Nuisance and the rule in Rylands v Fletcher - Thing likely t...

Learning Outcomes

This article explains the rule in Rylands v Fletcher, a specific tort related to the escape of dangerous things from land. You will learn the essential elements required to establish liability under this rule, including the accumulation of a thing likely to cause mischief, non-natural use of land, escape, and resulting foreseeable damage. You will also understand the key defences available. This knowledge will assist you in applying the relevant legal principles to SQE1 assessment questions concerning liability for escaping substances.

In addition, you will be able to distinguish Rylands v Fletcher from both negligence and private nuisance, and appreciate why, following modern authority, Rylands v Fletcher is often treated as a specialised form of nuisance focused on one-off escapes. You will see how the foreseeability requirement (derived from remoteness principles) limits recovery to damage of a kind reasonably foreseeable at the time, and why personal injury is not recoverable under this rule. You will also be able to evaluate whether a claimant has the necessary proprietary interest to sue and whether a defendant’s activity constitutes a non-natural use in contemporary conditions.

SQE1 Syllabus

For SQE1, you are required to understand the principles governing liability under the rule in Rylands v Fletcher, with a focus on the following syllabus points:

• The requirement for the defendant to bring something onto their land for their own purposes.
• The nature of the thing being 'likely to do mischief if it escapes'.
• The concept of 'non-natural use' of land and how it has been interpreted.
• The necessity of an 'escape' from the defendant's land to land not under their control.
• The requirement that the damage caused by the escape must be reasonably foreseeable.
• The defences available to a claim under the rule.
• The modern position that Rylands v Fletcher is closely aligned with private nuisance and is limited to land-related damage (not personal injury).
• The typical requirement that the claimant has a proprietary interest in the affected land, consistent with its nuisance heritage.
• The distinction between strict liability under Rylands v Fletcher and fault-based liability in negligence.
• How cases such as Cambridge Water and Transco shape the threshold for “non-natural” 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. Which element is NOT required to establish liability under the rule in Rylands v Fletcher?
   1. Accumulation of a thing on the defendant's land.
   2. Non-natural use of the land.
   3. Negligence on the part of the defendant.
   4. Escape of the thing causing damage.
2. Following Cambridge Water Co v Eastern Counties Leather plc, what type of damage must be foreseeable for a claim under Rylands v Fletcher to succeed?
   1. Any type of damage.
   2. Only personal injury.
   3. The kind or type of damage that actually occurred.
   4. Only damage to the defendant's own land.
3. Which of the following constitutes a valid defence to a claim under Rylands v Fletcher?
   1. Coming to the nuisance.
   2. The escape was caused by an unforeseeable act of a stranger.
   3. The activity causing the escape was of public benefit.
   4. The defendant used reasonable care to prevent the escape.

Introduction

While private nuisance deals with ongoing interferences, the rule established in Rylands v Fletcher addresses liability for isolated escapes of things brought onto land. This distinct tort imposes strict liability, meaning the defendant can be liable even without negligence, provided certain conditions are met. Originating from the case Rylands v Fletcher [1868] LR 3 HL 330, the rule applies where something likely to cause mischief escapes from land under the defendant's control due to a non-natural use of that land, causing foreseeable damage. For the SQE1 exam, you must understand the components of this rule and how it differs from negligence and nuisance.

Modern authorities emphasise that Rylands v Fletcher is best viewed as a specialised branch of nuisance. It protects interests in land against unusual and dangerous risks created by the defendant’s accumulation of a thing which, if it escapes, is likely to cause harm. As such, the claim typically requires the claimant to have a proprietary interest in the affected land, and recovery is limited to property damage (or interests in property) rather than personal injury. The House of Lords in Transco plc v Stockport MBC [2004] 2 AC 1 carefully restated the rule as applying only in narrow circumstances, underlining that the use must be extraordinary or unusual, and the accumulated thing must pose an exceptional risk if it escapes.

Key Term: Accumulation
Deliberately bringing onto land and keeping a substance or thing which is not naturally there.

Key Term: Likely to do mischief
Capable of causing damage or harm if it escapes from the land where it is kept.

Key Term: Non-natural use
An extraordinary or unusual use of land bringing with it increased danger, judged according to the standards appropriate at the relevant time and place.

