Cambridge Water Co Ltd v Eastern Counties Leather plc
Encyclopedia
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53
is a case in English tort law
that established the principle that claims under nuisance
and Rylands v Fletcher
must include a requirement that the damage be foreseeable; it also suggested that Rylands was a sub-set of nuisance rather than an independent tort, a debate eventually laid to rest in Transco plc v Stockport Metropolitan Borough Council.
The Cambridge Water Company were a company responsible for providing potable water to the inhabitants of Cambridge
and the surrounding areas. In 1976, they purchased a borehole
outside Sawston
to deal with rising demand. In 1980, a European Directive was issued requiring nations of the European Community to establish standards on the presence of perchloroethene (PCE) in water, which the United Kingdom did in 1982. It was found that the Sawston borehole was contaminated with PCE that had originated in a tannery owned by Eastern Counties Leather. Prior to 1980, there was no knowledge that PCE should be avoided or that it could cause harm, but the Cambridge Water Company brought a case against Eastern Counties Leather anyway.
The case first went to the High Court of Justice
, where Kennedy J dismissed claims under nuisance, negligence and Rylands v Fletcher because the harm was not foreseeable. His decision was reversed by the Court of Appeal of England and Wales
, who cited an "obscure decision" to justify doing so. The case then went to the House of Lords
, where a decision was read by Lord Goff
on 9 December 1993. Goff first countered the Court of Appeal decision, restoring Kennedy's dismissal of the case, before moving on to the deeper legal points. Based on the original decision in Rylands, Goff argued that it had always been intended for forseeability of harm to be a factor, something not previously put into law by the English judiciary. He then stated that Rylands was arguably a sub-set of nuisance, not an independent tort, and as such the factors which led him to including a test of forseeability of harm in Rylands cases also imposed such a test on all nuisance cases.
The decision in Cambridge Water Co made an immediate change to the law, for the first time requiring forseeability of harm to be considered in cases brought under Rylands v Fletcher and the general tort of nuisance. It was also significant in implying that Rylands was not an independent tort, something later concluded in the Transco case. Goff's judgment has been criticised on several points by academics, who highlight flaws in wording which leave parts of the judgment ambiguous and a selective assessment of Rylands that ignores outside influences.
and the surrounding area; by 1976, the population served had risen to approximately 275,000. With the rising demand, the company purchased a borehole
outside Sawston
, constructing pumping equipment and integrating the water from that borehole into their system in 1979. Tests undertaken both before the purchase, and in 1979, had demonstrated that the water was safe for public consumption. During the late 1970s, concerns were expressed about the presence of perchloroethene (PCE) in water, and as a result a European Directive was issued in 1980 requiring nations of the European Community to establish maximum acceptable levels of PCE in water; the United Kingdom
did this in 1982. PCE was discovered in the borehole; it was not tested for earlier because there was no need to regulate the levels. As a result, the Cambridge Water Company was forced to cease pumping the water, and instead find a new borehole elsewhere.
An investigation immediately ensued. The investigators concluded that the PCE had come from Eastern Counties Leather plc, a leather tannery
in Sawston. The tannery used PCE as a degreasing agent, beginning in the 1960s; by 1976, 100000 gallons (378,541.2 l) of this chemical were used by the tannery each year, with up to 25000 gallons (94,635.3 l) on the premises at any one time. PCE was leaking out of the drums it was carried in, first by being spilt when it was tipped into the degreasing machines and second by leaking from near-empty drums. Although these spills were individually small, it was estimated around 3200 gallons (12,113.3 l) of PCE were spilled each year. These spills collected in the chalk underlying Sawston until groundwater swept them into the Cambridge Water Company's borehole.
