Wednesday, February 21, 2007


Tuesday 20 February 2007

We began by discussing the questions on negligence and occupiers’ liability that I had set before the half-term break, before we moved on to the tort of CONVERSION.

Conversion is an act of wilful interference without lawful justification with any chattel inconsistent with the right of another, whereby that other is deprived of the use and possession of it. It is based upon a legal fiction in that the original allegation (once called ‘trover’) was that the defendant had found the thing and wrongly converted it to his own use

It covers rights of ownership rather than possession, and may overlap with trespass, for example where goods are seized (trespass) and later wilfully destroyed (conversion).

Liability in conversion is strict. An honest but mistaken belief of the defendant that he had the right to deal with the goods is no defence. In the example of the auctioneer above, even if the auctioneer genuinely believes that the thief is the true owner, this would provide him with no defence.

Conversion may be committed in numerous ways of which the most common are:

(1) Conversion by taking - unlawfully taking a chattel out of anyone else’s possession with the intention of exercising a permanent or temporary dominion over it. Mere taking without such intention is trespass to goods. “If I snatch your hat with intent to steal or destroy it I am liable for conversion and trespass, but if I do so to throw it at someone, it is trespass only”: Price v Hellyer [1828].

(2) Conversion by detention - unlawfully keeping a thing with the intention of doing so adversely to the true owner. The usual form is where a person comes by a thing lawfully, for example as a finder or bailee but then refuses to hand it over to the true owner. Merely retaining such a thing without the intention is not sufficient to constitute the tort. The usual form of proving the tort is to show a demand by the claimant for the return of the goods and a refusal by the defendant to comply.

(3) Conversion by wrongful delivery - wrongfully delivering a person’s goods to some other person so as to deprive the owner of title to them because that other person destroys or further disposes of them.

(4) Conversion by wrongful disposition - depriving a person of his goods by giving some other person lawful title to them without lawful justification. This form of tort applies to those cases where a person in possession of goods to which he has no title can still effectively, although wrongfully, dispose of them in such a way that he passes a good title to someone else. The dealing with the goods is a conversion. The easiest example is selling a car on hire purchase before all the payments have beenmade.

(5) Conversion by wrongful destruction - without lawful justification, wilfully consumes or otherwise destroys a chattel belonging to another person. Examples are destroying someone else’s property by burning it or throwing it in the sea so it cannot be found, eating it, or changing its character, for example by weaving thread into cloth. Damage to goods which falls short of destruction is likely to be actionable as trespass only.

(6) Conversion of documents or token - e.g. the misuse of a cheque.

Of more interest is the rule concerning a FINDER. Where goods are found and the true owner cannot be discovered the finder has good title against the whole world except for the true owner and can therefore maintain an action in conversion if his title is denied.

Armory v Delamirie (1721): a chimney sweep found a jewel and recovered in conversion against a goldsmith who took it for valuation and refused to return it. The finder’s title is based on de facto possession. There will be some situations where another person may have acquired a prior possessory title, for example the occupier of the land where the goods have been found.

Where the goods are found on land, who has the better title, the occupier of land or the finder? The principles were laid down in Parker v British Airways Board (1982) where a gold bracelet was found in the VIP lounge at Heathrow airport. The occupier will have better title if

In Parker the “finder” did establish an entitlement superior to that of British Airways.

“Treasure” is now defined in s1 TREASURE ACT 1996. The intention of Parliament is to bring all finds of historical significance under this statutory code, which replaces the common law rules of “treasure trove” but the definition of “treasure” is complicated and may prove difficult to apply with certainty. Anything which previously came within the definition of treasure trove is now treasure but many more objects and artefacts have been brought within the statutory code. The technicality that “treasure” (as with treasure trove before it) belongs to the Crown is preserved but the disposition of objects found will lie with the Heritage Minister. Anyone finding an object which he believes, or has reasonable grounds to believe, to be treasure must notify the Coroner within 14 days and the Secretary of State may determine a reward. A code of practice is being prepared.

s8 of the 1977 Act provides a defence of Jus tertii: in an action for wrongful interference with goods a defendant may plead this as a defence – showing that some third person has a better title than the claimant. The effect of the section is to enable all parties with any claim to the goods to be joined in the same action so that justice may be done.

