United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/253

Cambridge Water Company (Respondents)

v.
Eastern Counties Leather plc (Appellants)

JUDGMENT

Die Jovis 9° Decembris 1993

Upon Report from the Appellate Committee to whom was
referred the Cause Cambridge Water Company against Eastern
Counties Leather plc, That the Committee had heard Counsel as
well on Monday the 11th as on Tuesday the 12th, Wednesday the
13th, Thursday the 14th, Monday the 18th and Tuesday the 19th
days of October last upon the Petition and Appeal of Eastern
Counties Leather plc of Langford Arch, London Road, Sawston,
Cambridgeshire, CB2 4EG, praying that the matter of the Order set
forth in the Schedule thereto, namely an Order of Her Majesty's
Court of Appeal of the 19th day of November 1992, might be
reviewed before Her Majesty the Queen in Her Court of Parliament
and that the said Order might be reversed, varied or altered or
that the Petitioners might have such other relief in the premises
as to Her Majesty the Queen in Her Court of Parliament might seem
meet; as upon the case of Cambridge Water Company lodged in
answer to the said Appeal; and due consideration had this day of
what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of Appeal
of the 19th day of November 1992 complained of in the said Appeal
be, and the same is hereby, Set Aside and that the Order of Mr.
Justice Kennedy of the 31st day of July 1991 be, and the same is
hereby, Restored: And it is further Ordered. That the
Respondents do pay or cause to be paid to the said Appellants the
Costs incurred by them in the Court of Appeal and in respect of
the said Appeal to this House, the amount of such last-mentioned
costs to be certified by the Clerk of the Parliaments if not
agreed between the parties: And it is also further Ordered. That
the Cause be, and the same is hereby, remitted back to the
Queen's Bench Division of the High Court of Justice to do therein
as shall be just and consistent with this Judgment.

Cler: Parliamentor:

Judgment: 9 December 1993

HOUSE OF LORDS




CAMBRIDGE WATER COMPANY
(RESPONDENTS)

v.

EASTERN COUNTIES LEATHER PLC.
(APPELLANTS)




Lord Templeman
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Lowry
Lord Woolf




LORD TEMPLEMAN

My Lords,

For the reasons given in the speech by my noble and learned friend,
Lord Goff of Chieveley I would allow this appeal.

LORD GOFF OF CHIEVELEY

My Lords.




This appeal is concerned with the question whether the appellant
company. Eastern Counties Leather Plc (ECL), is liable to the respondent
company. Cambridge Water Company (CWC), in damages in respect of
damage suffered by reason of the contamination of water available for
abstraction at CWC's borehole at Sawston Mill near Cambridge. The
contamination was caused by a solvent known as Perchloroethene (PCE). used
by ECL in the process of degreasing pelts at its tanning works in Sawston.
about 1.3 miles away from CWC's borehole, the PCE having seeped into the

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ground beneath ECL's works and thence having been conveyed in percolating
water in the direction of the borehole. CWC's claim against ECL was based
on three alternative grounds, viz. negligence, nuisance and the rule in Rylands
v. Fletcher (1868) L.R.3 H.L. 330. The judge, Ian Kennedy J., dismissed
CWC's claim on all three grounds - on the first two grounds, because (as I
will explain hereafter) he held that ECL could not reasonably have foreseen
that such damage would occur, and on the third ground because he held that
the use of a solvent such as PCE in ECL's tanning business constituted, in the
circumstances, a natural use of ECL's land. The Court of Appeal, however,
allowed CWC's appeal from the decision of the judge, on the ground that
ECL was strictly liable for the contamination of the water percolating under
CWC's land, on the authority of Bollard v. Tomlinson (1885) 29 Ch D 115.
and awarded damages against ECL in the sum assessed by the judge, viz.,
£1,064,886 together with interest totalling £642,885. and costs. It is against
that decision that ECL now appeals to your Lordships' House, with leave of
this House.

The factual background to the case has been set out. not only in the
judgments in the courts below, but also in lucid detail in the agreed statement
of facts and issues helpfully prepared by counsel for the assistance of the
Appellate Committee. These reveal the remarkable history of events which
led to the contamination of the percolating water available at CWC's borehole.
which I think it desirable that I myself should recount in some detail.

ECL was incorporated in 1879. and since that date has continued in
uninterrupted business as a manufacturer of fine leather at Sawston. ECL
employs about 100 people, all or whom live locally. Its present works are.
as the judge found, in general modern and spacious, and admit of a good
standard of housekeeping.

The tanning process requires that pelts shall be decreased: and ECL.
in common with all other tanneries, has used solvents in that process since the
early 1950s. It has used two types of chlorinated solvents - organochlonnes
known as TCE (trichloroethene) and PCE. Both solvents are cleaning and
degreasing agents: and since 1950 PCE has increasingly been in common,
widespread and everyday use in dry-cleaning, in general industrial use (e.g.,
as a machine cleaner or paint-thinner), domestically (e.g. in "Dab-it-off") and
in tanneries. PCE is highly volatile, and so evaporates rapidly in air; but it
is not readily soluble in water.

ECL began using TCE in the early 1950s and then changed over to
PCE, probably sometime in the 1960s, and continued to use PCE until 1991.
The amount so used varied between 50,000 and 100,000 litres per year. The
solvent was introduced into what were (in effect) dry-cleaning machines. This
was done in two different ways. First, from the commencement of use until
1976, the solvent was delivered in 40 gallon drums; as and when the solvent
was needed, a drum was taken by forklift truck to the machine and tipped into
a tank at the base of the machine. Second, from 1976 to 1991. the solvent



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was delivered in bulk and kept in a storage tank, from which it was piped
directly to the machine.

There was no direct evidence of the actual manner in which PCE was
spilled at ECL's premises. However, the judge found that the spillage took
place during the period up to 1976, principally during the topping up process
described above, during which there were regular spillages of relatively small
amounts of PCE onto the concrete floor of the tannery. It is known that, over
that period, the minimum amount which must have been spilled (or otherwise
have entered the chalk aquifer below) was some 3,200 litres (1,000 gallons);
it is not possible even to guess at the maximum. However, as the judge
found, a reasonable supervisor at ECL would not have foreseen, in or before
1976, that such repeated spillages of small quantities of solvent would lead to
any environmental hazard or damage - i.e., that the solvent would enter the
aquifer or that, having done so, detectable quantities would be found down-
catchment. Even if he had foreseen that solvent might enter the aquifer, he
would not have foreseen that such quantities would produce any sensible effect
upon water taken down-catchment, or would otherwise be material or deserve
the description of pollution. I understand the position to have been that any
spillage would have been expected to evaporate rapidly in the air. and would
not have been expected to seep through the floor of the building into the soil
below. The only harm that could have been foreseen from a spillage was that
somebody might have been overcome by fumes from a spillage of a significant
quantity.

