Question 6, April 2006: Solution to fe1 question Bell Computers could attach liability to either Chemical Supply or Industrial Estates under the tort of Rylands v Fletcher. Chemical Supply’s Liability Rylands v Fletcher established that a person who “for his own purposes brings on his lands and collects 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 rule therefore imposes strict liability on the defendant for all damage which occurs as a natural consequence of the escape, and there is no requirement for intent or neglect. The rule only applies to defendants who keep “a thing which is likely to do mischief it if escapes. ” As a neighbouring property, Bell has the locus standi to take a claim in Rylands. It can sue Chemical Supply as occupier of the premises from which the chemicals escaped.
In Shell Mex v Belfast Corp the defendant corporation placed gas pipes under a road not owned by them, and were held liable for the explosion caused by a leak in the pipes as they had control over the works. Bell must prove accumulation, by showing that Chemical Supply brought the substances onto the property for its own benefit, and that it intended to be responsible for the accumulation. The item must be dangerous, i. e. likely to do mischief if it escapes.
In Cambridge Water v Eastern Counties Leather, the court held that the test to determine whether the defendant knew that the chemicals which escaped from the defendant’s premises were dangerous, was whether the danger was reasonably foreseeable. The court will consider the nature of the risk capable of being known to the defendant and his knowledge of the possible means of escape and potential harm. It concluded in this case that the harm was not reasonably foreseeable as the chemicals had seeped into a bore hole located one mile away.
It should be noted that foreseeability is only relevant to the defendant’s knowledge of the dangerous nature of the thing which escapes. Damage caused by the escape must be shown to be a direct consequence of it. In addition to the substance being dangerous, it must also be shown that the damage it caused was due to an extraordinary or non-natural use of the land as opposed to artificial use. In Cambridge the court established that the use of a chemical solvent used in the tanning process was a non-natural use of the land.
Finally, the substances must be shown by Bell to have unintentionally escaped from the land which the defendant owned, occupied or controlled. It would appear that Bell could satisfy all of these requirements and attach strict liability to Chemical on the basis that it brought harmful substances onto the premises for their own benefit, and their use of the land was non-natural. The damage caused to Bell was a direct consequence of the escape of such substances.
Chemical knew the escape of the substances was dangerous, as it was reasonably foreseeable that the escape of the substance would cause harm to neighbouring properties. Chemical will most likely try to defer liability to Herbie as an independent contractor, for whose torts it is subsequently not liable. However, the strict liability in Rylands is non-delegable, as was seen in the founding case itself. An independent contractor had been hired to build a reservoir for the defendant, whose negligence resulted in water breaking through a shaft and flooding an adjacent mine.
Liability bypassed the independent contractor, and strict liability was imposed on the defendant. It is unlikely that Chemical will be able to invoke the defence that a defendant will not be liable for the deliberate acts of a stranger, such as a trespasser, whose acts could not reasonably have been foreseen, as Herbie was not a trespasser on the premises, but was there by express request of the Chemical. Liability under the rule is strict, and so Bell will not need to show any particular damage, but should be able to recover the loss of business and cost of decontamination.
Industrial Estate’s Liability The rule in Rylands applies to owners of premises as well as occupiers, but Bell would have difficulty overcoming the proofs outlined in respect of Industrial, namely accumulation for Industrial’s benefit etc. and the absence of any control by Industrial over the harmful substances. Liability would be more successfully attached to Industrial in negligence for its failure to keep the road in a good state of repair. Firstly, Bell will need to establish that it owed a duty of care to it.
As Lord Atkin stated in O’Donoghue v Stevenson “you must take reasonable care to avoid acts or omission which you can reasonably foresee would be liable to injure your neighbour. ” While neighbour in this sense does not strictly mean persons who occupy the property beside you, it was established in Glencar Explorations v Mayo Co. Co. that if a plaintiff and defendant’s relationship is sufficiently proximate, and the harm caused was foreseeable, then in the absence of policy limitations, a duty of care would arise.
Bell should be able to establish a duty of care in that by failing to maintain the road in a good condition, it was reasonably foreseeable that such failure could cause injury to Bell’s property, as Industrial knew that tanks full of harmful substances travelled on the road on a daily basis, and that if such chemicals were to escape due to an accident caused by the defective road, they would seep onto Bell’s property causing it damage.
While the damage may be somewhat remote, Wagon Mound established that a defendant will be responsible for the probable consequences of his act which are reasonably foreseeable, irrespective of the extent of that foreseeable damage. Industrial clearly breached their standard of care as despite being told on numerous occasions about the defects and poor design of the road, they failed to take any reasonable steps to ensure the safety of the road, which failure is aggravated by the fact that they knew the premises was being used by Chemical to transport harmful substances, and the risk of an accident and subsequent harm was great.
Conclusion Bell would appear to have a strong case against Chemical grounded in the rule in Rylands and against Industrial for general negligence. Industrial could seek to defer some liability to Herbie for his excessive speed in such a claim, but Herbie will incur no liability in respect of the strict liability attached by the rule in Rylands.
