The extent of the law of negligence in rylands v fletcher [1866] l.r. 1 ex. 265

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Question A The man in the street might legitimately expect the Common law to have developed a means by which persons who suffer personal injury or damage to their property due to the release of dangerous substances outside the walls of a facility would recover compensation without having to prove fault on the part of those who operate that facility.

Assess the extent to which this expectationis realised by the so-called Rule in Rylands v Fletcher as amended and restricted up to the present date. Your answer will include reference to inter alia:

●Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53
●Transco v Stockport MBC [2004] 1 All ER 589
●Cross 'Does Only the Careless Polluter Pay? A Fresh Examination of the Nature of Private Nuisance'(1995) 111 LQR 445
●Nolan 'The Distinctiveness of Rylands v Fletcher' (2005) 121 LQR 421

‘He whose dirt it is must keep it that it may not trespass’[1]. This statement of Lord Justice Blackburn underpins the distinctive but ambiguous approach of the rule formulated in Rylands. Indeed the tenets of the rule in Rylands embrace a hybrid conception of nuisance that can virtually amount tothe application of a negligence test within land based tort issues.
As mentioned by the wording of the essay, Rylands v Fletcher deals with the release of hazardous and dangerous substances that might damage neighbourly properties. Considering the rule in Rylands will automatically lead to the consideration of the broader tort of nuisance. Both nuisance and Rylands are land-based tortsadministering the issues rising from the use and enjoyment of property rights and their protection from nuisance caused by the vicinity.
French law has developed a similar rule as the one expressed in Rylands called ‘the abnormal burdens of the neighbouring’ found on the legitimacy of the claimant’s request that is assessed by the court. This was established to fill in the lacuna of the law and endeavouringto protect the interest of the claimant infringed by an exceptional use of the neighbourly land.
Since the case of Rylands takes his roots in the tort of nuisance we must consider what constitutes a nuisance and we will mainly focus on the aspect of private nuisance.

The tort of nuisance is a common law principle that intends to define the conduct that interferes with a neighbour’s quietenjoyment of his home. Hunter v Canary Wharf Ltd[2] drew the light on the fact that private nuisance was concerned with injury to the land. Since the land has to suffer a damage that would deleteriously affect it, the tort of nuisance will exclude any possibilities of remedial claim for personal injury as stated by Lord Lloyd in Hunter. The interference caused must be indirect, in an ongoing state ofaffairs and must come from the land of the defendant in an excessive manner. Therefore, a nuisance is distinct from a trespass which is an unlawful and unjustifiable interference with property’s possession amounting to a direct and forcible injury. The main distinction between nuisance and trespass is the ‘evasion’ of the interference from the defendant land onto the one of the claimant. The tortof nuisance follow a fault-based proof process linked to the reasonableness of the defendant’s conduct[3]. Two damages may rise from a nuisance: physical and amenity damages such as fumes or noises. Although there is an evaluation of the unreasonableness of the interference it can be said that there is also an attempt to evaluate the legitimacy of the claim since ‘one should not expect the cleanair of the Lake District in an industrial town such as St Helen’s’[4]. Therefore the concern of the Court is: ‘Should the defendant be told to stop this interference with the plaintiff’s right?’ As a consequence, the court strives to establish a balance between the rights of occupiers to use and enjoy the property as they will and the rights of their neighbours not to suffer any interference with...