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Cite as: [1994] 2 AC 264, [1993] UKHL 12

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JISCBAILII_CASE_TORT

    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

    - 1 -

    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

    - 2 -

    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

    - 3 -

    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 1
    µ/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

    - 4 -

    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

    - 5 -

    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

    - 6 -

    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 Ch.D. 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."

    - 7 -

    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

    - 8 -

    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

    - 9 -

    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

    - 10 -

    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.

    - 22 -


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