, ,

  1. A.              Introduction


Originated from nuisance. It then developed to become quite distinct from the tort of nuisance.


The development of scope and applicability of Rylands v Fletcher is now more restricted by HL in Cambridge Water Co v Eastern Counties Leather plc [1994] 1 All ER 53; [1994] AC 264.


1. Meaning of Strict liability

–                 a term used to describe liability which is imposed on D without any proof of fault on his part. So although the defendant might have taken all reasonable precautions to avoid or minimize risks arising from his activity, he may still be found liable if the tort which has arisen falls under the category of trict liability torts.

–                 Irrelevant:

  • D might have taken all reasonable precautions to avoid or minimize risks arising from his activity
  • Mental state of D

–                 can arise in a cause of action for breach of statutory duty but the ‘strictness’ of liability depend on the wording of the relevant statutory provisions.

–                 “no-fault liability



2. The rule in Rylands v Fletcher


Rylands v Fletcher [1866] LR 1 Ex 265; affirmed [1868] LR 3 HL 330

Facts : The D mill owner employed some independent contractors to build a reservoir. Beneath this reservoir were some irons shafts that went through a mining area and which were conneted to the P’s mine. The defendant did not know of the existence of these shafts and the contractors were negligent in not blocking the shafts. The P’s mine was flooded when the reservoir was filled with water.


The Defendants themselves were nto negligent and neither were they vicariously liable for the negligence of their independent contractors, but the HOL held them liable to the P


Blackburn J ([1866] LR 1 Ex 265 at 279-280):


‘We think that the true rule of law is, that the person who for their own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prime facie answerable for all the damage which is the natural consequence of its escape.”


This statement is also known as the rule in Rylands v Fletcher.


Defences: P’s own fault or by an act of God.


Lord Cairns (HL) [1868] LR 3 HL 330 approved this rule but further added that the rule only applied where D had used his land for a non-natural use.


There are 4 elements required to establish liability under the rule in Rylands v Fletcher and these are discussed bellow.


1)    Dangerous things/ Thing likely to cause damage if it escapes

There must exist a dangerous “thing” and the word “dangerous” has its own meaning under this tort. What is dangerous is a question of fact. The rule applies to anything that may cause damage if it escapes. Once this element is fulfilled, than the thing is a “dangerous thing”.


The object or “thing” therefore need not be dangerous per se because there are objects which are safe if properly kept, but are dangerous if they escape. This principle successfully applies to gas, noxious fumes, explosives, fire, electricity, water and sewage. Due to the difficulty and confusion that may arise between dangerous and non- dangerous thing, a less confusing phrase would be “thing likely to cause damage if it escapes”.


The element of the thing described as dangerous thing is said to be no longer accurate and practical by authors in England. The reason is that due to the decision in Cambridge water which held that there cannot be liability under the rule in Rylands v Fletcher unless the relevant type of damage was foreseeable, and whether the thing is dangerous or not would be irrelevant.


Element of dangerous thing is maintained in this work for a pratical reason.  Whether the thing is considered dangerous and may cause damage if escape is determined through the ordinary experience of mankind.

Ang  Hock Tai v Tan Sum Lee & Anor

F: P rented a shophouse and lived on the first floor of the building. The ground floor was sublet to the defendant who was in the business of repairing and disturbing tyres. D stored petrol for business purpose. One morning D’s premises caught fire and it spread to the first floor and the P’s wife and child died in the tragedy. H: D liable under the rule in Rylands v Fletcher as the petrol was a dangerous thing.


2)    Intentional storage / Accumulation

This rule on applies to an object or thing which the D purposely keeps and collects. D will only be liable if he has accumulated the thing. Even if he himself has not accumulated the thing, he may still be liable if he has authorised the accumulation. The liability rests in those who have control over the thing.

Rule is not applicable to anything that is naturally on the land.


Giles v Walker

F: D was not found liable under this rule when thistles from his land flew onto the P’s land and seeded.

H: The thistles were the natural growth of the D’s land despite the fact that the thistles grew on his land due to his leaving unattended after he had ploughed it. In cases like this, liability may be sought under the tort of nuisance or negligence.


An occupier of land who intentionally causes something that is naturally found on his land to escape may still be held liable for any consequent damage that is caused to the P. An occupier of land will not be held liable for damage caused by the escape of a thing naturally on the land, if he has not accumulated it and the escape was independent of the D’s conduct.


Pontardawe RDC v Moore-Gwyn

F:  Due to changes in the weather some rocks from the D’s land fell onto the P’s land. D was not liable as he did not accumulate the rocks. Moreover the escape was not caused by the D’s act.


Miles v Forest Rock Granite Co (Leicestershire) Ltd:

F: The D used some explosives to blast some rocks on his land. Some rocks fell onto the land below and injured the P. The court found that although the rocks were not purposely collected or kept on the land, the explosives were purposely collected and kept.

H: D was held liable for his deliberate accumulation which caused the escape of the rocks, and because the way in which the injury was sustained was through rock- blasting, which was not a natural use of land.

