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Read V. J. Lyons and Company Limited - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case Number[1946] UKHL 2
Judge
Excerpt:
viscount simon my lords, in fulfilment of an agreement dated january 26th, 1942, and made between the ministry of supply and the respondents, the latter undertook the operation, management and control of the elstow ordnance factory as agents for the ministry. the respondents carried on in the factory the business of filling shell-cases with high explosives. the appellant was an employee of the ministry, with the duty of inspecting this filling of shell-cases, and her work required her (although she would have preferred and had applied for other employment) to be present in the shell-filling shop. on august 31st, 1942, whilst the appellant was lawfully in the shell-filling shop in discharge of her duty, an explosion occurred which killed a man and injured the appellant and others. no.....
Judgment:

Viscount Simon

MY LORDS,

In fulfilment of an Agreement dated January 26th, 1942, and made between the Ministry of Supply and the Respondents, the latter undertook the operation, management and control of the Elstow Ordnance Factory as agents for the Ministry. The Respondents carried on in the factory the business of filling shell-cases with high explosives. The Appellant was an employee of the Ministry, with the duty of inspecting this filling of shell-cases, and her work required her (although she would have preferred and had applied for other employment) to be present in the shell-filling shop. On August 31st, 1942, whilst the Appellant was lawfully in the shell-filling shop in discharge of her duty, an explosion occurred which killed a man and injured the Appellant and others. No negligence was averred or proved against the Respondents. The plea of volenti non fit injuria, for whatever it might be worth, has been expressly withdrawn before this House by the Attorney General on behalf of the Respondents, and thus the simple question for decision is whether in these circumstances the Respondents are liable, without any proof or inference that they were negligent, to the Appellant in damages, which have been assessed at £575 2s- 8d. for her injuries.

Mr. Justice Cassels, who tried the case, considered that it was governed by Rylands v. Fletcher (L.R.1 Ex.265, L.R.3 H.L.330) and held that the Respondents were liable, on the ground that they were carrying on an ultra-hazardous activity and so were under what is called a strict liability to take successful care to avoid causing harm to persons whether on or off the premises. The Court of Appeal (Scott, MacKinnon, and du Parcq L.JJ.) reversed this decision, Lord Justice Scott in an elaborately reasoned judgment holding that a person on the premises had, in the absence of any proof of negligence, no cause of action, and that there must be an escape of the damage-causing thing from the premises and damage caused outside before the doctrine customarily associated with the case of Rylands v. Fletcher can apply.

I agree that the action fails. The Appellant was a person present in the factory in pursuance of a public duty (like an ordinary factory-inspector) and was consequently in the same position as an invitee. The Respondents were managers of the factory as agents for the Ministry of Supply and had the same responsibility to an invitee as an ordinary occupier in control of the premises. The duties of an occupier of premises to an invitee have been analysed in many reported cases, but in none of them, I think, is there any hint of the proposition necessary to support the claim of the Appellant in this case. The fact that the work that was being carried on was of a kind which requires special care is a reason why the standard of care should be high, but it is no reason for saying that the occupier is liable for resulting damage to an invitee without any proof of negligence at all. Blackburn J. in delivering the judgment of the Court of Ex- chequer Chamber in Fletcher v. Rylands laid down at p.279 of L.R.1 Exchequer Cases the proposition 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.

It has not always been sufficiently observed that in the House of Lords, when the appeal from Fletcher v. Rylands was dismissed and Blackburn J.'s pronouncement was expressly approved, Lord Cairns L.C. emphasized another condition which must be satisfied before liability attaches without proof of negligence. This is that 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 bringing on the land what was not naturally there, which is not the same test) difficult to apply. Blackburn J., in the sentence 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 necessarily 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 exceptional 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 III sect. 519 speaks of ultra-hazardous activity, but attaches qualifications which would appear in the present instance to exonerate the Respondents.

It is not necessary to analyse this second condition on the present occasion, for in the case now before us the first essential condition of escape does not seem to me to be present at all.

Escape, for the purpose of applying the proposition in Rylands v. Fletcher, means escape from a place where the defendant has occupation of, or control over, land to a place which is outside his occupation or control. Blackburn J. several times refers to the defendant s duty as being the duty of keeping a thing in at the defendant's peril and by keeping in he does not mean preventing an explosive substance from exploding but preventing a thing which may inflict mischief from escaping from the area which the Defendant occupies or controls. In two well-known cases the same principle of strict liability for escape was applied to defendants who held a franchise to lay pipes under a highway and to conduct water (or gas) under pressure through them (Charing Cross Electric Co. v. Hydraulic Power Co. [1914] 3 K.B. 772; Northwestern Utilities Ltd. v. London Guarantee etc. Co. [1936] A.C. p. 108).

