STRICT LIABILITY UNDER THE LAW OF

NEGLIGENCE NOTES BY MAHAD KM.

53RD CLASS OF LAW, MUK.

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 STRICT LIABILITY
1.1 ITS RATIONALE AND RELATION TO NEGLIGENCE.
Strict liability is such that a defendant is held responsible for any particular fault
occurring in the course of operation but for the inevitable consequences of a
dangerous activity which could be categorised as being negligent on account of
its foreseeably harmful potentialities were it not for the fact that its generally
beneficial character requires us to tolerate it in the public interest.
In one sense, strict liability is but another aspect of negligence, both being based
on responsibility for creation of an abnormal risk. Negligence has however been
concerned about the improper manner of doing things which are safe (and
therefore reasonable) enough when properly carried out and not activities which
remain dangerous despite all reasonable precaution.
Strict liability is imposed on lawful, not reprehensible activities. The activities
that qualify in this regard are those entailing extra-ordinary risk to others, either
in the seriousness or frequency of the harm threatened.
The prevailing opposition to strict liability is linked to the view that the essence
of tort law is corrective justice, i.e. to impose an obligation to repair only a
wrong doer. strict liability is more compatible with an economic policy of
internalising the cost of accident s to an activity best able to reduce accidents
but it substitutes an instrumentalist goal of tort law in which the reason for
imposing liability is not what a defendant has done wrongfully but for
advancing the goal of economic efficiency....
1.2 THE PRINCIPLE IN RYLANDS V FLETCHER.
Case Summary.
The plaintiff (A) was the lessee of mines. the defendant (B), was the owner of a
mill sanding on land adjoining that under which the mines were worked. B
desired to construct a reservoir, and employed competent persons, an engineer
and a c contractor to construct it. A had worked his mines up to a spot where
their certain old passages of disused mines; these passages were connected with
vertical shafts which communicated with the land above, and which had also
been out of use for years, and were apparently filled with marl and the earth of
the surrounding land. No care was taken by the engineer or the contractor to
block up these shafts, and shortly after water had been introduced into the
reservoir, it broke through some of the shafts, flowed through the old passages
and flooded the plaintiff’s mine. A, sued and claimed for damages. The court

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 held that the plaintiff was entitled to recover damages form the defendant in
respect of this injury.
The decision was far more than a summary of the theory underlying the specific
torts. Behind the screen of analogies drawn from existing precedents, the case
created new law by extending the incidence of strict liability to the general
category of all inherently dangerous substances and making the occupier from
whose land they escape responsible even if they had used the utmost care and
diligence in devising means for preventing their escape.
Subsequent interpretation of the decision has emphasised that a defendant
cannot avail himself of the absence of all negligence on his part or of those over
whom he has any measure of control. He is charged with keeping these items at
his peril and excused only for an escape caused by an act of God or the
malicious intervention of strangers.
The decision was startling when viewed against that background and it was
difficult to accept the idea that the construction of a water reservoir was an
outlandish activity fraught with exceptional risk rather than a common place
indispensable undertaking clearly justified on any benefit/cos scale.
Whatever the true reasoning behind/ explanation of the reasons behind the
decision, it found additional favour in recent times among the proponents of
enterprise liability. anyone, they contend whose activity entails exceptional peril
to others notwithstanding all reasonable safety precautions should fairly treat
typical harm resulting from it as a cost item which can be absorbed in pricing
passed to the consumer.
1.3 ELEMENTS OF THE RULE IN RYLANDS V FLETCHER.
They include;
- Non- natural use of land
- Dangerous objects
- Escape of the dangerous objects
- Injury to the plaintiff

a) Non- natural use of land.

Blackburn J’s broad formulation was at the outset substantially qualified by
Lord Cairns’ suggestion in Pett v Simms Paving Company that liability only
applied to damage from a non-natural use of land.