I turn to CWC. CWC was created under its own Act of Parliament in
1853, and is a licensed supplier of water following implementation of the
Water Act 1989. Its function is to supply water to some 275,000 people in
the Cambridge area. It takes all its water by borehole extraction from
underground strata, mainly the middle and lower chalk prevalent in the area.
Since 1945. public demand for water has multiplied many times, and new
sources of supply have had to be found. In 1975. CWC identified the
borehole at Sawston Mill as having the potential to meet a need for supply
required to avert a prospective shortfall, and to form part of its long term
provision for future demand. It purchased the borehole in September 1976.
Before purchase, tests were carried out on the water from the borehole; these
tests indicated that, from the aspect of chemical analysis, the water was a
wholesome water suitable for public supply purposes. Similar results were
obtained from tests carried out during the period 1979-1983. At all events
CWC, having obtained the requisite statutory authority to use the borehole for
public sector supply, proceeded to build a new pumping station at a cost of
£184,000: and Sawston Mill water entered the main supply system in June
1979.

Meanwhile, in the later 1970s concern began to be expressed in
scientific circles about the presence of organic chemicals in drinking water,
and their possible effects. Furthermore, the development of. inter alia, high
resolution gas chromatography during the 1970s enabled scientists to detect



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and measure organochlorine compounds (such as PCE) in water to the value
of microgrammes per litre (or parts per billion) expressed as µg/1.

In 1984 the World Health Organisation (WHO) published a Report on
Guidelines for Drinking Water Quality (Vol. 1: Recommendations). Although
not published until 1984, the Report was the product of discussion and
consultation during several years previously, and its recommendations appear
to have formed the basis of an earlier EEC Directive, as well as of later UK
Regulations. Chapter 4 of the Report is concerned with "Chemical and
Physical Aspects", and Chapter 4.3 deals with organic contaminants, three of
which (including TCE and PCE) were assigned a "Tentative Guideline Value".
The value so recommended for TCE was 30 µg/1, and for PCE 10 µg/1.

The EEC Directive relating to the Quality of Water intended for
Human Consumption (80/778/EEC) was issued on 15 September 1980.
Member States were required to bring in laws within two years of notification,
and to achieve full compliance within five years. The Directive distinguished
between 'Maximum Admissible Concentration" (MAC) values and "Guide
Level" (GL) values, the former being minimum standards which had to be
achieved, and the latter being more stringent standards which it was desirable
to achieve. TCE and PCE were assigned a GL value of only 1 µg/1, i.e. 30
times and 10 times respectively lower than the WHO Tentative Guideline
Values.

The United Kingdom responded to the Directive by DOE Circular
20/82 dated 15 August 1982. The effect was that, as from 18 July 1985.
drinking water containing more than 1µ/1 of TCE or PCE would not be
regarded as 'wholesome' water for the purpose of compliance by water
authorities with their statutory obligations under the Water Act 1973.
However, following a Regulation made in 1989 (1989 No. 1147), the
prescribed maximum concentration values for TCE and PCE have been
respectively 30 µg/1 and 10 µg/1, so that since 1 September 1989 the United
Kingdom values have been brought back into harmony with the WHO
Tentative Guideline Values.

CWC employed Huntingdon Research Laboratories (HRL) to test its
water for the purpose of compliance with the European Directive. In August
1983 Dr. McDonald, an analytical chemist employed by HRL, decided to test
tap water at his home in St. Ives, Cambridge. He discovered PCE in the
water. Samples then taken of his own and his neighbours' water disclosed an
average PCE concentration of 38.5 µg/1. As a result, CWC caused
investigations to be made to discover the source of the contaminant, which
was identified as the Sawston Mill borehole. The borehole was taken out of
commission on 13 October 1983. The Anglian Water Authority then instituted
what was to become a prolonged and exhaustive programme of investigation,
principally conducted by the British Geological Survey (BGS), to discover the
source and path of the PCE in the borehole water. This investigation yielded,
between 1987 and 1989, a number of published papers which have become the



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UK source material on the behaviour and characteristics of chlorinated organic
industrial solvents in groundwater. and the behaviour of groundwater in a
fissure-flow, anisostropic (i.e., where permeability is higher in one direction
rather than constant in all directions) chalk aquifer. Before publication of
these papers little was known about either of these subjects.

The conclusions reached by BGS, and by the expert witnesses
instructed by CWC and ECL in the present litigation, were as follows. Neat
PCE had travelled down through the drift directly beneath ECL's premises,
and then vertically downwards through the chalk aquifer until arrested by a
relatively impermeable layer of chalk marl at a depth of about 50 metres.
Thus arrested, the neat PCE had formed pools which were dissolving slowly
in the groundwater and being carried down aquifer in the direction of Sawston
Mill at the rate of about 8 metres per day, the travel time between pool and
Sawston Mill being about 9 months, and the migration of the dissolved phase
PCE being along a deep, comparatively narrow, pathway or "plume". On the
balance of probabilities, this narrow plume had reached Sawston Mill and
been at least materially responsible for the PCE concentrations found there.

Sawston Mill had been taken out of supply in October 1983. As an
interim measure, CWC brought forward a pre-existing proposal to construct
a new pumping station at Duxford Airfield. This new source, which came on
stream in the summer of 1984. made up for the loss of the Sawston supply.
CWC still needed to make use of the Sawston catchment, but it rejected
methods of treatment of the water there as unproven at that time. Instead it
proceeded with the development of a new source of supply at Hinxton Grange.
The damages assessed by the judge, and awarded by the Court of Appeal,
against ECL consisted of £956,937 in respect of the development of Hinxton
Grange (less £60,000. being the residual value to CWC of Sawston Mill)
together with certain incidental expenses. In fact, by 1990 CWC felt
sufficiently confident in carbon filtration technology to build a treatment plant
at Sawston Mill, for the purpose of treating water from Duxford Airfield to
remove concentrations of an organic herbicide from the water there. This
plant is capable of removing PCE from Sawston Mill water as and when
required.

From the foregoing history, the following relevant facts may be
selected as being of particular relevance.

(1). The spillage of PCE, and its seepage into the ground beneath the floor
of the tannery at ECL's works, occurred during the period which
ended in 1976, as a result of regular spillages of small quantities of
PCE onto the floor of ECL's tannery.

(2). The escape of dissolved phase PCE, from the pools of neat PCE which
collected at or towards the base of the chalk aquifers beneath ECL's
works, into the chalk aquifers under the adjoining land and thence in



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the direction of Sawston Mill, must have begun at some unspecified
date well before 1976 and be still continuing to the present day.

