Strict Liability Notes

UGANDA CHRISTIAN UNIVERSITY
SCHOOL OF LAW
Rebecca Namirimu Gomes (Mrs)
THE LAW BETWEEN NEIGHBOURS
CONCEPT OF STRICT LIABILITY AND ABSOLUTE LIABILITY

Strict Liability. Liability is strict in those cases where the defendant is liable for damage caused by
his act irrespective of any fault on his part. Thus, liability is strict because it is not based on any
consideration of fault by the defendant. However, liability is strict and not absolute, since the latter
will not admit any exceptions or defences. The main areas of strict liability are;-
a) Liability under the rule in Rylands v. Fletcher.
b) Liability for damages caused by animals.
The principle of strict liability evolved in the case of Rylands v Fletcher, the principle of strict liability
states that any person who keeps hazardous substances on his premises will be held responsible if
such substances escape the premises and cause any damage. Going by the principle laid in this
case, it can be said that if a person brings on his land and keeps some dangerous thing, and such a
thing is likely to cause some damage if it escapes then such person will be answerable for the
damage caused. The person from whose property such substance escaped will be held accountable
even when he hasn’t been negligent in keeping the substance in his premises. The liability is
imposed on him not because there is any negligence on his part, but the substance kept on his
premises is hazardous and dangerous. Based on this, the concept of strict liability was born.
Absolute liability. The rule of absolute liability, in simple words, can be defined as the rule of strict
liability minus the exceptions. According to the rule of absolute liability, if any person is engaged in
an inherently dangerous or hazardous activity, and if any harm is caused to any person due to any
accident which occurred during carrying out such inherently dangerous and hazardous activity,
then the person who is carrying out such activity will be held absolutely liable. The exception to the
strict liability rule also wouldn’t be considered.
Generally, the rule of strict and absolute liability can be seen as exceptions. A person is made liable
only when he is at fault. But the principle governing these two rules is that a person can be made
liable even without his fault. This is known as the principle of “no fault liability.” Under these rules,
the liable person may not have done the act, but he’ll still be responsible for the damage caused
due to the acts. In the case of strict liability, there are some exceptions where the defendant
wouldn’t be made liable. But in the case of absolute liability, there are no exceptions.
The defendant will be made liable under the strict liability rule no matter what.
A. STRICT LIABILITY UNDER RYLANDS V. FLETCHER (1868).

INTRODUCTION.
In England and Wales, the ‘rule in Rylands v Fletcher’ is now treated as a branch of the tort of
private nuisance. In Australia, the rule has been largely absorbed into negligence, which now
provides an alternative route to liability without personal fault where some hazardous activities are
concerned. In the United States, a specific and limited principle of strict liability has evolved in
respect of ‘dangerous’ activities. This has clearly developed from the rule in Rylands but it is not
confined by the limits associated with nuisance, particularly in respect of the types of damage that
are recoverable. In Scotland, the rule does not apply. Rylands deals with ‘isolated escapes’, and
furthermore it deals with cases of actual damage, rather than general ‘interference’.
FACTS OF THE CASE.

In 1860, Rylands paid contractors to build a reservoir on his land, intending that it should supply
the Ainsworth Mill with water. Rylands played no active role in the construction, instead contracting
out to a competent engineer. While building it, the contractors discovered a series of old coal shafts
under the land filled loosely with debris, which joined up with Thomas Fletcher's adjoining mine.
Rather than blocking the shafts up, the contractors left them. Shortly after being filled for the first
time, Rylands' reservoir flooded Fletcher's mine, causing £937 damage. Fletcher pumped the water
out, but later, his pump burst, and the mine again flooded. At this point a mines inspector was
brought in, and the shafts were discovered. Fletcher brought a claim against Rylands and the
landowner for trespass and nuisance.
JUDGMENT.
a) Liverpool Assizes. The tort of trespass was not applicable, as the flooding was deemed not
to be "direct and immediate"; the tort of nuisance was rejected as this was a one-off event. A court
order led to an arbitrator from the Exchequer of Pleas being appointed. The arbitrator decided that
the contractors were liable for negligence, since they had known about the old mine shafts.
Rylands, however, had no way of knowing about the mine shafts and so was not.
b) Exchequer of Pleas. The case then went to the Exchequer of Pleas, where it was heard on
two points: first, whether the defendants were liable for the actions of the contractors and
secondly, whether the defendants were liable for the damage regardless of their lack of negligence.