The Cambridge Water Company brought a case against Eastern Counties Leather in the High Court of Justice
, wanting £1 million in damages for the cost of finding a new borehole and an unsuccessful attempt to decontaminate the original one, and an injunction to prevent any more use of PCE. They argued that Eastern Counties Leather were liable in three ways; first, in negligence, second, in nuisance
, and third, under the rule developed in Rylands v Fletcher
. The case came before Kennedy J, who dismissed all three of the Company's claims. On the matter of negligence, he held that the damage had to be reasonably foreseeable, as was required under Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd; he applied this same test to the claim under nuisance. Applying the case of Hughes v Lord Advocate
, Kennedy found that the harm was not reasonably foreseeable, and both actions under nuisance and negligence must fail.
Rylands v Fletcher contained the principle 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 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", with a requirement that this use of land be "non-natural". On the Cambridge Water Company's third claim, Kennedy was forced to consider the meaning of "non-natural" in this setting. He held that the use of industrial chemicals was not "non-natural", given that it was on an industrial site, and that for a claim to succeed under Rylands the use must be "some special use bringing 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"; Eastern Counties Leather created jobs in Sawston
, and was thus providing a benefit for the community. As such, the Company's claim under Rylands was not valid. Kennedy also chose to consider forseeability of harm a factor in cases brought under Rylands, and stated the fact that harm was not foreseeable was a factor in his decision.
The Cambridge Water Company then appealed to the Court of Appeal of England and Wales
, but only on the claim under Rylands v Fletcher. The court, composed of Nolan LJ
, Mann LJ and Sir Stephen Brown
, reversed Kennedy's decision. Despite a lack of comment by the appellants on the claim under nuisance, the court addressed this ground, relying on the "obscure decision" found in Ballard v Tomlinson, concluding that "where the nuisance is an interference with a natural right incident to ownership then the liability is a strict one". As such, Kennedy should have applied Ballard, and it was unnecessary to consider Rylands because the claim under nuisance was valid.
The case was again appealed, this time to the House of Lords
, where it was heard by Lord Templeman
, Lord Goff
, Lord Jauncey
, Lord Lowry
and Lord Woolf
. The judgment was given by Lord Goff on 9 December 1993, and reinstated the decision of Kennedy J in the High Court of Justice; unlike the Court of Appeal decision, it directly addressed the issue of Rylands v Fletcher. Goff first addressed the Court of Appeal's use of Ballard v Tomlinson, stating that the decision there as based on the facts of the case, and did not establish either a rule that there was a right to clear water, nor that there was strict liability attached to that right.
Goff looked at the relationship between nuisance and Rylands v Fletcher, particularly how they treat strict liability
. In nuisance, liability is strict in that the defendant can be liable even if he has taken reasonable care, but this is kept "under control" by the principle that a defendant is not liable for actions a reasonable user takes on his land. He took into consideration an article published by F.H. Newark in 1949, in which Newark called the decision in Rylands "a simple case of nuisance" rather than a revolutionary doctrine that established strict liability outside nuisance. Goff also found similarities between the principle of "non-natural use" under Rylands and that of the "reasonable user" requirement in nuisance, concluding that "[I]t would lead to a more coherent body of common law principles if the rule [in Rylands] were to be regarded essentially as an extension of the law of nuisance".
Lord Goff's judgment was primarily based on whether or not forseeability of damage should be a factor in Rylands cases, and was that the matter was "open for consideration", saying that the need for forseeability of damage to be a criterion was "a matter of principle". He considered the case of Overseas Tankship (UK) Ltd v The Miller Steamship Co, in which the Privy Council
concluded that forseeability of damage was an essential part of determining liability in nuisance. The Council stated that "It could not be right to discriminate between different cases of nuisance so as to make forseeability a necessary element in determining damages in those cases where it is a necessary element in determining liability, but not in others". If, as Goff was stating, Rylands was an element of nuisance, this decision should apply to it. In the original judgment in Rylands, the judge had stated that it covered "anything likely to do mischief if it escapes", and that liability should be to "answer for the natural and anticipated consequences"; this wording implies that he intended for "knowledge to be a prerequisite for liability".