(3). As held by the judge, the seepage of the PCE beneath the floor of
ECL's works down into the chalk aquifers below was not foreseeable
by a reasonable supervisor employed by ECL. nor was it foreseeable
by him that detectable quantities of PCE would be found down-
catchment, so that he could not have foreseen, in or before 1976. that
the repeated spillages would lead to any environmental hazard or
damage. The only foreseeable damage from a spillage of PCE was
that somebody might be overcome by fumes from a substantial spillage
of PCE on the surface of the ground.

(4). The water so contaminated at Sawston Mill has never been held to be
dangerous to health. But under criteria laid down in the UK
Regulations, issued in response to the EEC Directive, the water so
contaminated was not "wholesome" and, since 1985. could not
lawfully be supplied in this country as drinking water.

The decision of Ian Kennedy J.

The judge dismissed the claims against ECL in nuisance and negligence
in the following passage (see p. 50 D):

"That there should now be an award of damages in respect of the 1991
impact of actions that were not actionable nuisances or negligence
when they were committed 15 years before is to my mind not a
proposition which the common law would entertain".

I feel, with respect, that this passage requires some elucidation.

It is not to be forgotten that both nuisance and negligence are.
historically, actions on the case: and accordingly in neither case is the tort
complete, so that damages are recoverable, unless and until damage has been
caused to the plaintiff. It follows that, in this sense (which I understand to be
the relevant sense), there could not be an actionable nuisance by virtue of the
spillage of solvent on ECL's land, but only when such spillage caused damage
to CWC, i.e. when water available at its borehole was rendered unsaleable by
reason of breach of the Regulations. It also follows that, in theory, the fact
that the Regulations came into force after the relevant spillage on ECL's land,
though before the relevant contamination of the water, would not of itself
mean that there was no actionable nuisance committed by ECL, unless there
is some applicable principle of law which would in such circumstances render
the damage not actionable as a nuisance. The two possible principles are
either (1) that the user of ECL's land resulting in the spillage was in the
circumstances a reasonable user, or (2) that ECL will not be liable in the
absence of reasonable foreseeability that its action may cause damage of the
relevant type to CWC. In the present case, there does not appear to have



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been any reliance by ECL, in its pleaded case or in argument, on the principle
of reasonable user. I therefore infer that the basis upon which the judge
rejected CWC's claim in nuisance must have derived from his finding of lack
of reasonable foreseeability of damage of the relevant type, which is basically
the same ground on which he dismissed CWC's claim in negligence. This is
however a point to which I will return at a later stage, when I come to
consider liability on the facts of the present case under the rule in Rylands v.
Fletcher.

The decision of the Court of Appeal: Ballard v. Tomlinson

There was no appeal by CWC against the judge's conclusion on
nuisance and negligence. CWC pursued its appeal to the Court of Appeal
relying only on the rule in Rylands v. Fletcher L.R. 3 H.L. 330. on which
point the judge had decided against it on the ground that the relevant
operations of ECL constituted natural use of its land. The Court of Appeal
however held ECL to be strictly liable in damages to CWC in respect of the
contamination of the percolating water available for extraction by CWC from
its borehole at Sawston Mill. This they did on the basis of the decision of the
Court of Appeal in Ballard v. Tomlinson (1885) 29 ChD 115.

In that case the plaintiff and the defendant, whose properties were
separated only by a highway, each had on his land a well sunk into the chalk
aquifer below. The plaintiff had a brewery on his land, for the purpose of
which he used water drawn from his well. A printing house was built on the
defendant's land, and the defendant constructed a drain from a water closet
attached to the printing house, by means of which the sewage from the closet
and the refuse from the printing house found their way into the defendant's
well. The sewage and refuse which entered the defendant's well polluted the
common source of percolating water so that the water which the plaintiff drew
from his well was unusable for brewing purposes. The Court of Appeal,
reversing the decision of Pearson J. (1884) 26 Ch.D. 194, held that the
plaintiff was entitled to judgment against the defendant for an injunction and
for damages.

The principal argument advanced by the defendant was based on the
proposition that the plaintiff had no property in the water percolating beneath
his land, and therefore had no cause of action for the pollution of that water.
The judgments of the Court of Appeal, which were unreserved, were largely
directed to the rejection of that argument. This they did on the basis that the
plaintiff had a right to extract water percolating beneath his land, and the
defendant had no right to contaminate what the plaintiff was entitled to get.
As Brett M.R. said, at p.121:

". . .no one of those who have a right to appropriate [the water] has
a right to contaminate that source so as to prevent his neighbour from
having the full value of his right of appropriation."

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It appears that both Brett M.R. and Cotton L.J. considered that the
plaintiff's cause of action arose under the rule in Rylands v. Fletcher, which
was the basis upon which the plaintiffs case was advanced in argument.
Lindley L.J. however treated the case as one of nuisance.

The Court of Appeal treated this decision as determining the present
case against ECL. Mann L.J. (who delivered the judgment of the Court) said.

at pp.14 F - 15 C:

"It was sufficient that the defendant's act caused the contamination.
Nor do the judgments contain any warrant for attaching importance to
the reasonableness of the respondent's inability to foresee that spillages
would have the kind of consequence which they did. It does not
appear from the report whether Tomlinson either knew or ought to
have known of any risk of damage attendant on his actions, but none
of the judges in this court was concerned with his state of actual or
imputed knowledge. The situation is one in which negligence plays no
part.

"Ballard v. Tomlinson decided that where the nuisance is an
interference with a natural right incident to ownership then the liability
is a strict one. The actor acts at his peril in that if his actions result
by the operation of ordinary natural processes in an interference with
the right then he is liable to compensate for any damage suffered by
the owner."

In his judgment in Ballard v. Tomlinson 29 Ch.D. 115, 124. Cotton
L.J. spoke of the plaintiff's right to abstract percolating water beneath his land
as . . a natural right incident to the ownership of his own land ..." In
the present context, however, this means no more than that the owner of land
can. without a grant, lawfully abstract water which percolates beneath his
land, his right to do so being protected by the law of tort, by means of an
action for an injunction or for damages for nuisance: see Megarry and Wade,
Law of Real Property, 5th ed., (1984), p.842, and Simpson, History of Land
Law. 2nd ed., (1986), pp. 263-264. There is no natural right to percolating
water, as there may be to water running in a defined channel; see Chasemore
v. Richards (1859) 7 H.L.Cas. 349, 379, per Lord Cranworth, and Halsbury's
Laws of England. 4th ed., vol. 49, para. 392. In the present case Mann L.J.
stated (at p. 15B) that Ballard v. Tomlinson 29 Ch.D. 115 decided that "where
the nuisance is an interference with a natural right incident to ownership then
the liability is a strict one". In my opinion, however, if in this passage Mann
L.J. intended to say that the defendant was held to be liable for damage which
he could not reasonably have foreseen, that conclusion cannot be drawn from
the judgments in the case, in which the point did not arise. As I read the
judgments, they disclose no more than that, in the circumstances of the case,
the defendant was liable to the plaintiff in tort for the contamination of the
source of water supplying the plaintiffs well, either on the basis of the rule



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in Rylands v. Fletcher, or under the law of nuisance, by reason of interference
with the plaintiff's use and enjoyment of his land, including his right to extract
water percolating beneath his land. It follows that the question whether such
a liability may attach in any particular case must depend upon the principles
governing liability under one or other of those two heads of the law. To those
principles, therefore. I now turn.