They decided for the first point that the defendants were not liable, but were split on the second
point the defendants were not liable, as since a negligence claim could not be brought there was
no valid case. Bramwell B, dissenting, argued that the claimant had the right to enjoy his land free
of interference from water, and that as a result the defendant was guilty of trespass and the
commissioning of a nuisance. He stated that "the general law, wholly independent of contract"
should be that the defendants were liable, "on the plain ground that the defendants have caused
water to flow into the [claimant]'s mines, which but for their act would not have gone there..."
c) Court of Exchequer Chamber
Fletcher appealed to the Exchequer Chamber of six judges. The prior decision was overturned in
his favour. Blackburn J spoke on behalf of all the judges and said that:
“We think that the true rule of law is, that the person who for his own purposes brings on his land
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. He can excuse himself by showing that the escape was owing to the
Plaintiff’s 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 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 will 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 consequence. 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.” Rylands
appealed.
d) House of Lords
Oddly, the court consisted of only two judges, Lord Cairns and Lord Cranworth. The eventual
judgment confirmed Blackburn's decision and general principle, adding a requirement that the use
be "non-natural". Lord Cairns LC fully concurred with Blackburn J as follows;-
My Lords, the principles on which this case must be determined appear to me to be extremely
simple. The Defendants, treating them as the owners or occupiers of the close on which the reservoir
was constructed, might lawfully have used that close for any purpose for which it might in the
ordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that
land, there had been any accumulation of water, either on the surface or underground, and if, by
the operation of the laws of nature, that accumulation of water had passed off into the close
occupied by the Plaintiff, the Plaintiff could not have complained that that result had taken place. If
he had desired to guard himself against it, it would have lain upon him to have done so, by leaving,
or by interposing, some barrier between his close and the close of the Defendants in order to have
prevented that operation of the laws of nature.... On the other hand if the Defendants, not stopping
at the natural use of their close, had desired to use it for any purpose which I may term a non-
natural use, for the purpose of introducing into the close that which in its natural condition was not
in or upon it, for the purpose of introducing water either above or below ground in quantities and
in a manner not the result of any work or operation on or under the land, - and if in consequence of
their doing so, or in consequence of any imperfection in the mode of their doing so, the water came
to escape and to pass off into the close of the Plaintiff, then it appears to me that that which the
Defendants were doing they were doing at their own peril; and, if in the course of their doing it, the
evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away
to the close of the Plaintiff and injuring the Plaintiff, then for the consequence of that, in my opinion,
the Ds would be liable.
Note; The reason the case is called Rylands vs Fletcher when the plaintiff was Fletcher is that the
rule was confirmed on appeal by Rylands at the House of Lords, hence the original case name
reversed. The rule has its foundation in the Latin maxim ‘sic uture ut tuo alienum non laedes’ (means
you can use your land the way you want but hurt no neighbor). The essence of the rule is the
protection of neighbors’ property caused by importation of this abnormally dangerous, potentially
dangerous, hyper hazardous, or things that carry with them extra ordinary degree of danger.. The
rule imposes a certain standard of care- the more the thing is dangerous, the higher degree of care
to be exercised. Essentially therefore, the rule is about the responsibility presumed when dealing
with dangerous things. N.B, The rule is not distinct from trespass the kind of damage envisaged is
not direct physical touch, entry or intrusion on the land.
THE INGREDIENTS OF THE RULE.

The rule as stated by Blackburn J does not require that any negligence should be established on
anyone’s part. Rather, his rule of liability requires the following elements:
a) That the defendant brought something onto his land and accumulated it there;
b) That the defendant made a "non-natural use" of his land;
c) The thing in question is likely to do mischief if it escapes;
d) The thing did escape and cause damage.
ESSENTIALS/REQUIREMENTS OF STRICT LIABILITY
It was decided by Blackburn J, who delivered the judgment of the Court of Exchequer Chamber,
and the House of Lords, that to succeed in this tort the claimant must show the following:-
1. That the defendant for his own purposes brings onto land and collects and keeps there;
The first requirement is that the defendant "for his own purposes brings onto land, collects
and keeps there". If water in Rylands v Fletcher case had been naturally on the land, there
would have been no cause of action; In British Celanese v AH Hunt, the accumulation was of
metal foil strips. In David Dibya vs UEB [1980], where UEB left hanging live ‘highly dangerous
cables’ on the road and the plaintiff was shocked upon stepping on them, it was held that the
rule applied.
"For his own purpose" is not understood to be "for his benefit", although that was what Blackburn
was referring to at the time; in Smeaton v Ilford Corp, Rylands was held to apply to a local authority
accumulating sewage on its land, although there was no benefit to the local authority from doing
this. A local authority collected sewage under a statutory authority and some of this escaped on to
the claimant’s land. It was held that it was responsible for the sewage even though it was accepted
that it derived no benefit from collecting the sewage but it did have a defence under the statute.
