Learning Outcomes
This article details the specific defences available to a claim brought under the rule in Rylands v Fletcher and the remedies that may be awarded if such a claim is successful, including:
- Complete defences: consent (volenti), act of a stranger, Act of God, and statutory authority
- Partial defence: contributory negligence and damages reduction under the Law Reform (Contributory Negligence) Act 1945
- Types of damage recoverable and the primary remedy of damages for harm to land or property interests, excluding personal injury
- Strict liability for escape and reasonable foreseeability of the type of damage (Cambridge Water)
- Narrow scope of complete defences and the evidential burden on defendants, including the modern rarity of “Act of God”
- Intervening acts: unforeseeable acts of a stranger versus foreseeable third-party interference
- The difference between general awareness of risk and true consent (volenti), including common benefit scenarios
- Injunctive relief, including quia timet injunctions for a strong likelihood of future escape and serious harm
SQE1 Syllabus
For SQE1, you are required to understand the defences and remedies applicable specifically to the rule in Rylands v Fletcher. Your knowledge should enable you to analyse scenarios and identify the availability and effect of defences, and the appropriate remedies, with a focus on the following syllabus points:
- The specific defences applicable to Rylands v Fletcher claims (eg Act of God, consent, act of a stranger).
- The distinction between complete and partial defences (eg contributory negligence).
- The types of loss recoverable under the rule (ie damage to land or property interests, not personal injury).
- The primary remedy of damages and the principles governing its assessment in this context, including remoteness.
- The need for an escape from the defendant’s land and the exclusion of purely internal accidents (Read v J Lyons).
- The continued requirement that the claimant’s damage be of a reasonably foreseeable type (Cambridge Water), even though liability for escape is strict.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is generally NOT a defence to a claim under the rule in Rylands v Fletcher?
- The defendant exercised all reasonable care.
- The escape was caused by an unforeseeable act of a stranger.
- The claimant consented to the accumulation of the substance.
- The damage was caused by an Act of God.
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A chemical company stores large quantities of industrial solvent on its land. Vandals break in and deliberately open a valve, causing the solvent to escape and contaminate neighbouring land. Which defence is the company most likely to rely on?
- Act of God.
- Consent.
- Act of a stranger.
- Statutory authority.
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True or false? A claimant can recover damages for personal injuries suffered as a result of an escape under the rule in Rylands v Fletcher.
Introduction
Once the essential elements for liability under the rule in Rylands v Fletcher have been established (accumulation of a dangerous thing, non-natural use of land, escape, and foreseeable damage of the relevant type), the defendant may still avoid or reduce liability by successfully raising a defence. It is also important to understand the specific remedies available, primarily damages, and the types of harm for which compensation can be claimed under this rule. This article examines these defences and remedies, providing clarity for your SQE1 preparation.
Two framing points are critical:
- Strict liability under Rylands v Fletcher means want of care is irrelevant to the escape itself. It is no defence that the defendant took all reasonable precautions to prevent the escape.
- Liability for the escape is strict, but the recoverability of the damage remains subject to the remoteness test of reasonable foreseeability of the type of harm (Cambridge Water Co v Eastern Counties Leather).
Defences to Rylands v Fletcher
Several defences can be raised against a claim under the rule in Rylands v Fletcher. These are distinct from defences in negligence, reflecting the strict liability nature of the tort, although some overlap exists. They are narrowly construed and fact-sensitive.
Consent (Volenti non fit injuria)
If the claimant expressly or impliedly consented to the presence of the substance that escaped, the defendant may have a complete defence. Consent might be implied where the accumulation benefits both the claimant and the defendant. The courts scrutinise consent carefully: general awareness that a hazardous activity is occurring is not enough. There must be a free and voluntary acceptance of the specific risk that materialises.
A common setting is where neighbouring occupiers share a system or arrangement conferring mutual benefit (the “common benefit” strand). In such cases, the claimant may be treated as having implicitly agreed to the relevant accumulation and risks necessarily incidental to it, provided the risk accepted is the one that eventuates.
