent, an act of God, the act of a stranger and statutory authority.
Why a rule of 1868 matters to Indian environmental law
Because it was the only tort that dispensed with proof of fault, and because in 1986 the Supreme Court of India examined it, found it inadequate for a modern hazardous industry, and replaced it with something stricter. A student cannot explain absolute liability without first stating accurately what it replaced.
The rule and its four elements
One, the defendant must have brought something onto his land. Something not naturally there. Water in a reservoir, gas in a tank, chemicals in a store.
Two, he must have collected and kept it there for his own purposes.
Three, the thing must be likely to do mischief if it escapes. The rule speaks of a dangerous thing, and the danger is judged by what happens if control is lost.
Four, it must escape. Escape means from a place where the defendant has occupation or control to a place outside it. Harm caused to a person on the defendant's own premises is outside the rule.
To these the later cases added a fifth requirement, that the use of the land must be non-natural, meaning a special use bringing increased danger to others and not an ordinary use of the land or such a use as is proper for the general benefit of the community.
The five exceptions
The plaintiff's own default. If the escape is due to the plaintiff's own act or to the unusual sensitivity of his property, there is no liability.
Consent of the plaintiff. Where the thing is maintained for the common benefit of both parties, as a water tank in a building serving all the flats, a tenant cannot complain of its escape.
Act of God. An operation of natural forces so unexpected that no human foresight could provide against it.
Act of a stranger. Where the escape is caused by the deliberate act of a third party over whom the defendant has no control.
Strict Liability: Rylands v Fletcher and Its Exceptions
Statutory authority. Where a statute authorises the very thing that has escaped and there is no negligence, the rule does not apply.
Why the exceptions defeat the rule in an industrial case
Take them in order against a chemical plant.
Act of a stranger covers sabotage, and sabotage is the first defence pleaded after every industrial accident. It was pleaded at Bhopal.
Act of God covers an earthquake or an extraordinary flood, which is how a tailings dam failure is defended.
Statutory authority covers a plant operating under a licence, a consent and a clearance, which every large plant does.
Non-natural use invites the argument that operating a factory in an industrial estate zoned for it is a use proper for the general benefit of the community, which is the language the exception itself uses.
Escape excludes the workers inside the plant, who are usually the first and worst affected.
That is five answers to one claim, and it is why the Supreme Court concluded in 1986 that the rule was of no use in India.
Worked example
A tannery stores forty tonnes of chromium liquor in a lined pit. In July the pit overflows in an unusually heavy monsoon and the liquor reaches the paddy of four neighbours.
Is the rule engaged? The tannery brought the liquor and kept it; the liquor is likely to do mischief; it escaped from land in the tannery's occupation to land outside it; and storing chromium liquor in bulk is a non-natural use. Prima facie the tannery is liable without proof of negligence.
What will the tannery plead? Act of God, on the rainfall. Whether that succeeds depends on the evidence: rainfall within the recorded range for the district is foreseeable and is not an act of God, however inconvenient. Rainfall unprecedented in a century may be.
What if the pit was breached by a trespasser? Act of a stranger, and the tannery escapes unless it failed to guard against a foreseeable act of that kind.
What if the liquor injured a worker inside the tannery? The rule does not apply at all, because there was no escape. The worker's remedy lies elsewhere, in the workplace law and in the modern rule of absolute liability.
What the modern law would say. If the tannery is an enterprise engaged in a hazardous or inherently dangerous activity, the rule in the Oleum gas leak case applies instead, none of the five exceptions is available, and the worker inside is covered too.
Distinctions
| Rylands v. Fletcher | Absolute liability, the Indian rule | |
|---|---|---|
| Basis | The escape of a dangerous thing brought onto land | Engagement in a hazardous or inherently dangerous activity |
| Escape required | Yes | No |
| Non-natural use required | Yes | No |
| Exceptions | Five | None |
| Who is protected | Persons outside the premises | Everyone affected, including those inside |
| Measure of damages | Compensatory | Correlated to the magnitude and capacity of the enterprise |
Strict Liability: Rylands v Fletcher and Its Exceptions
What it does NOT mean
It does not mean strict liability is no longer part of Indian law. It remains available and is pleaded, and against a defendant who is not carrying on a hazardous activity it is the applicable rule.
It does not mean strict liability is liability without limit. The five exceptions are real, and the escape and non-natural use requirements are real. That is precisely why it was found insufficient.
It does not mean the Indian rule abolished the English one. The Supreme Court declined to follow it and evolved a new rule for hazardous enterprises. For other defendants the older rule continues.
Limits and criticism
The rule was formulated in 1868 for a burst reservoir in a mining district and it fits that case very well. It fits a modern chemical plant badly, for the reasons above, and the Indian answer was to abandon it rather than to reinterpret it.
There is a respectable criticism of that answer, which a good student can state. A rule with no exceptions at all is not a rule of liability but a rule of insurance, and it may deter beneficial activity along with dangerous activity. The Indian courts accepted that consequence deliberately, on the ground that an enterprise which profits from a hazardous activity is the right party to bear the cost of an accident and to insure against it. That reasoning is the polluter pays principle in an earlier form.
Quick revision
- Rylands v. Fletcher: a person who brings and keeps a dangerous thing on his land keeps it at his peril and answers for the natural consequences of its escape.
- Four elements plus non-natural use: brought, kept for his own purposes, likely to do mischief, escape, non-natural use.
- Five exceptions: plaintiff's default, consent, act of God, act of a stranger, statutory authority.
- Sabotage, licence and heavy rain answer most industrial claims, and workers inside are outside the rule for want of escape.
- Those failures are the stated reason for the Indian rule of absolute liability in 1986.
- The English rule remains available against a non-hazardous defendant.
Test yourself
1. State the rule in Rylands v. Fletcher and its five exceptions. A person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and if he fails to do so is prima facie answerable for all the damage that is the natural consequence of its escape. The exceptions are the plaintiff's own default, the plaintiff's consent to the presence of the thing for common benefit, an act of God, the act of a stranger, and statutory authority.
Strict Liability: Rylands v Fletcher and Its Exceptions
2. Why did the Supreme Court find the rule inadequate for a modern hazardous industry? Because the exceptions and the requirements between them answer almost every industrial claim. Sabotage is the act of a stranger, an extraordinary flood is an act of God, a licensed plant has statutory authority, an industrial use in an industrial area can be argued to be natural, and the escape requirement excludes workers inside the premises, who are usually the first affected. A rule with those five answers cannot govern an activity whose consequences are as large as an escape of methyl isocyanate.
3. A gas escapes and injures both a worker in the plant and a family outside. Which rule applies to each? Under Rylands v. Fletcher only the family outside could recover, because there is no escape as against the worker, who was on the premises. Under the Indian rule of absolute liability both recover, because that rule does not require an escape, is not confined to persons outside the premises, and admits no exceptions.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.