The law distinguishes between things which grow or occur naturally on the land and those which
are accumulated there artificially by the defendant. Thus, in Giles v Walker [1890], the defendant
was not liable for the spread of thistle from his land and could not be. He hadn’t brought the weeds
on to his land and accumulated them. They had grown naturally.
In Ellison v Ministry of Defence, It was held that at Greenham Common (the scene of a very long-
running protest against nuclear weapons) a natural accumulation of rainwater which escaped and
caused flooding to neighbouring land did not give rise to liability. However, vegetation deliberately
planted, water collected in bulk or in artificial configurations and rocks or minerals, such as colliery
waste which are dug up and left on land by the defendant, do fall within the rule. It seems that the
rule will only apply if the landowner brings something inherently dangerous onto his land for his
own purposes, rather than for those of another person, such as a tenant.
2. That the defendant made a "non-natural use" of his land (per Lord Cairns, LC);
To constitute a strict liability, there should be a non-natural use of the land. In the House of Lords,
Lord Cairns LC, laid down the requirement that there must be a non-natural use of the land. The
requirement was described by Lord Moulton, in Rickards v Lothian, as "It is not every use of land brings
into play this principle. It must be some special use bringing with it increased danger to others, and not merely by
the ordinary use of land or such as is proper for the general benefit of the community’. In this
case, the defendant was not liable when an unknown person turned on water taps and blocked
plugholes on his premises so that damage was caused in the flat below. A domestic water supply
was in any case considered to be a natural use of land.
In the case of Rylands v. Fletcher, the water collected in the reservoir was considered to be a non-
natural use of the land. On the other hand, storage of water for domestic use is considered to be
natural use. But storing water for the purpose of energizing a mill was considered nonnatural by
the Court. When the term “non-natural” is to be considered, it should be kept in mind that there
must be some special use which increases the danger to others.
As stated above, domestic use is usually natural, e.g. Water pipes in Rickards v Lothian. Supply of
cooking gas through the pipeline, electric wiring in a house, etc. is considered to be the natural use
of land. For instance, if the defendant lights up a fire in his fireplace and a spark escapes and causes
a fire, the defendant will not be held liable as it was a natural use of the land.
In Mason v Levy Auto Parts Ltd [1967]. The Defendants stored flammable material on their land. It
ignited and fire spread to neighboring property. The Defendants were held liable as the storage of
the materials amounted to a non-natural use of the land
In Transco plc. V Stockport MBC [2004], the HL gave further guidance on the concept of nonnatural
user. Water had escaped from a service pipe to a block of flats owned by the defendant council.
That had resulted in damage to an embankment which had left the claimant’s gas pipe exposed.
The escape of water had not been the result of negligence, and as it was a sudden event, there was
no possibility of a successful claim in nuisance. The question arose in the claim based on the rule
in Rylands, as to whether the supply of water to a block of flats had been nonnatural user. In
dismissing the claim, the HL held that such a supply of water is natural user of the land, and that
strict liability under Rylands would only apply in extraordinary circumstances.
Although in Rainhan Chemical Works Limited v. Belvedere Fish Company, the HL held that it was a
non-natural use of land to build a factory in it and manufacture explosives; the same HL dramatically
changed its position in the case of Read v. Lyons and held that in these days and in an industrial
community it was a natural use of land to build a factory on it and conduct there the manufacture
of explosives. In this case, it was argued that running a munitions factory in wartime is natural use
of land. Lord Porter said: All the circumstances of the time and place must be taken into consideration,
so that what might be regarded as dangerous or non-natural may vary according to those circumstances.
Thus, this varies in response to changing social conditions and needs. Against this background,
some of the old authority may be decided differently today hence, normal industrial activities
properly carried out may no longer constitute a non-natural use of land.
In Read vs Lyons & co. [1947], the appellants, while working in the respondent’s factory was injured
by an explosion there. She did not plead negligence, but sought to show that the respondents as
manufacturers of dangerous things (explosives) were strictly liable. The House of Lords held for the
defendants because there had not been an escape from the defendant’s land. But on ‘non- natural
use’ Lord Porter said; “I think that all the circumstances of the time and place of mankind must be
taken into consideration so that what might be regarded as nonnatural may vary according to those
circumstances” It is thus the creation of a recognizable risk to other landowners which is an
essential constituent of the liability of the defendant. Once such risk has been created, the liability
for foreseeable consequences of failure to control and confine is strict.