In Howard V. Furness Houlder Argentine Lines Ltd. (41 Commercial Cases 290 at p. 296) Lewis J. had before him a case of injury caused by an escape of steam on board a ship where the Plaintiff was working. The learned Judge was, I think, right in refusing to apply the doctrine of Rylands v. Fletcher on the ground that the injuries were caused on the premises of the defendants.

Apart altogether from the Judge's doubt (which I share) whether the owners of the steamship by generating steam therein are making a non-natural use of their steamship, the other condition upon which the proposition in Rylands v. Fletcher depends was not present any more than it is in the case with which we have now to deal. Here there is no escape of the relevant kind at all and the Appellant's action fails on that ground.

In these circumstances it becomes unnecessary to consider other objections that have been raised, such as the question whether the doctrine of Rylands v. Fletcher applies where the claim is for damages for personal injury as distinguished from damages to property. It may be noted, in passing, that Blackburn J. himself when referring to the doctrine of Rylands v. Fletcher in the later-case of Cattle v. Stockton Waterworks (1875) L.R. 10 Q.B. 453 leaves this undealt with: he treats damages under the Rylands v. Fletcher principle as covering damages to property, such as workmen's clothes or tools, but says nothing about liability for personal injuries.

On the much litigated question of what amounts to non-natural use of land, the discussion of which is also unnecessary in the present Appeal, I content myself with two further observations. The first is that when it becomes essential for the House to examine this question it will, I think, be found that Lord Moulton's analysis in delivering the judgment of the Privy Council in Richards v. Lothian [1913] A.C.263 is of the first importance. The other observation is as to the decision of this House in Rainham Chemical Works Ltd. v. Belvedere Fish Guano Company [1921] 2 A.C.465, to which the Appellant's Counsel in the present case made considerable reference in support of the proposition that manufacturing explosives was a non-natural use of land. This was a case of damage to adjoining property: it is reported in the Court of Appeal in [1920] 2 K.B. 487 and in the Court of First Instance, where it was tried by Lord Justice Scrutton sitting as an additional Judge of the King's Bench Division, in 123 L.T. 211. I find in Lord Justice Scrutton's judgment that he understood it to be admitted before him that the person in possession of, and responsible for, the D.N.P. was liable, under the doctrine of Rylands v. Fletcher for the consequences of its explosions. The point therefore was not really open for argument to the contrary before the House of Lords, where Lord Carson begins his opinion by stating that it was not seriously argued, and that the real point to be determined was as to the liability of two Directors of the Appellant's company. The opinion of Lord Buckmaster, which covers many pages, is almost exclusively concerned with establishing the Directors' liability, and on the other point his observation merely is that the making of munitions was certainly not the common and ordinary use of the land. I think it not improper to put on record, with all due regard to the admission and dicta in that case, that if the question had hereafter to be decided whether the making of munitions in a factory at the Government's request in time of war for the purpose of helping to defeat the enemy is a non-natural use of land, adopted by the occupier for his own purposes, it would not seem to me that the House would be bound by this authority to say that it was. In this appeal the question is immaterial, as I hold that the Appellant fails for the reason that there was no escape from the Respondents' factory.

I move that the Appeal be dismissed with costs.

Lord Macmillan

MY LORDS,

Nothing could be simpler than the facts in this appeal; nothing more far-reaching than the discussion of fundamental legal principles to which it has given rise.

The Plaintiff, while employed as an inspector by the Ministry of Supply at the Elstow Ordnance Factory in Bedfordshire, where the Defendants were engaged in the manufacture of high explosive shells for the Government, was injured by an explosion in the filling shop. She sued the Defendants for damages. In her statement of claim she made no allegation of negligence on the part of the Defendants. All that she averred was that the Defendants were engaged in the manufacture of high explosive shells in premises occupied by them, that the Defendants knew that high explosive shells were dangerous things, and that while she was on their premises in the course of her .duties a high explosive shell exploded and caused her injury. For aught that appears the explosion may have been a pure accident for which no one was to blame.