Academic Tom Clearwater criticises some of the language Lord Goff picked out of Rylands v Fletcher for his judgment. In particular, Goff's use of "anything likely to do mischief if it escapes" and "answer for the natural and anticipated consequences" to justify his argument that Rylands had always intended forseeability to be a factor suggests Goff "[overstepped] an appropriate reach of interpretation in drawing his conclusion...most cases gloss silently over the [wording]... three cases imply that forseeability of damage is not a relevant consideration at all". The reliance on Newark's article was also criticised, since "Neither he nor Goff attempted to justify their opinion with reference to anything external to [the Rylands] judgment". Clearwater points out that the original judgment in Rylands required modification "the price paid for which was legal uncertainty" to make it socially acceptable, which he sees as evidence that Rylands was, despite what Newark says, a significant change to the law.
Peter Kutner, a professor of law at the University of Oklahoma
, argues that there is a significant ambiguity in Goff's judgment. Cases brought under Rylands v Fletcher now have a requirement that the harm was foreseeable, but it was not defined whether or not it was sufficient that it be foreseeable that harm could occur, or that it be foreseeable that the use of land is "non-natural", that the substance be capable of doing "mischief", and all the other requirements of Rylands. He also states that the decision did not explain precisely whether Rylands should be treated as a development within the law of nuisance, or something which sprung from nuisance and retains a separate existence. He interpreted the Cambridge Water Company decision as not being sufficient to completely write out Rylands as a distinct doctrine; this was later done by the House of Lords in Transco plc v Stockport Metropolitan Borough Council.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
is a case in English tort law
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
that established the principle that claims under nuisance
Nuisance in English law
Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his use or enjoyment of that land", and public nuisance, where the defendant's...
and Rylands v Fletcher
Rylands v Fletcher
Rylands v Fletcher [1868] was a decision by the House of Lords which established a new area of English tort law. Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris,...
must include a requirement that the damage be foreseeable; it also suggested that Rylands was a sub-set of nuisance rather than an independent tort, a debate eventually laid to rest in Transco plc v Stockport Metropolitan Borough Council.
The Cambridge Water Company were a company responsible for providing potable water to the inhabitants of Cambridge
Cambridge
The city of Cambridge is a university town and the administrative centre of the county of Cambridgeshire, England. It lies in East Anglia about north of London. Cambridge is at the heart of the high-technology centre known as Silicon Fen – a play on Silicon Valley and the fens surrounding the...
and the surrounding areas. In 1976, they purchased a borehole
Borehole
A borehole is the generalized term for any narrow shaft bored in the ground, either vertically or horizontally. A borehole may be constructed for many different purposes, including the extraction of water or other liquid or gases , as part of a geotechnical investigation, environmental site...
outside Sawston
Sawston
Sawston is a large village in Cambridgeshire in England, situated on the River Cam seven miles south of Cambridge. It has a population of 7,150...
to deal with rising demand. In 1980, a European Directive was issued requiring nations of the European Community to establish standards on the presence of perchloroethene (PCE) in water, which the United Kingdom did in 1982. It was found that the Sawston borehole was contaminated with PCE that had originated in a tannery owned by Eastern Counties Leather. Prior to 1980, there was no knowledge that PCE should be avoided or that it could cause harm, but the Cambridge Water Company brought a case against Eastern Counties Leather anyway.
The case first went to the High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, where Kennedy J dismissed claims under nuisance, negligence and Rylands v Fletcher because the harm was not foreseeable. His decision was reversed by the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, who cited an "obscure decision" to justify doing so. The case then went to the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
, where a decision was read by Lord Goff
Robert Goff, Baron Goff of Chieveley
Robert Lionel Archibald Goff, Baron Goff of Chieveley PC DCL FBA is a retired British Judge.Lord Goff, High Steward of the University of Oxford, retired in 1998 as Senior Law Lord after more than a decade as a Lord of Appeal in Ordinary in the House of Lords...
on 9 December 1993. Goff first countered the Court of Appeal decision, restoring Kennedy's dismissal of the case, before moving on to the deeper legal points. Based on the original decision in Rylands, Goff argued that it had always been intended for forseeability of harm to be a factor, something not previously put into law by the English judiciary. He then stated that Rylands was arguably a sub-set of nuisance, not an independent tort, and as such the factors which led him to including a test of forseeability of harm in Rylands cases also imposed such a test on all nuisance cases.