Key Term: Escape
The movement of the accumulated thing from the defendant's premises to a place outside their occupation or control.

The Rule in Rylands v Fletcher

The House of Lords in Rylands v Fletcher established a principle of strict liability. Blackburn J, in the Court of Exchequer Chamber, stated the rule as: ‘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 own risk, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape’. Lord Cairns, in the House of Lords, added the requirement that the defendant must be making a 'non-natural use' of their land.

To establish liability under this rule, the claimant must prove the following elements:

1. The defendant brought something onto their land and accumulated it there.
2. The thing was likely to do mischief if it escaped.
3. The defendant made a non-natural use of their land.
4. The thing escaped from the defendant's land.
5. The escape caused foreseeable damage of the relevant type.

The rule’s lineage with nuisance means the claim normally protects interests in land and does not extend to personal injury. It remains strict (fault is not required), but since Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264, recovery is limited by foreseeability: the kind of damage suffered must have been reasonably foreseeable as a consequence of the escape.

Bringing onto land and accumulation

The rule applies only to things that the defendant voluntarily brings onto and keeps on their land. It does not apply to things naturally present on the land. The accumulation must be for the defendant’s own purposes and not merely incidental to natural processes.

Reservoirs (Rylands itself), large tanks of chemicals and industrial stores are classic examples of accumulation. By contrast, water that collects naturally from rainfall, or gas that percolates naturally from strata beneath the land, would not satisfy this element. The defendant must be responsible for introducing the “thing” that subsequently escapes.

Practical points:

• Accumulation includes stored liquids (water, solvents), bulk gases, electricity in cables, and potentially substances contained within installations (e.g., creosote-treated paving blocks).
• Things naturally on the land (trees, native plants, naturally occurring water or gas) are generally outside the rule unless the defendant adopts and continues a hazardous condition in a manner that equates to accumulation and non-natural use.
• The bringing must be voluntary; if a third party or natural event introduces the thing without the defendant’s involvement, this element may fail (subject to adoption/continuation arguments in nuisance, which are distinct from Rylands).

Likely to do mischief if it escapes

This element focuses on the potential for harm if the accumulated substance escapes. The thing itself need not be inherently dangerous, but it must be likely to cause damage if it escapes the defendant's control. The “mischief” question is assessed in context: quantity, location, and properties all matter.

Examples from case law:

• Large volumes of water (Rylands v Fletcher).
• Electricity escaping from buried cables leading to harm to livestock (Hillier v Air Ministry).
• Hot creosote fumes affecting neighbours’ plants (West v Bristol Tramways Co).
• Sparks from a railway engine causing fire (Jones v Festiniog Railway).
• Toxic or corrosive industrial chemicals (Cambridge Water).

Conversely, storing ordinary chattels that do not pose a real risk if they escape will not suffice. In Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248, the Court of Appeal held that tyres were not “likely to do mischief” when considered as the thing brought onto the land; the fire that involved the tyres, not the tyres themselves, was the destructive agent. This illustrates that the “thing” that escapes must itself be the mischief-maker, not merely an object involved in an accidental fire.

The assessment depends on the circumstances; storing domestic quantities of water or fuel is unlikely to satisfy this, but storing industrial quantities might. In Transco, the House of Lords held that water supplied in bulk through domestic pipes was not “dangerous” or likely to do mischief in this context. The normal, everyday supply of water via mains is neither exceptional nor especially hazardous.

Non-natural use of land

This is a key control mechanism for the tort. Lord Cairns added this requirement in the House of Lords appeal of Rylands v Fletcher. It means the defendant's use of the land must be extraordinary, unusual, or special, bringing with it increased danger to others, compared to the ordinary use of land in that locality and time.

What constitutes non-natural use is judged by the standards prevailing at the time. It has evolved from its original meaning to one that stresses abnormal risk:

• In Rickards v Lothian [1913] AC 263, ordinary domestic plumbing was held to be a natural (ordinary) use.
• The House of Lords in Transco confirmed that piping domestic water to a block of flats was a natural use in contemporary conditions. The threshold is high; the use must be “extraordinary and unusual” and create a special hazard if it escapes.
• By contrast, the storage of industrial chemicals (Cambridge Water) or bulk storage of water in a large reservoir (Rylands itself) were considered non-natural uses.

