READ v. J. LYONS AND COMPANY LIMITED.
Viscount Simon
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 Respon-
dents 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has been expressly withdrawn before this House by the Attorney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 judg-
ment 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 result-
ing damage to an invitee without any proof of negligence at all.
Blackburn J. in delivering the judgment of the Court of Ex-
chequer 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 bring-
ing on the land what was not ” naturally there “, which is not
the same test) difficult to apply. Blackburn J., in the sen-
tence 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 y.
Lojtus 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 in-
stances 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 neces-
sarily 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 reach this House, been otherwise expressed, e.g. as ” excep-
tional ” 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
[3] 3
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 which is outside his occupation or
control. Blackburn J. several times refers to the defendant s duty as
being the duty of ” keeping a thing in ” at the defendant’s peril
and by ” keeping in ” he does not mean preventing an explosive
substance from exploding but preventing a thing which may inflict
mischief from escaping from the area which the Defendant occupies
or controls. In two well-known cases the same principle of strict
liability for escape was applied to defendants who held a franchise
to lay pipes under a highway and to conduct water (or gas) under
pressure through them (Charing Cross Electric Co. v. Hydraulic
Power Co. [1914] 3 K.B. 772; Northwestern Utilities Ltd. v.
London Guarantee etc. Co. [1936] A.C. p. 108).
In Howard V. Furness Houlder Argentine Lines Ltd. (41 Com-
mercial Cases 290 at p. 296) Lewis J. had before him a case of
injury caused by an escape of steam on board a ship where the
Plaintiff was working. The learned Judge was, I think, right in
refusing to apply the doctrine of Rylands v. Fletcher on the ground
that the injuries were caused on the premises of the defendants.
Apart altogether from the Judge’s doubt (which I share) whether
the owners of the steamship by generating steam therein are making
a non-natural use of their steamship, the other condition upon
which the proposition in Rylands v. Fletcher depends was not
present any more than it is in the case with which we have now to
deal. Here there is no escape of the relevant kind at all and the
Appellant’s action fails on that ground.
In these circumstances it becomes unnecessary to consider other
objections that have been raised, such as the question whether the
doctrine of Rylands v. Fletcher applies where the claim is for
damages for personal injury as distinguished from damages to
property. It may be noted, in passing, that Blackburn J. himself
when referring to the doctrine of Rylands v. Fletcher in the later-
case of Cattle v. Stockton Waterworks (1875) L.R. 10 Q.B. 453
leaves this undealt with: he treats damages under the Rylands v.
Fletcher principle as covering damages to property, such as work-
men’s clothes or tools, but says nothing about liability for personal
injuries.
On the much litigated question of what amounts to ” non-
natural ” use of land, the discussion of which is also unnecessary
in the present Appeal, I content myself with two further observa-
tions. The first is that when it becomes essential for the House to
examine this question it will, I think, be found that Lord Moulton’s
analysis in delivering the judgment of the Privy Council in Richards
v. Lothian [1913] A.C.263 is of the first importance. The other
observation is as to the decision of this House in Rainham Chemical
Works Ltd. v. Belvedere Fish Guano Company [1921] 2 A.C.465,
to which the Appellant’s Counsel in the present case made consider-
able reference in support of the proposition that manufacturing
explosives was a ” non-natural ” use of land. This was a case of
damage to adjoining property: it is reported in the Court of Appeal
in [1920] 2 K.B. 487 and in the Court of First Instance, where it
was tried by Lord Justice Scrutton sitting as an additional Judge of
the King’s Bench Division, in 123 L.T. 211. I find in Lord Justice
Scrutton’s judgment that he understood it to be admitted
before him ” that the person in possession of, and responsible
” for, the D.N.P. was liable, under the doctrine of Rylands v.
4 [4]
“Fletcher for the consequences of its explosions”. The point
therefore was not really open for argument to the contrary
before the House of Lords, where Lord Carson begins his opinion
by stating that it was not seriously argued, and that the real point
to be determined was as to the liability of two Directors of the
Appellant’s company. The opinion of Lord Buckmaster, which
covers many pages, is almost exclusively concerned with establish-
ing the Directors’ liability, and on the other point his observation
merely is that the making of munitions ” was certainly not the
” common and ordinary use of the land “. I think it not improper
to put on record, with all due regard to the admission and dicta
in that case, that if the question had hereafter to be decided whether
the making of munitions in a factory at the Government’s request
in time of war for the purpose of helping to defeat the enemy is a
” non-natural ” use of land, adopted by the occupier ” for his own
” purposes “, it would not seem to me that the House would be
bound by this authority to say that it was. In this appeal the
question is immaterial, as I hold that the Appellant fails for the
reason that there was no ” escape ” from the Respondents’ factory.
I move that the Appeal be dismissed with costs.
Viscount
Simon
Lord
Macmillan
Lord
Porter
Lord
Simonds
Lord
Uthwatt
[5]
Lord Macmillan
MY LORDS,
Nothing could be simpler than the facts in this appeal; nothing
more far-reaching than the discussion of fundamental legal
principles to which it has given rise.