The decision in Cambridge Water Co made an immediate change to the law, for the first time requiring forseeability of harm to be considered in cases brought under Rylands v Fletcher and the general tort of nuisance. It was also significant in implying that Rylands was not an independent tort, something later concluded in the Transco case. Goff's judgment has been criticised on several points by academics, who highlight flaws in wording which leave parts of the judgment ambiguous and a selective assessment of Rylands that ignores outside influences.
Facts
The Cambridge Water Company Ltd was established by a private Act of Parliament in 1853 to provide water to the residents of CambridgeCambridge
The city of Cambridge is a university town and the administrative centre of the county of Cambridgeshire, England. It lies in East Anglia about north of London. Cambridge is at the heart of the high-technology centre known as Silicon Fen – a play on Silicon Valley and the fens surrounding the...
and the surrounding area; by 1976, the population served had risen to approximately 275,000. With the rising demand, the company purchased a borehole
Borehole
A borehole is the generalized term for any narrow shaft bored in the ground, either vertically or horizontally. A borehole may be constructed for many different purposes, including the extraction of water or other liquid or gases , as part of a geotechnical investigation, environmental site...
outside Sawston
Sawston
Sawston is a large village in Cambridgeshire in England, situated on the River Cam seven miles south of Cambridge. It has a population of 7,150...
, constructing pumping equipment and integrating the water from that borehole into their system in 1979. Tests undertaken both before the purchase, and in 1979, had demonstrated that the water was safe for public consumption. During the late 1970s, concerns were expressed about the presence of perchloroethene (PCE) in water, and as a result a European Directive was issued in 1980 requiring nations of the European Community to establish maximum acceptable levels of PCE in water; the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
did this in 1982. PCE was discovered in the borehole; it was not tested for earlier because there was no need to regulate the levels. As a result, the Cambridge Water Company was forced to cease pumping the water, and instead find a new borehole elsewhere.
An investigation immediately ensued. The investigators concluded that the PCE had come from Eastern Counties Leather plc, a leather tannery
Tanning
Tanning is the making of leather from the skins of animals which does not easily decompose. Traditionally, tanning used tannin, an acidic chemical compound from which the tanning process draws its name . Coloring may occur during tanning...
in Sawston. The tannery used PCE as a degreasing agent, beginning in the 1960s; by 1976, 100000 gallons (378,541.2 l) of this chemical were used by the tannery each year, with up to 25000 gallons (94,635.3 l) on the premises at any one time. PCE was leaking out of the drums it was carried in, first by being spilt when it was tipped into the degreasing machines and second by leaking from near-empty drums. Although these spills were individually small, it was estimated around 3200 gallons (12,113.3 l) of PCE were spilled each year. These spills collected in the chalk underlying Sawston until groundwater swept them into the Cambridge Water Company's borehole.
High Court and Court of Appeal
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, wanting £1 million in damages for the cost of finding a new borehole and an unsuccessful attempt to decontaminate the original one, and an injunction to prevent any more use of PCE. They argued that Eastern Counties Leather were liable in three ways; first, in negligence, second, in nuisance
Nuisance in English law
Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his use or enjoyment of that land", and public nuisance, where the defendant's...
, and third, under the rule developed in Rylands v Fletcher
Rylands v Fletcher
Rylands v Fletcher [1868] was a decision by the House of Lords which established a new area of English tort law. Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris,...
. The case came before Kennedy J, who dismissed all three of the Company's claims. On the matter of negligence, he held that the damage had to be reasonably foreseeable, as was required under Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd; he applied this same test to the claim under nuisance. Applying the case of Hughes v Lord Advocate
Hughes v Lord Advocate
Hughes v Lord Advocate [1963] is a famous Scottish delict case decided by the House of Lords on causation. It is also influential in the English law of tort.-Facts:...