Factors indicating non-natural use:

• Large quantities or highly hazardous characteristics of the stored substance.
• Industrial or extraordinary scale compared with the locality’s ordinary land use.
• The activity’s special risk profile (i.e., materially increased danger to neighbouring land if escape occurs).

Escape

There must be an 'escape' of the mischievous thing from land over which the defendant has control to land over which they do not have control. Rylands v Fletcher is about harm caused when dangerous things depart the defendant’s premises.

In Read v J Lyons & Co Ltd [1947] AC 156, an explosion occurred within the defendant's munitions factory, injuring an inspector. There was no liability under Rylands v Fletcher because the explosive shell did not escape the confines of the defendant's premises. This underlines the escape requirement: harm within the defendant’s premises to persons there will not be actionable under Rylands (different causes of action may apply).

Escape means crossing the boundary of the defendant’s occupation or control to a place where the defendant lacks control. An internal failure causing damage on-site is therefore outside the rule. Moreover, the thing that escapes must be the same “thing” that was accumulated (Stannard v Gore).

Foreseeable Damage

Following Cambridge Water, the defendant is only liable for damage that is a reasonably foreseeable consequence of the escape. The type of damage must be foreseeable, even if the exact way it occurs is not. This imports remoteness principles akin to The Wagon Mound (No 1) [1961] AC 388: the kind of damage suffered must have been within the reasonable contemplation at the relevant time.

In Cambridge Water, the defendant stored chemicals for its leather tanning business. Over time, small spills seeped through the factory floor into the ground, eventually polluting the claimant's water supply borehole miles away. The House of Lords held that while the storage was a non-natural use, the resulting contamination was not foreseeable when the spills occurred (given knowledge at the time). Therefore, the defendant was not liable under Rylands v Fletcher.

Two significant points arise:

• Liability under Rylands v Fletcher is strict, but not absolute. The rule imposes liability without proof of negligence if the elements are satisfied, yet foreseeability governs the scope of recoverable damage.
• Recovery is confined to damage to land or interests in land; personal injury is not recoverable under Rylands v Fletcher. Where personal injury occurs following an escape, the appropriate cause of action is usually negligence (subject to proof).

Worked Example 1.1

Ahmed operates a small chemical storage facility on his land, adjacent to Beatrice's organic farm. He stores industrial solvents in large tanks. Due to unusually heavy rainfall causing unexpected ground subsidence, one tank ruptures, and solvents leak onto Beatrice's land, contaminating her soil and crops. Beatrice wants to sue Ahmed.

Assuming the storage of large quantities of solvents is deemed 'non-natural use', is Ahmed likely to be liable under Rylands v Fletcher?

Answer:
Yes, potentially. Ahmed brought the solvents (likely to do mischief) onto his land and accumulated them. This storage could be considered non-natural use. The solvents escaped and caused damage. The key remaining issue is foreseeability of damage. If contamination of adjacent land by escaping solvents was a reasonably foreseeable type of damage, Ahmed could be liable under the rule, even if the specific cause (subsidence due to rain) was perhaps unusual. He might raise the defence of Act of God if the rainfall was truly exceptional and unforeseeable.

Worked Example 1.2

A tyre wholesaler stores thousands of tyres on racks in a warehouse. An electrical fault causes a fire which spreads to neighbouring premises. The neighbour sues under Rylands v Fletcher.

Is the wholesaler liable under Rylands v Fletcher?

Answer:
Unlikely under Rylands v Fletcher. In Stannard v Gore, the court held that tyres themselves were not “likely to do mischief” when considered as the thing brought onto the land; the fire that involved the tyres, not the tyres themselves, was the destructive agent. This illustrates that the “thing” that escapes must itself be the mischief-maker, not merely an object involved in an accidental fire.

Worked Example 1.3

A local authority maintains a domestic water supply system to a residential block. A leak occurs due to ordinary pipe failure. Water escapes and undermines an embankment, resulting in expense to a gas utility company whose pipeline is exposed and must be repaired.

Does Rylands v Fletcher apply?

Answer:
No. In Transco, domestic water supply through ordinary mains was held to be a natural use of land and not “extraordinary or unusual”. Nor was the water in such a system “dangerous” for Rylands purposes. The claim under Rylands v Fletcher failed, although other causes of action (e.g., negligence, depending on facts) might be considered.