Nuisance and the rule in Rylands v. Fletcher

As I have already recorded, there was no appeal by CWC to the Court
of Appeal against the judge's conclusion in nuisance. The question of ECL's
liability in nuisance has really only arisen again because the Court of Appeal
allowed CWC's appeal on the ground that ECL was liable on the basis of
strict liability in nuisance on the principle laid down, as they saw it. in
Ballard v. Tomlinson. Since, for the reasons I have given, that case does not
give rise to any principle of law independent of the ordinary law of nuisance
or the rule in Rylands v. Fletcher, the strict position now is that CWC. having
abandoned its claim in nuisance, can only uphold the decision of the Court of
Appeal on the basis of the rule in Rylands v. Fletcher. However, one
important submission advanced by ECL before the Appellate Committee was
that strict liability for an escape only arises under that rule where the
defendant knows or reasonably ought to have foreseen, when collecting the
relevant things on his land, that those things might, if they escaped, cause
damage of the relevant kind. Since there is a close relationship between
nuisance and the rule in Rylands v. Fletcher, I myself find it very difficult to
form an opinion as to the validity of that submission without first considering
whether foreseeability of such damage is an essential element in the law of
nuisance. For that reason, therefore. I do not feel able altogether to ignore
the latter question simply because it was no longer pursued by CWC before
the Court of Appeal.

In order to consider the question in the present case in its proper legal
context, it is desirable to look at the nature of liability in a case such as the
present in relation both to the law of nuisance and the rule in Rylands v.
Fletcher, and for that purpose to consider the relationship between the two
heads of liability.

I begin with the law of nuisance. Our modern understanding of the
nature and scope of the law of nuisance was much enhanced by Professor
Newark's seminal article on "The Boundaries of Nuisance" (1949) 65 L.Q.R.
480. The article is avowedly a historical analysis, in that it traces the nature
of the tort of nuisance to its origins, and demonstrates how the original view
of nuisance as a tort to land (or more accurately, to accommodate interference
with servitudes, a tort directed against the plaintiffs enjoyment of rights over
land) became distorted as the tort was extended to embrace claims for personal

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injuries, even where the plaintiffs injury did not occur while using land in his
occupation. In Professor Newark's opinion (p. 487), this development
produced adverse effects, viz. that liability which should have arisen only
under the law of negligence was allowed under the law of nuisance which
historically was a tort of strict liability; and that there was a tendency for
'cross-infection to take place, and notions of negligence began to make an
appearance in the realm of nuisance proper". But in addition,. Professor
Newark considered (pp. 487-488). it contributed to a misappreciation of the
decision in Rylands v. Fletcher.

"This case is generally regarded as an important landmark, indeed a
turning point - in the law of tort; but an examination of the judgments
shows that those who decided it were quite unconscious of any
revolutionary or reactionary principles implicit in the decision. They
thought of it as calling for no more than a restatement of settled
principles, and Lord Cairns went so far as to describe those principles
as 'extremely simple'. And in fact the main principle involved was
extremely simple, being no more than the principle that negligence is
not an element in the tort of nuisance. It is true that Blackburn J. in
his great judgment in the Exchequer Chamber never once used the
word 'nuisance', but three times he cited the case of fumes escaping
from an alkali works - a clear case of nuisance - as an instance of
liability, under the rule which he was laying down. Equally it is true
that in 1866 there were a number of cases in the reports suggesting
that persons who controlled dangerous things were under a strict duty
to take care, but as none of these cases had anything to do with
nuisance Blackburn J. did not refer to them.

"But the profession as a whole, whose conceptions of the boundaries
of nuisance were now becoming fogged, failed to see in Rylands v.
Fletcher a simple case of nuisance. They regarded it as an exceptional
case and the Rule in Rylands v. Fletcher as a generalisation of
exceptional cases, where liability was to be strict on account of 'the
magnitude of danger, coupled with the difficulty of proving
negligence' [Pollock, Torts, 14th ed., p. 386] rather than on account
of the nature of the plaintiffs interest which was invaded. They
therefore jumped rashly to two conclusions: firstly, that the Rule in
Rylands v. Fletcher could be extended beyond the case of neighbouring
occupiers; and secondly, that the Rule could be used to afford a
remedy in cases of personal injury. Both these conclusions were
stoutly denied by Lord Macmillan in Read v. Lyons [1947] AC 156,
but it remains to be seen whether the House of Lords will support his
opinion when the precise point comes up for decision."

We are not concerned in the present case with the problem of personal
injuries, but we are concerned with the scope of liability in nuisance and in
Rylands v. Fletcher. In my opinion it is right to take as our starting point the



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fact that, as Professor Newark considered. Rylands v. Fletcher was indeed not
regarded by Blackburn J. as a revolutionary decision: see, e.g., his
observations in Ross v. Fedden (1872) 26 L.T. 966, 968. He believed himself
not to be creating new law, but to be stating existing law. on the basis of
existing authority; and. as is apparent from his judgment, he was concerned
in particular with the situation where the defendant collects things upon his
land which are likely to do mischief if they escape, in which event the
defendant will be strictly liable for damage resulting from any such escape.
It follows that the essential basis of liability was the collection by the
defendant of such things upon his land; and the consequence was a strict
liability in the event of damage caused by their escape, even if the escape was
an isolated event. Seen in its context, there is no reason to suppose that
Blackburn J. intended to create a liability any more strict than that created by
the law of nuisance; but even so he must have intended that, in the
circumstances specified by him. there should be liability for damage resulting
from an isolated escape.

Of course, although liability for nuisance has generally been regarded
as strict, at least in the case of a defendant who has been responsible for the
creation of a nuisance, even so that liability has been kept under control by
the principle of reasonable user - the principle of give and take as between
neighbouring occupiers of land, under which "... those acts necessary for the
common and ordinary use and occupation of land and houses may be done,
if conveniently done, without subjecting those who do them to an action": see
Bamford v. Turnley (1862) 3 B. & S. 62, 83, per Bramwell B. The effect is
that, if the user is reasonable, the defendant will not be liable for consequent
harm to his neighbour's enjoyment of his land; but if the user is not
reasonable, the defendant will be liable, even though he may have exercised
reasonable care and skill to avoid it. Strikingly, a comparable principle has
developed which limits liability under the Rylands v. Fletcher. This is the
principle of natural use of the land. I shall have to consider the principle at
a later stage in this judgment. The most authorative statement of the principle
is now to be found in the advice of the Privy Council delivered by Lord
Moulton in Rickards v. Lothian [1913] AC 263, 280 when he said of the
rule in Rylands v. Fletcher.