The trial Judge (Cassels J.) found for the Plaintiff. He relied mainly on the doctrine formulated in the well-known and much-discussed case of Rylands v. Fletcher, 1866, L.R. 1 Ex. 265; 1868, 3 E. and I. Apps. 330, and on the decision of this House in Rainham Chemical Works v. Belvedere Fish Guano Co. [1921], 2 A.C. 465. The Court of Appeal unanimously reversed the judgment of the trial Judge and entered judgment for the Defendants. The Plaintiff with the leave of the Court of Appeal has now brought her case to your Lordships' Bar.

In my opinion the Plaintiff's statement of claim discloses no ground of action against the Defendants. The action is one of damages for personal injuries. Whatever may have been the law of England in early times I am of opinion that as the law now stands an allegation of negligence is in general essential to the relevancy of an action of reparation for personal injuries. The gradual development of the law in the matter of civil liability is discussed and traced by the late Sir William Holdsworth with ample learning and lucidity in the eighth volume of his History of English Law, pp. 446 et seq., and need not here be rehearsed. Suffice it to say that the process of evolution has been from the principle that every man acts at his peril and is liable for all the consequences of his acts to the principle that a man's freedom of action is subject only to the obligation not to infringe any duty of care which he owes to others. The emphasis formerly was on the injury sustained, and the question was whether the case fell within one of the accepted classes of common law actions; the emphasis now is on the conduct of the person whose act has occasioned the injury, and the question is whether it can be characterised as negligent.

I do not overlook the fact that there is at least one instance in the present law in which the primitive rule survives, namely in the case of animals ferae naturae or animals mansuetae naturae which have shown dangerous proclivities. The owner or keeper of such an animal has an absolute duty to confine or control it so that it shall not do injury to others and no proof of care on his part will absolve him from responsibility. But this is probably not so much a vestigial relic of otherwise discarded doctrine as a special rule of practical good sense. At any rate, it is too well established to be challenged. But such an exceptional case as this affords no justification for its extension by analogy.

The appellant in her printed case in this House thus poses the question to be determined: Whether the manufacturer of high explosive shells is under strict liability to prevent such shells from exploding and causing harm to persons on the premises where such manufacture is carried on as well as to persons out-side such premises. Two points arise on this statement of the question. In the first place the expression strict liability, though borrowed from authority, is ambiguous. If it means the absolute liability of an insurer irrespective of negligence, then the answer in my opinion must be in the negative. If it means that an exacting standard of care is incumbent on manufacturers of explosive shells to prevent the occurrence of accidents causing personal injuries, I should answer the question in the affirmative, but this will not avail the plaintiff. In the next place, the question as stated would seem to assume that liability would exist in the present case to persons injured outside the defendants' premises without any proof of negligence on the part of the defendants. Indeed Mr. Justice Cassels in his judgment records that it was not denied that if a person outside the premises had been injured in the explosion the defendants would have been liable without proof of negligence. I do not agree with this view. In my opinion persons injured by the explosion inside or outside the defendants' premises would alike require to aver and prove negligence in order to render the defendants liable.

In an address characterised by much painstaking research Mr. Paull for the plaintiff sought to convince your Lordships that there is a category of things and operations dangerous in themselves and that those who harbour such things or carry on such operations in their premises are liable apart from negligence for any personal injuries occasioned by these dangerous things or operations. I think that he succeeded in showing that in the case of dangerous things and operations the law has recognised that a special responsibility exists to take care. But I do not think that it has ever been laid down that there is absolute liability apart from negligence where persons are injured in consequence of the use of such things or the conduct of such operations. In truth it is a matter of degree. Every activity in which man engages is fraught with some possible element of danger to others. Experience shows that even from acts apparently innocuous injury to others may result. The more dangerous the act the greater is the care that must be taken in performing it. This relates itself lo the principle in the modern law of torts that liability exists only for consequences which a reasonable man would have foreseen.

One who engages in obviously dangerous operations must be taken to know that if he does not take special precautions injury to others may very well result.

In my opinion it would be impracticable to frame a legal classification of things as things dangerous and things not dangerous, attaching absolute liability in the case of the former but not in the case of the latter. In a progressive world things which at one time were reckoned highly dangerous come to be regarded as reasonably safe. The first experimental nights of aviators were certainly dangerous but we are now assured that travel by air is little if at all more dangerous than a railway journey.