, Kennedy found that the harm was not reasonably foreseeable, and both actions under nuisance and negligence must fail.
Rylands v Fletcher contained the principle 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 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", with a requirement that this use of land be "non-natural". On the Cambridge Water Company's third claim, Kennedy was forced to consider the meaning of "non-natural" in this setting. He held that the use of industrial chemicals was not "non-natural", given that it was on an industrial site, and that for a claim to succeed under Rylands the use must be "some special use bringing 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"; Eastern Counties Leather created jobs in Sawston
Sawston
Sawston is a large village in Cambridgeshire in England, situated on the River Cam seven miles south of Cambridge. It has a population of 7,150...
, and was thus providing a benefit for the community. As such, the Company's claim under Rylands was not valid. Kennedy also chose to consider forseeability of harm a factor in cases brought under Rylands, and stated the fact that harm was not foreseeable was a factor in his decision.
The Cambridge Water Company then appealed to the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, but only on the claim under Rylands v Fletcher. The court, composed of Nolan LJ
Michael Nolan, Baron Nolan
Michael Patrick Nolan, Baron Nolan, was a judge in the United Kingdom, and the first chairman of the Committee on Standards in Public Life 1994 to 1997. In the words of his obituary in The Guardian, "Lord Nolan ....
, Mann LJ and Sir Stephen Brown
Stephen Brown (judge)
Sir Stephen Brown, GBE is a judge. He was a Lord Justice of Appeal and a President of the Family Division of the High Court of England and Wales.-Personal life:...
, reversed Kennedy's decision. Despite a lack of comment by the appellants on the claim under nuisance, the court addressed this ground, relying on the "obscure decision" found in Ballard v Tomlinson, concluding that "where the nuisance is an interference with a natural right incident to ownership then the liability is a strict one". As such, Kennedy should have applied Ballard, and it was unnecessary to consider Rylands because the claim under nuisance was valid.
House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
, where it was heard by Lord Templeman
Sydney Templeman, Baron Templeman
Sydney William Templeman, Baron Templeman, MBE, PC, is a former British judge. He served as a Lord of Appeal in Ordinary from 1982 to 1995 in the House of Lords and was created a life peer as Baron Templeman, of White Lackington in the County of Somerset....
, Lord Goff
Robert Goff, Baron Goff of Chieveley
Robert Lionel Archibald Goff, Baron Goff of Chieveley PC DCL FBA is a retired British Judge.Lord Goff, High Steward of the University of Oxford, retired in 1998 as Senior Law Lord after more than a decade as a Lord of Appeal in Ordinary in the House of Lords...
, Lord Jauncey
Charles Jauncey, Baron Jauncey of Tullichettle
Charles Eliot Jauncey, Baron Jauncey of Tullichettle PC was a British judge and advocate. He was often praised as one of the finest legal minds of his generation in Scotland, and his legal opinions - both as a practising advocate and as a judge - commanded immense respect.-Biography:Jauncey was...
, Lord Lowry
Robert Lowry, Baron Lowry
Sir Robert Lynd Erskine Lowry, Baron Lowry PC , often known as Robbie Lowry, was a Lord Chief Justice of Northern Ireland and a Lord of Appeal in Ordinary...
and Lord Woolf
Harry Woolf, Baron Woolf
Harry Kenneth Woolf, Baron Woolf, PC, FBA, , born 2 May 1933, was Master of the Rolls from 1996 until 2000 and Lord Chief Justice of England and Wales from 2000 until 2005. The Constitutional Reform Act 2005 made him the first Lord Chief Justice to be President of the Courts of England and Wales...
. The judgment was given by Lord Goff on 9 December 1993, and reinstated the decision of Kennedy J in the High Court of Justice; unlike the Court of Appeal decision, it directly addressed the issue of Rylands v Fletcher. Goff first addressed the Court of Appeal's use of Ballard v Tomlinson, stating that the decision there as based on the facts of the case, and did not establish either a rule that there was a right to clear water, nor that there was strict liability attached to that right.