"It is not every use to which land is put that brings into play that
principle. It must be some special use bringing with it increased danger
to others, and must not merely be the ordinary use of the land or such
a use as is proper for the general benefit of the community".

It is not necessary for me to identify precise differences which may be
drawn between this principle, and the principle of reasonable user as applied
in the law of nuisance. It is enough for present purposes that I should draw
attention to a similarity of function. The effect of this principle is that, where
it applies, there will be no liability under the rule in Rylands v. Fletcher: but
that where it does not apply, i.e. where there is a non-natural use, the
defendant will be liable for harm caused to the plaintiff by the escape,

- 11 -

notwithstanding that he has exercised all reasonable care and skill to prevent
the escape from occurring.

Foreseeability of damage in nuisance

It is against this background that it is necessary to consider the
question whether foreseeability of harm of the relevant type is an essential
element of liability either in nuisance or under the rule in Rylands v. Fletcher.
I shall take first the case of nuisance. In the present case, as I have said, this
is not strictly speaking a live issue. Even so. I propose briefly to address it,
as part of the analysis of the background to the present case.

It is, of course, axiomatic that in this field we must be on our guard.
when considering liability for damages in nuisance, not to draw inapposite
conclusions from cases concerned only with a claim for an injunction. This
is because, where an injunction is claimed, its purpose is to restrain further
action by the defendant which may interfere with the plaintiff's enjoyment of
his land, and ex hypothesi the defendant must be aware, if and when an
injunction is granted, that such interference may be caused by the act which
he is restrained from committing. It follows that these cases provide no
guidance on the question whether foreseeability of harm of the relevant type
is a prerequisite of the recovery of damages for causing such harm to the
plaintiff. In the present case, we are not concerned with liability in damages
in respect of a nuisance which has arisen through natural causes, or by the act
of a person for whose actions the defendant is not responsible, in which cases
the applicable principles in nuisance have become closely associated with those
applicable in negligence: see Sedleigh-Denfield v. O'Callaghan [1940] A.C.
880, and Goldman v. Margrave [1967] 1 AC 645. We are concerned with
the liability of a person where a nuisance has been created by one for whose
actions he is responsible. Here, as I have said, it is still the law that the fact
that the defendant has taken all reasonable care will not of itself exonerate him
from liability, the relevant control mechanism being found within the principle
of reasonable user. But it by no means follows that the defendant should be
held liable for damage of a type which he could not reasonably foresee; and
the development of the law of negligence in the past sixty years points
strongly towards a requirement that such foreseeability should be a
prerequisite of liability in damages for nuisance, as it is of liability in
negligence. For if a plaintiff is in ordinary circumstances only able to claim
damages in respect of personal injuries where he can prove such foreseeability
on the part of the defendant, it is difficult to see why, in common justice, he
should be in a stronger position to claim damages for interference with the
enjoyment of his land where the defendant was unable to foresee such
damage. Moreover, this appears to have been the conclusion of the Privy
Council in Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The
Wagon Mound) (No. 2) [1967] 1 AC 617. The facts of the case are too well
known to require repetition, but they gave rise to a claim for damages arising
from a public nuisance caused by a spillage of oil in Sydney Harbour. Lord
Reid, who delivered the advice of the Privy Council, considered that, in the

- 12 -

class of nuisance which included the case before the Board, foreseeability is
an essential element in determining liability. He then continued, at p. 640:

"It could not be right to discriminate between different cases of
nuisance so as to make foreseeability a necessary element in
determining damages in those cases where it is a necessary element in
determining liability, but not in others. So the choice is between it
being a necessary element in all cases of nuisance or in none. In their
Lordships' judgment the similarities between nuisance and other forms
of tort to which The Wagon Mound (No. 1) applies far outweigh any
differences, and they must therefore hold that the judgment appealed
from is wrong on this branch of the case. It is not sufficient that the
injury suffered by the respondents' vessels was the direct result of the
nuisance if that injury was in the relevant sense unforeseeable."

It is widely accepted that this conclusion, although not essential to the
decision of the particular case, has nevertheless settled the law to the effect
that foreseeability of harm is indeed a prerequisite of the recovery of damages
in private nuisance, as in the case of public nuisance. I refer in particular to
the opinion expressed by Professor Fleming in his book on Torts. 8th ed.
(1992), pp. 443-444. It is unnecessary in the present case to consider the
precise nature of this principle: but it appears from Lord Reid's statement of
the law that he regarded it essentially as one relating to remoteness of damage.

Foreseeability of damage under the rule in Rylands v. Fletcher

It is against this background that I turn to the submission advanced by
ECL before your Lordships that there is a similar prerequisite of recovery of
damages under the rule in Rylands v. Fletcher.

I start with the judgment of Blackburn J. in Fletcher v. Rylands itself
(1866) L.R. 1 Exch. 265. His celebrated statement of the law is to be found
at pp. 279-280. where he said:

"We think that the true rule of law is, 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. He can excuse himself by
showing that the escape was owing to the plaintiffs default; or
perhaps that the escape was the consequence of vis major, or the act
of God; but as nothing of this sort exists here, it is unnecessary to

inquire what excuse would be sufficient. The general rule, as above
stated, seems on principle just. The person whose grass or corn is
eaten down by the escaping cattle of his neighbour, or whose mine is
flooded by the water from his neighbour's reservoir, or whose cellar
is invaded by the filth of his neighbour's privy, or whose habitation is
made unhealthy by the fumes and noisome vapours of his neighbour's

- 13 -

alkali works, is damnified without any fault of his own; and 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. But for his act in bringing it there no mischief
could have accrued, and it seems but just that he should at his peril
keep it there so that no mischief may accrue, or answer for the natural
and anticipated consequences. And upon authority, this we think is
established to be the law whether the things so brought be beasts, or
water, or filth, or stenches".

In that passage, Blackburn J. spoke of "anything likely to do mischief
if it escapes"; and later he spoke of something "which he knows to be
mischievous if it gets on to his neighbour's [property]", and the liability to
"answer for the natural and anticipated consequences". Furthermore, time and
again he spoke of the strict liability imposed upon the defendant as being that
he must keep the thing in at his peril; and. when referring to liability in
actions for damage occasioned by animals, he referred (p. 282) to the
established principle "that it is quite immaterial whether the escape is by
negligence or not". The general tenor of his statement of principle is
therefore that knowledge, or at least foreseeability of the risk, is a prerequisite
of the recovery of damages under the principle; but that the principle is one
of strict liability in the sense that the defendant may be held liable
notwithstanding that he has exercised all due care to prevent the escape from
occurring.

