Transco v Stockport MBC

Facts

Stockport MBC owned a tower block of flats, which was supplied with water by a pipe running underneath an embankment that had once carried a disused railway. The pipe leaked and, because of the leak, a large quantity of water escaped over a long period without being noticed. It undermined the embankment, which collapsed and left a high-pressure gas main belonging to Transco exposed and unsupported. Transco incurred about 93,000 pounds in repairs to make the main safe, and sued the council.

Issue

Whether the council was liable for the escape of water under the rule in Rylands v Fletcher, and in particular whether supplying water through a pipe to a block of flats was a non-natural use of land; and whether the claim could succeed in nuisance or negligence.

Held

Transco claim failed. The council was not liable under Rylands v Fletcher because the supply of water to a block of flats was an ordinary use of land, not an extraordinary or unusual use, and there was no negligence or nuisance on the facts found.

Ratio

• Liability under Rylands v Fletcher requires that the defendant brought onto his land something likely to do mischief if it escaped, that it escaped, and that the defendant was making a non-natural use of land, meaning an extraordinary and unusual use judged by the circumstances of the time and place and not one that is ordinary use for the benefit of the community.
• The ordinary supply of water for domestic use through a pipe to a block of residential flats is not a non-natural use, and an escape of water from such a pipe is not within the rule.

The judgments

Key reasoning

• The rule in Rylands v Fletcher addresses extraordinary risk created by a defendant on his own land, and where the use is part of ordinary life, the risks are shared by all and the rule has no application.
• The test of the reasonable user of land is a matter of what is usual at the time and place, and a modern block of flats is generally supplied with water through pipes for domestic use.
• The facts did not show that the council had been negligent or was aware of the leak, and the claim in nuisance, which would normally require knowledge or presumed knowledge of the hazard, was not made out.

Obiter

• Statements that the rule in Rylands v Fletcher is concerned with damage to land and that claims for personal injury are not within it, and that the rule is to be regarded as a development of nuisance and not a separate tort of strict liability.

Where it fits in the module

In Tort (FHS), on The rule in Rylands v Fletcher, Transco is the foundation of the modern law. It is read with Rylands v Fletcher (1868) LR 3 HL 330, Rickards v Lothian [1913] AC 263, Read v J Lyons and Co Ltd [1947] AC 156, Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 and Stannard v Gore [2012] EWCA Civ 1248. Candidates consider whether the rule has any independent role, whether it should be absorbed into nuisance or negligence, and whether it should be abolished, as the Australian High Court did in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

Criticisms

• The test of ordinary use is vague and depends on social judgments about what is usual, so it gives little certainty about when the rule applies, and the case leaves the rule in an unstable position.
• The House kept the rule but confined it so narrowly that it is hard to see what role is left, which has led to the view that the rule should have been abolished, as in Australia.
• Treating the supply of water as an ordinary use ignores the fact that a failure of water pipes can cause serious harm to neighbours, and the burden of the risk falls on the person harmed and not on the person benefiting from the supply.
• The restriction to damage to land, and the exclusion of personal injury, makes the rule a branch of nuisance and removes the reason for strict liability, which was said to rest on the creation of an exceptional risk.