The Plaintiff, while employed as an inspector by the Ministry
of Supply at the Elstow Ordnance Factory in Bedfordshire, where
the Defendants were engaged in the manufacture of high explosive
shells for the Government, was injured by an explosion in the
filling shop. She sued the Defendants for damages. In her state-
ment of claim she made no allegation of negligence on the part
of the Defendants. All that she averred was that the Defendants
were engaged in the manufacture of high explosive shells in
premises occupied by them, that the Defendants knew that high
explosive shells were dangerous things, and that while she was on
their premises in the course of her .duties a high explosive shell
exploded and caused her injury. For aught that appears the
explosion may have been a pure accident for which no one was to
blame.
The trial Judge (Cassels J.) found for the Plaintiff. He relied
mainly on the doctrine formulated in the well-known and much-
discussed case of Rylands v. Fletcher, 1866, L.R. 1 Ex. 265; 1868,
3 E. & I. Apps. 330, and on the decision of this House in Rainham
Chemical Works v. Belvedere Fish Guano Co. [1921], 2 A.C. 465.
The Court of Appeal unanimously reversed the judgment of the
trial Judge and entered judgment for the Defendants. The Plaintiff
with the leave of the Court of Appeal has now brought her case to
your Lordships’ Bar.
In my opinion the Plaintiff’s statement of claim discloses no
ground of action against the Defendants. The action is one of
damages for personal injuries. Whatever may have been the law
of England in early times I am of opinion that as the law now stands
an allegation of negligence is in general essential to the relevancy
of an action of reparation for personal injuries. The gradual
development of the law in the matter of civil liability is discussed
a nd traced by the late Sir William Holdsworth with ample learning
and lucidity in the eighth volume of his History of English Law,
pp. 446 et seq., and need not here be rehearsed. Suffice it to say
that the process of evolution has been from the principle that every
man acts at his peril and is liable for all the consequences of his
acts to the principle that a man’s freedom of action is subject only
to the obligation not to infringe any duty of care which he owes
to others. The emphasis formerly was on the injury sustained,
and the question was whether the case fell within one of the
accepted classes of common law actions; the emphasis now is on
the conduct of the person whose act has occasioned the injury,
and the question is whether it can be characterised as negligent.
I do not overlook the fact that there is at least one instance in the
present law in which the primitive rule survives, namely in the
case of animals ferae naturae or animals mansuetae naturae which
have shown dangerous proclivities. The owner or keeper of such
an animal has an absolute duty to confine or control it so that
it shall not do injury to others and no proof of care on his part
will absolve him from responsibility. But this is probably not so
much a vestigial relic of otherwise discarded doctrine as a special
rule of practical good sense. At any rate, it is too well established
to be challenged. But such an exceptional case as this affords no
justification for its extension by analogy.
The appellant in her printed case in this House thus poses the
question to be determined: ” Whether the manufacturer of high
’ explosive shells is under strict liability to prevent such shells
A3
2 [6]
” from exploding and causing harm to persons on the premises
” where such manufacture is carried on as well as to persons out-
” side such premises “. Two points arise on this statement of the
question. In the first place the expression ” strict liability “, though
borrowed from authority, is ambiguous. If it means the absolute
liability of an insurer irrespective of negligence, then the answer
in my opinion must be in the negative. If it means that an exacting
standard of care is incumbent on manufacturers of explosive shells
to prevent the occurrence of accidents causing personal injuries, I
should answer the question in the affirmative, but this will not
avail the plaintiff. In the next place, the question as stated would
seem to assume that liability would exist in the present case to
persons injured outside the defendants’ premises without any
proof of negligence on the part of the defendants. Indeed Mr.
Justice Cassels in his judgment records that ” it was not denied
” that if a person outside the premises had been injured in the
” explosion the defendants would have been liable without proof
” of negligence”. I do not agree with this view. In my opinion
persons injured by the explosion inside or outside the defendants’
premises would alike require to aver and prove negligence in order
to render the defendants liable.
In an address characterised by much painstaking research
Mr. Paull for the plaintiff sought to convince your Lordships that
there is a category of things and operations dangerous in them-
selves and that those who harbour such things or carry on such
operations in their premises are liable apart from negligence for
any personal injuries occasioned by these dangerous things or
operations. I think that he succeeded in showing that in the case
of dangerous things and operations the law has recognised that
a special responsibility exists to take care. But I do not think
that it has ever been laid down that there is absolute liability apart
from negligence where persons are injured in consequence of the
use of such things or the conduct of such operations. In truth
it is a matter of degree. Every activity in which man engages is
fraught with some possible element of danger to others.
Experience shows that even from acts apparently innocuous
injury to others may result. The more dangerous the act the greater
is the care that must be taken in performing it. This relates itself
lo the principle in the modern law of torts that liability exists only
for consequences which a reasonable man would have foreseen.
One who engages in obviously dangerous operations must be taken
to know that if he does not take special precautions injury to others
may very well result.
In my opinion it would be impracticable to frame a legal classi-
fication of things as things dangerous and things not dangerous,
attaching absolute liability in the case of the former but not in the
case of the latter. In a progressive world things which at one time
were reckoned highly dangerous come to be regarded as reasonably
safe. The first experimental nights of aviators were certainly
dangerous but we are now assured that travel by air is little if at
all more dangerous than a railway journey.
Accordingly I am unable to accept the proposition that in law
the manufacture of high explosive shells is a dangerous operation
which imposes on the manufacturer an absolute liability for any
personal injuries which may be sustained in consequence of his
operations. Strict liability, if you will, is imposed upon him in
the sense that he must exercise a high degree of care, but that is
all. The sound view, in my opinion, is that the law in all cases
exacts a degree of care commensurate with the risk created.
