There can be no liability without fault… Strict liability constitutes a qualified exception to this rule.
Rylands v Fletcher established strict liability for damages which occur from escape of tangible things from a defendant’s land.
In Rylands v Fletcher, the defendant employed an independent contractor to build a reservoir on his land. While working, the contractors discovered a series of coal shafts (which unknown to them linked to the plaintiff’s land) which were loosely covered by debris, they did not block these coal shafts properly. The reservoir burst and flooded the neighbouring mine which was run by Fletcher. This situation/wrong did not fall under any existing tort.
Blackburn J, (speaking on behalf of the judges) held that;
A person, who for his own purpose brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.
At the Court of Appeal, Lord Cairns added that the thing which escapes must be a non-natural user of the defendant’s land.
The following elements can be deduced from the foregoing:
The defendant must have brought/accumulated (or authorised the bringing/accumulation) of the deleterious substance on his land-Giles v. Walker1
The thing brought upon the land must have escaped.
The defendant would be liable for damages caused by the escape.
The thing brought must be a non-natural user.
The thing brought onto the land must have escaped.
The court in Read v Lyons defined “escape” as “escape from a place where the defendant has control/occupation over to a place outside his occupation/control”. In this case, the plaintiff (while inspecting a weapons factory on behalf of the ministry of defence) was caught in an explosion which occurred within the factory premises. Her claim under strict liability failed because there was no escape2.
“Escape” has been treated by the courts in the following cases:
Where a chair-o-plane from the defendant’s fairground flew and hit the plaintiff in another land… held escape-Hale v Jennings3.
Where the claimant’s horse stretched over the defendant’s fence and ate leaves from his yew (poisonous) tree and died… held, no escape-Pointing v Noakes4.
Where the defendant’s yew tree (which killed the plaintiff’s horse) overstretched the plaintiff’s land… Court held that there was escape-Crowhurst v Amersham Burial Board
The courts have expanded the scope of “escape” beyond land. In Powell v Fall, the court construed strict liability where sparks emitted by the defendant’s tractor ignited the hays on the plaintiff’s farm which in turn burnt his assets. Similarly, in the Midwood v Manchester, the court noted that a person who collects a dangerous thing and has control of it at the time of escape would be liable for damage resulting.
:: Escape is not the same thing as diversion In Umudje v. SPDCN Ltd, the defendants diverted a natural stream away from the plaintiff’s fishery and spilled some oil into his land. The defendants were held strictly liable for the spillage but not the diversion.
:: The plaintiff must have an interest in the land affected. In Hunter v. Canary Wharf, hundreds of claimants sued canary wharf for constructing the One Canada Square alleging that it “obstructed” their T.V signals and led to wastage of their television fee. Their claims failed because there was no escape.
Liability for Damage that resulted.
Unlike trespass, strict liability is NOT actionable per se5. In NEPA v. Ali, the defendants were liable when their transformer caught fire and spread to the plaintiff’s factory and burnt their assets. The courts have been divided as to whether there should be damages paid for personal injuries. In Hale v Jennings6 damages for personal injury was granted although the court in Read v Lyons posited that the rule in Rylands v Fletcher should not extend to personal injuries.
The thing brought upon the defendant’s land must be a NON-NATURAL USER.
“Natural” means things that exist by nature for example rocks, river, and so on. Non-natural user refers to a thing artificially brought or kept on the defendant’s land-NEPA v Ali.Non-natural user is a special use which brings with it increased danger to others-Lord Mutton in Rickards v Lothian.
With the evolution of the world, the principle of non-natural user has evolved to be seen as things which fall outside the normal daily usage and practice of mankind at a particular time. The following have been regarded as natural users/use:
Installation and running of water systems-Rickards v Lothian7.
Working of mines and minerals-Rouse v Gravelworks.
Cooking gas, generators, installation of electric wires, and so on.
Note however that activities which fall outside the normal daily usage may amount to non-natural use. E.g. Unnecessary accumulation of certain substances by the defendant notwithstanding that they are accepted/normal substances by the defendant. In Musegrove v Pandelis, the court held that the storage of a tank full of petrol in the garage amounted to non-natural use8.
In determining what amounts to a non-natural use, the courts would consider the benefit of the activity, quantity of use, likelihood and gravity of damage. Taking note of the place and practice of mankind.
:: Consent/authorization of the claimant/plaintiff.
:: Plaintiff’s fault/contributory negligence of the plaintiff. As was noted in the case itself (Rylands v Fletcher). See also Pointing v Noakes (above)
:: Act of nature/God: like floods, storm, and so on. Such occurrence must be unforeseeable, incomprehensible and must not be self-induced. Nichols v Marsland, the defendant had diverted a natural stream to create ornamental lakes. There was a heavy rainfall and storm which caused the water to overflow and cause damage to neighbouring properties. This defence availed the defendant. However in Corporation of Greenok v. Caledonian RailwayCo, on similar facts, the defence was rejected as the court noted that heavy floods should be expected… noting that the occurrence must be damnum fatale9
:: Statutory authority: the defendant can claim that he is authorised by the law to carry out the act. The court would scrutinise the particular provision to make sure the defendant’s act falls within the dictates of the statute.
