Cambridge Water v Eastern Counties Leather

Facts

Eastern Counties Leather operated a tannery at Sawston in Cambridgeshire and used a chlorinated solvent, perchloroethene, to degrease pelts. Over many years small spillages occurred during its delivery and use, and the solvent seeped through the floor into the ground and migrated with the groundwater to a borehole owned by Cambridge Water Company about a mile and a quarter away, which supplied water to the public. When a European directive imposed new standards on water quality, the borehole water was found to be unfit to supply, and the water company had to develop an alternative source at great cost. It sued the tannery in negligence, nuisance and under the rule in Rylands v Fletcher.

History

Kennedy J dismissed the claims, holding that the contamination of the water supply was not reasonably foreseeable. The Court of Appeal allowed the water company's appeal, holding that liability did not depend on foreseeability, and the tannery appealed to the House of Lords.

Issue

Whether liability for damages in nuisance or under Rylands v Fletcher requires that the relevant type of damage was reasonably foreseeable by the defendant; and whether the storage and use of the solvent was a natural use of land.

Held

Appeal allowed. The tannery was not liable in nuisance or under Rylands v Fletcher because the damage was not of a type that could reasonably have been foreseen.

Ratio

• Liability for damages in nuisance requires that the damage of the relevant type was reasonably foreseeable by the defendant.
• Rylands v Fletcher is an extension of the law of nuisance to isolated escapes from land, so that the same requirement of foreseeability of damage of the relevant type applies to it.
• It is not for the courts to develop a wider strict liability for harm caused by ultra-hazardous activities, which is a matter for Parliament in view of the extensive statutory regulation of environmental risks.

The judgments

Key reasoning

• Although nuisance has been regarded as a tort of strict liability, liability turns on the unreasonableness of the interference, and foreseeability of harm is relevant to reasonableness; the Privy Council in The Wagon Mound (No 2) [1967] 1 AC 617 had applied foreseeability of damage to nuisance.
• Rylands v Fletcher was a particular application of nuisance principles to isolated escapes, and there was no authority supporting the view that it imposed liability for unforeseeable harm; extending it in that way would amount to creating a new rule of strict liability for ultra-hazardous activities.
• Parliament had legislated extensively on environmental protection, including the Environmental Protection Act 1990 and the Water Resources Act 1991, so that decisions on the extent of strict liability for pollution were better made by the legislature.

Obiter

• The storage of substantial quantities of chemicals on industrial premises is almost a classic case of non-natural use of land for the purposes of Rylands v Fletcher, notwithstanding that it may bring employment to an area, so that Kennedy J was wrong to treat the tannery use as natural.

Where it fits in the module

On the FHS Tort list under private nuisance and trespass to land. Cambridge Water is central to the debate whether nuisance and Rylands v Fletcher impose strict or fault-based liability, and to the role of foreseeability in those torts and their relationship with negligence. It is also a case study of the limits of judicial law-making where the legislature has regulated an area. Candidates should link it to Transco, which confirmed the survival of Rylands in a restricted form, and to Hunter v Canary Wharf Ltd [1997] AC 655 on the nature of nuisance as a tort against land.

Criticisms

• Making foreseeability a precondition of damages in nuisance and Rylands v Fletcher assimilates them to negligence and deprives the claimant of the benefit of strict liability, leaving the loss on the innocent neighbour, although the defendant carried on the activity for his own benefit and could insure against it.
• The relevant type of damage is described at an uncertain level of generality, so that it is unclear whether contamination of a water supply was a different type of damage from the pollution of land that the solvent might have been expected to cause.
• Leaving strict liability for hazardous activities to Parliament avoids judicial responsibility for the law, and the statutory regimes did not cover historic pollution, so the claimant was left without a remedy.