It was suggested that some operations are so intrinsically
dangerous that no degree of care however scrupulous can prevent
the occurrence of accidents, and that those who choose for their
[7] 3
own ends to carry on such operations ought to be held to do so
at their peril. If this were so, many industries would have a serious
liability imposed on them. Should it be thought that this is a
reasonable liability to impose in the public interest, it is for
Parliament so to enact In my opinion it is not the present law
of England.
The mainstay of Mr. Paull’s argument was his invocation of the
doctrine of Rylands v. Fletcher, and especially the passage in the
judgment of Blackburn, J., so often quoted, approved and followed.
Adopting and adapting the language of Mr. Justice Blackburn he
said that the defendants here brought on their lands and collected
and kept there things likely to do mischief. But the immediately
following words used by that eminent Judge did not suit so well,
for, according to him the things must be things likely to do mischief
if they escape, and the duty is to keep them in at peril. In the
present case it could not be said that anything had escaped from
the defendants’ premises or that they had failed in keeping in any-
thing. Mr. Paull was accordingly constrained to paraphrase the
words of Mr Justice Blackburn and read them as if he had said
” likely to do mischief if not so controlled as to prevent the possi-
” bility of mischief “. He invoked, as did Mr. Justice Blackburn,
the case of straying cattle as an illustration of such liability. That
again, in my opinion, is a special survival with an historical
background and affords no analogy to the present case.
The doctrine of Rylands v. Fletcher, as I understand it, derives
from a conception of the mutual duties of adjoining or neighbour-
ing landowners, and its congeners are trespass and nuisance. If its
foundation is to be found in the injunction sic utere tuo ut alienum
non laedas, then it is manifest that it has nothing to do with
personal injuries. The duty is to refrain from injuring not alium
but alienum. The two prerequisites of the doctrine are that there
must be the escape of something from one man’s close to another
man’s close and that that which escapes must have been brought
upon the land from which it escapes in consequence of some non-
natural use of that land, whatever precisely that may mean.
Neither of these features exists in the present case. I have already
pointed out that nothing escaped from the defendants’ premises,
and were it necessary to decide the point I should hesitate to hold
that in these days and in an industrial community it was a non-
natural use of land to build a factory on it and conduct there the
manufacture of explosives. I could conceive it being said that to
carry on the manufacture of explosives in a crowded urban area
was evidence of negligence, but there is no such case here and I
offer no opinion on the point.
It is noteworthy in Rylands v. Fletcher that all the counts in the
declaration alleged negligence, and that on the same page of the
report on which his famous dictum is recorded (p. 279) Mr. Justice
Blackburn states that ” the plaintiff must bear the loss,
” unless he can establish that it was the consequence of some default
” for which the defendants are responsible “. His decision for the
plaintiff would thus logically seem to imply that he found some
default on the part of the defendants in bringing on their land and
failing to confine there an exceptional quantity of water. Notwith-
standing the width of some of the pronouncements, particularly
on the part of Lord Cranworth, I think that the doctrine of
Rylands v. Fletcher when studied in its setting is truly a case on
the mutual obligations of the owners or occupiers of neighbouring
closes and is entirely inapplicable to the present case, which is
quite outside its ambit.
It remains to say a word about the case of Rainham Chemical
Works. There are several features to be noted. Perhaps most
important is the fact that the application of the doctrine of Rylands
v. Fletcher was not contested except on the ground that it was
4 [8]
not non-natural to use land in war-time for the manufacture of
explosives. At p. 491 Lord Carson says that the liability of the
defendant company ” was not seriously argued “. In the next
place it was a case of damage to adjoining property. The explosion
caused loss of life, but we find nothing in the case about any claim
for personal injuries. It is true that Lord Buckmaster at p. 471
states (what was not contested, except to the limited extent I have
indicated) that the use of the land for the purpose of making
munitions was ” certainly not the common and ordinary use of the
” land ” and thus brought the case within the doctrine of Rylands v.
Fletcher, but that was a finding of fact rather than of law. In his
enunciation of the doctrine he clearly confines it to the case of
neighbouring lands. And the case is open to this further observa-
tion, that the real contest was not whether there was liability but
who was liable, in particular whether two directors of the company
which was carrying on the manufacture of munitions were in the
circumstances liable as well as the company itself. The case clearly
affords no precedent for the present plaintiff’s claim.
Your Lordships’ task in this House is to decide particular cases
between litigants and your Lordships are not called upon to
rationalize the law of England. That attractive if perilous field
may well be left to other hands to cultivate. It has been necessary
in the present instance to examine certain general principles
advanced on behalf of the appellant because it was said that
consistency required that these principles should be applied to the
case in hand. Arguments based on legal consistency are apt to
mislead, for the common law is a practical code adapted to deal
with the manifold diversities of human life, and as a great American
Judge has reminded us ” the life of the law has not been logic; it
” has been experience “. For myself I am content to say that in
my opinion no authority has been quoted from case or text-book
which would justify your Lordships, logically or otherwise, in
giving effect to the appellant’s plea. I should accordingly dismiss
the appeal.