For example, A retains and refuses to give up goods claimed by B because he believes that C is the true owner and if he were to hand them over to B, he might be liable for an action in conversion by C. If B sues A, then A can plead jus tertii and have C added as a party to the action.

s3(2) provides the following remedies:

We then began a new tort whose origins go back for centuries, that of DEFAMATION. Defamation is the tort that protects reputation, and has been mentioned in Shakespeare:
He that steals my purse steals trash; its something, nothing,
But he that filches from my good name
Robs me of that which not enriches him,
And make me poor indeed. " Shakespeare, Othello act 3, sc. 3
It is divided for our purposes into:

A statement is defamatory if it tends to:

  1. Expose him to hatred, contempt or ridicule; or

  2. Cause him to be shunned or avoided; or

  3. Lower him in the estimation of right thinking members of society generally; or

  4. Disparage him in his business, trade, office or profession.

Note that it doesn’t have to do any of these things, only tend to do so.

Once a claimant has established:

the burden of proof lies on the defendant to establish his innocence or rely on one of the defences available.

Defamation is most unusual in that, although a civil action, a jury will decide on liability, and the amount of the award. This has led to some very odd result.

Sutcliffe v Pressdram (1990) – the Court of Appeal held that the award of £600,000 was substantially in excess of what could be considered a reasonable sum to compensate the claimant and a retrial was ordered on the issue of damages only. The damages were reduced to £60,000. The case involved an allegation by Private Eye that Sonia Sutcliffe, wife of the Yorkshire Ripper, must have been aware of what he had been doing.

Rantzen v MGN (1993) – the Court of Appeal substituted an award of £110,000 for the jury’s assessment of £250,000.

We will continue with this next week.

Thursday, February 08, 2007


Tuesday 6 February 2007

I began the evening with an apology, as the material we were to look at was not likely to be examined. In fact, it hasn’t seen the light of day in the past 12 years, and I don’t see any change for the next 12 years either.

Liability for fire is governed by s86 FIRES PREVENTION (METROPOLIS) ACT 1774, which despite its title is not confined to London.

No one will be liable for a fire which begins on his premises, unless he has been negligent in respect of it. If the fire arises by accident the occupier may be liable if he is negligent in allowing it to spread.

In Musgrove v Pandelis (1919) a fire accidentally started in the carburettor of the defendant’s car. The defendant’s employee negligently failed to turn off the petrol tap and the fires spread. The defendant was held liable not for the original fire but for the spreading of the fire.

We then turned to LIABILITY FOR ANIMALS. Liability for damage caused by animals can arise both at common law and statute, particularly the ANIMALS ACT 1971.

There are many ways in which a tort can be committed by means of an animal.

NUISANCE: An actionable nuisance may be caused by the noise or smell of animals: Bone v Seale (1975) 1 WLR 797 - the smell of pig manure and pig swill.

NEGLIGENCE: The tort of negligence will be the relevant action if the defendant fails to exercise reasonable care in the control of an animal. In Draper v Hodder (1972) the defendant’s Jack Russell terrier pups escaped from his premises and caused serious personal injury to the infant claimant, who was playing next door. The young dogs made their attack whilst acting as a pack and this was a foreseeable risk against which the defendant should have taken greater precautions.

TRESPASS: will be committed if a person intentionally brings about the direct contact of an animal with the body, land or chattels of the claimant.

RYLANDS v FLETCHER: it is quite possible that if animals were accumulated in a manner which constituted a non-natural use of the land, their escape, leading to foreseeable damage to the claimant, could give rise to liability under the rule.

OCCUPIERS’ LIABILITY ACTS: a lawful visitor or trespasser injured by an animal may be able to bring an action.

DEFAMATION: teach your parrot to defame someone!

The ANIMALS ACT 1971 replaced the common law rules which divided animals into fierce and docile categories for the purpose of establishing strict liability. The distinction is preserved, but as dangerous and non-dangerous species. The snag is that the change of definitions means that some animals have changed category. At common law, a camel was a docile animal because they are generally adapted to the service of man; under the Act, a camel is a dangerous species because it is not commonly domesticated in the British Isles.

