Documentation:Torts/Non-natural use of land

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Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
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Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
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Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
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Index
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Non-natural use of land

The landmark case of Rylands v. Fletcher held that "anyone who brings something onto his land which is not naturally there is strictly liable if the thing escapes and injures someone".[1] The defendant can be held liable even if they took due care to make sure that the unnatural thing did not escape. In other words, this somewhat exceptional tort does not require proof that the defendant was negligent or that they intended to intrude on their neighbour.

In light of the expansion of negligence law, successful claims under the tort in Rylands v. Fletcher have become "relatively rare".[1]

The case of Rylands v. Fletcher

In 1860, Rylands, a local millworker, employed contractors to construct a water reservoir on his land. Unbeknown to Rylands, his land contained hidden vertical shafts that led to a disused mine, upon which the reservoir was built. Shortly after Rylan's reservoir was erected, the water collapsed through the shafts and flooded his neighbour Fletcher's mine, causing Fletcher significant property damage.

Rylands v. Fletcher explained

Fletcher brought an action against Rylands which reached the Exchequer of Pleas in 1865. The case focused on whether Rylands could be liable for damages given an absence of negligence. The majority, Chief Baron Pollock CB and Barin Martin, ruled that there could be "no liability without negligence, because otherwise the defendant would be an insurer," which was viewed as "contrary to legal analogy and principle". However, Baron Bramwell disagreed and considered Fletcher had a good cause of action for the intrusion on his land.

Fletcher appealed the majority's decision to the Court of Exchequer Chamber. The six judges hearing the case allowed the appeal. Justice Blackburn for the majority held:

We think that the true rule of law is, that the person who for his own purposes brings on his land 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 prima facie answerable for all the damage which is the natural consequence of its escape.

Rylands the appealed to the House of Lords. Lord Cairns spoke for the House and affirmed the reasoning of Justice Blackburn. Lord Cairns limited the scope of the doctrine to cases where the dangerous escaping thing had been introduced through a "non-natural" use of the defendant's land.[2]

Elements of the tort in Rylands v. Fletcher

The elements of the tort have been a source of intrigue over the years. The Ontario Court of Appeal in Smith v. Inco Limited endorsed four elements set out in The Law of Nuisance in Canada:

Elements of Rylands v. Fletcher Rule[3]
(a) the defendant made a "non-natural" or "special" use of their land;
(b) the defendant brought on to their land something that was likely to do mischief if it escaped;
(c) the substance in question in fact escaped; and
(d) damage was caused to the plaintiff's property as a result of the escape.

The Rylands v. Fletcher tort has been accepted in Canada. It is distinguished from "negligence, private nuisance, and statutory liability".[4] In practice, cases operationalizing the Rylands v. Fletcher rule involve "floods, gas leaks, chemical spills, sewage overflows, fires and the like."[5]

Port Colborne, Ontario, the city where over 7,000 property owners brought an action against Inco Limited for the contamination of soil from the neighbouring nickel refinery.

In Tock v. St. John's Metropolitan Area Board,[6][7] the Supreme Court sought to refashion the original elements set out by Lord Carin in 1868 to accommodate Canada's legal, economic, and political circumstances.

"Non-natural use of land"

The idea of non-natural use of land was framed by Lord Cairn in terms of situations where the defendant "for his own purposes brings on his land and collects anything likely to do mischief".[8] In following cases such as Rickards v. Lothian, the Privy Council expanded on the definition, stating non-natural use is the "special use [of land]" that is not "ordinary use" or use that is "proper for the general benefit of the community".[9] The boundaries of the tort have continued to vex courts, as non-natural uses of land during the era of Rylands tend to resemble something different from modern uses of land today.

The Supreme Court in Tock held that the strict liability tort requirement of non-natural use involves "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".[6] Tock involved a sewer system block resulting in a flood. The Court decided in favour of the defendant, stating that public sewage infrastructure is "necessary to support urban life" and thus does not satisfy the requirement for non-natural use of land.