There are however early authorities in which foreseeability of damage
does not appear to have been regarded as necessary (see. e.g., Humphries v.
Cousins (1877) 2 C.P.D. 239). Moreover, it was submitted by Mr. Ashworth
for CWC that the requirement of foreseeability of damage was negatived in
two particular cases, the decision of the Court of Appeal in West v. Bristol
Tramways Co. [1908] 2 K.B.14, and the decision of this House in Rainham
Chemical Works Ltd. v. Belvedere Fish Guano Co. Ltd. [1921] 2 A.C. 465.

In West the defendant tramway company was held liable for damage
to the plaintiffs plants and shrubs in his nursery garden adjoining a road
where the defendant's tramline ran, the damage being caused by fumes from
creosoted wooden blocks laid by the defendants between the rails of the
tramline. The defendants were so held liable under the rule in Rylands v.
Fletcher, notwithstanding that they were exonerated from negligence, having
no knowledge of the possibility of such damage; indeed the evidence was that
creosoted wood had been in use for several years as wood paving, and no
mischief had ever been known to arise from it. The argument that no liability
arose in such circumstances under the rule in Rylands v. Fletcher was given

- 14 -

short shrift, both in the Divisional Court and in the Court of Appeal. For the
Divisional Court, it was enough that the creosote had been found to be
dangerous by the jury, Phillimore J. holding that creosote was like the wild
animals in the old cases. The Court of Appeal did not call upon the plaintiffs,
and dismissed the appeal in unreserved judgments. Lord Alverstone C.J.
relied upon a passage from Garrett on Nuisances, 2nd ed. (1897), p. 129, and
rejected a contention by the defendant that, in the case of non-natural use of
land, the defendant will not be liable unless the thing introduced onto the land
was, to the knowledge of the defendant, likely to escape and cause damage.
It was however suggested, both by Lord Alverstone C.J. (with whom
Sir Gorell Barnes P. agreed) and by Farwell L.J. that, by analogy with cases
concerning liability for animals, the defendant might escape liability if he
could show that, according to the common experience of mankind, the thing
introduced onto the land had proved not to be dangerous.

The Rainham Chemicals case [1921] 2 A.C. 465 arose out of a
catastrophic explosion at a factory involved in the manufacture of high
explosive during the First World War, with considerable loss of life and
damage to neighbouring property. It was held that the company carrying on
the business at the premises was liable for the damage to neighbouring
property under the rule in Rylands v. Fletcher; but the great question in the
case, at least so far as the appellate courts were concerned, was whether two
individuals, who were shareholders in and directors of the company, could be
held personally responsible on the same principle. The grounds on which the
trial judge (Scrutton L.J., sitting as an additional judge on the Queen's Bench
Division) and the majority of the Court of Appeal (Lord Sterndale M.R. and
Atkin L.J.) held the two individuals liable were all different and were all held
to be erroneous by your Lordships' House. The dissentient member of the
Court of Appeal, Younger L.J., concluded that no liability could attach to
them on any established principle, and plainly feared that they were being
treated as scapegoats because they were making money out of the venture:
see [1920] 2 K.B. 487, 521-523. The explosion at the factory appears to have
originated in an ingredient used in the manufacture of the explosive, viz.
dinitrophenol (DNP), which had formerly been used in dyeing; this exploded
as a result of a fire, the cause of which was not established. Before Scrutton
L.J., it appears to have been admitted that the person in possession of the
DNP was liable under the rule in Rylands v. Fletcher for the consequences of
the explosion. This was despite the fact that DNP had never been known to
explode before and, as Younger L.J. pointed out. exactly the same fire and
explosion might have occurred if the DNP had been stored at a dyeworks and
was not being used in any way in the manufacture of explosives. In the Court
of Appeal, Atkin L.J. was of the opinion that the fact that the work was
known to be dangerous by the contractors and the company was, if relevant,
established (see [1920] 2 K.B. 487, 505); but it seems clear that no such
knowledge could be imputed to either of the two individual defendants. The
point appears to have been briefly relied on by counsel in the Court of
Appeal, but not to have been pursued by Sir John Simon K.C. on their behalf
in the House of Lords. However, this House dismissed their appeal on a



- 15 -

point of some technicality, viz. that their Lordships could not satisfy
themselves that the two individuals had sufficiently divested themselves of the
occupation of the premises, so as to substitute the occupation of the company
in the place of their own - notwithstanding that the company itself was also in
occupation: see [1921] 2 A.C. 465. 478-479 per Lord Buckmaster; pp. 480,
483-484. per Lord Sumner: p. 491. per Lord Parmoor; and pp. 492, 493-
494. per Lord Carson).

I feel bound to say that these two cases provide a very fragile base for
any firm conclusion that foreseeability of damage has been authoritatively
reacted as a prerequisite of the recovery of damages under the rule in Rylands
v Fletcher. Certainly, the point was not considered by this House in the
Rainham Chemicals case. In my opinion, the matter is open for consideration
by your Lordships in the present case. and. despite recent dicta to the contrary
(see. e.g., Leakey v. National Trust for Places of Historic Interest or Natural
Beauty [1980] QB 485. 519. per Megaw L.J.), should be considered as a
matter of principle. Little guidance can be derived from either of the two
cases in question, save that it seems to have been assumed that the strict
liability arising under the rule precluded reliance by the plaintiff on lack, of
knowledge or the means of knowledge of the relevant danger.

The point is one on which academic opinion appears to be divided: cf.
Salmond and Heuston on Torts, 20th ed., (1992). pp 324-325. which favours
the prerequisite of foreseeability, and Clerk and Lindsell on Torts. 16th ed.,
(1989), para. 25.09. which takes a different view. However, quite apart from
the indications to be derived from the judgment of Blackburn J. in Fletcher v.
Rylands L.R. 1 Exch. 265 itself, to which I have already referred, the
historical connection with the law of nuisance must now be regarded as
pointing towards the conclusion that foreseeability of damage is a prerequisite
of the recovery of damages under the rule. I have already referred to the fact
that Blackburn J. himself did not regard his statement of principle as having
broken new ground; furthermore. Professor Newark has convincingly shown
that the rule in Rylands v. Fletcher was essentially concerned with an
extension of the law of nuisance to cases of isolated escape. Accordingly
since, following the observations of Lord Reid when delivering the advice of
the Privy Council in The Wagon Mound (No. 2) [1967] 1 AC 617, 640, the
recovery of damages in private nuisance depends on foreseeability by the
defendant of the relevant type of damage, it would appear logical to extend the
same requirement to liability under the rule in Rylands v. Fletcher.