In Ellison v Ministry of Defence, things connected with war may be a natural use even in peace.
In British Celanese v A H Hunt [1969], if a public benefit is gained from the activity it may make it
a natural use. In this case, the defendant stored strips of metal foil, which were used in the process
of manufacturing electrical components. Some of these strips of foil blew off the defendant’s land
and on to an electricity substation causing power failures. The court held that the use of land was
natural. This was partly because of the benefit derived from the manufacture by the public, and
there was no liability under the rule as a result.
3. The thing was something likely to do mischief if it escaped;

The next element of Rylands is that the thing be something "likely to do mischief if it escapes".
The defendant must have ‘accumulated’ something on his or her land; and that thing must be
something that, in the words of Blackburn J, is ‘likely to do mischief if it escapes’. The thing may be
brought on to the land by the defendant. Alternatively, it may come on to the land by a natural
process, provided that some action of the defendant has caused it to gather or accumulate. For
example, the defendant may have constructed a reservoir that will fill with rainwater, or may have
dammed a stream to create a lake. An entirely natural accumulation will not fulfil the requirements
of Rylands v Fletcher. In Rylands v Fletcher, water is not intrinsically dangerous but a large
accumulation of water will be likely to cause damage if it escapes. The defendant was held liable
and the tort of Rylands v Fletcher came into being.
In Hale v Jennings Bros [1948], a car from a ‘chair- o-plane’ ride on a fairground became detached
from the main assembly while it was in motion and injured a stallholder as it crashed to the ground.
The owner of the ride was held liable. Risk of injury was foreseeable if the car came loose.
In Whalley v. The Lancanshire & Yorkshire Rly Co. [1884]. After heavy rain, water accumulated
against the defendants’ railway embankment, endangering it. The defendants cut trenches in it to
allow the water flowed through, where it then went on to the land of the plaintiff, on the far side
of the embankment and at a lower level. This land flooded and was injured it to a greater extent as
a result. The jury found that the cutting of the trenches was reasonably necessary for the protection
of the defendants’ property, and that it was not done negligently. The plaintiff argued ‘There is a
great difference between a right to a landowner to protect his property against a common enemy
and a right to pass such enemy on to the land of a neighbour.’ Held: Though the defendants had
not brought the water on their land, they did not have a right to protect their property by
transferring the mischief from their own land to that of the plaintiff, and that they were therefore
liable: ‘if *the water+ had been left alone and allowed simply to percolate through the
embankment, even though all of it would have gone on to the plaintiff’s land, it would have gone
without doing the injury which was done by reason of its passing through the cuttings which the
defendants made. The defendants did something for the preservation of their own property which
transferred the misfortune from their land to that of the plaintiff, and therefore it seems to me that
they are liable.’
Over the years a wide variety of things have been held to be likely to cause damage if they escape
and for this reason have been categorized as dangerous. Examples include:-
Before Transco plc. v Stockport Metropolitan Borough Council this did not have to be a dangerous
item; the risk was instead in its behaviour if it escapes. In Rylands the "thing" was water. Other
examples are fire, as in Jones v Festiniog Railway, gas. The extent of the "thing"'s accumulation
can also be considered, as in Mason v Levy, where it was not just the type of thing kept but the
sheer amount which created the danger. It is essential for a Rylands claim that there be an escape
of a dangerous thing "from a place where the defendant has occupation of or control over land to
a place which is outside his occupation or control".
In AG v Corke [1933], it was held that gypsies are ‘things likely to do mischief if they escape’.
In Read v J Lyons, an explosion in a munitions factory killed an inspector on the property. Rylands
was held not to apply, because there was no escape. The dangerous thing that escapes does not
always have to be the thing which was accumulated, but there must be a causal link.
10 | P a g e ShisaRobert(TheLawbetweenneighbours)
4. The thing did escape and cause damage.
There will be no liability in Rylands v Fletcher unless there is an escape of the dangerous materials
from the defendant’s land. One more essential condition to make the defendant strictly liable is
that the material should escape from the premises and shouldn’t be within the reach of the
defendant after its escape. For instance, the defendant has some poisonous plant on his property.
Leaves from the plant enter the property of the plaintiff and is eaten by his cattle, who as a result
die. The defendant will be liable for the loss. But on the other hand, if the cattle belonging to the
plaintiff enter the premises of the defendant and eats the poisonous leaves and die, the defendant
would not be liable. In Read v Lyons, the House of Lords clarified the requirement of escape.. It was
held that if there is no escape, the defendant cannot be liable.
