Read v J. Lyons & Company Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Simon,Lord Macmillan,Lord Porter,Lord Simonds,Lord Uthwatt |
| Judgment Date | 18 October 1946 |
| Judgment citation (vLex) | [1946] UKHL J1018-1 |
| Date | 18 October 1946 |
| Court | House of Lords |
[1946] UKHL J1018-1
Viscount Simon
Lord Macmillan
Lord Porter
Lord Simonds
Lord Uthwatt
House of Lords
After hearing Counsel, as well on Monday the 13th, as on Tuesday the 14th, Wednesday the 15th, Thursday the 16th, Monday the 20th, Tuesday the 21st and Thursday the 23d, days of May last, upon the Petition and Appeal of Norah Read, of 19 Garfield Street, Bedford, in the County of Bedfordshire, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 14th of December 1944, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of J. Lyons and Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 14th day of December 1944, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
In fulfilment of an Agreement dated January 26th, 1942, and made between the Ministry of Supply and the Respondents, the latter undertook the operation, management and control of the Elstow Ordnance Factory as agents for the Ministry. The Respondents carried on in the factory the business of filling shell-cases with high explosives. The Appellant was an employee of the Ministry, with the duty of inspecting this filling of shell-cases, and her work required her (although she would have preferred and had applied for other employment) to be present in the shell-filling shop. On August 31st, 1942, whilst the Appellant was lawfully in the shell-filling shop in discharge of her duty, an explosion occurred which killed a man and injured the Appellant and others. No negligence was averred or proved against the Respondents. The plea of volenti non fit injuria, for whatever it might be worth, has been expressly withdrawn before this House by the Attorney General on behalf of the Respondents, and thus the simple question for decision is whether in these circumstances the Respondents are liable, without any proof or inference that they were negligent, to the Appellant in damages, which have been assessed at £575 2s. 8d. for her injuries.
Mr. Justice Cassels, who tried the case, considered that it was governed by ( Rylands v. Fletcher L.R.1 Ex.265, L.R.3 H.L.330) and held that the Respondents were liable, on the ground that they were carrying on an ultra-hazardous activity and so were under what is called a "strict liability" to take successful care to avoid causing harm to persons whether on or off the premises. The Court of Appeal (Scott, MacKinnon, and du Parcq L.JJ.) reversed this decision, Lord Justice Scott in an elaborately reasoned judgment holding that a person on the premises had, in the absence of any proof of negligence, no cause of action, and that there must be an escape of the damage-causing thing from the premises and damage caused outside before the doctrine customarily associated with the case of Rylands v. Fletcher can apply.
I agree that the action fails. The Appellant was a person present in the factory in pursuance of a public duty (like an ordinary factory-inspector) and was consequently in the same position as an invitee. The Respondents were managers of the factory as agents for the Ministry of Supply and had the same responsibility to an invitee as an ordinary occupier in control of the premises. The duties of an occupier of premises to an invitee have been analysed in many reported cases, but in none of them, I think, is there any hint of the proposition necessary to support the claim of the Appellant in this case. The fact that the work that was being carried on was of a kind which requires special care is a reason why the standard of care should be high, but it is no reason for saying that the occupier is liable for resulting damage to an invitee without any proof of negligence at all.
Blackburn J. in delivering the judgment of the Court of Exchequer Chamber in Fletcher v. Rylands laid down at p.279 of L.R. 1 Exchequer Cases the proposition that "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 peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."
It has not always been sufficiently observed that in the House of Lords, when the appeal from Fletcher v. Rylands was dismissed and Blackburn J.'s pronouncement was expressly approved, Lord Cairns L.C. emphasized another condition which must be satisfied before liability attaches without proof of negligence. This is that the use to which the defendant is putting his land is a "non-natural" use ( L.R.3 H.L. at pp. 338-9). Mr. Justice Blackburn had made a parenthetic reference to this sort of test when he said at p. 280 "it seems but reasonable and just that the neighbour, who has brought something on his own property, which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property".
I confess to finding this test of "non-natural" user (or of bringing on the land what was not "naturally there", which is not the same test) difficult to apply. Blackburn J., in the sentence immediately following that which I have last quoted, treats cattle-trespass as an example of his generalisation. The pasturing of cattle must be one of the most ordinary uses of land, and strict liability for damage done by cattle enclosed on one man's land if they escape thence into the land of another, is one of the most ancient propositions of our law. It is in fact a case of pure trespass to property, and thus constitutes a wrong without any question of negligence. See per Lord Coleridge C.J. in Ellis v. Loftus Iron Co. (1874) L.R.10 C.P.10 at p. 12. The circumstances in Fletcher v. Rylands did not constitute a case of trespass because the damage was consequential, not direct. It is to be noted that all the counts in the Declaration in that case set out allegations of negligence (see L.R.1 Ex.265) but in the House of Lords Lord Cairns begins his opinion by explaining that ultimately the case was treated as determining the rights of the parties independently of any question of negligence.
The classic judgment of Blackburn J., besides deciding the issue before the Court and laying down the principle of duty between neighbouring occupiers of land on which the decision was based, sought to group under a single and wider proposition other instances in which liability is independent of negligence, such for example as liability for the bite of a defendant's monkey, May v. Burdett (1846) 9 Q.B.101; see also the case of a bear on a chain on the defendant's premises, Besozzi v. Harris (1858) 1 F. and F.92. There are instances, no doubt, in our law in which liability for damage may be established apart from proof of negligence, but it appears to me logically unnecessary and historically incorrect to refer to all these instances as deduced from one common principle. The conditions under which such a liability arises are not necessarily the same in each class of case. Lindley L.J. issued a valuable warning in Green v. Chelsea Waterworks Company 70 L.T.547 at p. 549 when he said of Rylands v. Fletcher that that decision "is not to be extended beyond the legitimate principle on which the House of Lords decided it. If it were extended as far as strict logic might require, it would be a very oppressive decision." It seems better, therefore, when a Plaintiff relies on Rylands v. Fletcher, to take the conditions declared by this House to be essential for liability in that case and to ascertain whether these conditions exist in the actual case.
Now the strict liability recognised by this House to exist in Rylands v. Fletcher is conditioned by two elements which I may call the condition of "escape" from the land of something likely to do mischief if it escapes, and the condition of "non-natural use" of the land. This second condition has in some later cases, which did not each this House, been otherwise expressed, e.g. as "exceptional" user, when such user is not regarded as "natural" and at the same time is likely to produce mischief if there is an "escape." Dr. Stallybrass, in a learned article in 3 Cambridge Law Review p. 376, has collected the large variety of epithets that have been judicially employed in this connection. The American Restatement III sect. 519 speaks of "ultra-hazardous activity," but attaches qualifications which would appear in the present instance to exonerate the Respondents.
It is not necessary to analyse this second condition on the present occasion, for in the case now before us the first essential condition of "escape" does not seem to me to be present at all. "Escape", for the purpose of applying the proposition in Rylands v. Fletcher, means escape from a place where the defendant has occupation of, or control over, land to a place...
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