Worked Example 1.4

A landlord collects rainwater in a roof tank for the benefit of the occupants (including the claimant). A rat gnaws through the tank and water escapes, damaging the claimant’s premises below. The claimant brings a Rylands v Fletcher claim.

Can the defendant rely on consent/common benefit as a defence?

Answer:
Potentially. Where the accumulation is for common benefit and the claimant has consented (expressly or impliedly) to the arrangement, a defence may arise. Cases such as Carstairs v Taylor have recognised that where rainwater was stored for mutual benefit, liability under Rylands was not imposed. As always, the specifics matter—if the storage or maintenance was extraordinary or negligent, negligence or nuisance principles could still apply.

Defences

Even if the elements of the tort are established, several defences are available:

1. Consent of the Claimant (including common benefit): If the claimant expressly or impliedly consented to the presence of the thing accumulated by the defendant, they cannot sue if it escapes. This often arises where the accumulation benefits both claimant and defendant (e.g., shared water storage). The principle of common benefit can be relevant where the arrangement is mutually advantageous.

2. Act of God: An escape caused by natural forces so exceptional and unforeseeable that no reasonable human foresight could anticipate or guard against it (e.g., truly unprecedented rainfall or earthquake). See Nichols v Marsland (1876). This defence is narrow: severe weather alone will not always suffice; it must be extraordinary and not reasonably foreseeable.

3. Act of a Stranger: If the escape is caused by the unforeseeable act of a third party over whom the defendant has no control, the defendant may be exonerated. See Perry v Kendricks Transport Ltd [1956], where a stranger’s act (throwing a match into a petrol tank) was decisive.

4. Statutory Authority: If the defendant's activity is authorised by statute, this may provide a defence, provided the escape is an inevitable consequence of that activity. See Green v Chelsea Waterworks Co (1894). If the statutory power could be exercised without causing the escape, and the escape occurs due to carelessness, the defence will fail.

5. Default of the Claimant / Contributory Negligence: If the escape is caused wholly by the claimant's own fault, this is a complete defence. If the claimant contributed to the damage through their own fault, damages may be reduced for contributory negligence (Law Reform (Contributory Negligence) Act 1945). Although Rylands is strict, contributory negligence still applies to reduce recoveries where appropriate.

Important boundaries:

• Public benefit is not a defence. That an activity benefits the community does not negate the rule’s application (though it could be relevant when considering remedies in nuisance).
• Reasonable care taken by the defendant is not a defence to Rylands if the elements are otherwise satisfied; the liability is strict.
• Coming to the nuisance is not a defence to Rylands (nor to private nuisance).

Exam Warning

Remember that liability under Rylands v Fletcher is strict, not absolute. The defendant is liable without proof of negligence, but only if all elements of the tort are met, and subject to defences. Also, since Cambridge Water, the damage must be of a foreseeable type. Do not confuse strict liability with liability in all circumstances.

Revision Tip

Focus on distinguishing Rylands v Fletcher from private nuisance. Key differences include the need for an 'escape' in Rylands and the fact that Rylands can apply to isolated incidents, whereas nuisance usually requires a continuing state of affairs. Also, note that personal injury is not recoverable under Rylands.

Key Point Checklist

This article has covered the following key knowledge points:

• The rule in Rylands v Fletcher imposes strict liability for damage caused by the escape of dangerous things from land.
• The defendant must have brought something onto their land for their own purposes and accumulated it.
• The thing accumulated must be likely to do mischief if it escapes.
• The use of land must be non-natural (extraordinary or unusual).
• There must be an escape from the defendant's land to land outside their control.
• The damage caused must be of a type that was reasonably foreseeable.
• Personal injury is not recoverable under the rule (claims are limited to land/property interests).
• Claims are generally limited to those with proprietary interests in the affected land, reflecting the rule’s roots in nuisance.
• Defences include consent/common benefit, Act of God, act of a stranger, statutory authority, and claimant default/contributory negligence.
• Transco and Cambridge Water confine the rule to narrow circumstances and emphasise foreseeability and non-natural use.

Key Terms and Concepts

• Accumulation
• Likely to do mischief
• Non-natural use
• Escape