More than a nuisance: personal injury under Rylands

The Rylands rule states that an occupier of land who brings anything onto that land that is inherently dangerous and likely to do damage if it escapes will be liable for any damage caused if an escape should occur. Before Rylands, the claimant would generally have to show some fault on the part of the defendant. But Rylands established a tort of strict liability. It is a judgment that to this day remains contentious.

The House of Lords in Transco plc v Stockport Metropolitan Borough Council [2004] 2 A.C. 1 had occasion to review the various elements of the Rylands rule and concluded that an interference with the use and enjoyment of land was a fundamental element in grounding liability for this type of nuisance. This was seemingly the judicial intention when the rule was first established back in 1868: Rylands v Fletcher [1861-73] All ER Rep 1.

In Read v Lyons [1947] A.C. 156, an inspector was injured by the explosion of a high explosive shell while carrying out her duties on a factory. The explosion was not due to any fault on the part of the persons operating the factory. Apart from there being no relevant 'escape' in this case, three members of the House of Lords (Lords Macmillan, Porter and Simons) expressed the view (obiter) that liability for death or personal injury could not be claimed under the rule.

This view appears to have been affirmed by the House of Lords in Transco, which involved the escape of water from a water pipe serving a block of flats causing damage to a railway embankment. The case, however, was not concerned with damages for personal injury and the observations of both Lords Bingham and Hoffmann on this point were once again, strictly speaking, obiter. Recovery for personal injury under the rule therefore remains an open question.

Recovery for personal injury

It may be helpful to preface what follows with the following scenario. Let us assume that a large chemical company owns a factory situated adjacent to a farm owned by Mr B. The company stores a dangerous chemical in the factory which it is aware could cause severe physical injury to human beings (even with the slightest contact with the skin). Due to no fault of the company, some of the chemical escapes and infiltrates Mr B's domestic water supply. Mr B waters his garden from the outside tap and the contaminated water causes damage to his crops. On these facts, it is clear that (1) the storage of the chemical is a 'non-natural' use of the land (2) there has been an 'escape' of a dangerous thing from the factory onto Mr B's land causing an interference with his right of enjoyment of the land and (3) it is reasonably foreseeable that the chemical, if it escaped, would cause damage to Mr B's land.

Let us now assume further that Mr B fills up his outdoor jacuzzi with the same water. After bathing in the jacuzzi, he suffers serious blistering and burns to his skin which is caused by contact with the contaminated water. The orthodox position, as outlined above, is that claims for personal injuries are irrecoverable under Rylands and, hence, Mr B's claim for injury to his skin will inevitably fail. Significantly, an alternative claim in negligence will also fail due to the lack of fault on the part of the company. Ostensibly, therefore, the claimant is left with no legal remedy. But can this be right? After all, as Lord Scarman observed in McLoughlin v O'Brian [1983] 1 A.C. 410 at pp 429 and 430:

'The common law. . . knows no gaps. The function of the court is to decide the case before it, even though the decision may require the extension or adaptation of a principle or in some cases the creation of new law to meet the justice of the case.'

No authoritative judgments

If we look back to the origins of the rule in Rylands, it is apparent that historically the rule was held to be a sub-category of nuisance and, therefore, perceived as being concerned only with a tort to land. This was affirmed by Lord Bingham in Transco but, significantly, his Lordship acknowledged that the issue whether a claim for personal injury could be recoverable under the rule had yet to be authoritatively decided by a decision 'at the highest level' (para.9). Indeed, his Lordship hints that there could be 'new factual situations' which may arise in the future and test the boundaries of the rule (para.8). In this connection, it is interesting to observe that even in Rylands itself, Blackburn J expressly acknowledged that a personal injury could be recoverable in a strict liability nuisance scenario. He said (at para.7):

'[W]here one keeps a beast knowing that its nature or habits were such that the natural consequence of his being loose is that he will harm men, the owner 'must at his peril keep him up safe from doing hurt, for though he uses diligence to keep him up, if he escapes and do harm, the owner is liable to answer damages''.

Subsequent cases have supported this view, notably, Hale v Jennings Brothers [1938] 1 All ER 579, where there was an escape of a chair from a chair-o-plane which hit a person (a tenant of a stall) standing nearby. It was held that 'the defendants have to take the risk of any damage which may result from [an escape of a dangerous thing]' (ibid, at p.585). The claimant here was an occupier of land but there was no indication that the damage had to be confined to the land.

