Nuisance and the rule in Rylands v Fletcher - Escape and for...

Learning Outcomes

This article examines nuisance and the rule in Rylands v Fletcher, including:

• Elements of private nuisance, public nuisance, and the rule in Rylands v Fletcher in land-based tort scenarios, and how each cause of action is structured in SQE1 problem questions
• The distinction between direct interference (trespass) and indirect interference (nuisance), enabling accurate classification of exam fact patterns
• Factors determining unlawfulness of interference—locality, duration, sensitivity, malice, public benefit, and foreseeability—and how courts balance these in assessing reasonableness
• Parties who can sue and be sued, including adoption or continuance of a nuisance, proprietary interest requirements, and common exam traps relating to licensees and landlords
• Remedies in nuisance—injunction, damages, and abatement—and how to match remedies to different types of interference
• Defences: prescription, statutory authority, consent, act of a stranger, act of God, and contributory negligence, and their operation in both nuisance and Rylands v Fletcher claims
• Requirements under Rylands v Fletcher: accumulation of a thing likely to do mischief, non-natural use, escape, and foreseeability of the relevant type of harm, with emphasis on escape and foreseeable harm
• Modern limits on the rule illustrated by Cambridge Water, Transco, Read v Lyons, and Stannard (Wyvern Tyres), and how these cases confine strict liability
• Foreseeability and remoteness principles and their relationship with negligence, including overlaps in environmental harm and property damage and how exam answers should structure analysis of causation and damage

SQE1 Syllabus

For SQE1, you are required to understand nuisance and the rule in Rylands v Fletcher, particularly the requirements of escape and foreseeable harm, with a focus on the following syllabus points:

• the distinction between private and public nuisance, including their elements, damage types, remedies, and limits
• the requirements for liability under the rule in Rylands v Fletcher: accumulation, escape, non-natural use, and foreseeability of harm
• who can sue in nuisance (proprietary interest) and who can be sued (creator, occupier, landlord; adoption/continuance)
• remoteness in nuisance and Rylands v Fletcher (reasonable foreseeability of the kind of harm)
• the available defences to nuisance and Rylands v Fletcher claims (prescription, statutory authority, consent, act of a stranger, act of God, contributory negligence)
• the relationship between nuisance, Rylands v Fletcher, negligence, and trespass (including modern limits on personal injury recovery in private nuisance)
• how to apply these principles to factual scenarios involving property damage, environmental harm, or interference with land use, with focus on escape and foreseeable harm

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.

1. What are the essential elements a claimant must prove to succeed under the rule in Rylands v Fletcher?
2. In what circumstances will an act or omission amount to a private nuisance?
3. What defences are available to a defendant facing a claim under Rylands v Fletcher?
4. How does the requirement of foreseeability limit liability under Rylands v Fletcher?

Introduction

Nuisance and the rule in Rylands v Fletcher are key torts protecting the use and enjoyment of land through control of indirect interferences. Private nuisance focuses on unreasonable interferences with land and rights over it; public nuisance addresses conduct affecting the reasonable comfort and convenience of a class of the public. Rylands v Fletcher imposes a form of strict liability for escapes of things likely to do mischief accumulated on land for a non-natural use, but modern authority confines the rule with requirements of escape and foreseeability of the relevant type of damage.

The modern position is shaped by:

• foreseeability of the kind of damage (Cambridge Water Co v Eastern Counties Leather): there is no liability for unforeseeable types of loss;
• non-natural use focusing on extraordinary or unusual use (Transco plc v Stockport MBC), assessed by contemporary standards;
• a true escape from land under the defendant’s control (Read v Lyons; Stannard (t/a Wyvern Tyres) v Gore);
• who may sue, typically requiring a proprietary interest for private nuisance (Hunter v Canary Wharf), and the scope of recoverable damage (physical damage and interference with enjoyment).

Key Term: private nuisance
An unlawful, indirect interference with a person's use or enjoyment of land or rights over it.

Private and Public Nuisance

Nuisance is divided into private and public nuisance. Both protect interests in land but differ in scope and who can claim.

Private Nuisance

Private nuisance is an unlawful, indirect interference with a person's use or enjoyment of land or some right over it. The interference must be substantial and unreasonable. Private nuisance does not require proof of negligence; it is concerned with the reasonableness of the defendant’s use of land and the foreseeability of the kind of harm.

Types of Interference

• Encroachment onto land (e.g., tree roots)
• Physical damage to land or buildings (e.g., chemical leaks, subsidence)
• Interference with enjoyment (e.g., noise, smells, dust, smoke, vibrations)

Physical damage to property is usually actionable without further balancing (St Helen’s Smelting Co v Tipping). Where the allegation is interference with enjoyment (noise, odour), reasonableness is assessed by the factors below.

