United Kingdom House of Lords Decisions

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.

[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.

" 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.

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.

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]

[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,

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.

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".

" 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.

(539171 Wt. 8226—24 30 11/46 D.L. G. 338