Goff looked at the relationship between nuisance and Rylands v Fletcher, particularly how they treat strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
. In nuisance, liability is strict in that the defendant can be liable even if he has taken reasonable care, but this is kept "under control" by the principle that a defendant is not liable for actions a reasonable user takes on his land. He took into consideration an article published by F.H. Newark in 1949, in which Newark called the decision in Rylands "a simple case of nuisance" rather than a revolutionary doctrine that established strict liability outside nuisance. Goff also found similarities between the principle of "non-natural use" under Rylands and that of the "reasonable user" requirement in nuisance, concluding that "[I]t would lead to a more coherent body of common law principles if the rule [in Rylands] were to be regarded essentially as an extension of the law of nuisance".
Lord Goff's judgment was primarily based on whether or not forseeability of damage should be a factor in Rylands cases, and was that the matter was "open for consideration", saying that the need for forseeability of damage to be a criterion was "a matter of principle". He considered the case of Overseas Tankship (UK) Ltd v The Miller Steamship Co, in which the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
concluded that forseeability of damage was an essential part of determining liability in nuisance. The Council stated that "It could not be right to discriminate between different cases of nuisance so as to make forseeability a necessary element in determining damages in those cases where it is a necessary element in determining liability, but not in others". If, as Goff was stating, Rylands was an element of nuisance, this decision should apply to it. In the original judgment in Rylands, the judge had stated that it covered "anything likely to do mischief if it escapes", and that liability should be to "answer for the natural and anticipated consequences"; this wording implies that he intended for "knowledge to be a prerequisite for liability".
Significance
Goff's judgment made several significant and immediate changes to the law. First, it was the first decision which imposed a requirement of forseeability of harm to cases brought under Rylands v Fletcher; "it must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place or time, or ought reasonable to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be". Secondly, it was the first decision to state that Rylands may be a sub-set of nuisance, and as such applied the same requirement of forseeability of harm to nuisance, where previously such a requirement had not existed.Academic Tom Clearwater criticises some of the language Lord Goff picked out of Rylands v Fletcher for his judgment. In particular, Goff's use of "anything likely to do mischief if it escapes" and "answer for the natural and anticipated consequences" to justify his argument that Rylands had always intended forseeability to be a factor suggests Goff "[overstepped] an appropriate reach of interpretation in drawing his conclusion...most cases gloss silently over the [wording]... three cases imply that forseeability of damage is not a relevant consideration at all". The reliance on Newark's article was also criticised, since "Neither he nor Goff attempted to justify their opinion with reference to anything external to [the Rylands] judgment". Clearwater points out that the original judgment in Rylands required modification "the price paid for which was legal uncertainty" to make it socially acceptable, which he sees as evidence that Rylands was, despite what Newark says, a significant change to the law.
Peter Kutner, a professor of law at the University of Oklahoma
University of Oklahoma
The University of Oklahoma is a coeducational public research university located in Norman, Oklahoma. Founded in 1890, it existed in Oklahoma Territory near Indian Territory for 17 years before the two became the state of Oklahoma. the university had 29,931 students enrolled, most located at its...
, argues that there is a significant ambiguity in Goff's judgment. Cases brought under Rylands v Fletcher now have a requirement that the harm was foreseeable, but it was not defined whether or not it was sufficient that it be foreseeable that harm could occur, or that it be foreseeable that the use of land is "non-natural", that the substance be capable of doing "mischief", and all the other requirements of Rylands. He also states that the decision did not explain precisely whether Rylands should be treated as a development within the law of nuisance, or something which sprung from nuisance and retains a separate existence. He interpreted the Cambridge Water Company decision as not being sufficient to completely write out Rylands as a distinct doctrine; this was later done by the House of Lords in Transco plc v Stockport Metropolitan Borough Council.