Even so, the question cannot be considered solely as a matter of
history. It can be argued that the rule in Rylands v. Fletcher should not be
regarded simply as an extension of the law of nuisance, but should rather be
treated as a developing principle of strict liability from which can be derived
a general rule of strict liability for damage caused by ultra-hazardous
operations, on the basis of which persons conducting such operations may
properly be held strictly liable for the extraordinary risk to others involved in

- 16 -

such operations. As is pointed out in Fleming on Torts, 8th ed., pp. 327-328.
this would lead to the practical result that the cost of damage resulting from
such operations would have to be absorbed as part of the overheads of the
relevant business rather than be borne (where there is no negligence) by the
injured person or his insurers, or even by the community at large. Such a
development appears to have been taking place in the United States, as can be
seen from paragraph 519 of the Restatement of Torts (2d) vol. 3 (1977). The
extent to which it has done so is not altogether clear: and I infer from
paragraph 519, and the Comment on that paragraph, that the abnormally
dangerous activities there referred to are such that their ability to cause harm
would be obvious to any reasonable person who carried them on.

I have to say, however, that there are serious obstacles in the way of
the development of the rule in Rylands v. Fletcher in this way. First of all,
if it was so to develop, it should logically apply to liability to all persons
suffering injury by reason of the ultra-hazardous operations; but the decision
of this House in Read v. J. Lyons & Co. Ltd. [1947] AC 156, which
establishes that there can be no liability under the rule except in circumstances
where the injury has been caused by an escape from land under the control of
the defendant, has effectively precluded any such development. Professor
Fleming has observed that "the most damaging effect of the decision in Read
v. Lyons is that it prematurely stunted the development of a general theory of
strict liability for ultra-hazardous activities" (see Fleming on Torts, 8th ed.,
p. 341). Even so, there is much to be said for the view that the courts should
not be proceeding down the path of developing such a general theory. In this
connection. I refer in particular to the Report of the Law Commission on Civil
Liability for Dangerous Things and Activities (Law Com. No. 32), 1970. In
paragraphs 14-16 of the Report, the Law Commission expressed serious
misgivings about the adoption of any test for the application of strict liability
involving a general concept of "especially dangerous" or "ultra-hazardous"
activity, having regard to the uncertainties and practical difficulties of its
application. If the Law Commission is unwilling to consider statutory reform
on this basis, it must follow that judges should if anything be even more
reluctant to proceed down that path.

Like the Judge in the present case (p. 50E), I incline to the opinion
that, as a general rule, it is more appropriate for strict liability in respect of
operations of high risk to be imposed by Parliament, than by the courts. If
such liability is imposed by statute, the relevant activities can be identified,
and those concerned can know where they stand. Furthermore, statute can
where appropriate lay down precise criteria establishing the incidence and
scope of such liability.

It is of particular relevance that the present case is concerned with
environmental pollution. The protection and preservation of the environment
is now perceived as being of crucial importance to the future of mankind: and
public bodies, both national and international, are taking significant steps
towards the establishment of legislation which will promote the protection of



- 17-

the environment, and make the polluter pay for damage to the environment for
which he is responsible - as can be seen from the WHO, EEC and national
regulations to which I have previously referred. But it does not follow from
these developments that a common law principle, such as the rule in Rylands
v. Fletcher, should be developed or rendered more strict to provide for
liability in respect of such pollution. On the contrary, given that so much
well-informed and carefully structured legislation is now being put in place for
this purpose, there is less need for the courts to develop a common law
principle to achieve the same end. and indeed it may well be undesirable that
they should do so.

Having regard to these considerations, and in particular to the step
which this House has already taken in Read v. Lyons to contain the scope of
liability under the rule in Rylands v. Fletcher, it appears to me to be
appropriate now to take the view that foreseeability of damage of the relevant
type should be regarded as a prerequisite of liability in damages under the
rule. Such a conclusion can. as I have already stated, be derived from
Blackburn J.'s original statement of the law; and I can see no good reason
why this prerequisite should not be recognised under the rule, as it has been
in the case of private nuisance. In particular. I do not regard the two
authorities cued to your Lordships, West v. Bristol Tramways Co. [1908] 2
K.B. 14 and Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co.
[1921] 2 A.C. 465. as providing any strong pointer towards a contrary
conclusion. It would moreover lead to a more coherent body of common law-
principles if the rule were to be regarded essentially as an extension of the law
of nuisance to cases of isolated escapes from land, even though the rule as
established is not limited to escapes which are in fact isolated. I wish to point
our. however, that in truth the escape of the PCE from ECL's land, in the
form of trace elements carried in percolating water, has not been an isolated
escape, but a continuing escape resulting from a state of affairs which has
come into existence at the base of the chalk aquifer underneath ECL's
premises. Classically, this would have been regarded as a case of nuisance:
and it would seem strange if. by characterising the case as one falling under
the rule in Rylands v. Fletcher, the liability should thereby be rendered more
strict in the circumstances of the present case.

The facts of the present case

Turning to the facts of the present case, it is plain that, at the time
when the PCE was brought onto ECL's land, and indeed when it was used in
the tanning process there, nobody at ECL could reasonably have foreseen the
resultant damage which occurred at CWC's borehole at Sawston.

However there remains for consideration a point adumbrated in the
course of argument, which is relevant to liability in nuisance as well as under
the rule in Rylands v. Fletcher. It appears that, in the present case, pools of
neat PCE are still in existence at the base of the chalk aquifer beneath ECL's

- 18 -

premises, and the escape of dissolved phase PCE from ECL's land is
continuing to the present day. On this basis it can be argued that, since it has
become known that PCE, if it escapes, is capable of causing damage by
rendering water available at boreholes unsaleable for domestic purposes, ECL
could be held liable, in nuisance or under the rule in Rylands v. Fletcher, in
respect of damage caused by the continuing escape of PCE from its land
occurring at any time after such damage had become foreseeable by ECL.

For my part, I do not consider that such an argument is well founded.
Here we are faced with a situation where the substance in question, PCE, has
so travelled down through the drift and the chalk aquifer beneath ECL's
premises that it has passed beyond the control of ECL. To impose strict
liability on ECL in these circumstances, either as the creator of a nuisance or
under the rule in Rylands v. Fletcher, on the ground that it has subsequently
become reasonably foreseeable that the PCE may, if it escapes, cause damage,
appears to me to go beyond the scope of the regimes imposed under either of
these two related heads of liability. This is because when ECL created the
conditions which have ultimately led to the present state of affairs - whether
by bringing the PCE in question onto its land, or by retaining it there, or by
using it in its tanning process - it could not possibly have foreseen that
damage of the type now complained of might be caused thereby. Indeed, long
before the relevant legislation came into force, the PCE had become
irretrievably lost in the ground below. In such circumstances, I do not
consider that ECL should be under any greater liability than that imposed for
negligence. At best, if the case is regarded as one of nuisance, it should be
treated no differently from, for example, the case of the landslip in Leakey v.
National Trust for Places of Historic Interest or National Beauty [1980] Q.B.
485.

