Transco Plc v Stockport Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD HOFFMANN,LORD HOBHOUSE OF WOODBOROUGH,LORD SCOTT OF FOSCOTE,LORD WALKER OF GESTINGTHORPE |
| Judgment Date | 19 November 2003 |
| Neutral Citation | [2003] UKHL 61 |
| Date | 19 November 2003 |
| Court | House of Lords |
[2003] UKHL 61
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Walker of Gestingthorpe
HOUSE OF LORDS
My Lords,
In this appeal the House is called upon to review the scope and application, in modern conditions, of the rule of law laid down by the Court of Exchequer Chamber, affirmed by the House of Lords, in Rylands v Fletcher (1866) LR 1 Exch 265; (1868) LR 3 HL 330.
I need not repeat the summary given by my noble and learned friend Lord Hoffmann of the facts giving rise to the dispute between the parties to this appeal. The salient facts appear to me to be these. As a multi-storey block of flats built by a local authority and let to local residents, Hollow End Towers was typical of very many such blocks throughout the country. It had been built by the respondent council. The block was supplied with water for the domestic use of those living there, as statute has long required. Water was carried to the block by the statutory undertaker, from whose main the pipe central to these proceedings led to tanks in the basement of the block for onward distribution of the water to the various flats. The capacity of this pipe was much greater than the capacity of a pipe supplying a single dwelling, being designed to meet the needs of 66 dwellings. But it was a normal pipe in such a situation and the water it carried was at mains pressure. Without negligence on the part of the council or its servants or agents, the pipe failed at a point within the block with the inevitable result that water escaped. Since, again without negligence, the failure of the pipe remained undetected for a prolonged period, the quantity of water which escaped was very considerable. The lie and the nature of the council's land in the area was such that the large quantity of water which had escaped from the pipe flowed some distance from the block and percolated into an embankment which supported the appellant Transco's 16-inch high-pressure gas main, causing the embankment to collapse and leaving this gas main exposed and unsupported. There was an immediate and serious risk that the gas main might crack, with potentially devastating consequences. Transco took prompt and effective remedial measures and now seeks to recover from the council the agreed cost of taking them.
Few cases in the law of tort or perhaps any other field are more familiar, or have attracted more academic and judicial discussion, than Rylands v Fletcher. This relieves me of the need both to summarise the well-known facts of the case and to rehearse yet again the passages cited by Lord Hoffmann in which Blackburn J (1868) LR 1 Exch 265, 279 and Lord Cairns LC (1868) LR 3 HL 330, 338-339 expressed the ratio of their decisions. I content myself with three points, none of them controversial:
(1) The plaintiff framed his claim as one of negligence: see (1866) LR 1 Exch 265. It was only when a majority of the Court of Exchequer (Pollock CB and Martin B, Bramwell B dissenting: (1865) 3 H & C 774), held against him, ruling that no claim would lie in the absence of negligence, that the plaintiff changed tack and contended that defendants were liable even if negligence could not be established against them.
(2) Blackburn J did not conceive himself to be laying down any new principle of law. When, in Ross v Fedden (1872) 26 LT 966, 968, it was later suggested to him by counsel that the question in Rylands v Fletcher had never been decided until the adjudication of that case, he rejected the suggestion in robust terms. The Lord Chancellor regarded the principles on which the case was to be determined as "extremely simple": (1868) LR 3 HL 330, 338. Had the House regarded the case as raising issues of great moment, steps might no doubt have been taken to assemble a stronger quorum to hear the appeal: see Heuston, "Who was the Third Lord in Rylands v Fletcher?" (1970) 86 LQR 160-165. It seems likely, as persuasively contended by Professor Newark ("The Boundaries of Nuisance" (1949) 65 LQR 480, 487-488), that those who decided the case regarded it as one of nuisance, novel only to the extent that it sanctioned recovery where the interference by one occupier of land with the right or enjoyment of another was isolated and not persistent.