Viscount
Simon
Lord
Macmillan
Lord
Porter
Lord
Simonds
Lord
Uthwatt
33917
[9]
Lord Porter
MY LORDS,
The point for decision by Your Lordships in this case may be
stated in a sentence. It is, are the occupiers of a munitions factory
liable to one of those working in that factory who is injured in the
factory itself by .an explosion occurring there without any
negligence on the part of the occupiers or their servants.
Normally at the present time in an action of tort for personal
injuries if there is no negligence there is no liability.
To this rule however the appellant contends that there are
certain exceptions, one of the best known of which is to be found
under the principle laid down in Rylands v. Fletcher, L.R. 3 H.L.
330. The Appellant relied upon that case and naturally put it in
the forefront of his argument.
To make the rule applicable, it is at least necessary for the person
whom it is sought to hold liable to have brought on to his premises
or at any rate to some place over which he has a measure of
control, something which is dangerous in the sense that, if it escapes,
it will do damage. Possibly a further requisite is that to bring
the thing to the position in which it is found is to make a non-
natural use of that place. Such at any rate appears to have been
the opinion of Lord Cairns, and this limitation has more than once
been repeated and approved—see Richards v. Lothian [1913]
A.C. 280 per Lord Moulton. Manifestly these requirements must
give rise to difficulty in applying the rule in individual cases and
necessitate at least a decision as to what can be dangerous and
what is a non-natural use. Indeed there is a considerable body of
case law dealing with these questions and a series of findings or
assumptions as to what is sufficient to establish their existence.
Amongst dangerous objects have been held to be included, gas,
explosive substances, electricity, oil, fumes, rusty wire, poisonous
vegetation, vibrations, a flag-pole and even dwellers in caravans.
Furthermore in Musgrove v. Pandelis, [1919] 2 K.B. 43, it was held
that a motor car brought into a garage with full tanks was a
dangerous object, a conclusion which, as Romer, L.J. pointed out
in Collingwood v. Home and Colonial Stores, 155 L.T. 550, involves
the propositions that a motor car is a dangerous thing to bring
into a garage and that the use of one’s land for the purpose of
erecting a garage and keeping a motor car there is not an ordinary
or proper use of the land.
My Lords, if these questions ever come directly before this House
it may become necessary to lay down principles for their
determination.
For the present I need only say that each seems to be a question
of fact subject to a ruling of the Judge as to whether the particular
object can be dangerous or the particular use can be non-natural,
and in deciding this question I think that all the circumstances of
the time and place and practice of mankind must be taken into
consideration, so that what might be regarded as dangerous or
non-natural may vary according to those circumstances.
I do not however think that it is necessary for Your Lordships
to decide these matters now, inasmuch as the defence admits that
high explosive shells are dangerous things and, whatever view may
be formed as to whether the filling of them is or is not a non-natural
use of land, the present case can, in my opinion, be determined
upon a narrower ground.
In all cases which have been decided, it has been held necessary,
in order to establish liability that there should have been some
form of escape from the place in which the dangerous object has
been retained by the defendant to some other place not subject
to his control.
a5
2 [10]
In Rylands v. Fletcher (sup.) it was water, in Rainham Chemical
Works v. Belvedere, [1921] 2 A.C. 465, it was explosive matter, in
National Telephone Company v. Baker, [1893] 2 Ch. 186, it was
electricity, in Northwestern Utilities v. London Guarantee and
Accident Company, [1936] AC 108, it was gas which escaped from
the defendants mains into property belonging to the plaintiff, and
so on in the other instances. In every case, even in Charing Cross
Electricity Supply Company v. Hydraulic Power Company,
[1914] 3 K.B. 772, there was escape from the container in which
the defendants had a right to carry the dangerous substance, and
which they had at least a licence to use, and also an escape into
property over which they had no control.
Such escape is, I think, necessary if the principle of Rylands v.
Fletcher (sup.) is to apply. The often quoted words of Blackburn J.
in that case in the Court of Exchequer, L.R. 1 Exch. 265 at p. 280,
are: ” 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 to 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.”
and in Howard v. Houlder Lines Limited, 41 Com. Cas. 290,
Lewis J. so decided in a judgment with the result of which I agree.
The limitations within which the judgment of Blackburn J.
confines the doctrine have all been the subject of discussion, more
particularly as to who is a neighbour, whether knowledge of the
danger is a condition of liability and how far personal injuries are
covered, but I know of no case where liability was imposed for
injury occurring on the property in which the dangerous thing was
confined.
It was urged upon Your Lordships that it would be a strange
result to hold the respondents liable if the injured person was just
outside their premises but not liable if she was just within them.
There is force in the objection, but the liability is itself an
extension of the general rule and in my view it is undesirable to
to extend it further. As Lindley L.J. said in Green v. Chelsea
Waterworks Company, 70 L.T. 547 at p. 549, ‘ That case”
(Rylands v. Fletcher] ” 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.”
Much of the width of principle which has been ascribed to it is
derived not from the decision itself but from the illustrations by
which Blackburn J. supported it. Too much stress must not in
my opinion be laid upon these illustrations. They are but
instances of the application of the rule of strict liability, having for
the most part separate historical origins, and though they support
the view that liability may exist in cases where neither negligence,
nuisance nor trespass are to be found, yet it need not as I think
necessarily be said’ that they form a separate coherent class, in
which liability is created by the same elements throughout.
I would add that in considering the matter now in issue before
Your Lordships it is not in my view necessary to determine
whether injury to the person is one of those matters in respect of
which damages can be recovered under the rule. Atkinson J.
thought it was—see Shiftman v. Order of St. John (1936), 1 A.E.R.
