Different forms of liability
(M.SC /Construction Negligence and Public rights: Module :
BE5423)
Udapadie S. Liyanage
Senior Lecturer
Dept. of Private and Comparative Law,
Faculty of Law
University of Colombo
2019.06.29
What is liability?
The state of being bound or
obliged in law or justice to do,
pay, or make good
something.
(Black's Law Dictionary)
Different forms of liability
1. Fault – based liability
2. Non- fault liability
Fault – based liability
Liabilitywhich is based either on
intention or negligence.
i.e. The Aquilian action, Actio
injuriarum, tort of negligence
Special reference is given to the
conduct of the defendant.
Non- fault liability
(strict liability)
Non-fault liability is two
fold.
1. Strict liability with exceptions
2. Strict liability without exceptions
(Absolute liability)
Strict liability
Liability which does not consider ‘fault’ on
the part of the defendant.
Common law principles of strict liability;
i.e. Rylands v Fletcher rule (1868)
law of nuisance
The concern is whether the damage is
significant and serious.
Strict liability is imposed mainly through
statutes.
Absolute liability
Strict liability is applied without exceptions.
M.C. Mehta v Union of India (1987),
wherein the Supreme Court of India termed
liability as ‘Absolute Liability’.
This rule was also followed in the case of
Indian Council for Enviro-Legal Action v
Union of India (1996)
Rules of strict liability
1. Rylands v. Fletcher(1868)
Facts:
The Defendants were the owners of a mill in his neighbourhood.
They built a reservoir for the purpose of keeping and storing
water to be used for their mill.
Underneath the close of land of the Defendants on which they
constructed their reservoir there were certain old and disused
mining passages and works.
It was constructed by them through the agency and inspection of
an engineer and contractor.
The water passed down them and into the horizontal workings,
and from the horizontal workings under the close of the
Defendants it passed on into the workings under the close of the
Plaintiff, and flooded his mine, causing considerable damage, for
which this action was brought.
The Plaintiff (F) sued Defendants(R).
The issues
Whether the defendants were
liable for the damage caused by
an independent contractor?
If so, the basis of liability
The judgment of the Court of
Exchequer:
The Plaintiff had established no cause of
action.
There could be no liability without
negligence.
However, Baron Bramwell J dissented,
holding that the defendant should be liable
on the basis of strict liability.
The judgment of the Court of
Exchequer Chamber :
The issue;
The question of law arises on what basis
the obligation which the law casts on a
person who, like the defendants, lawfully
brings on his land something which, though
harmless whilst it remains there, will
naturally do mischief if it escape out of his
land?
The Rule
We think 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.
- Justice Blackburn
In the House of Lords;
Defendant's appeal was dismissed.
The defendants were liable on the basis of
strict liability.
Affirmed the Rule introduced by Blackburn J.
in the Court of Exchequer Chamber.
Added ‘non- natural use’ as a prerequisite of
liability.
Continued
Is there any difference between ‘not
naturally’ and ‘non-natural user’?
How do you consider cases on ‘failure of
dams’ in this connection?
See, Simpson, ‘Bursting reservoirs and
Victorian Tort Law: Rylands and Horrocks v
Fletcher ‘ , Leading cases in the common
law 1995
Cambridge Water v Eastern
Counties Leather [1994] 2 WLR 53
As per, ‘likely to do mischief if it escapes’,
‘which he knows to be mischievous’ and ‘he
should at his peril keep it there . . . or
answer for the natural and anticipated
consequences’, Lord Goff concluded that
foreseeability of damage is a prerequisite
for recovery of damages under the rule in
Rylands v Fletcher.
Transco plc v Stockport Metropolitan
Borough Council [2004] 1 AER 589
Facts:
A large water pipe was used to service a block of flats
owned by the defendants (Stockport Council). The pipe
burst and exposed gas pipes, which cost the claimants a
lot of money to make safe.
Decision:
The House of Lords decided the defendants were not
liable because the water pipe was for domestic use
(servicing the 20 flats) and therefore was a natural
use of land.
The water did not accumulate as it was a flowing
pipe, and there was no escape because Transco’s gas
pipe was on the council’s land.
