Rejecting assimilation of the rule into private nuisance leaves three other options: A Tribute to John Fleming , at pp. The second difficulty is that it makes no sense to characterise a given activity or thing as imposing a non-reciprocal risk in the abstract, for it all depends on the circumstances. 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. The House of Lords refused to take this course in Transco, but the reasons their Lordships gave for this refusal were somewhat tenuous. Although Murphy also emphasises the distinctiveness of Rylands v Fletcher, many of his arguments are different from the ones on which I rely.
The justification usually given for the American doctrine is that the person who chooses to engage in an abnormally dangerous activity should bear the cost of any harm that results, because the risks his activity creates are not normal risks mutually created and n. The action the plaintiff brought — which at the beginning looked like an ordinary negligence claim — was referred to an arbitrator, who found that the defendants had not been at fault, but that the contractors had been negligent in failing to block up the shafts. Remember me on this computer. The requirements of the claim post- Transco mean that Rylands actions are more like nuisance actions for one-off escapes. The choice of activities may itself expose others to undue risks, which the risk creator must bear.
The first was that the language Blackburn J.
Secondly, it is true that, while there are important theoretical differences between the two causes of action, in most cases application of the rule in Rylands v Fletcher and the tort of negligence will indeed lead to the same result. Once again, there is nothing novel about this line of reasoning. Lord Walker took as read at  what Lord Goff had said in Cambridge Water about the inter-relationship of Rylands v Fletcher and nuisance.
See also Clerk and Lindsell on Torts 8th ed. He formulated the rule that made the case famous in the following terms: Only one judicial voice, that of Judge Anthony Thornton Q. In the body of the text, he made clear at p. Gearty has argued that if cases of physical damage to property were hived off into negligence, we would be left with a slimmed down, more coherent tort. Once again, there is nothing novel about this line of reasoning. Furthermore, while Murphy believes that the strict liability rule has an important role to play in the modern law of tort, I reach the opposite conclusion.
However, most such authorities fall within the Leakey v National Trust category — where liability is contingent on proof of carelessness — and these are best regarded as instances of negligence liability dressed up in nuisance clothing. Furthermore, liability was imposed even where the immediate cause of the injury was the unforeseeable conduct of a third person — though perhaps not where this was intended to bring about the harm — or the unforeseeable operation of a force of nature.
All subjects Law Tort Law Learn about: And, more to the point, can the rule be used this way today, or has it lost its potential usefulness in this respect with the adaptations made to it in more recent cases interpreting how the rule should be applied particularly Transco? But to extrapolate from this citation as Newark did that Blackburn J. This analysis is borne out by the leading authorities on the three defences, which are suffused with causation reasoning: Rabin and Stephen D.
On the practical significance of the burden of proof point, see Transco, n. The action the plaintiff brought — which at the beginning looked like an ordinary negligence claim — was referred to an arbitrator, who found that the defendants had not been at fault, but that the rylqnds had been negligent in failing to block up the shafts.
Chapter 19: Answers to end-of-chapter questions
The straightforward answer to this question centres upon the fact that post- Transco there is really only a very limited scope of situations to which a Rylands claim might apply. Williams concludes that this supposed principle was little better than a myth, and argues that cases involving escaping cattle ought logically to be classed under nuisance, but none the less the previously widespread acceptance of the vicarious trespass analysis suggests that Blackburn J.
The distinction with negligence is flecther maintained. 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.
The significance of privafe will be addressed later: The usual disclaimer applies.
(PDF) The Distinctiveness of Rylands v Fletcher | Donal Nolan –
Nor were g other justifications provided for rejecting this option persuasive. His Lordship also pointed out that in both French and German law there is an element of strict liability protection in disputes between landowners — though not in Scotland, which has never adopted the Rylands principle. Finally, the future of a strict liability rule independent of nuisance will be considered. On the practical significance of the burden of proof point, see Transco, n.
The focus was principally on trespass to land, though mention was also made of the action on the case.
Help Center Find new research papers in: First, it is not grounded on a misreading of the original case. 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.
See also Read, n. An isolated act which is over and done with, once and for all, may give rise to an action in negligence or an action under the rule in Rylands v Fletcher, but not an action for nuisance.