557, and the language of Fletcher Moulton L.J. in Wing v. London
General Omnibus Company, [1909] 2 K.B. 652, where he says at
p. 665:” This cause of action is of the type usually described by
” reference to the well-known case of Rylands v. Fletcher (sup.).
” For the purpose of today it is sufficient to describe this class of
” actions as arising out of cases where by excessive use of some
[11] 3
” private right a person has exposed his neighbour’s property or
” person to danger “, is to the same effect and, although the jury
found negligence on the part of the defendants in Miles v. Forest
Rock Granite Company Limited, (1918) 34 T.L.R. 500, the Court
of Appeal applied the rule in Rylands v. Fletcher (sup.) in support
of a judgment in favour of the plaintiff for £850 in respect of
personal injuries.
Undoubtedly the opinions expressed in these cases extend the
application of the rule, and may some day require examination.
For the moment it is sufficient to say that there must be escape
from a place over which a defendant has some measure of control
to a place where he has not.
In the present case there was no such escape and I would
dismiss the Appeal.
[12]
Viscount
Simon
Lord
Macmillan Lord
Porter
Lord
Simonds
Lord
Uthwatt
Lord Simonds
MY LORDS,
It is undeniable that this appeal raises a question of great
importance in the law of tort. But I have no doubt how it should
be answered and I hope that I shall not be thought wanting in
respect to the learned Judge who heard the case or to the careful
and far-ranging argument of counsel for the Appellant if I do not
deal with every point that has been raised.
The Appellant claims damages from the Respondents for
personal injuries received by her in consequence of an explosion
upon their premises on the 31st August, 1942, and founds her
claim upon the following pleas: that the Respondents were at
all material times the occupiers of certain premises known as the
Elstow Ordnance Factory, that at the said premises the Respon-
dents carried on the manufacture of high explosive shells which
were to their knowledge dangerous things, and that, she was law-
fully in a shell filling shop at the said premises when a high
explosive shell exploded whereby she suffered injuries, loss, and
damage.
My Lords, it does not surprise me that the Respondents defended
the action by pleading that the statement of claim disclosed no
cause of action. For, be it observed, the Appellant did not allege
negligence on the part of the Respondents. That was not an issue
in the case. Boldly she averred and by her counsel maintained
the averment before this House, that he who lawfully carries on
the business of manufacturing high explosive shells upon his
premises is, without proof of negligence, liable to any person law-
fully upon those premises who suffers damage by reason of an
explosion. For, she said, high explosive shells are ” dangerous
“things” and the Respondents knew it. My Lords, there is, I believe,
no justification for such a proposition of law nor was any authority
cited for it. The approach to it was ingenious, for in the Appellant’s
formal case the question was thus stated ” Whether the manu-
” facturer of high explosive shells is under strict liability to
” prevent such shells from exploding and causing harm to persons
” on the premises where such manufacture is carried on as well
” as to persons outside such premises.” The question thus
stated assumes that, if the Appellant had been outside the
premises when she was damaged by the explosion, she would
have had a cause of action, and for this assumption it is clear that
Rainham Chemical Works Ltd. v. Belvedere Fish Guano Company
Ltd., 1921 2 A.C. 465, is relied on. That case is an authority binding
on your Lordships for whatever it decided, but two things at least
it did not decide, the first that which is indicated in the question
that I have cited, viz. whether the Respondents have the same
liability to those within as to those outside their premises, the
second that the liability, to whomsoever it may be owed,
extends to purely personal injuries such as the Appellant
suffered. Holding the view that I do upon the first question I
think it inexpedient to express a final view upon the second, but I
would not be taken as assenting to the proposition that if, e.g., the
plaintiff in Rainham’s case had been a natural person who had
suffered personal injury the result would necessarily have been
the same.
I turn then to the first question, which raises the familiar problem
of strict liability, a phrase which I use to express liability without
proof of negligence. Here is an age-long conflict of theories which
is to be found in every system of law. ” A man acts at his peril ”
says one theory. ” A man is not liable unless he is to blame ”
answers the other. It will not surprise the students of English law
or of anything English to find that between these theories a middle
way, a compromise, has been found. For it is beyond question
[13] 2
that in respect of certain acts a man will be liable for the harmful
consequences of those acts, be he never so careful, yet in respect
of other acts he will not be liable unless he has in some way fallen
short of a prescribed standard of conduct. It avails not at all to
argue that because in some respects a man acts at his peril, there-
fore in all respects he does so. There is not one principle only
which is to be applied with rigid logic to all cases. To this result
both the infinite complexity of human affairs and the historical
development of the forms of action contribute.
The House has had the advantage not only of an exhaustive
argument in which a large number of cases were cited and dis-
cussed and many authoritative text books and articles quoted,
but also of careful and elaborate judgments in the Courts below,
and I am left with the impression that it would be possible to find
support in decision or dictum or learned opinion for almost any
proposition that might be advanced. Yet I would venture to say
that the law is that, subject to certain specific exceptions which I
will indicate, a man is not in the absence of negligence liable in
respect of things, whether they are called dangerous or not, which
he has brought or collected or manufactured upon his premises,
unless such things escape from his premises and, so escaping,
injure another, and, as I have already said, I would leave it open
whether even in the event of such escape he is liable (still in the
absence of negligence) for personal injury as distinguished from
injury to some proprietary interest.