Special liability is imposed for trespassing livestock, but they will also fall into the category of non-dangerous species if they cause harm in other ways than by trespassing, e.g. if a goat butts someone causing injury. Dogs are also dealt with separately for worrying livestock, but they also fall into the non-dangerous category generally.

A DANGEROUS SPECIES is defined by s6(2):

In Behrens v Bertram Mills Circus (1957) the claimants were injured by the defendant’s Indian elephant. It was accepted that the animal was no more dangerous than a cow, but was still dangerous.

To be dangerous a species must satisfy both parts of the definition, thus many foreign animals will not be dangerous, e.g. bush baby, penguin. The question whether a species is dangerous or not under s6(2) is one of law. The unwieldy definition can give rise to problems of classification in relation to very commonplace animals such as rabbits and cats. The cat, for example is a commonly domesticated animal in the British Islands, but there are wild cats in Scotland and many numbers of the cat “family” (lions, tigers etc.) are not domesticated.

There also exists a Dangerous Wild Animals Act 1976 with regard to licensing, so the schedule of the statute lists them and they will be covered by s6. Bizarrely absent form the schedule is buffaloes and hippopotamuses, both evidently dangerous.

Liability for an animal of a dangerous species is governed by s2(1):

where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act.”

Liability is therefore strict subject to the defences in s5. Liability will fall on the keeper of the animal, defined by s6(3) as someone who:

Liability for non-dangerous species animals is covered by s2(2):

where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage . . . if

The complicated wording of s2(2) has been given detailed consideration by the Court of Appeal in Curtis v Betts (1990). The defendants owned a bull mastiff which regularly travelled in the back of a Land Rover. The claimant aged 10, lived in the same neighbourhood and was known to the dog. He approached the dog as it was being loaded into the Land Rover. The dog leapt at him and bit him twice. The Court of Appeal held that the requirement of s2(2) had been satisfied because the size of the dog (ten stone with massive jaw and teeth) meant that damage it caused was likely to be severe and the particular characteristic of the dog was to react aggressively when defending its territory. This behaviour was known to the keepers.

A causal link must exist between the characteristic in question and the damage suffered. In Jaundrill v Gillett (1996) the issue of causation enabled the owner of horses which had been maliciously released onto the public highway to win his appeal. On the facts it was the actual presence of the horses on the road and not any characteristic of the horses which had caused the collision between the claimant’s car and the horses.

Mirhavedy v Henley [2003] – the claimant was injured when a horse collided with his car. The horse had stampeded from a field breaking through fences. The horse was in extreme fear, although the cause was not known. This behaviour was in no way abnormal in such circumstances. It was held that s2(2)(b) Animals Act 1971 applied to normal characteristics which only occurred in particular circumstances. The statutory allocation of risk placed the responsibility for such on the keeper.

Knowledge of the particular characteristic is essential to this strict liability tort.

Defences are contained in s5. In addition, s10 and s11 have the effect of allowing a reduction in damages for contributory negligence where appropriate.

s5(1): there is no liability for damage which is wholly due to the fault of the person suffering it.

s5(2): there is no liability for damage to a person who has voluntarily accepted the risk thereof. Where a person is employed as a servant by the keeper of the animal and incurs a risk incidental to his employment he shall not be treated as accepting it voluntarily - s6(5). Nelmes v C.C. Avon [1993]: the claimant kicked a police dog who, quite naturally, bit him.

s5(3): There is no liability for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either:

The GUARD DOGS ACT 1975 creates a criminal offence to use or permit the use of a guard dog on business premises without the guard dog being at all times under the control of the handler. There is no civil penalty, but it may mean that the use of a guard dog is now unreasonable for the purpose of s5(3).