:: Deliberate Act of an Unauthorised Stranger. In Perry v Kendricks Transport Ltd, where mischievous children threw a lighted match into the defendant’s petrol tank (and there was an explosion which damaged neighbouring properties) the defendant (owner of the vehicle) was not liable. In Box v Jubb, the defendant was not liable for the flooding caused by his reservoir because a third party had emptied their reservoir into his. Note however that he defendant is expected to guard against the foreseeable act of a stranger.
The REMEDY is damages for losses arising from the breach. The test of reasonable foreseeability shall be applied. In Cambridge Waterworks v. Eastern Counties Leather, over the years, chemical substance from the defendant’s factory descended into the ground and entered into the plaintiff’s reservoir. Subsequently, a standard test was carried out and the plaintiff’s water company was disapproved because of the presence of the chemical in their water. Held that the defendants were not liable because the damage from the escape was not reasonably foreseeable.
THE RULE IN RYLANDS V FLETCHER DISTINGUISHED FROM NUISANCE.
The rule may be confused with nuisance. Nuisance can be defined as conduct which substantially interferes with the convenience, comfort and health of the plaintiff (or the public as the case may be). The following differences exist between both torts.
Tangibility: The thing accumulated (under Rylands v Fletcher) must be tangible. Unlike in nuisance where an intangible thing like noise can cause interference.
Accumulation: The element of accumulation is present in the rule in Rylands v Fletcher while there is no requirement of accumulation in nuisance.
Escape: unlike under nuisance, the rule in Rylands v Fletcher requires there to have been escape of a non-natural user of the land.
Liability in Rylands v Fletcher is confined to non-natural users this is not however the case in nuisance.
A person who is not the owner of an adjoining land may not sue in Rylands v Fletcher but under public nuisance, he can sue.
RYLANDS V FLETCHER DISTINGUISHED FROM NEGLIGENCE:
The test of foreseeability (under the rule in Rylands v Fletcher) is higher than that in Negligence. It must be that which could not have been foreseeable or comprehensible-Nichols v Marsland, Corporation of Greenok v Caledonian Railway Corporation.
Unlike under negligence, strict liability arises between persons with interest in property.
Also although both torts require the defendant to take care, such requirement is higher under the rule in Rylands v Fletcher.
OF WHAT RELEVANCE IS THE RULE IN RYLANDS V FLETCHER?
The rule in Rylands v Fletcher has been disclaimed in some jurisdiction like Australia and Scotland. Professor Newak in his article “the boundaries of nuisance” regarded the rule as a mere extension of the tort of nuisance. This position was approved in Transco Corporation v Stockport Metropolitan Borough Council which was confirmed in A.G v. Corle.
These notwithstanding, the rule in Rylands v Fletcher keeps people and authorities on their toes to ensure that their activities do not harm others. The rule still applies in Nigeria-SPDCN v Otoko.
In conclusion, Nigeria needs legislative intervention and judicial activism on the appraisal of the relevance and boundaries of the rule in Rylands v Fletcher to help us clearly decipher our standpoint.
LIABILITY FOR ANIMALS.
Closely linked to the innate ability of man to adapt to his environment… is the inherent desire to modify his environment to suit his preference. This often leads to the introduction of animals for security, food, companionship, and so on. Well issorait, but he keeps such animal(s) at his peril and must reasonably ensure that they do not harm others.
A keeper of an animal is liable for damage caused by his animal.
Animals are living things (other than man) which live on land or water whether domestic, wild or tamed.
The keeper is one who owns or takes care of or has control of an animal.
Animals are zoologically classified into wild and domestic. Ese Malemi in his treatise classifies animals into “Livestock”, “Dangerous” animals and “Non-dangerous” animals. Kodilinye and Aluko classified animals according to the form of action i.e. –“Cattle trespass” and “Scienter action”10 This is preferable and shall be suitable for our discussion.
CATTLE TRESPASS: A cattle in this sense includes; cow, bull, goat, and so on… excluding dogs and cats.
Cattle trespass occurs where the defendant’s cattle are driven onto, or stray into the plaintiff’s land. Damages can be recovered for injuries/harm caused to the plaintiff and his property.
:: Only a person having an interest in the land trespassed upon can sue.
:: If the keeper is carefully leading a herd of cattle across the road and one happens to stray into another’s land, there would generally be no liability.
THE SCIENTER ACTION: This is an action against the keeper of a dangerous animal which causes injury to the plaintiff-May v Burdett.