(3) Those involved in Rylands v Fletcher, as counsel or judges, must have been very much alive to the catastrophic results which may ensue when reservoir dams burst. Professor Brian Simpson has drawn attention ("Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v Fletcher" (1984) 13 Journal of Legal Studies 209) to two such catastrophes, one in 1852, some eight years before the inundation of Mr Fletcher's colliery, the second in 1864, after Fletcher's case had been heard at first instance but before the hearing in the three appellate courts. In the Court of Exchequer Chamber, Blackburn J expressly referred to the case of damage done by the bursting of waterworks companies' reservoirs: (1866) LR 1 Exch 265, 270. Lord Cairns, as Sir Hugh Cairns QC, had advised on the payment of compensation when the second disaster occurred. No matter how broadly the principle was expressed when judgment was given, the risk of escape of water from an artificially constructed reservoir was one which the judges must have had vividly in mind. The damage suffered by Fletcher was not the result of a dam failure, but nor was Rylands' reservoir a mere pond: inspecting it before writing his article, Simpson found it still in use, with a capacity of over 4 million gallons and covering 1½ acres when full.
In the course of his excellent argument for the council, Mr Mark Turner QC canvassed various ways in which the rule in Rylands v Fletcher might be applied and developed in future, without however judging it necessary to press the House to accept any one of them. The boldest of these courses was to follow the trail blazed by a majority of the High Court of Australia in Burnie Port Authority v General Jones Property Ltd (1994) 120 ALR 42 by treating the rule in Rylands v Fletcher as absorbed by the principles of ordinary negligence. In reaching this decision the majority were influenced by the difficulties of interpretation and application to which the rule has undoubtedly given rise (pp 52-55), by the progressive weakening of the rule by judicial decision (pp 54-55), by recognition that the law of negligence has been very greatly developed and expanded since Rylands v Fletcher was decided (pp 55-65) and by a belief that most claimants entitled to succeed under the rule would succeed in a claim for negligence anyway (pp 65-67).
Coming from such a quarter these comments of course command respect, and they are matched by expressions of opinion here. Megaw LJ observed in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at 519 that application of the decision and of the dicta in Rylands v Fletcher had given rise to continual trouble in the law of England. In its report on Civil Liability for Dangerous Things and Activities (1970) (Law Com No 32), p 12, para 20(a) the Law Commission described the relevant law as "complex, uncertain and inconsistent in principle". There is a theoretical attraction in bringing this somewhat anomalous ground of liability within the broad and familiar rules governing liability in negligence. This would have the incidental advantage of bringing the law of England and Wales more closely into line with what I understand to be the law of Scotland (see RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SLT 214, 217, where Lord Fraser of Tullybelton described the suggestion that the decision in Rylands v Fletcher had any place in Scots law as "a heresy which ought to be extirpated"). Consideration of the reported English case law over the past 60 years suggests that few if any claimants have succeeded in reliance on the rule in Rylands v Fletcher alone.
I would be willing to suppress an instinctive resistance to treating a nuisance-based tort as if it were governed by the law of negligence if I were persuaded that it would serve the interests of justice to discard the rule in Rylands v Fletcher and treat the cases in which it might have been relied on as governed by the ordinary rules of negligence. But I hesitate to adopt that solution for four main reasons. First, there is in my opinion a category of case, however small it may be, in which it seems just to impose liability even in the absence of fault. In the context of then recent catastrophes Rylands v Fletcher itself was understandably seen as such a case. With memories of the tragedy at Aberfan still green, the same view might now be taken of Attorney General v Cory Brothers and Co Ltd [1921] 1 AC 521 even if the claimants had failed to prove negligence, as on the facts they were able to do. I would regard Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465, and Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 (had there been foreseeability of damage), as similarly falling within that category. Second, it must be remembered that common law rules do not exist in a vacuum, least of all rules which have stood for over a century during which there has been detailed statutory regulation of matters to which they might potentially relate. With reference to water, section 209 of the Water Industry Act 1991 imposes strict liability (subject to certain exemptions) on water undertakers and Schedule 2 to the Reservoirs Act 1975...
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