Trespassing livestock is governed by s4(1) ANIMALS ACT and provides that a person to whom livestock belongs is liable:

There is no liability for personal injuries or damage to property belonging to a third party. Livestock “belongs” to the person in whose possession it is (s4(2)). Liability is strict, the only defences are provided by s5(1), (5) and (6):

s5(1) - If the damage is wholly due to the fault of the person suffering it. The damage shall not be treated as due to the fault of the person suffering it by reason only that he could have prevented it by fencing. But the defendant will not be liable under s4 where it is proved that the straying of the livestock on to the land would not have occurred but for a breach by any other person, being a person having an interest in the land, of a duty to fence. A causal link between the breach of duty to fence and the straying of the livestock is essential.

s5(5) - a person is not liable under s4 where the livestock strayed from a highway and its presence there was a lawful use of the highway, e.g. to herd livestock from one place to another. If there is evidence of lack of reasonable care (too many cattle for a single herdsman to control), then an action may arise in the tort of negligence.

The definition of livestock is found in s11: cattle, horses, asses, mules, hinnies ( a cross between a female donkey and a male horse), sheep, pigs, goats and poultry, and also deer not in the wild state and, in s3 and s9, also, while in captivity, pheasants, partridges and grouse.

s7 - the occupier may detain trespassing livestock and sell it after 14 days. During the period, the person must feed the livestock properly and give notice within 48 hours to the police and the owner of the livestock, if known. If an offer of amends is made, the livestock must be released to the owner. The sale must take place at market or by public auction to ensure a fair price. After deducting the costs of sale and of keeping the livestock pending sale and the compensation for the damage caused, any surplus must be returned to the owner.

There is a special provision for dogs worrying livestock in s3. Liability is for damage caused by a dog in injuring or killing livestock. The keeper of the dog is strictly liable. There is no requirement that the dog should have particular characteristics.

The owner has a defence under s5(4) “if the livestock was killed or injured on land on to which it had strayed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier”.

s9 provides a defence for a person who kills or injures a dog which:

The person harming the dog must also show:

Animals straying onto the highway is governed by s8. A duty of care is owed, general principles of negligence will apply. If an animal does stray onto the highway the court will consider all matters relevant to the issue of reasonableness, for example nature of the animal, the possibility of fencing, proximity to the highway, amount of traffic usually on the highway.

s8(2) deals with certain types of land where the burden of fencing against the public highway would be very heavy, i.e. common land, town or village greens and such areas where fencing is not customary (for example moorland). In such areas, provided that the defendant had a right to place the animals on the land in question, lack of fencing, by itself, will not be sufficient to establish breach of duty of care.

Thank goodness that’s over, but we aren’t out of the woods yet.

We then turned to INTENTIONAL INTERFERENCE WITH INTERESTS IN CHATTELS. The TORTS (INTERFERENCE WITH GOODS) ACT 1977 provides a statutory basis for the complex law relating to wrongful interference with interests in chattels. The Act provides no full definition of the other torts in this area, and so reference to common law principles is necessary to understand the present law. The Act provides a new term “wrongful interference with goods” to embrace all torts concerned with the protection of interests in chattels:

Committing any act of direct physical interference with a chattel in the possession of another person without lawful justification is a trespass to goods.

It is probable that the tort must be committed intentionally and is actionable per se, just as with other forms of trespass. In common with other trespasses, the defendant’s act must be direct. A person mixing drugs with a greyhound’s food commits trespass to the food but not to the racehorse, as the effects on the greyhound are indirect and consequential.

The tort may be committed in many ways, for example by taking goods, moving goods from one place to another, striking a person’s dog, erasing a tape recording, shooting a racing pigeon or scratching a car.

The question of car clamping was raised in Arthur v Anker (1996). The Court of Appeal specified the conditions which, if met, would mean that the clampers committed no tort or crime:

In effect the motorist is volens to the clamping when these conditions are met, although what would happen if the motorist put a sign in his vehicle specifically stating that he does not consent has yet to be tested. Why? Because I have only recently thought about it!

Vine v Waitham Forest LBC [2000]. The claimant’s car was wheel clamped whilst parked on D’s property. Judge found that the claimant had not seen the warning notice. Argued by the defendant that whether a person had voluntarily assumed the risk or consented to the trespass to their property was to be tested objectively. CA rejected this. The act of clamping a car, even one that was trespassing was one of trespass to goods, unless it could be shown that the owner had consented to or willingly accepted the risk. You have to establish that P saw and understood the significance of the notice. Normally visible notices would lead to such a conclusion. However, the judge’s finding makes this impossible.

