The litigation in Rylands v. Fletcher2gave rise to the most significant rule of strict liability in tort law. The case dealt with an earthen water reservoir that failed and flooded the plaintiff’s coal mine. The reservoir had been built by contractors on land occupied by the defendant. The contractors were negligent. They built the reservoir over disused mine shafts that led to the plaintiff’s mining operation. The contractors, however, were not sued and, because they were not employees of the defendant,
he was not vicariously liable for their negligence.3The plaintiff’s claim, therefore, depended on the recognition of a strict liability for the escape of water. Although the courts at this time were increasingly attracted to fault as the basis of tort liability, the Exchequer Chamber, in a unanimous judgment delivered by Blackburn J., imposed a strict liability on the defendant. The Court may have been influenced by a number of reservoir failures in England a few years earlier which caused a significant loss of life and property,4but Blackburn J., typically, made no reference to those events. He drew on the ancient strict liability for damage caused by dangerous animals, cattle trespass, and some early nuisance cases to fashion a general principle of strict liability. He stated:
We think that the true rule of law is, that the 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. He can excuse himself by shewing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God.5The House of Lords dismissed the defendant’s appeal but, in the course of his judgment, Lord Cairns introduced the concept of a non-natural use of land. He emphasized that no liability could be imposed for the natural run-off of water from higher land to the lower land. In Rylands, however, the defendant had collected water artificially and a strict liability was appropriate for this non-natural use of land. This concept of non-natural use has played a central role in the evolution of the tort.
The rule in Rylands v. Fletcher, as originally formulated, was a strict liability tort of considerable scope and it was applicable to a wide range of land use. It was inevitable, therefore, that there would be some tension between this special rule of strict liability and the emerging tort of negligence. The rule in Rylands v. Fletcher, in fact, proved to be no match for the burgeoning tort of negligence and, in the twentieth century, it was progressively restricted both by a modification of its essential elements of liability and by a proliferation of defences. It now operates within a narrow compass and rarely leads to a liability that could not have been established under the torts of nuisance or negligence.
To establish liability under the rule in Rylands v. Fletcher, the plaintiff must show a non-natural use of land, an escape of something likely to do mischief from the land, and damage.
A non-natural use of land is an essential element of strict liability in the rule in Rylands v. Fletcher. Today, however, non-natural use has a different meaning from that initially ascribed to it by Lord Cairns. It no longer means artificial, foreign, or not arising in the course of nature. It means dangerous, extraordinary, special, and of no general benefit to the community. The pivotal case in this development was Rickards v. Lothian,6which dealt with the escape of water from a domestic plumbing system. The water escaped from a basin in a lavatory in an upper floor of the defendant’s building to a lower floor, which was occupied by the plaintiff. The Privy Council held that the principle of strict liability was not applicable in these circumstances. The Court defined a non-natural use of land as a "special use [of land] bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community."7
The defendant’s plumbing system was not special, dangerous, extraordinary, or detrimental to the community.
The seeds of future confusion and uncertainty about the meaning of non-natural use were sown in this case because there is no consistency among the descriptive terms - special, dangerous, extraordinary, and without general benefit to the community. Moreover, the factors listed in Rickards have received different degrees of emphasis from different judges at different times. It is now clear, however, that the one consistent factor in determining whether or not a land use is non-natural is the creation of an increased danger. The other factors play a more erratic role in decision making in the more marginal cases. This emphasis on danger is wise because it provides a defensible justification for the imposition of a strict liability. Nevertheless, the concept of non-natural use continues to be elusive and difficult to apply.
The cases indicate that there are two general categories of non-natural use: land use that has a great magnitude of danger independent of the particular circumstances of the case, and land use that is not always dangerous but is so in the particular circumstances of the case.
The first category includes uses of land that are commonly regarded by the public as dangerous in themselves. They include the storage of water in bulk; the manufacture and use of explosives; fumigation with poisonous gas; the bulk storage or transportation of natural gas, propane, dangerous chemicals, or gasoline; the storage or use of nuclear materials; and the storage or use of dangerous biological agents. In this category, there is little debate about the element of non-natural use and, consequently, there are few reported cases. These land uses are in almost all circumstances highly dangerous and they fully warrant the application of strict liability. The high degree of danger usually trumps any of the other Rickards factors to the contrary.
The second category includes uses of land that do not carry the same degree of danger. In this category of cases a more balanced consideration is given to all the relevant factors set out in Rickards, including the degree of danger of the land use, the utility and normality of the land use, and the circumstances of time and place. In this category it is difficult to predict what is and what is not a non-natural use of land. Mihalchuk v. Ratke8and Gertsen v. Metropolitan Toronto (Municipality of)9illustrate the point. In Mihalchuk, the defendant farmer sprayed herbicide on his land from an aircraft. Some of the herbicide drifted onto the plaintiff’s land and damaged the plaintiff’s crops. The Court held that the spraying of herbicide in this manner was a non-natural use of the defendant’s land and liability was imposed. The Court emphasized that spraying herbicide from the air was an unusual operation at that time. The neighbours gathered to watch it take place. The use of an aircraft and the mixture of oil and herbicide also increased the danger of the herbicide drifting onto the plaintiff’s crops. There was much less chance of drifting from the normal method of spraying by boom from a tractor. In Gertsen the defendant municipality disposed of garbage in a landfill adjacent to a residential area. As the organic material decomposed, it produced methane gas which drifted onto the plaintiff’s property and accumulated in his garage. The gas ignited when he started his car and he was injured. The Court found that this was a non-natural use of land. Special emphasis was placed upon the time, place, and circumstances of the land use. The landfill was located in a small ravine in a residential neighbourhood and there was no compelling public...