"Escape of something likely to do mischief"

The element of "escape of something likely to do mischief" has two aspects: one being the physical escape and the other being the hazardous nature of the thing escaping. Examples of such escapes include floods (Rylands v. Fletcher[2]), fires (Jones v. Festiniog Railway Co[10]), and gas (Batchellor v Tunbridge Wells Gas Co[11]).

In Smith v. Inco Limited, the claimants brought an action to the Ontario Court of Appeal alleging Inco Ltd's nickel factory was causing nickel particles to spread to the soil of surrounding properties. The Court stated that the emission of nickel into the soil did not constitute an "escape" for the purposes of this tort, as it required "some kind of mishap or accident that results in damage."[12]

"Damage"

The damage element of the tort of non-natural use of property adds harm/injury to the requirements the plaintiff must satisfy. While typically cases concern damage to adjacent lands, "harm to chattels is also recoverable".[13] While English courts have tended to restrict the scope of recovery to property damage, Canadian courts have extended recoverable damage to personal injury.[14] This more expansive understanding of actionable damage protects personal autonomy in circumstances where "toxic fumes" or "harmful biological agents" may influence a one's health as a result of non-natural uses of land.

Environmentalism, industrialization and restriction of non-natural use

Flint water crisis is a public health crisis originating in 2014 that involved the contamination of the cities water supply.

For years commercial activities involving mines, mineral and oil refineries, paper mills, industrial plants, and more have been known for their tendency to discharge hazardous elements into their surrounding environment.[15] These elements have on a variety of occasions been known to pollute proximate communities, taking an immeasurable toll on both the local ecosystem and people. In light of this, the decision in Smith v. Inco drew many questions as to why industrial activity is not characterized as a non-natural use of land under the rule in Rylands v. Fletcher. While Smith may stand as an indicator of courts favouring industrial progress over community well-being, burgeoning public regulation surrounding environmental control has played a pivotal role in enforcing accountability for industries with the capacity to cause significant harm through pollution.

Statutory landscape

The Canadian Environmental Protection Act, 1999 (CEPA) established a framework for the management of toxic substances in the environment related to industrial activities. In practice, the Act serves as a basis for many government programs that monitor industrial plants and report on a range of concerns relating to toxic emissions and the environment. Section 99(2) of the Act, establishes a cause of action for those experiencing harm from a spill of a pollutant.[16] The cause of action requires fault in order to hold a defendant liable, which moves environmental legal claims away from strict liability set out in Rylands v. Fletcher.

Environmental racism

Researchers have noted a disproportionate number of communities greatly affected by environmental emissions and pollution in North America are Indigenous or Black.[17] The term "environmental racism" is used to describe this reality, viewable in examples such as Grassy Narrows, Ontario or even Flint, Michigan in the United States. Concerns over constrained avenues of civil recourse for hazardous uses of land led John Forstorm to interpret the current landscape of toxic tort litigation as creating "victims without cause".[18]

Nuisance and diverging international approaches

Nuisance (private and public) in Canada is distinct from the tort in Rylands v. Fletcher. The torts are often pleaded together, as they were in Smith v. Inco. In other jurisdictions, some courts have questioned whether Rylands v. Fletcher should be recognised as a distinct head of liability or whether it should be subsumed into nuisance or negligence.

England

In Transco Plc v. Stockport MBC, the House of Lords debated whether the rule in Rylands v. Fletcher should still be recognised.[19] Lord Bingham considered the rule was merely a "sub-species of nuisance, which is itself a tort based on the interference by one occupier of land with the right or enjoyment of land by another". Lord Hobhouse by contrast thought "that the rule in Rylands v. Fletcher should not be abrogated" because "[t]he rationale for it was and remains valid." Lord Hoffmann expressed scepticism but thought that abolishing the rule "would be too radical a step to take."

Australia

In Burnie Port Authority v General Jones Pty Ltd, the High Court of Australia rejected the rule in Rylands v. Fletcher.[20] The Court reasoned that the rule encompassed "quite unacceptable uncertainty" and had become superfluous given the expansion of negligence and nuisance causes of action.[20] The Court ruled that a person who undertakes a dangerous activity on their property owes a duty of care to avoid foreseeable harm created by the spread of that dangerous thing onto the property of others.