Key Term: Consent (Volenti non fit injuria)
A complete defence where the claimant freely and voluntarily agrees, with full knowledge of the nature and extent of the risk, to absolve the defendant from liability for injury or damage resulting from the defendant's conduct.
Worked Example 1.1
Ahmed owns a flat directly below Beatrice. The water tank supplying both flats is located in Beatrice's attic. The tank bursts, causing water to leak and damage Ahmed's flat. Can Beatrice rely on the defence of consent?
Answer:
Possibly. If the water tank installation was for the common benefit of both flat owners, Ahmed's consent to its presence might be implied. Beatrice could potentially argue that Ahmed implicitly consented to the risk associated with the shared water supply system.
Consent does not arise where the claimant had no genuine choice or where the risk that materialised differs materially from the one accepted. Nor is consent established merely because the activity is advantageous to the locality or at large.
Act of a Stranger
A defendant is not liable if the escape was caused by the unforeseeable act of a third party over whom the defendant had no control. This is sometimes framed as a novus actus interveniens. The defence is available only where the defendant could not reasonably foresee the third-party interference and could not be expected to guard against it by reasonable precautions (such as secure fencing, locking, or monitoring).
Key Term: Act of a stranger
A defence where the escape is caused by the unforeseeable act of a third party over whom the defendant has no control. The defendant must demonstrate they took reasonable precautions against such interference.
Classic illustrations include malicious tampering by unknown individuals with the defendant’s installation or deliberate interference with a reservoir or tank by vandals. If the defendant knew or ought to have known that such interference was likely and failed to take sensible security measures, the defence is unlikely to succeed.
Worked Example 1.2
A fuel depot stores large quantities of petrol (a non-natural use). Overnight, unknown arsonists cut through the perimeter fence, enter the site and ignite a fire that causes the depot’s tanks to rupture, with fuel escaping onto neighbouring land. The depot had recently upgraded its fencing and CCTV following a police alert about local vandalism. Can the depot rely on the act of a stranger?
Answer:
Yes, probably. The arsonists’ criminal act is an intervening act of a stranger. The depot had taken reasonable precautions (upgraded fencing and CCTV) in light of known risks. On those facts, the arsonists’ act is likely to be treated as unforeseeable in the relevant legal sense and to break the chain of causation.
Act of God
This defence applies if the escape was caused by natural forces so exceptional that they could not have been foreseen or guarded against. Historically, extraordinary flooding and truly exceptional storms have been raised as candidates. In modern conditions—and with advances in forecasting and engineering—the defence is rarely made out. Courts expect risk assessments and prudent design to take account of severe but reasonably foreseeable weather events.
Key Term: Act of God
A defence where the escape is caused solely by extraordinary natural forces, without human intervention, which could not have been foreseen or reasonably guarded against (e.g., an unprecedented earthquake or flood).
Regular heavy rain, storms within seasonal norms, or high winds typical of the region will usually not qualify.
Statutory Authority
If the defendant's activity, including the accumulation of the substance, is authorised by statute, this provides a defence if the escape is an inevitable consequence of that activity. The defendant must show that the statutory scheme authorised the relevant activity and that, despite exercising due care, the harmful escape could not have been avoided.
Key Term: Statutory authority
A defence available when the defendant's actions, including the accumulation and potential escape of the substance, are explicitly or implicitly authorised by an Act of Parliament. The escape must be an unavoidable consequence of exercising that authority.
This is a demanding test. It is not enough that the activity is statutorily permitted; the defendant must show the nuisance or escape was the inevitable result of doing what the statute authorised, taking all reasonable precautions. Where reasonable care would have averted the escape, the defence fails.
Contributory Negligence
If the claimant’s own carelessness contributed to the damage suffered, their damages may be reduced under the Law Reform (Contributory Negligence) Act 1945. This partial defence applies where the claimant’s acts or omissions increased either the likelihood of loss or its extent—for example, failing to keep an adequate bund or drainage to mitigate foreseeable inundation or leaving highly susceptible property unprotected in circumstances where prudent precautions were available.