My Lords, in this branch of the law it is inevitable that reference
should be made to what Blackburn J. said in Fletcher v. Rylands
and what Lord Cairns said in Rylands v. Fletcher. In doing so
1 think it is of great importance to remember that the subject matter
of that action was the rights of adjoining landowners and, though
the doctrine of strict liability there enforced was illustrated by
reference to the responsibility of the man who keeps beasts, yet
the defendant was held liable only because he allowed, or did
not prevent, the escape from his land onto the land of the plaintiff
of something which he had brought onto his own land and which
he knew or should have known was liable to do mischief if it
escaped from it. I agree with the late Lord Justice MacKinnon
that this and nothing else is the basis of the celebrated judgment
of Blackburn J., and I think it is no less the basis of Lord Cairns’
opinion. For it is significant that he emphasises that, if the
accumulation of water (the very thing which by its escape in that
case caused the actionable damage) had arisen by the natural user
of the defendant’s land, the adjoining owner could not have
complained. The decision itself does not justify the broad pro-
position which the appellant seeks to establish, and I would
venture to say that the word ” escape ” which is used so often in
the judgment of Blackburn J. meant to him escape from the
defendant’s premises and nothing else. It has been urged that
escape means escape from control, and that it is irrelevant where
damage takes place if there has been such an escape, but, though
it is arguable that that ought to be the law, I see no logical
necessity for it and much less any judicial authority. For, as I
have said, somewhere the line must be drawn unless full rein be
given to the doctrine that a man acts always at his peril, that
” coarse and impolitic idea ” as Mr. Justice Holmes somewhere
calls it. I speak with all deference of modern American text books
and judicial decisions, but I think little guidance can be obtained
from the way in which this part of the common law has developed
on the other side of the ocean, and I would reject the idea that,
if a man carries on a so-called ultra-hazardous activity on his
premises, the line must be drawn so as to bring him within the
limit of strict liability for its consequences to all men everywhere.
On the contrary I would say that his obligation to those lawfully
3 [14]
upon his premises is to be ultra-cautious in carrying on his ultra-
hazardous activity, but that it will still be the task of the injured
person to show that the defendant owed to him a duty of care
and did not fulfil it. It may well be that in the discharge of that
task he will sometimes be able to call in aid the maxim ” res ipsa
” loquitur “.
My Lords, I have stated a general proposition and indicated that
there are exceptions to it. It is clear for instance that if a man
brings and keeps a wild beast on his land or a beast known to him
to be ferocious of a species generally mansuetae naturae he may
be liable for any damage occurring within or without his premises
without proof of negligence. Such an exception will serve to
illustrate the proposition that the law of torts has grown up
historically in separate compartments, and that beasts have
travelled in a compartment of their own. So also it may be that
in regard to certain chattels a similar liability may arise, though
I accept, and would quote with respect, what my learned and noble
friend Lord Macmillan said in Donoghue v. Stevenson, 1932 A.C.
562, at p. 611: ” I rather regard this type of case as a special
” instance of negligence where the law exacts a degree of diligence
” so stringent as to amount practically to a guarantee of safety “.
There may be other exceptions. Professor Winfield, to whose
” Textbook of the Law of Tort”, 3rd Edition, 1946, I would
acknowledge my indebtedness, is inclined to include certain
” dangerous structures ” within the rule of strict liability. This
may be so. It is sufficient for .my purpose to say that unless a
plaintiff can point to a specific rule of law in relation to a specific
subject matter he cannot in my opinion bring himself within the
exceptions to the general rule that I have stated. I have already
expressed my view that there is no rule which imposes on him who
carries on the business of making explosives, though the activity
may be ” ultra-hazardous ” and an explosive ” a dangerous thing “,
a strict liability to those who are lawfully on his premises.
My Lords, it was urged by counsel for the appellant that a
decision against her when the plaintiff in Rainham’s case succeeded
would show a strange lack of symmetry in the law. There is some
force in the observation. But your Lordships will not fail to
observe that such a decision is in harmony with the development
of a strictly analogous branch of the law, the law of nuisance, in
which also negligence is not a necessary ingredient in the case.
For if a man commits a legal nuisance it is no answer to his
injured neighbour that he took the utmost care not to commit it.
There the liability is strict, and there only he has a lawful claim
who has suffered an invasion of some proprietary or other interest
in land. To confine the rule in Rylands v. Fletcher to cases in
which there has been an escape from the defendants’ land appears
to me consistent and logical. It is worthy of note that so closely
connected are the two branches of the law that text books on the
law of nuisance regard cases coming under the rule in Rylands v.
Fletcher as their proper subject, and, as the judgment of
Blackburn J. in that case itself shows, the law of nuisance and the
rule in Rylands v. Fletcher might in most cases be invoked
indifferently. One /typical illustration will suffice. In Charing
Cross Electricity Supply Company v. Hydraulic Power Company,
1914 3 K.B. 772, it was the rule in Rylands v. Fletcher that was
relied on by the Court of Appeal; but the authority of Midwood 6-
Company Ltd. v. Mayor etc. of Manchester, 1905 2 K.B. 597, was
invoked, and that was a case of nuisance and nothing else.