We will begin with looking at conversion next time.

There is no class next week, half-term. See you on Tuesday 20th February.

Thursday, February 01, 2007


Tuesday 30 January 2007

We continued with the tort of nuisance, and the factors taken into account b the courts when deciding on whether a private nuisance has taken place.

DURATION. A private nuisance is often demonstrated by the repetition or recurrence of the interference; a single occurrence is more likely to give rise to a public nuisance or an action under the rule in Rylands v Fletcher (below). The longer it continues the more likely it is to be a nuisance.

However, if there is a state of affairs on the defendant’s land likely to cause a nuisance, then the actual interference may only occur once. It is clear that if the state of affairs is foreseeably likely to cause harm to the claimants land a nuisance is committed. In Spice v Smee (1946) the defendant installed electrical wiring in his house. The wiring was faulty and caused a fire which damaged the claimants house. The defendant was held liable for nuisance which was the state of affairs on his land (the faulty wiring).

PUBLIC UTILITY. The traditional view is that in assessing reasonableness the court does not take into account any wider notions of whether the activity was for the public benefit. However, in deciding whether or not to grant an injunction the court may take into account public interest. In Miller v Jackson (1977) the Court of Appeal refused to grant an injunction against a cricket club when interference was caused by defendant.

In Dennis v Ministry of Defence [2003], unreported, the claimant couple, living (with three teenage children) directly below the flight path of RAF Harrier jets used in pilot training, sought a remedy for the excessive noise. After hearing evidence that the noise level was indeed very high, Buckley J awarded the claimants damages totalling almost £1 million, including £300,000 for the loss of value to their home. The public interest in maintaining the training programme at the RAF station was greater than the couple’s private interest, he said, but selected individuals should not bear the cost of the public benefit and common fairness demanded that the claimant should be compensated.

MALICE. In Christie v Davey (1893) the defendants had maliciously responded to noise made by the claimant music teacher. Their motive made their actions unreasonable and a nuisance.

Similarly, in Hollywood Silver Fox Farm v Emmet (1936) the defendant, after a quarrel with the claimant, made arrangements for guns to be fired close to the border of his own land and the claimants during the breeding season of the claimants silver foxes. He was aware that the foxes were sensitive to noise at this time. An injunction was granted to restrain him.

These cases must be read in the light of Bradford Corporation v Pickles (1895) in which Lord Halsbury LC stated that “if it was a lawful act, however ill the motive might be, he (the defendant) had a right to do it”. The defendant had interfered with the natural water which percolated under his land, eventually making its way downhill to be used by the claimant. There was no enforceable right to the use of this water and the defendant committed no tort by his actions. This case is often highlighted by the Chief Examiner as being important, yet overlooked by students.

Is it necessary for a claimant to prove that the defendant was negligent in order to succeed in a nuisance action? Clearly not, otherwise the tort of nuisance would be redundant.

The distinction between the two is that in negligence the court look at the way the defendant did something; in nuisance the court is looking at a protected interest of the claimant and balancing it against what the defendant did.

Although fault may not be essential to the creation of liability, it is essential to remoteness. The test for remoteness of damage in nuisance is the same as that in negligence: Wagon Mound (No. 2) (1967), i.e. reasonable foreseeability of the type of damage caused.

REMEDIES. The principal remedy is the injunction. The principles on which injunctions will be granted were laid down in, Shelfer v City Of London Electric Lighting Co. (1895). If the claimant establishes that a nuisance has been committed then the court’s discretion not to award an injunction is only to be exercised in exceptional circumstances. If the injury to the claimant’s legal rights is small and capable of being compensated by a small monetary payment and the award of an injunction would be oppressive, then damages may be awarded. The principle is that the defendant should not be able to buy the right to commit a nuisance.

There is no mention of refusing an injunction in the public interest, yet that is exactly what occurred in Miller v Jackson (1977) (above). The Court of Appeal refused an injunction against a cricket club on the ground that the club provided a valuable recreational and social utility.