Factors Affecting Reasonableness

Courts consider several factors to determine if the interference is unreasonable:

• Locality: What is normal in an industrial area may be a nuisance in a residential area; however, physical damage is actionable regardless of locality. Planning permission may alter locality’s character but is not a defence per se; it is relevant to assessing reasonableness (Wheeler v JJ Saunders; Coventry v Lawrence).
• Duration and Frequency: Continuous or recurrent interference is more likely to constitute a nuisance; even short-term intense interference can suffice (e.g., sustained night-time pile driving).
• Sensitivity of the Claimant: Liability is less likely if only an unusually sensitive claimant or use is affected (Robinson v Kilvert).
• Malice: Deliberate acts to annoy are more likely to be unreasonable (Christie v Davey).
• Public Benefit: Rarely decisive, but public utility can be weighed; it does not automatically justify an interference.

Key Term: locality
The character of the area where the alleged nuisance occurs, relevant to assessing reasonableness.

Remoteness applies through reasonable foreseeability of the kind of harm (Cambridge Water). It is not necessary that the precise mechanism or extent be foreseeable, provided the type of harm is.

Worked Example 1.1

A bakery operates in a residential street and emits strong smells daily. Neighbours complain that the smell prevents them from enjoying their gardens. Is this likely to be a private nuisance?

Answer:
Yes. The persistent smell interferes with the neighbours' enjoyment of their land. The residential character of the area makes the interference more likely to be unreasonable.

Who Can Sue and Be Sued

Only those with a proprietary interest (owner or tenant) can sue (Hunter v Canary Wharf). Beneficial interests may suffice; mere licensees, lodgers, and guests typically cannot claim.

Defendants may include:

• the creator of the nuisance (whether or not in occupation);
• the occupier of land who adopts or continues a nuisance;
• the landlord if the nuisance is authorised or is the inevitable consequence of the letting (Tetley v Chitty).

Adoption or continuation arises where an occupier makes use of or, knowing of a nuisance, fails to take reasonable steps to abate it (Sedleigh-Denfield v O’Callaghan). Liability can also arise for nuisance created by a third party if the occupier has knowledge and fails to act reasonably.

Remedies include injunctions (often tailored to the interference), damages (including consequential loss), and abatement (self-help, exercised lawfully and proportionately).

Public Nuisance

Public nuisance is an act or omission that materially affects the reasonable comfort and convenience of a class of the public. It is both a tort and a crime, with the Attorney General or public authorities often bringing public actions.

Key Term: public nuisance
An act or omission materially affecting the reasonable comfort and convenience of a class of the public.

Requirements

• The nuisance must affect a cross-section of the public (not just individuals) in the locality or class affected (e.g., highway users).
• The claimant in tort must suffer special damage over and above that suffered by the general public (e.g., personal injury, property damage, or economic loss particular to the claimant).

Public nuisance can include personal injury, which distinguishes it from private nuisance’s typical focus on property interests.

Worked Example 1.2

A factory emits smoke that affects the whole village. One resident suffers a severe asthma attack as a result. Can they claim in public nuisance?

Answer:
Yes. The smoke affects a class of the public, and the resident has suffered special damage (the asthma attack) beyond the general inconvenience.

The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher imposes strict liability for damage caused by the escape of dangerous things brought onto land for a non-natural use. It is now considered a particular form of nuisance and is confined by modern requirements of escape and foreseeability.

Key Term: Rylands v Fletcher
A strict liability rule for damage caused by the escape of dangerous things brought onto land for a non-natural use.

Elements of the Rule

To succeed, the claimant must prove:

1. The defendant brought onto their land something likely to cause harm if it escapes (not necessarily dangerous in itself, but liable to do mischief upon escape).
2. The use of land was non-natural (extraordinary or unusual by contemporary standards).
3. The thing escaped from the defendant's land to land outside their control.
4. The escape caused foreseeable damage of the relevant type.

Key Term: escape
The movement of a dangerous thing from the defendant's land to land outside their control.

Key Term: non-natural use
A use of land that is extraordinary or increases danger to others, not ordinary or usual for the area, assessed by contemporary standards.

Key Term: foreseeability
The requirement that the type of damage caused by the escape must have been reasonably foreseeable.

Non-natural use is construed narrowly (Transco): routine domestic or ordinary utility supplies are unlikely to qualify; extraordinary storage or inherently hazardous activities are more likely to do so. Escape requires the actual thing accumulated to cross the boundary into another’s land or outside the defendant’s control (Read v Lyons; Stannard). Damage must be of the kind reasonably foreseeable (Cambridge Water; Wagon Mound No 1).

Worked Example 1.3

A chemical company stores large tanks of acid on its land. Due to a leak, acid escapes and damages a neighbour's crops. Is the company liable under Rylands v Fletcher?

Answer:
Yes. The company brought a dangerous thing (acid) onto its land, the storage was a non-natural use, the acid escaped, and the damage was foreseeable.

Escape: essential limits

• No liability where there is no escape to land outside the defendant’s control (Read v Lyons: explosion within the factory without the thing escaping).
• The escaping item must be the accumulated thing itself, not merely a different agency (Stannard: tyres caught fire; fire spread but the tyres did not escape; storing tyres did not satisfy accumulation of a thing that escaped).

