Cambridge Water v Eastern Counties Leather [1994] 2 AC 264

Key points

  • Reasonable foreseeability of damage is a prerequisite for damages under both nuisance and the rule in Rylands v Fletcher 
  • However, damage need not be reasonably foreseeable for an injunction to be granted against a continuing nuisance

Facts

  • D used a chemical PCE in their trade in tanning
  • Continued small spillages resulted in the accumulation of a pool of PCE under the land
  • The pool of PCE was carried by way of an underground waterflow to C’s borehole several miles away and polluted the water in it
  • C sued under the Rylands v Fletcher rule (its other claims in negligence and nuisance had failed as it was found that the damage was not reasonably foreseeable)
  • D argued that it not liable under the Rylands v Fletcher rule as the damage caused by the escape of chemicals was not reasonably foreseeable

Issue

  • Is reasonable foreseeability of damage a prerequisite of liability under the rule in Rylands v Fletcher?

Held (House of Lords)

  • No damages were awarded in respect of both nuisance and Rylands as it was not reasonably foreseeable when the chemicals were brought on to the land that if they escaped, the pollution to D’s water would have been occurred: p. 307
  • However, C was entitled to an injunction respect of the nuisance created by the spillage (which had been granted by the Court of Appeal)

Lord Goff

Nuisance

Injunction

  • Reasonable foreseeability is not a prerequisite for injunction
  • The injunction’s purpose is to restrain further action by D which may interfere with C’s enjoyment of the land, and D 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: p. 300

Damages

  • Foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence: p. 300
  • It is difficult to see why in common justice a person should be in a stronger position when he could not have foreseen interference with the enjoyment of his land than when he could not have foreseen personal injury

Rylands v Fletcher

Reasonable foreseeability

  • Reasonable foreseeability of damage if an escape occurs is a prerequisite of damages in Rylands v Fletcher: p. 306
  • The rule in Rylands v Fletcher is extension of the law of nuisance to cases of isolated escapes from land, thus the prerequisite of reasonable foreseeability should apply as it does in nuisance
  • Furthermore, it is inherent in Blackburn J’s original formulation of the rule, in which he used words “know” and “likely”, that reasonable foreseeability is a prerequisite

Non-natural use

  • Lord Moulton in Rickards v Lothian stated that natural use “must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.”
  • The exception of “general benefit of the community” can refer to the provision of services to the community
  • The introduction of employment by the tannery to the local community cannot be regarded as sufficient to bring itself within the scope of natural use of land
  • The storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use

: p. 308 – 309

Current case

  • Even though there was non-natural use of land, liability for damages under Rylands does not arise as the damage to D was not reasonably foreseeable

Commentary

  • As Lord Goff stressed, although reasonable foreseeability is a prerequisite for both nuisance and Rylands v Fletcher torts, they are both strict liability
    • If the user is not reasonable, a defendant will be liable even if he took reasonable care to avoid it: p. 299
    • Where there is a non-natural use, the defendant will be liable for harm caused to the plaintiff by the escape, even if he exercised reasonable care and skill to prevent the escape: p. 300
  • In stressing the similarities between nuisance and the rule in Rylands v Fletcher, Lord Goff drew a parallel between the reasonable user test in nuisance and the non-natural use test in Rylands v Fletcher as mechanisms that limited liability