India

The Supreme Court of India's decision in MC Mehta v. Union of India concerned liability arising from the deadly 1984 Bhopal gas leak.[21] The case drew significant attention of those concerned with the application of Rylands v. Fletcher to industrial activity in India. The Court applied a more narrow version of the rule in Rylands by ruling that acts done "for the benefit of the community and undertaken under statute were excepted from the principle" of strict liability.[22] In addition, the Court emphasized the need for 'escape' of a thing, and stated gas leaks affecting those on the premise did not satisfy the element of escape set out in the test.[21]

Discussion Questions

  • In what ways is the tort in Rylands v. Fletcher distinct from the torts of nuisance and negligence? Should it continue to be recognised as a distinct head of civil liability?
  • Most torts involve an element of fault, however, many advocate for strict liability in the area of pollution and environmental catastrophe. Is strict liability a more principled framework for tort in this context?
  • Jurisdictions have had different approaches to recognising liability for incidents of pollution or emission affecting land, chattels, or people. What are these different approaches and what do you find to be the challenges of each?


  1. ↑ Jump up to: 1.0 1.1 Klar, L.N. "Strict Liability". The Canadian Encyclopedia.
  2. ↑ Jump up to: 2.0 2.1 Rylands v. Fletcher, [1868] UKHL 1 (§22.1.1).
  3. ↑ Smith v. Inco Limited, 2011 ONCA 628 at para 71.
  4. ↑ Smith v. Inco Limited, 2011 ONCA 628 at para 68.
  5. ↑ Smith v. Inco Limited, 2011 ONCA 628 at para 68.
  6. ↑ Jump up to: 6.0 6.1 Tock v. St. John's Metropolitan Area Board, 1989 CanLII 15 (SCC).
  7. ↑ Nova Scotia (Attorney General) v. MacQueen, 2007 NSCA 33 (CanLII).
  8. ↑ Rylands v. Fletcher, [1868] UKHL 1, (§22.1.1) at paras 4-5.
  9. ↑ Rickards v. Lothian, [1913] AC 263 at 280.
  10. ↑ Jones v. Festiniog Railway Co, (1868) LR 3 QB 733.
  11. ↑ Batchellor v. Tunbridge Wells Gas Co, (1901) 65 JP 680.
  12. ↑ Smith v. Inco Limited, 2011 ONCA 628 at para 112.
  13. ↑ Osborne, Philip H. (2020). The Law of Torts. Toronto: Irwin Law. pp. 363 & 368.
  14. ↑ Gertsen et al. v. Municipality of Metropolitan Toronto et al., 1973 CanLII 606 (ON SC).
  15. ↑ Osborne, Philip (2020). The Law of Torts. Toronto: Irwin Law. p. 372.
  16. ↑ Environmental Protection Act, RSO 1990, c E.19, s. 99(2).
  17. ↑ Waldron, Ingrid, (2018). There's Something in the Water: Environmental Racism in Indigenous and Black Communities. Black Point, Nova Scotia;Winnipeg: Fernwood Publishing.CS1 maint: extra punctuation (link)
  18. ↑ Forstorm, John (1987). "Victim Without a Cause: The Missing Link Between Compensation and Deterrence in Toxic Tort Litigation". Journal of Environmental Law. 18.
  19. ↑ Transco Plc v. Stockport MBC, [2003] UKHL 61 (§22.1.2).
  20. ↑ Jump up to: 20.0 20.1 Burnie Port Authority v. General Jones Pty Ltd, [1994] HCA 13 at 540.
  21. ↑ Jump up to: 21.0 21.1 MC Mehta v. Union of India, 1987 SCR (1) 819.
  22. ↑ Swarup, Aditya (Strict Liability and Its Misapplications in India). "Strict Liability and Its Misapplications in India". NLUD Journal of Legal Studies. 1: 75–8. Check date values in: |date= (help)
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