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 In Smith v Kendrick (1849), defendant’s normal operations resulted in
flooding a neighbouring mine through gravitation when the defendant dug holes
in the ordinary course of mining. He was held not to be liable and lord
Crosswell J said that it “it would seem to be the natural right of each of the
owners of the two adjoining coal mines ... to work his own in the manner most
convenient and beneficial to himself. although the natural consequences may be
that some prejudice will accrue to the owner of the adjoining mine, so long as
that does not arise from the neglect or malicious conduct of the party.”
In Baird v Williamson (1863), there was seepage which caused flooding in the
plaintiff’s mine as a result of pumping water to a higher level. The defendant
was held to be liable on the ground that this was not a natural use of land.
 This element at times raises confusion as to whether natural use of land
refers to natural accumulations of water and the like released by a natural
user of land in question or if it extends to artificial accumulations for the
ordinary purpose, which causes the escape.
The privy council in Rickards v Lothian cleared this confusion and adopted
the second meaning that natural use of land extends to artificial accumulations
for ordinary or natural use.
Much of the earlier criticism of the distinction has been discounted but
dispelling the impression that non natural was synonymous with artificial or that
natural meant primitive use (refer to Read v Lyons {1947}).
For now, it is settled that” there must be some special use bringing with it
increased danger to others ... not merely the ordinary use of land or such a use
as is proper for the general benefit of the community”. In applying this
qualification, the courts have looked not only to the thing or activity in question,
but also to the place or manner on which it is maintained and its relation to its
surroundings. Time, place and circumstances, not excluding purpose and
material. The distinction between natural and non-natural use is both relative
and capable of adjustment to the changing patterns of social existence.
He following cases demonstrate how courts have interpreted natural use of land:
- Bayliss v Lea (1962). Here, it was held that accumulation of water for
irrigation purposes is a proper method of using land in an ordinary
manner, at least in a proclaimed irrigation district.
- Michal Chuk v Ratke (1966). In his case, it was held that aerial spraying
of weedkiller next to sensitive crops on neighbouring land presents too

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 great a danger from drift to qualify as “normal” or natural use of land,
however accepted the general practice of applying herbicide.
NB: Natural has long ceased to be linked, if it ever was, to uses of land
appropriate to an agricultural community. Today, it is applied to most
residential, recreational and even many industrial uses. This is demonstrated in
the following cases;
- Rickards v Lothiam (1913). In this case, court here held that it is a
natural use of land to collect water in a cistern or ordinary supply pipes in
a home.
- Torette house v Berkman (1940). The question in this case was whether
water supply in commercial premises was natural use of land. Court held
that it was not.
 The discrimination against use or storage in bulk while primarily
reflecting the excessive danger also promotes a sound distinction between
utilities and private users based on their relative capacity for absorbing
loss. It should be noted that if non- natural user is given too wide a berth,
we end up dismantling most of strict liability. thus, we should be aware of
the proposal that approval of a particular use by a planning authority
automatically qualifies it as a natural use regardless of the risk that it
possesses to the community e.g. nationalised industries like in Dunne v
N.W. Gas Bd (1964) or manufacture of ammunitions in times of war as
said by Lord Cairns and MacMillian in Read v Lyons (1947).

b) Dangerous things /objects

An according to one summation, the only objects that qualify are those which
are both likely to escape and in doing so, they entail exceptional peril to others.
Yet, the category in Rylands v Fletcher has never become so narrowed to that
of inherently dangerous things and this has attracted a stringent duty of care.
In reality, the task of confining strict liability of Rylands v Fletcher to extra
hazardous things has fallen to the criterion of non-natural user rather than any
other distinction based on the quality of a thing looked at in isolation of, without
reference o its quality / environment. The harm done must result from a risk
which called for the imposition of strict liability. Occasionally, non-natural user
has been confused with the distinction between dangerous things and non-
dangerous things.