In Perry v Kendricks Transport [1956] 1 WLR 85, two small boys threw a lit match into the petrol tank of the defendant's coach, which was parked at the edge of the defendant's parking ground. The coach exploded and caused personal injury to the claimant (a boy who approached the ground). A claim for personal injury, under the Rylands rule, failed only because the boys were strangers and the defendant could not have had them in contemplation to guard against the explosion. Had the explosion been caused by the defendants, even in the absent of fault, a claim for personal injury under the rule would have been successful.

In British Celanese Ltd v AH Hunt (Capacitors) Ltd [1969] 2 All ER 1252, Lawton J (at p.965) suggested (obiter) that an action for personal injuries would lie under Rylands.

More recently, in Corby Group Litigation Claimants v Corby BC [2008] EWCA Civ 463, the claimants' mothers lived close to land contaminated by the local authority. During their pregnancies, they were exposed to the toxic materials which emitted from the contaminated land, which caused the claimants' deformities. The Court of Appeal distinguished the cases of Hunter and Transco in awarding damages for personal injury. Dyson LJ said (at para.22) that: 'the long-established principle that damages for personal injury can be recovered in public nuisance has not been impliedly reversed by either of these two decisions of the House of Lords.' He observed that those cases were not authoritative on the issue because they were neither based in public nuisance, nor did they include claims for damages for personal injury.

Diminution in amenity

It has been suggested that damages for personal injury will be recoverable if the injury is characterised in terms of a diminution in the amenity of the land to be enjoyed.

The authors of Street on Torts (12th edition, LexisNexis Butterworths) give the following example (at p.443):

''¦ where defective wiring in a neighbouring house causes a fire that spreads to the claimant's house, the claimant should be allowed to recover not only for the damage caused to his house but also for any burns he sustains because it is not only the land, but also the amenity of the land (characterised in terms of the ability to live there free from burns) that has been affected.'

In this connection, Lord Hoffman in Hunter v Canary Wharf Ltd [1997] AC 655 explicitly stated that, although personal injuries were not per se recoverable in an action for private nuisance, this did not prevent recovery of damages for 'the injury to the amenity of the land' where the claimant suffers inconvenience, annoyance or illness (at p.706).

As stated by the author of Street, the point is one of emphasis. If the personal injury arises out of an interference with the amenity value of the land, it should be recoverable.

Consequential loss claims

Lord Hoffmann in Hunter, at p.706, also suggested that a claimant could recover damages for consequential loss in addition to damages for injury to land (i.e. damages for chattels or livestock), although not (in his view) for personal injury. His Lordship's remarks were, of course, obiter and, significantly, there is no English case which directly deals with this point.

However, in Spartan Steel and Alloys v Martin & Co Contractors Ltd [1973] QB 27, the Court of Appeal distinguished pure economic loss from economic loss which was consequent upon physical damage to property in determining the defendant's liability in negligence. The former was held to be too remote while the latter was recoverable. This article essentially adopts the same principle in arguing for the recovery of personal injury consequent upon damage to land in the parallel context of a nuisance claim.

Importantly, it is apparent that the notion of 'consequential losses' is not novel but, in the words of Lord Scarman in McLoughlin, above, is 'consistent with or analogous to a principle already recognised'. More significantly, it was recognised by Lord Hoffmann in Hunter that consequential economic loss (in the form of the claimant's inability to use the land for his business purposes) was recoverable in an action in nuisance.

In our hypothetical scenario, therefore, referred to above, Mr B should be able to successfully claim damages for his personal injuries insofar as they were a consequential result of the interference with his land. This is just the kind of case alluded by Lord Bingham in Transco who referred to 'a category of case, however small it may be, in which it seems just to impose liability even in the absence of fault' (para.6). Pure personal injury claims, on the other hand, would remain irrecoverable under the rule.

A sub-category of negligence?

If Rylands is confined to torts to land (as a special application of the law of nuisance), it provides little scope for recovery of personal injuries (which have been confined traditionally to actions in negligence). Currently, Rylands encompasses claims in nuisance where fault is absent but there is no reason why the rule should not also be characterised as a sub-tort of negligence in those limited cases where personal injury is consequential upon interference with the claimant's land.

It is submitted, therefore, that the obiter remarks in Read v Lyons and Transco should be understood as prohibiting recovery of damages for pure personal injury only under the Rylands rule. The orthodox view, however, as adopted in Transco, should not be interpreted so as to exclude recovery for personal injury which arises consequentially upon interference with land. This would be in line with the notion that Rylands liability is not only a sub-species of nuisance but also a sub-category of the tort of negligence.

The assimilation of the rule within the law of negligence in this way would also reflect the current position which already acknowledges a test of reasonable foreseeability as governing liability in both species of torts.