Damages may be claimed, and it is usually necessary for the claimant to prove the damage.

The remedy of abatement is available in nuisance. It may be used, for example to cut branches from overhanging trees. If abatement requires the entry to another person’s land, notice must be given or the abator will be a trespasser. Care must be taken to avoid damage to the other person’s land or property. This is rarely granted, and usually not advisable.

DEFENCES. There are defences, and issues that look like defences, but which are generally not.

Coming to the nuisance. It means “I was here first”. It is no defence to argue that the claimant was aware of the nuisance when he moved to the area. In Sturges v Bridgman (1879) the defendant had used an industrial pestle and mortar for years in his business. This caused no interference to claimant doctor until he built an extension consulting room in his garden. The claimant obtained an injunction.

Prescription. In an action for private nuisance, if the nuisance has been actionable for a period of 20 years and the claimant was aware of the nuisance throughout the relevant period, then the defence of prescription applies: Sturges v Bridgman (above).

Statutory authority. If a statute orders something to be done then there will be no liability for performing the duty and for any inevitable consequences. The courts will normally interpret this as authority to cause interference provided there is no negligence. The relevance of planning permission (in this case to erect pig housing units) has been considered in Wheeler v Saunders (1995) by the Court of Appeal. A distinction was drawn between the power of Parliament to grant statutory authority for certain activities and that of a planning authority which can at most effect a change of use of an area of land. Such permission granted did not prevent a claim in nuisance caused by the smell from the pigs.

We then turned to the rule in Rylands v Fletcher. The rule arose as a result of the Industrial Revolution of the 19th century. As land was put to industrial use damage was frequently caused to neighbouring landowners. The rule was developed to impose strict liability on industrialists who did this, on the basis that where a person exploited land for profit and imposed costs on a neighbour as a result, those costs should be borne by the profit taker, without proof of fault.

The snag is that there has been a lot of mis-use of the rule, where falling flagpoles and escaping caravanners have been held to be within the rule. Other, obstinate, judges have been obsessed by a ‘fault principle’.

The rule was laid down by Blackburn J in Rylands v Fletcher (1865). The defendant employed independent contractors to build a reservoir. The contractors omitted to seal up underground passages and when the reservoir was filled with water the claimants mine was flooded:

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, he is prima facie answerable for all the damage which is the natural consequence of its escape.”

The House of Lords affirmed this statement and added the requirement that the use of the land should be non-natural.

The gist of the tort is that it governs liability for escapes from land, used for a non-natural purpose, which cause damage. It overlaps with nuisance and liability may lie in the alternative.

The modern application of the rule was discussed in very few English cases in recent years. The facts of Cambridge Water Co. Ltd v Eastern Counties Leather (1994) have given the House of Lords a rare opportunity to comment upon certain aspects of the rule. It is now decided that the strict liability will only arise if the defendant knew or ought reasonably to have foreseen the type of damage which the escaped things might cause; that is, that the test for remoteness of damage is the same as for private nuisance, i.e. reasonable foreseeability.

The parties to an action are usually neighbouring landowners.

Whatever it is must be likely to do mischief if it escapes. Most things are capable of causing harm if not properly controlled. This covers not merely intrinsically dangerous things such as chemicals and explosives. It also includes accumulations of water, electricity, fire, explosives, gas, slag heaps, a fairground ride and, in one case, caravan dwellers (you know what I mean).

There must be an accumulation, in the sense that the things have been artificially brought or kept there.

The use of the land must be non-natural. The test depends on the circumstances of time and place as was shown in Read v Lyons (1947). Here the use of land as a munitions factory in war-time was classed as a natural user, i.e. the concept is adaptable to current social and moral conditions. The claimant was employed at the factory and was injured when a shell exploded. Rylands could not apply as there had been no escape; in the absence of negligence there was no cause of action.

The tort is not actionable per se, damage must be proved.

In Hale v Jennings Bros (1938) the tenant of a stall at a fairground was successful in a claim for personal injuries suffered when the defendant’s “chair-o-plane” crashed.