Key Term: Contributory negligence
A partial defence where the claimant's own failure to take reasonable care for their safety contributes to the damage they suffer. If established, the claimant's damages are reduced proportionally to their share of responsibility.
Worked Example 1.3
A neighbouring warehouse suffers extensive damage when fertiliser solution escapes from the defendant’s site after a tank failure. The claimant warehouse had removed its loading-bay bunding during renovations and not reinstated it, despite plans showing bunding was required for flood protection. Can the defendant invoke contributory negligence?
Answer:
Yes, likely as a partial defence. The claimant’s removal (and failure to reinstate) basic protective measures foreseeably increased the extent of damage when liquid entered its premises. Any damages payable would be reduced to reflect the claimant’s share of responsibility.
Worked Example 1.4
A water undertaker is empowered by statute to operate a high-pressure trunk main. Despite a rigorous inspection and maintenance regime, the main catastrophically fails due to a latent manufacturing defect undetectable by any reasonable testing, flooding adjoining land. Can the undertaker rely on statutory authority?
Answer:
Potentially. If the operation of the trunk main is authorised by statute and the undertaker exercised all due care yet the failure (and consequent escape) was truly unavoidable, the defence of statutory authority may succeed. If a reasonable system of inspection or a practicable safeguard would have prevented the failure, the defence would fail.
Exam Warning
Remember that Rylands v Fletcher imposes strict liability. Therefore, showing that the defendant took all reasonable care to prevent the escape is generally NOT a defence, unlike in negligence. The key defences focus on the cause of the escape (stranger, Act of God) or the claimant's own conduct/consent. Statutory authority is available only where the escape was an inevitable consequence of authorised activities performed with due care.
A further practical warning: the “thing” that escapes must be the dangerous thing brought onto the land (or something that, if it escapes, is likely to cause mischief). Liability will not attach if an incidental agency (like fire) escapes when it is not the thing accumulated, unless what escaped was itself the thing brought onto the land and likely to cause mischief on escape.
Remedies under Rylands v Fletcher
The primary remedy for a successful claim under the rule in Rylands v Fletcher is damages. Equitable relief is possible in appropriate cases, although less common.
Damages
Damages are awarded to compensate the claimant for the harm caused by the escape.
Key Term: Damages
Monetary compensation awarded by a court to a claimant for loss or injury suffered as a result of the defendant's tortious act.
Under the rule in Rylands v Fletcher, damages are only recoverable for damage to land or property interests situated on the land. Personal injury claims are not recoverable under this tort (Read v J Lyons & Co Ltd [1947] AC 156). A claimant who suffers personal injury must sue in negligence or another appropriate tort.
Consequential economic loss flowing from physical damage to land or property (such as lost profits due to contaminated production lines) can be recoverable, provided the loss is not too remote and is properly linked to the physical damage. Pure economic loss—such as the cost of repairing or replacing only the dangerous thing that escaped on the defendant’s land—is not recoverable under Rylands v Fletcher in the absence of damage to the claimant’s property.
In assessing property damage, courts commonly award the reasonable cost of reinstatement (clean-up, repair, and remediation) where proportionate, or the diminution in value if reinstatement would be disproportionate. The claimant must act reasonably to mitigate loss.
Remoteness
The rules on remoteness of damage apply. Following Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 (HL), the damage suffered must be of a type that was reasonably foreseeable as a consequence of the escape. If the type of damage was not foreseeable at the time of the defendant’s relevant activity, it will be considered too remote and irrecoverable, even though liability under the rule is strict regarding the escape itself.
Reasonable foreseeability concerns the kind of harm, not its precise manner or extent. Foreseeability is judged in light of knowledge available at the time, including the general state of scientific and industrial knowledge.
Worked Example 1.5
A tannery uses a chlorinated solvent in degreasing hides. Small spills occur over many years and percolate through the floor into a subsurface aquifer. Decades later, a water company discovers the solvent has migrated to its abstraction borehole and contaminates the water supply, necessitating expensive relocation. Was the type of damage foreseeable?