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 Water, gas, electricity and many other Rylands v fletcher objects are perfectly
usual and to attract the rule, there must be both an extra ordinary use of the land
and the object must, in the circumstances be classified as dangerous.
Halsey v Esso petroleum (1961). Here, the plaintiff lived near the defendant
factory. The factory emitted some chemicals which the plaintiff claimed were
dangerous to his health and damaged his car paint in addition to the noise from
the factory activities. An injunction was granted in favour of the plaintiff
limiting the factory activities in the deep hours of the night from 10pm -6 am.

c) Escape.
The house of Lords in Read v Lyons insisted that there must be an escape of the
dangerous thing from he land under the control of the defendant to a place
outside.
Read v Lyons – the plaintiff was employed by the ministry of supply during
war as an inspector of munitions in the defendant’s factory. Whilst there on
duty, she was injured by an explosion but failed to recover damages by a suit
because she was unable to establish negligence and recourse to strict liability
was precluded for want of an escape. (some people argue that the decision is a
reminder that Rylands v fletcher is a branch of nuisance and leaves negligence
to settle issues of occupiers to persons who suffer injury on their premises).
The escape does not need to be on the plaintiff’s land e.g. in British Celanese v
Hunt (1969) where some material drifted into a power station and interrupted
the electricity supply to the factory nearby. An exception to the strict
requirement of escape from land in occupation of the defendant lies in the
principle that it is not a defence to public utilities and to others who under
license, introduce dangerous substances e.g. gas into mains on or under the
highway from where it escapes by leak or explosion into neighbouring
premises. This was discussed in the case of Midwood v Manchester (1905)

d) Injury to the plaintiff (type and extent)

Lord MacMillian in Read v Lyons questioned whether the rue in Rylands v
Fletcher could support a claim for personal injuries. cases which have held or
assumed that Rylands v Fletcher is applicable to personal injuries may have

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 ignored the requirement of landholding status, but it is possible that an
adjoining occupier might suffer personal injury e.g. in Hale v Jennings (1938).

1.4 DEFENCES TO STRICT LIABILITY.

They include;
- Consent of the plaintiff
- Default of the plaintiff
- Ac of God
- Act of Stanger
- Statutory authority
Consent and default of the plaintiff are merely versions of voluntary
assumptions of risk and contributory negligence under a different name while
act of stranger and act of God complete the circle of returning negligence to
strict liability. The aggregate of these exceptions makes it doubtful whether
there is much left of the rationale of strict liability as originally contemplated in
1866 (Rylands case)
a) CONSENT OF THE PLAINTIFF.
Where the plaintiff impliedly consents to the presence of the source of danger
and there has been no negligence on, the part of the defendant, the defendant is
not liable. e.g. in Gill v Bedouin (1894). The defence illustrates the principle of
volenti non fit injuria.
A basic example of this implied consent is where the different floors in the same
building are occupied by different persons and the tenant of a lower floor suffers
damage as a result of waterer escaping from an upper floor, though it has to be
said that cases which have discussed this defence would, to modern eyes seem
to be a natural use of land.
b) DEFAULT OF THE CLAIMANT.
If the damage is caused solely by the act or default of the claimant himself, he
has no remedy. This defence was noted in Rylands v Fletcher itself. In Lornax
v Stot (1870), it was held that if a person knows that there is d anger of his mine
being flooded by his neighbour’s operations on adjacent land and he courts the
danger by doing some act which renders the flooding probable, then he cannot
complain.
In Ponting v Noakes, the claimant’s horse reached over the defendant’s
boundary, nibbled some poisonous tree there and died accordingly. It was held