Foreseeability: modern constraint

• The defendant is liable only for damage of a kind that was reasonably foreseeable as a consequence of escape (Cambridge Water: historical PCE spillages contaminating borehole were not foreseeable at the time; no liability).
• This does not require foreseeability of the precise chain of events or extent, provided the general type of harm was foreseeable.

Defences to Rylands v Fletcher

Defences include:

• Act of a stranger (unforeseeable third party causes the escape, with no realistic steps available to prevent it)
• Act of God (unforeseeable, extraordinary natural event)
• Consent (claimant agreed to the accumulation or its risks)
• Statutory authority (activity authorised by law and the nuisance or escape is the inevitable consequence of the authorised activity)
• Contributory negligence (claimant partly at fault, reducing damages)

Key Term: act of a stranger
An unforeseeable act by a third party over whom the defendant has no control, breaking the chain of liability.

Key Term: act of God
An unforeseeable, extraordinary natural event that could not have been guarded against.

Contributory negligence applies under the Law Reform (Contributory Negligence) Act 1945 to reduce damages where the claimant’s carelessness contributed to the loss.

Worked Example 1.4

A reservoir overflows after an unprecedented earthquake, flooding a neighbour's land. Is the reservoir owner liable under Rylands v Fletcher?

Answer:
No. The earthquake is an act of God—an unforeseeable natural event—providing a defence.

Worked Example 1.5

A tyre wholesaler stores thousands of tyres in a yard. A fire starts and spreads, destroying neighbouring premises. Can the neighbouring owner recover under Rylands v Fletcher?

Answer:
Unlikely. The tyres themselves did not escape, only the fire did; the rule focuses on escape of the accumulated thing. In Stannard (Wyvern Tyres) v Gore, liability failed because the tyres remained on the defendant’s land, and storing tyres was not treated as a non-natural use justifying strict liability.

Worked Example 1.6

A local authority’s water main leaks due to ordinary wear, undermining an embankment and exposing a gas main, necessitating costly emergency works by the gas company. Can the gas company recover under Rylands v Fletcher?

Answer:
Unlikely. In Transco plc v Stockport MBC, the House of Lords held domestic supply via pipes is a natural, ordinary use and does not meet the “non-natural use” threshold; Rylands v Fletcher did not apply. Ordinary utility infrastructure is generally outside the rule.

Worked Example 1.7

A tannery uses and stores PCE solvent. Years later, testing reveals contamination of the water company’s borehole from historical minor spillages. Is the tannery liable under Rylands v Fletcher?

Answer:
No. In Cambridge Water, the House of Lords required foreseeability of the relevant type of harm; at the material time, contamination of distant groundwater from small spills was not reasonably foreseeable. Without foreseeability of the kind of damage, there is no liability.

Relationship with Other Torts

Nuisance and Rylands v Fletcher overlap with negligence and trespass but have distinct features:

• Nuisance covers indirect, ongoing interferences; trespass covers direct, intentional (or negligent) intrusions on land.
• Rylands v Fletcher is treated as a particular form of nuisance, imposing strict liability where its elements are met, but constrained by escape and foreseeability.
• Negligence requires proof of duty, breach, and causation; foreseeability is central in both negligence and modern nuisance/Rylands remoteness.
• Private nuisance primarily protects interests in land; claims for personal injury are typically pursued in negligence. Public nuisance can include personal injury where a class of the public is affected.

Revision Tip

Focus on whether the interference is direct or indirect, and whether the facts fit nuisance, Rylands v Fletcher, negligence, or trespass. In Rylands v Fletcher, check each element: accumulation, non-natural use, escape, and foreseeability, then consider defences.

Exam Warning

Liability under Rylands v Fletcher only arises if there has been an escape of the accumulated thing from a non-natural use, and the damage is of a foreseeable kind. Routine infrastructure failures, fires where the accumulated thing does not escape, and unforeseeable types of harm will fall outside the rule.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Private nuisance protects the use and enjoyment of land from indirect, unreasonable interferences, assessed by locality, duration, sensitivity, malice, and foreseeability of the kind of harm.
• Physical damage to property in private nuisance is actionable irrespective of locality; interference with enjoyment requires balancing by context.
• Only those with a proprietary interest can sue in private nuisance; defendants include creators, occupiers (including those who adopt or continue a nuisance), and landlords who authorise nuisance or where it is inevitable from the letting.
• Public nuisance protects the public from acts affecting a class of people; claimants must show special damage beyond that suffered by the public.
• Rylands v Fletcher imposes strict liability for escapes of dangerous things from non-natural uses of land, but requires a true escape and foreseeability of the relevant type of damage.
• Modern limits: routine utility infrastructure is not a non-natural use (Transco); no liability without escape of the accumulated thing (Read v Lyons; Stannard); foreseeability of type of harm is essential (Cambridge Water).
• Defences to Rylands v Fletcher include act of a stranger, act of God, consent, statutory authority, and contributory negligence.
• Remedies in nuisance include injunctions, damages (including consequential loss flowing from actionable damage), and abatement.

Key Terms and Concepts

• private nuisance
• locality
• public nuisance
• Rylands v Fletcher
• escape
• non-natural use
• foreseeability
• act of a stranger
• act of God