Answer:
Not on these facts. At the relevant time, it was not reasonably foreseeable that the minute spills would migrate through the substrata to contaminate the water company’s borehole. Following Cambridge Water, the damage would be too remote and therefore irrecoverable under Rylands v Fletcher.
Injunctions
Injunctions are equitable remedies granted at the court's discretion. While less common for the isolated escapes typically associated with Rylands v Fletcher, an injunction might potentially be sought if there is a continuing risk of escape or ongoing damage. Where there is a demonstrated, real and imminent risk of a future escape causing serious harm, a quia timet injunction may be granted to restrain the threatened activity. The threshold is high: the claimant must show a strong likelihood of serious harm and that damages would be inadequate, coupled with the impracticability of other protective measures.
Key Term: Injunction
A court order requiring a party to do a specific act (mandatory injunction) or refrain from doing a specific act (prohibitory injunction).
Courts balance the parties’ competing interests. If the activity confers significant public benefit and the risk can be controlled or compensated, a court may decline an injunction and award damages instead, particularly where an injunction would be oppressive.
Worked Example 1.6
A factory stores a large quantity of volatile chemicals (a non-natural use). Due to an unprecedented and unforeseeable earthquake (Act of God), the storage tanks rupture, and chemicals escape onto neighbouring farmland, poisoning the soil and killing crops. The farmer also suffers anxiety and distress. What remedies can the farmer claim against the factory under Rylands v Fletcher?
Answer:
The farmer can claim damages for the harm to their land (poisoned soil) and property interests (dead crops), provided this type of damage was foreseeable. The defence of Act of God might succeed if the earthquake was truly unforeseeable and exceptional. The farmer cannot claim damages for anxiety and distress (personal injury) under Rylands v Fletcher. They would need to pursue a separate claim, likely in negligence, for any personal harm, which would be difficult given the strict requirements for psychiatric injury.
Further doctrinal clarifications relevant to defences and remedies
- The dangerous “thing” must escape from the defendant’s land to the claimant’s. An internal explosion or accident within the defendant’s premises, without escape, does not suffice (Read v J Lyons).
- The thing accumulated must be likely to cause mischief if it escapes. Large volumes of otherwise innocuous substances (such as water) can qualify because volume transforms the risk profile.
- Fire presents a recurring difficulty: an escape of fire may not found liability unless what escaped was itself the accumulated thing brought onto the land and likely to cause mischief. If the defendant accumulated tyres and a fire started among them, the claim under Rylands v Fletcher fails unless the “thing” that escaped was the tyres themselves (or a product of them) rather than merely fire transmitted to neighbouring property.
- Personal injury is not recoverable under Rylands v Fletcher. Where claimants suffer bodily injury or psychiatric harm, they must bring a claim in negligence (or other suitable tort) and satisfy the distinct requirements for such claims.
Key Point Checklist
This article has covered the following key knowledge points:
- The main defences to a Rylands v Fletcher claim are consent, act of a stranger, Act of God, statutory authority, and contributory negligence.
- The exercise of reasonable care by the defendant is not a defence due to the strict liability nature of the tort.
- The defence of 'Act of God' requires an exceptional and unforeseeable natural event, and is rarely established in modern conditions.
- The defence of 'Act of a stranger' requires the third party's act to be unforeseeable and beyond the defendant's control, with reasonable precautions taken against foreseeable interference.
- Statutory authority applies only where the escape was an inevitable consequence of a statutorily authorised activity carried out with due care.
- Contributory negligence operates as a partial defence, reducing damages where the claimant’s conduct contributed to the loss.
- The primary remedy under Rylands v Fletcher is damages for damage to land or property interests; personal injuries are not recoverable under this tort.
- The damage must be a reasonably foreseeable type of harm resulting from the escape (Cambridge Water).
- Injunctions, including quia timet orders, may be available where there is a continuing or imminent risk of escape, but remain discretionary and less common.
Key Terms and Concepts
- Consent (Volenti non fit injuria)
- Act of a stranger
- Act of God
- Statutory authority
- Contributory negligence
- Damages
- Injunction