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 that the defendant could not recover anything since the damage was due to the
horse’s own intrusion and alternatively, there was no escape of the vegetation.
 NB: If the injury due to escape of the noxious thing would not have
occurred but for unusual entireness of the claimant’s property, there is
some conflict of authority on whether this could be regarded as default of
the claimant.
In Hoare v McAlpine, there were vibrations from pile driving which caused
structural damage to a large hotel on an adjoining land. Astbury J held it to be a
bad plea that the vibrations only had this effect because the building was too old
and he also found that the evidence did no establish that it was in such a
condition.
c) ACT OF GOD.
This applies where the escape is caused directly by natural causes without
human intervention in circumstances which no human foresight can provide
against and of which human prudence is not bound to recognise the possibility.
This was stated in Tennet v Real of Glasgow (1864) and was also recognised in
Rylands v Fletcher.
In Nichols v Marsland (1876), the defendant had been for many years been in
possession of artificial ornamental lakes formed by damming up a natural
stream, an extra ordinary rainfall, greater and more violent than any within the
memory of the witnesses broke down the artificial embarkments and the rush of
the escaping water broke down four bridges hence the suit. Judgement was
entered for the defendant and the jury found that the defendant was not
negligent and court held that she could not to be liable for an extra ordinary
accident of nature which she could not reasonably anticipate.
Whether a particular occurrence is an act of God is a question of fact but courts
nowadays tend to restrict the ambit of the defence not because strict liability is
thought to be desirable but because increased knowledge limits, the
unpredictable.

d) ACT OF A STRANGER.
If the escape was caused by an act of a stranger, the rule does not apply e.g. in
Box v Jubb (1879) where a defendant’s reservoir overflowed partly because of
the acts of a neighbouring reservoir owner and the defendant’s escaped liability.

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 In Rickards v Lothiam, a 3rd person deliberately blocked up the waste pipe of a
lavatory basin in the defendants’ premises thereby flooding the claimant’s
premises. The claimant failed in his suit.
It has been stated by Jenkins LJ in Perry v Kendricks Transport Ltd that the
basis of the defence is the absence of any control by the defendant over the aces
of a stranger on his land and therefore the nature of the stranger’s conduct is
irrelevant.
If the act of the stranger could be reasonably anticipated, or its consequences
prevented, the defendant will still be liable as in the case of Northwestern
utilities v London Guarantee and Accident CO. Ltd (1936)
A stranger is a trespasser and the defendant will be liable for the defaults of his
servants in the course of their employments including independent contractors
unless it is entirely collateral.
If the occupier knew or might with reasonable care have ascertained that the
danger existed, he is liable for the escape as discussed in the case of
Northwestern. v London. & Co. Ld. (1936)
e) STATUTORY AUTHORITY.
The question whether the defence applies or not is a question of construction of
the particular statute concerned. In Green v Chelsea Waterworks, Co. (1894),
a main belonging to a waterworks company which was authorised by parliament
to lay the main, burst without negligence on the part of the company and the
defendant was held not to be liable.

2. LIABILITY FOR FIRE ESCAPE.

The usual remedy available for damage caused by the spread of fire was special
action in trespass on the case for negligently allowing one’s fire to escape.
centuries later, the remedies became available under the rule in Rylands v
Fletcher. The defendant is liable for damage done by fire if it has been caused
wilfully or by his negligence. the criterion for liability is, “did the defendants...
bring to their land things likely to catch fire and keep them there in such
conditions that if they did ignite, the fire would be likely to spread to the
claimant’s land? “This was applied in Mason v Levy auto pars of England ltd
(1967).
Also read Uganda v Wavah Holdings – (which excluded the application of the
fire prevention (Metropolis) Act 1774)