The scienter action entails charging the keeper for knowingly keeping a dangerous animal. Originally, it was under negligence but subsequently fell under strict liability.
Animals under this head are divided into;
Ferae naturae: (Latin for wild animal) these are animals of a specie which are naturally dangerous and unless restrained, are likely to cause harm. For example lions, leopards, tigers, elephants, gorillas, and so on. They are zoologically referred to as\wild animals.
Mansuetae naturae: animals belonging to a naturally harmless specie though individual ones may harbour vicious dispositions. For example cats, dogs, and so on.
Note the following principles for Scienter Actions:
For animals Ferae naturae:
:: Whether an animal is ferae naturae or mensauete naturae is a question of law-McQuaker v Goddard.
:: Liability rests on the keeper of the animal11: in Draper v Hodder, the claimant was savaged by a pack of the defendant's Jack Russel dogs. The court held that he was liable as he ought to have known the vicious tendency of the animals. In Curtis v Betts, where the defendant's bull mastiff dog attacked the claimant.
:: Animals Ferae naturae are conclusively presumed to be dangerous without need to prove that the particular animal was vicious/savage. The owner would be liable. In Behrens v Betram MillsCircus, the court held the keeper of a circus elephant liable when it knocked down and injured the plaintiff.
:: The place of attack is irrelevant.
For Animals Mansuetae naturae, the following principles shall apply to determine the keeper’s liability.
:: The plaintiff must establish that the particular animal (i.e. Mansuetae naturae) has a vicious tendency/propensity and the keeper knew of the vicious tendency.
The tendency must be shown to be vicious and hostile rather than playful-Fitzgerald v Cooke.
The harm inflicted on the plaintiff need NOT necessarily have been done in the past. So long as the animal had exhibited the tendency to do the kind of harm-Barnes v Lucille. In Worth v Gilling, there was evidence that the dog habitually rushed out of its kernel and attempted to bite passers-by. In Daryani v Njoku, there was evidence that the defendant’s dog (which attacked the plaintiff) had previously attacked the housemaid. These were sufficient. In Kite v Napp, the keeper was liable where it was shown that his dog was in the habit of attacking people carrying handbags. See also Wallace v Newton where it was shown that the defendant's horse usually got nervous whenever it was being loaded onto a trailer. The plaintiff who was injured as a result of this nervous fit was entitled to damages from the defendant.
The keeper must have been aware of the animal’s vicious tendency. In Cummings v Granger, the owner was held liable where his dog attacked a coloured skin man. Because he knew that his dog was prone to attack coloured skin men.
The knowledge of an animal’s vicious propensity must relate to the particular propensity that caused the damage-Glanville v Sutton12.
Knowledge can be imputed to the keeper where a third party (with some degree of control over the premises/animal) has knowledge. In Daryani v Njoku, it was held that since the wife was informed of the animal’s particular vicious tendency, such knowledge can be imputed to the husband (plaintiff).
Fault of the plaintiff: for example if it can be shown that the plaintiff was trespassing on the defendant’s land. In Sycamore v Ley, the plaintiff was held to be at fault where he was teasing the dog. The keeper must however avoid causing malicious injury to the plaintiff e.g. where he maliciously keeps the animal like a trap-Sarch v Blackburn. Nelmes v Chief Constable of Avon and Somerset, no damages where it was the plaintiff (claimant) that kicked the dog which then bit him.
Contributory negligence: of the plaintiff. The court would apportion blame and reduce damages to that effect. In Cu
Consent of the victim/plaintiff: in Rands v McNeil, the plaintiff was a zookeeper/wild animal trainer, the court held that he should expect dangers that come with the job.
Act of an authorised third party:-Flemming v Oor
Act of nature or Novus Actus: for example where the animal got frightened by the sound of thunder and becomes vicious/violent.
The defences can avail a keeper provided he has taken reasonable steps to prevent the occurrence of the injurious event.
Remedies: Initially, the people or community resolved to killing the animal as was seen in the case of Uzoahia v Atu. However, now the court may award damages, grant an injunction or an order of abetment. It could also seize and confine the animal in a zoo.
In conclusion, where a plaintiff is unable to show that the ferocious tendency of the animal was known, he may sue in negligence-Draper v Hodder. There could also be liability for animals in other torts like nuisance (where one collects animals to disturb his neighbour-Abiola v Ijeoma). One who accumulates animals in his compound and they escape and cause harm elsewhere may be liable under Rylands v Fletcher. One who sets his animal to a plaintiff may be liable for assault and battery and so on.
An occupier is a person who has occupation, or some degree of control over a premises-See Harris v Birkenhead, Wheat v E Lacon and Co, Bailey v Armes. He may/may not be the owner and he may be present or absent from the premises.
An occupier should take reasonable steps to prevent harm or injury to his visitor.