Limitation of liability
There is no liability for personal
injury under the rule in Rylands v
Fletcher.
The R v. F rule is only a branch of
law of nuisance.
Dealing with land/property
rights.
Elements of the Rule
Non- natural use: Rickards v Lothian [1913] AC 263
Escape: There must be an escape from the
Defendant’s land.
Read v Lyons [1947] AC 156
Accumulation: The defendant should bring
something onto his land
Dangerous thing/substance: i.e. water, gas,
electricity
Foreseeability: Cambridge Water v Eastern
Counties Leather
Defences
There are several defences to the Rylands
v Fletcher rule, including:
• Act of a stranger
• Volenti (consent)
• Statutory authority
• Default of the claimant
• Act of God
Who can sue/be sued ?
The rule in Rylands v Fletcher is a
‘principle applicable between occupiers in
respect of their land’.
The claimant must therefore have some
interest in the land which is affected.
The defendant must be the occupier who
is in control of the land.
Applicability of Rylands v
Fletcher Rule in Sri Lanka
Samed v Segutumby NLR 25 V 481
‘the Roman-Dutch law, pure and simple, does not exist in this
country in its entirety," and that " it is not the whole body of
Roman-Dutch law, but only so much of it as may be shown or
presumed to have been introduced into Ceylon " that is now
applicable here. With the very greatest deference to the high
authority of these Judges, I hesitate to apply such, propositions
to fundamental principles of the common law enunciated by
authorities recognized as binding wherever the Roman-Dutch
law prevails. Such principles may no doubt, in course of time,
become modified in their local application by judicial decisions,
but it would be only by a series of unbroken and express
decisions that such a development could take place.’
- Bertram CJ
Continued
Case law:
Kodeeswaran v A.G (1972)
Silva v Silva (1982) – Athukorala J.
Analyse the applicability of the Rylands v
Fletcher rule in the area of construction.
Law of Nuisance
There are three types of nuisances
1. Private nuisance
2. Public nuisance
3. Statutory nuisance
Private nuisance
A private nuisance is an unlawful
interference with a person's enjoyment and
use of his/her land. (protects land rights)
It is based on Sic utere tuo ut alienum non
laedas. (So use your own as not to injure
another's property).
The law concerns the property rights of the
people.
Types of
Private nuisances
Encroachment on a neighbour's land;
Direct physical injury to the land; or
Interference with the enjoyment of land.
The plaintiff has to prove that the defendant is
using his land unreasonably.
Hunter v Canary Warf 1997 2 All ER 426
Issues:
◦ It was questioned whether interference with
television reception caused by the erection of a
large tower block amounted to an actionable
nuisance.
◦ Who has the right to sue?
Continued
It was decided in this case that;
• Proof of damage is necessary
• For only those who have exclusive possession of
property have a right to sue in nuisance.
• Foreseeability of harm is a prerequisite of
liability.
Elements of the action
No exact element can be seen, but the law
reflects judicial attempts to balance the
conflicting interests of neighbouring
landowners.
However, the law intervenes where there is
a substantial and unreasonable interference
with the use and enjoyment of land.
Unreasonable use
Continuous interference – continous act
Unlawful interference - reasonableness of
the conduct (locality, malice, sensitivity of
the P, utility of the act, the state of the d’s
land.)
Interference with the enjoyment of land
- a material/physical damage is necessary.
See, Hunter v Canary Warf
locality
St. Helen’s Smelting Co. v. Tipping (1865)-
fumes
See, Cambridge Water Co.v. Eastern
Counties Plc.
Analayse the effect of ‘Zoning’ in town and
country planning?
Utility /public benefit
Bamford v Tunley (1862)
-burning bricks
D won the case on the basis that there is a
public benefit.
Who can sue/be sued?
A person who has a proprietary interest can
sue against a creator of the nuisance.
See, Hunter v Canary Warf
Defences
Prescription
Statutory authority – Allen v Gulf Oil
Refining Ltd 1981 AC 1001
Coming to the nuisance- Miller v Jackson
1977 QB 966
Remedies
Compensation
Injunction
Abatement