I wish to add that the present case may be regarded as one of what is
nowadays called historic pollution, in the sense that the relevant occurrence
(the seepage of PCE through the floor of ECL's premises) took place before
the relevant legislation came into force; and it appears that, under the current
philosophy, it is not envisaged that statutory liability should be imposed for
historic pollution (see, e.g. the Council of Europe's Draft Convention on Civil
Liability for Damages Resulting from Activities Dangerous to the
Environment (Strasbourg 29 January 1993) Article 5.1, and paragraph 48 of
the Explanatory Report). If so, it would be strange if liability for such
pollution were to arise under a principle of common law.

In the result, since those responsible at ECL could not at the relevant
time reasonably have foreseen that the damage in question might occur, the
claim of CWC for damages under the rule in Rylands v. Fletcher must fail.

Natural use of land

I turn to the question whether the use by ECL of its land in the present
case constituted a natural use, with the result that ECL cannot be held liable



- 19 -

under the rule in Rylands v. Fletcher. In view of my conclusion on the issue
of foreseeability, I can deal with this point shortly.

The judge held that it was a natural use. He said, at p. 41B-E:

"In my judgment, in considering whether the storage of
organochlorines as an adjunct to a manufacturing process is a non-
natural use of land. I must consider whether that storage created
special risks for adjacent occupiers and whether the activity was for
the general benefit of the community. It seems to me inevitable that
I must consider the magnitude of the storage and the geographical area
in which it takes place in answering the question. Sawston is properly
described as an industrial village, and the creation of employment is
clearly for the benefit of that community. I do not believe that I can
enter upon an assessment of the point on a scale of desirability that the
manufacture of wash leathers comes, and I content myself with holding
that this storage in this place is a natural use of land".

It is a commonplace that this particular exception to liability under the
rule has developed and changed over the years. It seems clear that, in
Fletcher v. Rylands L.R. 1 Exch. 265 itself, Blackburn J.'s statement of the
law was limited to things which are brought by the defendant onto his land,
and so did not apply to things that were naturally upon the land.
Furthermore, it is doubtful whether in the House of Lords in the same case
Lord Cairns, to whom we owe the expression "non-natural use" of the land.
was intending to expand the concept of natural use beyond that envisaged by
Blackburn J. Even so. the law has long since departed from any such simple
idea, redolent of a different age; and. at least since the advice of the Privy
Council delivered by Lord Moulton in Rickards v. Lothian [1913] AC 263.
280, natural use has been extended to embrace the ordinary use of land. I ask
to be forgiven if I again quote Lord Moulton's statement of the law, which
has lain at the heart of the subsequent development of this exception:

"It is not every use to which land is put that brings into play that
principle. It must be some special use bringing with it increased
danger to others, and must not merely be the ordinary use of the land
or such a use as is proper for the general benefit of the community".

Rickards v. Lothian itself was concerned with a use of a domestic kind,
viz. the overflow of water from a basin whose runaway had become blocked.
But over the years the concept of natural use, in the sense of ordinary use, has
been extended to embrace a wide variety of uses, including not only domestic
uses but also recreational uses and even some industrial uses.

It is obvious that the expression "ordinary use of the land" in Lord
Moulton's statement of the law is one which is lacking in precision. There
are some writers who welcome the flexibility which has thus been introduced
into this branch of the law, on the ground that it enables judges to mould and

- 20 -

adapt the principle of strict liability to the changing needs of society; whereas
others regret the perceived absence of principle in so vague a concept, and
fear that the whole idea of strict liability may as a result be undermined. A
particular doubt is introduced by Lord Moulton's alternative criterion - "or
such a use as is proper for the general benefit of the community". If these
words are understood to refer to a local community, they can be given some
content as intended to refer to such matters as, for example, the provision of
services; indeed the same idea can, without too much difficulty, be extended
to, for example, the provision of services to industrial premises, as in a
business park or an industrial estate. But if the words are extended to
embrace the wider interests of the local community or the general benefit of
the community at large, it is difficult to see how the exception can be kept
within reasonable bounds. A notable extension was considered in your
Lordships' House in Read v. J. Lyons & Co. Ltd. [1947] AC 156, 169-170,
per Viscount Simon, and p. 174, per Lord Macmillan, where it was suggested
that, in time of war, the manufacture of explosives might be held to constitute
a natural use of land, apparently on the basis that, in a country in which the
greater part of the population was involved in the war effort, many otherwise
exceptional uses might become "ordinary" for the duration of the war. It is
however unnecessary to consider so wide an extension as that in a case such
as the present. Even so, we can see the introduction of another extension in
the present case, when the judge invoked the creation of employment as
clearly for the benefit of the local community, viz. "the industrial village" at
Sawston. I myself, however, do not feel able to accept that the creation of
employment as such, even in a small industrial complex, is sufficient of itself
to establish a particular use as constituting a natural or ordinary use of land.

Fortunately, I do not think it is necessary for the purposes of the
present case to attempt any redefinition of the concept of natural or ordinary
use. This is because I am satisfied that the storage of chemicals in substantial
quantities, and their use in the manner employed at ECL's premises, cannot
fall within the exception. For the purpose of testing the point, let it be
assumed that ECL was well aware of the possibility that PCE, if it escaped,
could indeed cause damage, for example by contaminating any water with
which it became mixed so as to render that water undrinkable by human
beings. I cannot think that it would be right in such circumstances to exempt
ECL from liability under the rule in Rylands v. Fletcher on the ground that
the use was natural or ordinary. The mere fact that the use is common in the
tanning industry cannot, in my opinion, be enough to bring the use within the
exception, nor the fact that Sawston contains a small industrial community
which is worthy of encouragement or support. Indeed I feel bound to say that
the storage of substantial quantities of chemicals on industrial premises should
be regarded as an almost classic case of non-natural use; and I find it very
difficult to think that it should be thought objectionable to impose strict
liability for damage caused in the event of their escape. It may well be that,
now that it is recognised that foreseeability of harm of the relevant type is a
prerequisite of liability in damages under the rule, the courts may feel less
pressure to extend the concept of natural use to circumstances such as those

- 21 -

in the present case; and in due course it may become easier to control this
exception, and to ensure that it has a more recognisable basis of principle.
For these reasons, I would not hold that ECL should be exempt from liability
on the basis of the exception of natural use.

However, for the reasons I have already given. I would allow ECL's
appeal with costs before your Lordships' House and in the courts below.

LORD JAUNCEY OF TULLICHETTLE

My Lords.

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend. Lord Goff of Chieveley. I agree with it and for the
reasons he gives I too would allow the appeal.

LORD LOWRY

My Lords.

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend. Lord Goff of Chieveley. I agree with it and for the
reasons he gives I too would allow the appeal.

LORD WOOLF

My Lords.

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend. Lord Goff of Chieveley. I agree with it and for the
reasons he gives I too would allow the appeal.

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