Accordingly I am unable to accept the proposition that in law the manufacture of high explosive shells is a dangerous operation which imposes on the manufacturer an absolute liability for any personal injuries which may be sustained in consequence of his operations. Strict liability, if you will, is imposed upon him in the sense that he must exercise a high degree of care, but that is all. The sound view, in my opinion, is that the law in all cases exacts a degree of care commensurate with the risk created.

It was suggested that some operations are so intrinsically dangerous that no degree of care however scrupulous can prevent the occurrence of accidents, and that those who choose for theirown 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 anything. 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 possibility 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 neighbouring 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.

It is noteworthy in Rylands v. Fletcher that all the counts in the declaration alleged negligence, and that on the same page of the report on which his famous dictum is recorded (p. 279) Mr. Justice

Blackburnstates that the plaintiff must bear the loss, 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. Notwithstanding 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.

It remains to say a word about the case of Rainham Chemical Works. There are several features to be noted. Perhaps most important is the fact that the application of the doctrine of Rylands v. Fletcher was not contested except on the ground that it wasnot 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 observation, 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.

Your Lordships' task in this House is to decide particular cases between litigants and your Lordships are not called upon to rationalize the law of England. That attractive if perilous field may well be left to other hands to cultivate. It has been necessary in the present instance to examine certain general principles advanced on behalf of the appellant because it was said that consistency required that these principles should be applied to the case in hand. Arguments based on legal consistency are apt to mislead, for the common law is a practical code adapted to deal with the manifold diversities of human life, and as a great American Judge has reminded us the life of the law has not been logic; it has been experience. For myself I am content to say that in my opinion no authority has been quoted from case or text-book which would justify your Lordships, logically or otherwise, in giving effect to the appellant's plea. I should accordingly dismiss the appeal.

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.

In Rylands v. Fletcher (sup.) it was water, in Rainham Chemical Works v. Belvedere, [1921] 2 A.C. 465, it was explosive matter, in National Telephone Company v. Baker, [1893] 2 Ch. 186, it was electricity, in North-western Utilities v. London Guarantee and Accident Company, [1936] A.C. 108, it was gas which escaped from the defendants mains into property belonging to the plaintiff, and so on in the other instances. In every case, even in Charing Cross Electricity Supply Company v. Hydraulic Power Company, [1914] 3 K.B. 772, there was escape from the container in which the defendants had a right to carry the dangerous substance, and which they had at least a licence to use, and also an escape into property over which they had no control.

Such escape is, I think, necessary if the principle of Rylands v. Fletcher (sup.) is to apply. The often quoted words of Blackburn J. in that case in the Court of Exchequer, L.R. 1 Exch. 265 at p. 280, are: 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 to 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. and in Howard v. Houlder Lines Limited, 41 Com. Cas. 290, Lewis J. so decided in a judgment with the result of which I agree.

The limitations within which the judgment of Blackburn J. confines the doctrine have all been the subject of discussion, more particularly as to who is a neighbour, whether knowledge of the danger is a condition of liability and how far personal injuries are covered, but I know of no case where liability was imposed for injury occurring on the property in which the dangerous thing was confined.

It was urged upon Your Lordships that it would be a strange result to hold the respondents liable if the injured person was just outside their premises but not liable if she was just within them.

There is force in the objection, but the liability is itself an extension of the general rule and in my view it is undesirable to extend it further. As Lindley L.J. said in Green v. Chelsea Waterworks Company, 70 L.T. 547 at p. 549, ' That case (Rylands v. Fletcher] 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.

Much of the width of principle which has been ascribed to it is derived not from the decision itself but from the illustrations by which Blackburn J. supported it. Too much stress must not in my opinion be laid upon these illustrations. They are but instances of the application of the rule of strict liability, having for the most part separate historical origins, and though they support the view that liability may exist in cases where neither negligence, nuisance nor trespass are to be found, yet it need not as I think necessarily be said' that they form a separate coherent class, in which liability is created by the same elements throughout.

I would add that in considering the matter now in issue before Your Lordships it is not in my view necessary to determine whether injury to the person is one of those matters in respect of which damages can be recovered under the rule. Atkinson J. thought it was—see Shiftman v. Order of St. John (1936), 1 A.E.R. 557, and the language of Fletcher Moulton L.J. in Wing v. London General Omnibus Company, [1909] 2 K.B. 652, where he says at p. 665: This cause of action is of the type usually described by reference to the well-known case of Rylands v. Fletcher (sup.). For the purpose of today it is sufficient to describe this class of actions as arising out of cases where by excessive use of someprivate right a person has exposed his neighbour's property or person to danger, is to the same effect and, although the jury found negligence on the part of the defendants in Miles v. Forest Rock Granite Company Limited, (1918) 34 T.L.R. 500, the Court of Appeal applied the rule in Rylands v. Fletcher (sup.) in support of a judgment in favour of the plaintiff for £850 in respect of personal injuries.