In suggesting to your Lordships (that except in reference to
specific subject matter the rule in Rylands v. Fletcher must be
confined to the escape of something from the defendant’s premises
I am pressed by the fact that in the Charing Cross case the escape
[15] 4
was not strictly from the defendant’s premises but from pipes laid
in the soil of another. So also in West v. Bristol Tramways
Company, 1908 2 K.B. 14, the escape was of creosote from wood-
blocks laid in the highway. It is not necessary to pronounce finally
upon these cases. It is possible that the rule should be extended
to include the case where something has escaped from a pipe or
whatever it may be which has been laid and maintained by the
defendant by virtue of some right or franchise in the land of
another. That is not this case. Nor would I exclude the possibility
of a special rule being applicable as between co-users of a highway,
for the highway has a law of its own. But that also is not this
case. For the present purpose it is sufficient to say negatively that
the appellant being on the respondents’ premises cannot hold them
liable for the damage suffered by her unless she alleges and proves
negligence by them in their manufacture of explosives.
The Respondents had a second line of defence on the maxim
” Volenti non fit injuria “, but this was not maintained before this
House. It was made clear that the appellant was upon the
Respondents’ premises only because, being registered under the
National Service Acts, she was required to work there as an
employee of the Armaments Inspection Department of the
Ministry of Supply. Had she been a free agent she would not have
remained there. I content myself by saying that I see no ground
for dissenting from the opinion of Mr. Justice Cassels on this point.
It is not, I think, the law of England that the will of a directing
official of a Government Department becomes the will of the
unwilling citizen whom he directs.
MacrailLan
[16]
Lord Uthwatt
MY LORDS,
Under an agreement made in January, 1942, between the Minister
of Supply and the Respondents, the Respondents agreed that they
would as agents of the Minister undertake the operation and control
of the Elstow Ordnance Factory the property of the Minister.
Pursuant to that agreement the Respondents went into occupation
of the factory and there manufactured high explosive shells. In
April, 1942, the Appellant was told at the Labour Exchange that
she must work at the factory. No statutory direction to that effect
was served upon her but a direction would have been so served
had she refused to go. In the result the Appellant, against her
personal wishes, went to the factory and was there employed in
the inspecting department as an employee of the Minister. While
she was in the course of her duties in the shell filling shop, an
explosion occurred which injured her and others. The appellant
does not allege either negligence or lack of skill on the part of
the Respondents. Her case is that by reason of the dangerous
nature of the business which involved the risk of explosion, they
owed to her a duty to safeguard her from any harm resulting from
its dangerous character.
In substance the Appellant was on the Respondents’ premises
in performance of a statutory duty incumbent on her as a citizen,
but it is, I think, obvious that this circumstance did not alter the
nature of the duty which the Respondents owed to her as a person
who with their consent was present on their premises on business
bent.
At the trial and in the Court of Appeal the Respondents raised
the defence that the Appellant voluntarily incurred the risk of
explosion as a risk incident to her employment and that the rule
embodied in the maxim volenti non fit injuria, barred her claim.
That defence found no favour in the Courts below and was aban-
doned, and in my opinion rightly abandoned, in this House. The
Appellant willed what she did, but her will was determined for
her. Consent by the Appellant to exempt the Respondents from
any duty they owed to her cannot be implied.
The only question at issue therefore is whether the Respondents
owed to the Appellant the absolute duty for which the Appellant
contends. In my opinion they did not.
There is much authority on the extent of the duty which an
occupier of land owes to a person who for one reason or another is
found on the occupier’s land. The background is the original free-
dom of the landowner keeping within his own bounds to do what
he liked with and on his own, the King’s law save in felonies and
trespass actions stopping at his boundary. With the development
of the law and the appearance of the conception of negligence as
a general ground of liability, that freedom of action without liability
for resulting harm has been curtailed, and to the rights of a land-
owner, now represented by the occupier, there have been attached
the duties of a host. The result is that there is no general standard
of duty. The circumstances attending the presence of the stranger
have to be taken into account and determine the duty owed. Put
broadly, the trespasser can complain of uncivilised conduct, and
if a child, of the fascinations offered by the occupier’s land to
which, with resulting damage to himself, he has not unnaturally
succumbed; the demands of a polite society are thereby satisfied:
the bare licencee is entitled to assume that the gift to him possesses
its face value as the occupier sees it but cannot otherwise call for
a review of its character; courtesy is not to be repaid by
ingratitude: and to the licencee with an interest, commonly called
an invitee, (and the Appellant comes within this class of invitees),
a duty of care is owed, the reason being that the invitee may reason-
[17] 2
ably expect his interests to be considered. (The animal cases, so
far as they relate to injuries suffered on the occupier’s property, I
regard as exceptional. They state rules not in themselves
irrational, but do not exemplify any general principle.) The common
feature of the duties so far imposed on the occupier is that there
is demanded of him a standard of conduct no higher than what
a reasonably minded occupier of land with due regard to his own
interests might well agree to be fair and no lower than a trespasser,
bare licencee or invitee might in a civilised community reasonably
expect.