Are damages for pure economic loss recoverable? In Weller v Foot And Mouth Disease Research Institute (1966) a germ escaped from the defendant’s institute and caused an outbreak of foot and mouth disease. The claimant auctioneers sued for lost profits as they were unable to hold cattle auctions. The action failed.

The facts of Cambridge Water have shown a shift in the attitude of the courts. Eastern Counties Leather (ECL) had carried on the business of tanning leather near Cambridge since the 17th century. From 1973 onwards a chemical, used in the degreasing of animal pelts, was stored in large quantities on ECL’s premises. Cambridge Water Company (CWC) bought a borehole in the area in 1976, to supply drinking water to Cambridge. It was not until 1983 that a test was available to detect microscopic levels of such a chemical. CWC were by then required to use the test because of an EC Directive on the quality of drinking water, and the water from the borehole in question was found to contain levels far in excess of what was permitted. CWC were forced to close down the borehole and start up another, thus incurring substantial costs. These they sought to recover as damages from the “polluter”: the chemical had seeped into the ground by percolating down from the surface every time there was a small spillage during the tanning process. Such accidents did not necessarily denote negligence on the part of ECL.

The appeal to the House of Lords focused upon the question of whether foreseeability of harm of the relevant type was an essential element of liability either in nuisance or Rylands v Fletcher. Lord Goff referred to the Wagon Mound as having settled the issue regarding nuisance (harm must be foreseeable). He then considered the very close historical link between nuisance and Rylands v Fletcher and also the reluctance of the Law Commission to propose statutory reform regarding ultra-hazardous activities. It appeared to him logical that the test for remoteness of damage in Rylands v Fletcher should be the same as that in nuisance (and in fact in negligence). It should be remembered that, on the facts of the Cambridge Water case, the original seepage’s occurred in circumstances where a reasonably prudent person would not foresee contamination of ground water resulting. ECL was therefore not liable for CWC’s losses.

Liability under the rule is strict, thus the absence of negligence is not a defence; there are certain defences which have been recognised by the courts confirming that liability is strict but not absolute.

CONSENT. If the claimant expressly, or impliedly, consents to the presence of the “thing” on the defendant’s property, the defendant is not liable if it escapes, except where he is actually negligent.

In Peters v Prince Of Wales Theatre (Birmingham) Ltd (1943) the claimant had leased shop from the adjoining theatre owners. The claimant’s shop was flooded when pipes for a sprinkler system burst during cold weather. Implied consent on the part of the claimant as to the existence of the sprinkler system meant that the claim could not succeed. Note that there was no negligence.

ACT OF A STRANGER. If the escape is caused by the unforeseeable act of a stranger, this is a good defence - see Perry v Kendricks Transport (1956) where the defendants parked their coach on their car park. The petrol tank had been drained. The child claimant was crossing waste land adjacent to the car park when he was injured by an explosion. This had been caused by a small boy who had thrown a lighted match into the petrol tank.

ACT OF GOD. Whilst remembered by students, it is of no particular importance, having only been applied once! In Nichols v Marsland (1876) extremely heavy rain caused artificial lakes to burst their banks. It was held that this flooding was an Act of God.

However, the decision has been criticised in Greenock Corp. v Caledonian Railway (1917), and its application is extremely limited. In this case the corporation changed the natural course of a stream in order to construct a concrete paddling pool for children. When very heavy rain fell, the pool overflowed, swelled by the natural water reverting to its course, and caused damage to the claimant’s property. The House of Lords held that the rainfall was not an Act of God. It may apply in the case of earthquakes, lightning or tornadoes.

STATUTORY AUTHORITY. Whether a statute excludes liability under the rule in RYLANDS v FLETCHER is a question of construction of the statute. In Green v Chelsea Waterworks Co. (1894), a water main burst. It was held that as the defendants were obliged by statute to maintain a water supply, bursts were inevitable from time to time and in the absence of negligence there was no liability for the flood damage to the claimant’s premises. In other cases if a statute merely empowers a body to supply a service, there may well be liability in similar circumstances.

We will continue with this, and liability for fire, next week.

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