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 3. LIABILITY FOR ANIMALS.
Tort liability for animals may be classified as;
- Liability for cattle trespass
- Liability for dangerous animals (scienter rule)
- Liability for dogs
- Liability in negligence
- Other ways may be in nuisance e.g. in Walwyn v Brookes where it was
held that a keeper of pigs or goats may be liable in private nuisance if the
stench from the animals unreasonably interferes with his neighbour’s
employment of land. One may be liable in public nuisance if he allows
his animals to abstract the highway and cause particular damage to a
plaintiff. one who sets a dog upon a person deliberately will be liable in
battery as if he had struck that person with a blow using a fist.
3.1. LIABILITY FOR CATTLE TRESSPASS
Cox v Burbidge (1863). In this case, it was stated that, “if I am the owner of an
animal which by law the right of property can exist, I am bound to take care that
it does no say on the land of my neighbour and I am liable for any trespass it
may commit and for the ordinary consequences of is trespass. Whether or not
the escape of the animal is due to my negligence is altogether immaterial”.
Cattle at common law excludes dogs but includes the other domestic animals
with similar characteristics like cattle. Damages recoverable are not only hose
for harm to the plaintiff’s; and but also for injury to his animals, chattels and
injuries inflicted upon the person of the plaintiff themselves.
East Coast Estates ltd v Singh (1964). Here, the defendant alleged that he was
driving his cattle along his road, it began to rain and he took the animals to a
nearby common whence from which they escaped it the plaintiff’s land and they
damages the grass that the plaintiff was cultivating. It was held that liability in
cattle trespass is strict and the defendant was a liable irrespective of any
intention / negligence on his part.
 As in other forms of trespass to land, the right to sue only arises from
occupation of land and only a person with a possessory interest in land
can sue.
In Aziz v Singh (1944), the plaintiff tied his cattle on land possessed by Y but
owned by the plaintiff. Therefore, the plaintiff’s claim against the defendant
failed.

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 At common law, there is no liability for cattle trespass where animals lawfully
on the highway, without negligence on the part of the person bringing them
there, stray therefore on to the plaintiff’s land and do damage. (read Tillet v
Ward [ 1882]).

3.2 . LIABILITY FOR DANGEROUS ANIMALS.

Animals are classified into two categories;
- Animals ferae naturae – ie belonging to a naturally fierce wild or
dangerous species g lions and elephants.
- Animals mansueae naturae – i.e. belonging to a naturally tame, harmless
and domesticated species e.g. cows.
The keeper/owner of animals in category 1 is strictly liable for any harm which
he animal causes regardless of whether it had earlier on shown any propensity
for that kind of harm. Therefore, in Behrens v Bertram Mills Circus (1957),
the defendant was held liable as keepers of a tame elephant in a circus when it
knocked and injured the plaintiff.
The owner of an animal in category 2 is liable for any harm caused by the
animal only if;
- The particular animal has shown propensity in the past to do harm of that
kind; and
- The owner is proved to have had knowledge of such propensity.
This is the scienter rule. And the following are the principles of liability under
scienter;
(a) Whether an animal is in category 1 or 2 is a question of law to be
determined by the judge using judicial notice or expert evidence.
(b) The requisite knowledge of an animal’s vicious propensity must relate to
the particular propensity that damage cause by attacking people is
different from attacking a person.
(c) In establishing scienter, it is not necessary to show that the animal had
actually done the particular type of damage on a previous occasion. It is
sufficient to prove that it exhibited a tendency to do that kind of harm e.g.
a dog rushing out of a kennel to chase people.
(d) Knowledge of the animal’s vicious propensity will be imputed to the
defendant where it is acquired by somebody to whom the defendant
delegated full custody or control of the animal (Baldwin v Casella

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 [1872]) or at times knowledge gained by a third party e.g. the wife of the
animal keeper or servant on the premises where it is kept.
(e) For purposes of scieter action, it is immaterial where the attack takes
place (premises)
(f) In the case of harm caused by an animal mansuetae naturae, the
propensity of the animal must be shown to be vicious/hostile i.e. there is
no liability where, in causing the harm, the animal was displaying a
natural as opposed to mischievous propensity e.g. in McIntosh v
McIntosh (1963).

 PARTIES TO A SUIT UNDER SCIENTER.