Undoubtedly the opinions expressed in these cases extend the application of the rule, and may some day require examination. For the moment it is sufficient to say that there must be escape from a place over which a defendant has some measure of control to a place where he has not.

In the present case there was no such escape and I would dismiss the Appeal.

Lord Simonds

MY LORDS,

It is undeniable that this appeal raises a question of great importance in the law of tort. But I have no doubt how it should be answered and I hope that I shall not be thought wanting in respect to the learned Judge who heard the case or to the careful and far-ranging argument of counsel for the Appellant if I do not deal with every point that has been raised.

The Appellant claims damages from the Respondents for personal injuries received by her in consequence of an explosion upon their premises on the 31st August, 1942, and founds her claim upon the following pleas: that the Respondents were at all material times the occupiers of certain premises known as the Elstow Ordnance Factory, that at the said premises the Respondents carried on the manufacture of high explosive shells which were to their knowledge dangerous things, and that, she was law-fully in a shell filling shop at the said premises when a high explosive shell exploded whereby she suffered injuries, loss, and damage.

My Lords, it does not surprise me that the Respondents defended the action by pleading that the statement of claim disclosed no cause of action. For, be it observed, the Appellant did not allege negligence on the part of the Respondents. That was not an issue in the case. Boldly she averred and by her counsel maintained the averment before this House, that he who lawfully carries on the business of manufacturing high explosive shells upon his premises is, without proof of negligence, liable to any person law-fully upon those premises who suffers damage by reason of an explosion. For, she said, high explosive shells are dangerous things and the Respondents knew it. My Lords, there is, I believe, no justification for such a proposition of law nor was any authority cited for it. The approach to it was ingenious, for in the Appellant's formal case the question was thus stated Whether the manufacturer of high explosive shells is under strict liability to prevent such shells from exploding and causing harm to persons on the premises where such manufacture is carried on as well as to persons outside such premises. The question thus stated assumes that, if the Appellant had been outside the premises when she was damaged by the explosion, she would have had a cause of action, and for this assumption it is clear that Rainham Chemical Works Ltd. v. Belvedere Fish Guano Company Ltd., 1921 2 A.C. 465, is relied on. That case is an authority binding on your Lordships for whatever it decided, but two things at least it did not decide, the first that which is indicated in the question that I have cited, viz. whether the Respondents have the same liability to those within as to those outside their premises, the second that the liability, to whomsoever it may be owed, extends to purely personal injuries such as the Appellant suffered. Holding the view that I do upon the first question I think it inexpedient to express a final view upon the second, but I would not be taken as assenting to the proposition that if, e.g., the plaintiff in Rainham's case had been a natural person who had suffered personal injury the result would necessarily have been the same.

I turn then to the first question, which raises the familiar problem of strict liability, a phrase which I use to express liability without proof of negligence. Here is an age-long conflict of theories which is to be found in every system of law. A man acts at his peril says one theory. A man is not liable unless he is to blame answers the other. It will not surprise the students of English law or of anything English to find that between these theories a middle way, a compromise, has been found. For it is beyond questionthat 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, therefore 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 discussed 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 upport 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 proposition 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 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, 1914 3 K.B. 772, it was the rule in Rylands v. Fletcher that was relied on by the Court of Appeal; but the authority of Midwood 6-Company Ltd. v. Mayor etc. of Manchester, 1905 2 K.B. 597, was invoked, and that was a case of nuisance and nothing else.

In suggesting to your Lordships (that except in reference to specific subject matter the rule in Rylands v. Fletcher must be confined to the escape of something from the defendant's premises I am pressed by the fact that in the Charing Cross case the escape was not strictly from the defendant's premises but from pipes laid in the soil of another. So also in West v. Bristol Tramways Company, 1908 2 K.B. 14, the escape was of creosote from wood-blocks laid in the highway. It is not necessary to pronounce finally upon these cases. It is possible that the rule should be extended to include the case where something has escaped from a pipe or whatever it may be which has been laid and maintained by the defendant by virtue of some right or franchise in the land of another. That is not this case. Nor would I exclude the possibility of a special rule being applicable as between co-users of a highway, for the highway has a law of its own. But that also is not this case. For the present purpose it is sufficient to say negatively that the appellant being on the respondents' premises cannot hold them liable for the damage suffered by her unless she alleges and proves negligence by them in their manufacture of explosives.