Is there any good reason, consistent with respect for the rights
of dominion and user incident to the occupation of land and with
an appreciation of the position of an invitee, for subjecting the
occupier carrying on a dangerous but lawful business to an absolute
duty to safeguard the invitee from harm? I can see none. In
carrying on such a business the occupier may be doing something
which is not common, but he is not doing anything which is out
of the ordinary course of affairs or which is concealed from the
invitee. He is in no way abusing his right to use his land. To
subject him to an absolute duty to an invitee would be, to my
mind to impose an unreasonable limitation on the due exercise
of that right. But the relation between the parties is the govern-
ing consideration and it is the incidents which the law attaches to
that relation that are in question. I can understand an invitee,
whatever be the nature of the business carried on, questioning in
his own mind whether he is entitled to expect that the occupier will
in conducting his business take due care or whether he is to expect
only that the occupier will continue to conduct his business in his
accustomed manner, whatever that may be. But I do not think
that the invitee, any more than the occupier, would assume that by
reason only of the dangerous nature of the business carried on,
the occupier guaranteed him freedom from harm. If that be so,
it is against reason that the law, whose function it is to give effect
to reasonable expectations, should impose such a guarantee. A
measure of care determined by the degree of danger is in my
opinion the utmost that either party would envisage, and in my
opinion the law demands that and no other standard of duty. This
denial of absolute liability to an invitee is indeed not inconsistent
with the assertion—I do not make it—of an absolute duty towards
persons who suffer harm outside the occupier’s premises. Matters
happening within one’s own bounds are one thing and matters
happening outside those bounds are an entirely different thing. In
the latter case the personal relation is absent and the occupier’s
dominion over and right to use his land have to be reconciled with
the rights of others to use or be present on adjoining lands not
subject to his dominion.
Unless compelled by authority to come to a contrary conclusion,
I would therefore reject the Appellant’s contention.
There is no authority which directly supports that contention.
The Appellant to some extent relied on the animal cases, but they
are of no real help. Her sheet anchor was Rylands v. Fletcher.
That case on the facts related only to the duty which an occupier
of land—nuisance and negligence not being involved and trespass
treated as not being involved—owed to an occupier of other land
in respect of an intrusion from the land of the one to the
land of the other. The accommodation between occupiers of land
there laid down was that things liable to escape must be kept by
an occupier within his bounds unless their presence within those
bounds was due to a natural use of his land. The liability and
the excuse both relate to the use of land as affecting other land.
I do not regard Rylands v. Fletcher as laying down any principle
other than a principle applicable between occupiers in respect of
3 [18]
their lands or as reflecting an aspect of some wider principle
applicable to dangerous businesses or dangerous things. For the
purposes of my opinion, therefore, it is unnecessary to consider
whether or not the use of land here in question was a natural use
but I desire to express my agreement with the observations which
the Noble and Learned Lord on the Woolsack has made with refer-
ence to Richards v. Lothian (1913) A.C.263 and Rainham Chemical
Works v. Belvedere Fish Guano Company, (1921) 2 A.C-465. I
would only add that “natural” does not mean “primitive”.
The decision of Lewis J. in Howard v. Houlder Lines Ltd. (41
Com. Cas. 290) is adverse to the Appellant’s contention, and there
is a statement in Membery v. Great Western Railway Co., (14 Ap.
Cas. 179) which, as I read it, is adverse to it.
In that case the Railway Co. agreed with a contractor that he
should shunt their engines supplying horses and men, the Company
to provide boys to help when they had boys available and when they
had not the shunting to be done without boys. The operation
of shunting was dangerous to any man performing it without the
assistance of boys. While engaged in shunting without a boy, the
Plaintiff, an employee of the contractor, was without negligence on
his part injured by a truck running over him. The Plaintiff, who
was in the circumstances an invitee, based his case on negligence,
and somewhat surprisingly won in the Court of First Instance.
Lord Herschell, however, took the opportunity of making a
statement of his conception of the duties of an occupier to an
invitee. At p. 191 of the report he said: —
” Now I do not for a moment doubt that there was a duty in-
” cumbent upon the defendants towards the plaintiff at the time
” when he was upon their premises. They were not without duty
” towards him. But it is not enough to arrive at the conclusion
” that there was a duty, or even a duty to take care; the extent of
” that duty requires to be determined. My Lords, I cannot doubt
” that they were bound to take care that the machinery, or
” appliances, or tackle of theirs, which he had to use in the course
” of his discharge of those duties in which they were interested,
“were in a reasonably fit and proper condition; and certainly if
” they were not in such a condition, and if the defect in them was
” unknown to the plaintiff, I cannot doubt that the plaintiff would
‘ have his remedy against them. In addition to that, I think they
‘ were under the duty to him, having invited him upon their
‘ premises, not to permit their premises to be in such a condition
‘ that he unwittingly might fall into a trap of the existence of which
‘he, unacquainted with their premises, would be ignorant, by
‘ which he might sustain an injury. Further than that, it might
‘ be (and I confess that I should myself be disposed to think that
‘ it was) their duty to take due and reasonable care that in the
” carrying on of their business they did not subject him to unreason-
” able risk owing to the acts which they did in the carrying on of
” that business. If they were carrying on a dangerous business,
“and one which would subject people employed upon their
” premises for their benefit to risk, they must take reasonable care,
” as it seems to me, that they do not do any act (I emphatically
“use the word ‘act’) which would endanger the safety of the
“( persons who thus, to their knowledge, are employed about their
“business upon their premises.”
I understand the latter part of this dictum as emphasising that
in relation to a dangerous business a duty of care to an invitee is
demanded from the undertaker, but that a claim based only on the
dangerous nature of the business is not admissible. So understood,
I agree with it.
I would dismiss the appeal.
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