Liability under the scienter rule rests upon who harbours and controls the
animal. The owner may be the keeper but no necessarily so hence in McKone v
Wood (1831), an occupier who took care of a vicious dog left on the premises
by a previous tenant was held liable for its damage. However, an occupier
tolerating somebody’s animal does not make them responsible e.g. in North v
Wood, a father was not held liable for an injury inflicted by a dog owned and
fed by his eleven-year-old daughter.

 DEFENCES.
- Default of the plaintiff
- Contributory negligence
- Volenti non fit injuria e.g. persons whose livelihood is to deal with
dangerous animals like zoo keepers, animal trainers, etc.

3.3 ORDINARY LIABILITY FOR ANIMALS /LIABILITY FOR

NEGIGENCE
In most cases, it will be un necessary to use negligence but where an action
under cattle trespass and scienter rule are unavailable, the plaintiff may recover
under negligence e.g. in Draper v Hodder (1972). In this case, Jack Russell
terrier dogs attacked an infant and injured them. The claim could not succeed
under cattle trespass since dogs do not fall under the category of cattle and not
scienter because he could not prove that the defendant had knowledge of the
vicious propensity of the dogs. He however succeeded in negligence on the
ground that the defendant ought to have known or knew that jack Russell terries
could be dangerous if allowed to roam in packs.

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 In an action based upon such breach of a duty of care, the ordinary rules in
negligence apply. There is abundant authority to show that the actions for
negligence for harm done through animals is quite distinct from cattle trespass
and action under scienter rule. In one respect however, common law failed to
extend principles of negligence cases to cases involving tame animals e.g. it was
a rule that if animals strayed from an adjacent land onto the highway, neither the
owner of the animals nor the occupier of the land was liable for the ensuing
damage even if it could be prevented by controlling the animals or fencing. This
was in Searle v Wallbank (1947).

4. NUISANCE.
The term is used in popular speech to mean any inconvenience or annoyance.
Nuisance is divided into public nuisance ad private nuisance. Public nuisance
represents a rather unsuccessful attempt to link criminal law with damages
while private nuisance is about protecting landholding rights. The remedies
available in an action under nuisance are; damages, an injunction to restrain
from further nuisance and abatement.
4. 1 Public nuisance.
This is committed where one person carries on some harmful activity which
affects the general public or a section of the public. Public nuisance is generally
a crime actionable under criminal law. Many the public nuisance acts have been
codified into statutory offences under the penal code act, the environment act
and other related statutes. Public nuisance is a tort actionable by an individual
where he can show that the defendant’s conduct has caused him “particular”
damage over and above the that which is suffered by the general public. There
are varying opinions as to the meaning as to the meaning of particular damage.
One view is that the plaintiff must show that he has suffered damage which is
different in kind and not just in degree from that suffered by the general public
(Stein v Gonzales [1985]).
Another view is that it is sufficient for the plaintiff to show that he has suffered
damage which is appreciably greater in degree that any suffered by the general
public (Ricket v Metropolitan Railway Company [1867]).
To sue in public nuisance, it is no necessary for one to have an interest in land.
The same state of affairs may constitute both torts and a private nuisance in so
far as A suffers interference with the enjoyment of land and a public nuisance in
so far as B suffers some special damage. Hence, in Chandat v Reynolds
Guyana Mines Ltd [1973], plaintiff farmers adduced evidence that their crops

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 had been damaged by dust escaping from the defendant’s bauxite works but
they were un able to recover damages individually because no one could prove
particular damage as required.

4.2 Private nuisance.

This may be described as and is built on unlawful interference with a person’s
use or enjoyments of land or some right over or in connection with it. (Read v
Lyons [1945])
The tort takes three forms i.e. encroachment on one’s land, direct /physical
injury to the land and interreference with the enjoyment of the land. Not every
slight annoyance is actionable. many things amount to nuisance e.g. stenches,
smoke, etch but it will depend on a variety of considerations especially the
character of the defendant’s conduct and a balancing of conflicting interests.
The rule is sic utere tuo uy alienum no laedas i.e. use your own property in such
a way as not to harm that of others.

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