The accumulation of explosives that gave rise to liability. The explosives, if they escaped would be likely to cause damage and therefore, were dangerous things. They were deliberately collected and stored by the D. There was escape as the use of the explosives caused the rocks to fall away from the D’s land and the damage was caused to the P.


If the thing that escapes is the dangerous thing itself, liability is rather straightforward. If what escapes is not the dangerous thing itself but another object arising from the use of the dangerous thing, the occupier of land may still be held liable provided the escape occurs during a non-natural use of the land. Therefore in the case stated above, the court holds that the use of explosives on private land constituted a non-natural use of land.

Rule in Rylands v Fletcher is only applicable where the occupier brings, collects or keeps something on his land. It follows that when something that is naturally on the land escapes and causes damage, the occupier will not be liable unless he intentionally allows the escape to occur or that the escape is foreseeable and yet the D does nothing to prevent the probable escape.


The storing of things must be for the D’s own purposes. The principle is not applicable where the thing is brought onto the D’s land by or for the use of another person. SO if a licensee accumulates the thing on the land, and the thing escapes and causes damage, the licensee will be held liable. The landowner would only be liable if the licensee accumulates the thing with the authorisation of the owner ,or id the accumulation was done in pursuance of a contractual duty owed by the owner to a 3rd party.


Rainham Chemical Works v Belvedere Fish Guano

F:  X and Y set up a company Z Ltd. The function of Z Ltd was to perform a contract entered into both X and Y, with another party, to manufacture explosives. Z Ltd was to manufacture the explosives on X and Y’s land. So Z Ltd was a licensee. An explosion occurred, damaging neighbouring property.

H:The House of Lords found Z Ltd liable as the licensee which had accumulated the thing. X and Y, as occupiers and landowners were also liable for the escape of the thing accumulated by their licensee as the accumulation was a discharge of X and Y’s contractual duty to another party.


3)    Escape

P must prove that there has been an escape. Escape means the thing has escaped from a place over which the D has no control and authority to a place over which the D has no control and authority. It is not necessary that the defendant has a proprietary interest in the land from which the escape occurs.


Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd:

H: court held thatescape must be proven before the principle in Rylands v Fletcher is applicable. The leading authority is Read v J Lyons & Co Ltd. An inspector of munitions was injured when a shell that exploded and caused her substantial injuries. D were not liable as there was no escape.


Pointing  v Noakes

F: P horse reached its head into the D’s land and ate the poisonous leaves of a yew tree which was planted on the D’s land.

H : there was no escape as the tress and its leaves did not extend beyond the defendant’s boundary and so the P failed in his action.


Midwood & Co Ltd v Mayor, Aldermen and Citizens of Manchester

H: the D were held liable when an explosion on their property caused inflammable gas to escape into the P’s house and consequently set fire to the P’s property.


The meaning of escape has been extended to include a situation where the use of the dangerous thing causes or creates an event from which damage is sustained.

Allowing an escape to occur from one’s own land onto another person’s property over which one has no control is not the same as damage incurred by another person as a result of one preventing a danger from occurring on one’s land. Liability will be imposed in the former situation but not in the latter.


Damage caused by the spread of fire

Common law presumption is that a man is answerable for the damage that results from a fire which began on his property. This presumption does not apply in Malaysia. P is still required to prove either the D himself or a person for whose conduct he was answerable has been negligent.  The negligence must have caused either the commencement of the fire or its spreading to the P’s premises, or that the D has caused or permitted to exist on his premises, a source of fire danger which constituted a material injury to the P’s property.


In circumstances where there is no escape of anything brought onto the D’s land, the D must be proved to have satisfied the following conditions as laid down in Lembaga Kemajuan Tanah Persekutuan v TNB, following Musgrove v Pandelis:

a)     Firstly, the D had brought onto their land things likely to catch fire and kept them there in such condition that if they did ignite, the fire would be likely to spread to the P’s land

b)     The D did these things in the course of some non-natural use of land, and

c)     The things had ignited and the fire has spread to the P’s land.

This test was successfully applied in:

Lembaga Tanah Persekutuan v TNB.

F:The P’s rubber trees were destroyed by several fires which started in the D’s adjoining land.

H:The court found for the P as the burning vegetation on the D’s land had been cut by the D’s employees or agents and left there in hot and dry weather. The D should have known that fires could break out from the combustible cut the vegetation and would spread to the P’s property. The D use of the land was found to be a non-natural use.


Lee Kee v Gui See & Anor

F: D was found liable when third party whom he had hired to burn some rubbish in his land did so without taking any precautions, which resulted in the fire spreading onto the P’ s land destroying the latter’s rubber trees.

H: If a person makes a fire on his land in order to burn something which is inflammable, he must take reasonable steps to prevent the fire from spreading. This duty is absolute and non-delegable.



Liability is imposed for the spread of fire if the spread was due to the default of the D’s servant, his guest and even his independent contractor.

Liability will be excluded where the fire spread or occurred due to an act of nature or the act of a stranger or trespasses over whom the defendant has no control.

