PRIVATE NUISANCE AND RYLANDS V FLETCHER ESSAY

But it is no part of the rule in Rylands v Fletcher to forbid particular activities. He formulated the rule that made the case famous in the following terms: Secondly, the right he identified was envisaged as extending to cases of direct interference which would clearly amount to trespasses. See also Clerk and Lindsell on Torts 8th ed. As we have seen, the decision in the original case is most plausibly explained as a survival of the general principle of liability recognized by the medieval common law, namely that a man acts at his peril. According to the Restatement, Second, Torts at s. In the Transco case, Lord Bingham summed up the effect of the reformulated rule as follows:

Ltd [] 1 All E. How could the action under Rylands v Fletcher be used to help to solve environmental problems? A more plausible explanation for the self-assurance with which strict liability was imposed is that the judges were simply applying the ancient theory that a man acts at his peril. Rejecting assimilation of the rule into private nuisance leaves three other options: On the practical significance of the burden of proof point, see Transco, n. Of course, this analysis itself leads us to the conclusion that in practical terms the gap between the Rylands rule and fault-based liability was never that great.

For similar analyses, see V.

The majority argued that over the years the gap between the rule and negligence liability had narrowed to almost nothing, and hence that assimilation of the two was now appropriate.

Contractors Ltd [] Q.

(PDF) The Distinctiveness of Rylands v Fletcher | Donal Nolan –

Essays in Celebration esssay John Fleming at p. And, finally, the language Bramwell B. He stated that the most [] common scenarios within the rule were instances of cattle trespass,62 which as its name suggests was generally regarded as a form of trespass to land.

Does the rule espoused by Rylands v Fletcher have any use in the 21st century? Before the Cambridge Water case, the only clear-cut judicial support for the analysis of Rylands v Fletcher as a tort limited to the protection of real property interests was to be found in Read v Lyons,73 a case concerning a munitions inspector injured when an explosion took place in the factory where she was working.

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So, an answer to this question needs to consider fketcher factors and see if, within them, there is a small door open for future claims — and speculate on what type of claim this might be — there may be useful points made in the Stannard [] judgment on this point. The judiciary are understandably keen to make out that their decisions are in line with precedent, and in any case rylaands will be argued that there is a more plausible explanation than the offshoot theory for the fact that those involved considered their reasoning to be consistent with nuksance authority.

By way of contrast to the offshoot theory, the distinctiveness of the rule in Rylands v Fletcher will be asserted. While it is certainly true that attempts have been made to infuse the doctrine of non-natural use with fault-based reasoning, the claim that reasonableness in negligence and non-natural user are essentially similar concepts does not hold water.

In Privat v Fletcher, the involvement of independent contractors makes no difference as the leading case demonstratesbut in nuisance the general rule is that an occupier who employs a contractor to do work on his behalf is not liable if unlawful interference results, though there are some exceptions, most notably where the task on which the contractor was engaged of its very nature involved a risk of damage to a third party.

Although the contempt of the House of Lords was barely concealed in the post-war case of Read v J.

Chapter 19: Answers to end-of-chapter questions

The decision of Atkinson J. One was the decision in Cambridge Water to apply the principles governing remoteness of damage in negligence, so that foreseeability of damage of the relevant type became a prerequisite of liability under the rule.

private nuisance and rylands v fletcher essay

J, and at per Windeyer J. Ltd [] 1 W. When a similar case reached the Court of Appeal three years later, the same judge made no mention of nuisance: Would a renewed attempt to vv out a special regime for abnormally dangerous activities be a sensible way forward?

private nuisance and rylands v fletcher essay

Skip fletchre main content. In addition to citing Newark, his Lordship merely drew attention to the fact that Blackburn J. The arguments in this article were presented at a meeting of the University of Oxford Private Law Discussion Group, and I am grateful to the participants for their comments.

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The choice of activities may itself expose others to undue risks, which the risk creator must bear. One of the principal arguments — that the rule was too well-entrenched to be done away with by the courts — is unconvincing, not least because the High Court of Australia did precisely that in the Burnie Port case.

This contention will be examined, and an attempt made to refute it. In the body of the text, he made clear at p. This would appear, however, to be an privwte against any judicial development of the law at all, and in any case Parliament could easily deal with such a problem — if indeed it exists — by amending the relevant legislation.

It is also worth pointing out that, while insurance against personal injury is relatively rare, prlvate against property nusiance is relatively common. Heuston, Salmond on the Law of Torts 11th ed. Moreover, it has been argued that this distinction between the two kinds of injury was not a new one: The argument we are dealing with here is the [] contention that the gap between Rylands v Fletcher liability and the tort of negligence has narrowed so much that the two causes of action are now virtually indistinguishable.

See also the thorough analysis of the American principle by Scott L. Thirdly, there is little danger that subsuming Rylands v Fletcher under negligence will distort the latter tort or reduce its coherence.

private nuisance and rylands v fletcher essay

See similarly Restatement, Second, Torts, above n. The decision in Rylands was an important victory for the supporters of strict liability, but while they won this particular battle their opponents priivate won the war. See also Perry v Kendricks Transport Co.