In Wheat v. Lacon, the claimant and her husband went on vacation and lodged in a house. the husband fell and broke his neck while coming down the stairs. The claimant brought an action against the owners and managers of the public house alleging that they failed to keep the stairs well lit. Lord Denning postulated the following important principles:
To qualify as an occupier, there need not be exclusive control of a property. Some degree of control would suffice.
There may be more than one occupier of a premises.
Where a premises is occupied by several tenants, each tenant is generally the occupier of the portion they occupy.
All managers and tenants are joint occupiers of the common portion of the property.
The owner of the land is responsible for any portion of the property not leased out by him.
Where there is no statute on occupier’s liability, the common-law rule in British Railway Board v Herrington applies. If there is a statute, the statute applies. Lagos state has enacted her Occupier’s Liability Law. Law Reform (Tort Law) of Lagos State.
THE COMMON-LAW POSITION.
To determine liability of the occupier, entrants were classified into:
Independent Contractors: Those who came in pursuance of a contract with the occupier.
Invitees: a person invited by the occupier for their mutual benefit. For example hotel, supermarket, restaurants, and so on.
Licensees: A person invited by the occupier though not beneficial to him. He may be a gratuitous licensee or one supported by consideration.
Trespassers: an entrant without lawful justification. Whose presence is not known and if known, would be objected to.
Note (Addie v Dumbruck)an occupier owes a duty to invitees and licensees13 and must ensure their safety within his premises. He must however not maliciously inflict injury on trespassers sufficient notice and warning must be put for trespassers… e.g. beware of dogs.
In Bird v Holbrook the defendant set up a spring gun to catch trespassers. A child, while pursuing a chicken trespassed and came in contact with the gun which went off and injured him. The court held the occupier liable for the injury to the child entrant because in addition to the spring gun being maliciously positioned, there was INSUFFICIENT notice and warning to avert trespassers. Furthermore; in British Railway Board v. Herrington the court noted that in addition to taking all reasonable and necessary steps to avert danger, a higher standard of care and warning is owed to child entrants. See also Scott v Associated British Ports.
Occupier’s Liability Under the Statute.
The English Occupier’s Act 1957 did not protect trespassers. However other statutes like the Occupier’s Liability Act 1984 preserves the common duty of care14 and the principle15 formulated in BRB v Herrington.
Under Section 7(2), Law Reform (Tort Law) of Lagos, Entrants are classified into two viz:
A VISITOR: Is a lawful entrant that is (expressly or impliedly) invited or permitted to enter the premises. Implied permission to enter may be construed in various circumstances like where the entrant is coming to communicate with the occupier for example parcel delivery.
Statutes provide that the occupier owes a common duty of care to all visitors. Section 8 of the Law Reform (Tort Law) of Lagos elucidates this. A cursory view of the Statute would reveal the following principles:
1_ Prudent and reasonable steps must be taken by the occupier to ensure that his premises is safe and that his visitor is protected.
2_ Dangerous parts of the premises must be fenced off or made out of bounds by warning/display.
3_ The visitor must keep within his bounds else the common duty would be extinguished.
4_ A higher degree of care, prevention and warning is owed to a child trespasser. The occupier must expect that they are less careful and warning which may be sufficient for an adult may not suffice for a child entrant. In Perry v Butlins Holiday World, a three year old fell on the occupier’s brick wall which was capped with sharp objects and cut his ear. Court held that the position of the wall was low and the occupier ought to have taken greater care. In Phipps v Rochester Corporation, a child had crossed into the defendant’s open land, fell into the deep trench dug therein and broke his leg. Court held that the occupiers ought to have warded against child trespassers. A similar protection for child entrants/trespassers can be found in Section 2(3) of the English Occupiers Liability Act 1957. However there may be no duty for children who engage in excessively daring acts. In Keown v Coventry Healthcare NHS Trust, the 11-year old climbed the external fire escape of the Hospital's building and fell hitting his head and suffered a brain damage. The court held that there was noting wrong with the fire escape. What had caused the risk was the child's decision to climb it. See also Swain v Natui Ram Puri where the claimant a 9year old had climbed unto the defendant's roof and fell
5_ After knowledge that a child has trespassed, the occupier should try to prevent the reoccurrence of such trespass. Failure to do so would give rise to implied consent. Making the child a visitor.
6_ Where things that attract and entice children (like fruit trees) are on the land, the owner should take reasonable care to prevent a child from trespassing. He would be liable if danger occurs from such trespass. (Allurement principle). In Glasgow Corporation v. Taylor, the defendant was held liable when a child ate some poisonous berries from his tree. Because the fruits were easily accessible to children and there were no warnings. See also Williams v Cardiff Corporation.
7_ A professional, coming to exercise his calling should be protected from risk incident to such calling or profession.