Knowledge of the fire , albeit started by a party over whom the D has no control imposes a duty on him to extinguish it within a reasonable time.




4. Non-natural use of land


Lord Cairns in Rylands v Fletcher (HL) said: “The defendant must put his land to a non-natural use”.

Natural use : ordinary use although “artificial”

Non-natural use : extraordinary use


Meaning: (Rickards v Lothian [1913] AC 263 at 280 PC)

“It must be some special use 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.”


Read v Lyons & Co Ltd [1947] AC 156 at 169 (Lord Porter)

All factors such as time, location and the ordinary activities of mankind must be taken into consideration, so that what is dangerous or constitutes a non-natural use of land may differ in different circumstances.


Public benefit can constitute natural use


Non-natural use of land has been equated with unreasonable risk in the tort of negligence.

The court will balance the probability of damage occurring plus the seriousness of the probable damage compared to the social benefit derived from it.

Not conclusive test – NNU


Factors to be taken into account: the quantity of the thing, the way in which it was stored and also the location of D’s land:

Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530



Examples of non-natural use (NNU) of land:


Crowhurst v Amersham Burial Board [1878] 4 Ex D 5

F:D’s yew leaves extended into P’s land. P’s horse died upon eating the leaves. Yew leaves are poisonous to cows. P’s horse died upon eating the leaves.

H: D liable as t planting a poisonous tree is not a natural use of land. this decision may be justified on the basis that an ‘escape’ of the tree had occurred as the branches and leaves had encroached onto the P’s land.



Distinguished with Ponting v Noakes [1894] 2 QB 281


Yat Yuen Hong Co Ltd v Sheridanlea & Anor [1963] MLJ 279

F: As were developing their land which was adjacent to the R’s land. The As’ land was situated on higher ground than the R’s land. Some earth fell onto R’s land and damaged the respondent’s nursery.

H: Piling loose earth on a steep slope so that more flat land would be available was a non-natural use of land. Rylands’ case applied.


Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978] 1 MLJ 225

F: D was a contractor engaged to clear irrigation canal which went through P’s rubber estate. Bushes and weeds were negligently set on fire and destroyed P’s rubber trees.

H: Escape of fire resulting from non-natural use of land.


Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966] 2 MLJ 240; affirmed [1967] 2 MLJ 35 FC

F: D built reservoir on his land. Heavy rainfall caused water-bunds to collapse, water escaped to the adjacent land. Caused death to the deceased by drowning.

H: Using sand-bunds to separate ponds of water constituted a dangerous and non-natural use of land and any resulting damage would be caught under the rule of Rylands.


Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia Consultants & Ors [1997] 1 AMR 637

F: Artificial accumulation of rainwater on higher ground, which then seeped underground, causing increased infiltration rate and saturation of soil held to be a non-natural use of land.

H: as a result of a landslide occurred and damaged the P’s house. The accumulation of water was held to be non-natural use as the excavation of a trench, purportedly for the foundation of a retaining wall, constituted an alteration to the nature of the land. It further interfered with the natural flow of water.


Natural use of land:


Example of non-natural use of land:


British Celanese v AH Hunt [1969] 1 WLR 959; [1969] 2 All ER 1252

F: P claimed the foil strips from D’s factory caused a disruption to the electrical power and supply to that area which in turn caused resulting damage to P’s property.

H:Use of land was not non-natural (factory in an industrial area), D liable for negligence and nuisance but not strict liability.



5. Remoteness/Foreseeability of damage


A defendant will not be liable for all consequential damage that results from an escape. Type of damage must be foreseeable


The concept of ‘reasonable and foreseeable damage’ as laid down in Wagon Mound [1961] AC 388 at 173-174 is applicable in the tort of strict liability.

The Wagon Mound (No 2) [1967] 1 AC 617


Confirmed by Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53

F: D who was a leather manufacturer used a chemical, PCE, in the process of manufacturing. The chemical had been spilled little by little on the concrete floor of their factory. PCE was not soluble in water and it had seeped through the factory floor until fifty meters below the ground. It had then spread at the rate of 8 m per day until it reached the area the P used to pump water for the daily consumption of the residents in that area. The distance between the D’s factory and P’s borehole was 1.3miles and it had taken 9 months for the PCE spillage to reach the borehole. The P had to spend about 1 million in order to find and operate another borehole.

H: HOL affirmed the HC decision and held D not liable in both the torts of nuisance and strict liability. The D’s use of their land was not exactly a natural use of land but because the damage was unforeseeable that the spillage would spread and cause damage to the P.


See article by Naeem, M, “Strict Liability Under Attack: The Need to Protect it” [1994] 4 CLJ ci


It is now more difficult for the P to succeed in action for strict liability


Problem arise: foreseeability of damage or escape or both?

If foreseeability of escape is required in the tort of strict liability, it undermines the strictness of no-fault liability. It would indeed favour potential defendants in this area of the law of tort, as non-foreseeability is followed by o liability, but it does not provide any remedy to a P whose property is ‘unexpectedly’ damaged due to hazardous activities conducted by D.