The Respondents had a second line of defence on the maxim Volenti non fit injuria, but this was not maintained before this House. It was made clear that the appellant was upon the Respondents' premises only because, being registered under the National Service Acts, she was required to work there as an employee of the Armaments Inspection Department of the

Ministry of Supply. Had she been a free agent she would not have remained there. I content myself by saying that I see no ground for dissenting from the opinion of Mr. Justice Cassels on this point. It is not, I think, the law of England that the will of a directing official of a Government Department becomes the will of the unwilling citizen whom he directs.

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 abandoned, 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 freedom 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 reasonably 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.

Is there any good reason, consistent with respect for the rights of dominion and user incident to the occupation of land and with an appreciation of the position of an invitee, for subjecting the occupier carrying on a dangerous but lawful business to an absolute duty to safeguard the invitee from harm? I can see none. In carrying on such a business the occupier may be doing something which is not common, but he is not doing anything which is out of the ordinary course of affairs or which is concealed from the invitee. He is in no way abusing his right to use his land. To subject him to an absolute duty to an invitee would be, to my mind to impose an unreasonable limitation on the due exercise of that right. But the relation between the parties is the governing consideration and it is the incidents which the law attaches to that relation that are in question. I can understand an invitee, whatever be the nature of the business carried on, questioning in his own mind whether he is entitled to expect that the occupier will in conducting his business take due care or whether he is to expect only that the occupier will continue to conduct his business in his accustomed manner, whatever that may be. But I do not think that the invitee, any more than the occupier, would assume that by reason only of the dangerous nature of the business carried on, the occupier guaranteed him freedom from harm. If that be so, it is against reason that the law, whose function it is to give effect to reasonable expectations, should impose such a guarantee. A measure of care determined by the degree of danger is in my opinion the utmost that either party would envisage, and in my opinion the law demands that and no other standard of duty. This denial of absolute liability to an invitee is indeed not inconsistent with the assertion—I do not make it—of an absolute duty towards persons who suffer harm outside the occupier's premises. Matters happening within one's own bounds are one thing and matters happening outside those bounds are an entirely different thing. In the latter case the personal relation is absent and the occupier's dominion over and right to use his land have to be reconciled with the rights of others to use or be present on adjoining lands not subject to his dominion.

Unless compelled by authority to come to a contrary conclusion, I would therefore reject the Appellant's contention. There is no authority which directly supports that contention. The Appellant to some extent relied on the animal cases, but they are of no real help. Her sheet anchor was Rylands v. Fletcher.

That case on the facts related only to the duty which an occupier of land—nuisance and negligence not being involved and trespass treated as not being involved—owed to an occupier of other land in respect of an intrusion from the land of the one to the land of the other. The accommodation between occupiers of land there laid down was that things liable to escape must be kept by an occupier within his bounds unless their presence within those bounds was due to a natural use of his land. The liability and the excuse both relate to the use of land as affecting other land. I do not regard Rylands v. Fletcher as laying down any principle other than a principle applicable between occupiers in respect oftheir 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 reference 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.The decision of Lewis J. in Howard v. Houlder Lines Ltd. (41 Com. Cas. 290) is adverse to the Appellant's contention, and there is a statement in Membery v. Great Western Railway Co., (14 Ap. Cas. 179) which, as I read it, is adverse to it.

In that case the Railway Co. agreed with a contractor that he should shunt their engines supplying horses and men, the Company to provide boys to help when they had boys available and when they had not the shunting to be done without boys. The operation of shunting was dangerous to any man performing it without the assistance of boys. While engaged in shunting without a boy, the Plaintiff, an employee of the contractor, was without negligence on his part injured by a truck running over him. The Plaintiff, who was in the circumstances an invitee, based his case on negligence, and somewhat surprisingly won in the Court of First Instance. Lord Herschell, however, took the opportunity of making a statement of his conception of the duties of an occupier to an invitee. At p. 191 of the report he said:—

Now I do not for a moment doubt that there was a duty incumbent 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 unreasonable 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.


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