In Read v Lyons, the House of Lords clarified the requirement of escape. The claimant was working
in a munitions factory during the Second World War when she was injured by an explosion. There
did not appear to have been negligence on the part of the employers, and as the explosion had
occurred on their own premises, there was no escape from their property. The result was that the
claimant was without a remedy. This case has been criticized for restricting the development of
strict liability for dangerous activities at a time when it could be argued that developing industry
was creating yet more hazardous uses of land.
In Miles v Forest Rock Granite Co (Leicestershire) Ltd [1918], the claimant brought the action in
respect of injuries suffered when rocks flew on to the highway from the defendants’ land where
they were blasting. It was the explosives that had been brought on to land that actually caused the
rock to escape, but there was still liability. There had been an escape – the blast.
British Celanese v A H Hunt (Capacitors) Ltd when he said the escape should be: ‘from a set of
circumstances over which the defendant has control to a set of circumstances where he does not’.
5. Foreseeability of the harm.
There is now a further requirement, according to the HL, that harm of the relevant type must have
been foreseeable. 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 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. 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.
In Cambridge Water Works v Eastern Countries Leather P/C, Chemicals which were stored by the
defendants seeped into the underground water supply used by the claimant. At the time the
chemicals were accumulated the amount of contamination caused to the water supply was within
acceptable standards. Sometime later, the law was changed and the level of contamination could
no longer be tolerated. The change in the law could not have been foreseen by the defendants who
were found not to be liable. The court held that foreseeability of damage of the relevant type if
there was an escape from the land of things likely to do mischief was a prerequisite of liability. Strict
liability for the escape from land of things likely to do mischief only arose if the defendant knew or
ought reasonably to have foreseen that those things might if they escaped cause damage. The rule
was one of strict liability in the sense that the defendant could be held liable where there was an
escape occurring in the course of the non-natural use of land notwithstanding that he had exercised
all due care to prevent the escape from occurring. Since the defendants could not in the
circumstances reasonably have foreseen that the seepage of the solvent through their tannery floor
could have caused the pollution of the plaintiffs’ borehole, they were not liable under the rule in
Rylands v Fletcher. The rule in Rylands v Fletcher does not operate in respect of personal injuries
but only in respect of damage to property.
The issue of foreseeability has been discussed in the later case of Transco plc v Stockport
Metropolitan Council [2003] which enabled the House of Lords to review the scope and application
of the tort. A multi- story block of flats, built by the defendants, was supplied with water for
domestic use. A large pipe from the water mains led to tanks in the bottom of the buildings to
supply the needs of 66 households. Without negligence, the pipe failed and water escaped.
Without negligence the leak was undiscovered for some time by which time sufficient water had
escaped to cause an embankment beneath the claimant’s gas mains to collapse. As a result, the gas
main posed an immediate and serious risk. The claimants took prompt action and sought to recover
the cost from the defendants on the basis that the defendants were strictly liable under Rylands v
Fletcher. Lord Bingham acknowledged: - ‘many things not ordinarily regarded as sources of mischief
or danger may nonetheless prove to be such if they escape’.
In Hale v Jennings Bros [1948], a car from a ‘chair- o-plane’ ride became detached from the main
assembly while it was in motion and injured a stallholder as it crashed to the ground. The owner of
the ride was held liable. Risk of injury was foreseeable if the car came loose.
In Namyalo v Ratanshi [1968], the plaintiff claimed damages for the death of her husband, who
was run over by a lorry driven by the defendant’s servant. The deceased was nearly blind. The driver
of the lorry, going at about 40 m.p.h., saw the deceased about to cross the road, and hooted,
whereupon the deceased started to cross the road, walking quickly. The driver took evasive action,
but failed to miss him. The deceased was unaccompanied and there was nothing to indicate that
he was nearly blind. Held – the driver had no means of knowing that the deceased was nearly blind
and the plaintiff had failed to prove negligence (Haley v. London Electricity Board (1) distinguished).
Suit dismissed.
THE PARTIES TO AN ACTION
a) A defendant in an action will be either: according to Lord Simon in Read v Lyons an owner
or an occupier who satisfies the four requirements; or according to Lawton J in British
Celanese a person where the escape is from a set of circumstances under his control to one
which is not. And see Hale v Jennings Bros (1948). There is some authority to the effect that
in order to sue under Rylands v Fletcher, the claimant must have an interest in land in the
area which is affected, but there are also many cases in which the opposite view has been
expressed. If the purpose of the rule is to control and compensate for ultra-hazardous
activity, then logically there is no need for the claimant to have any interest in land. If,
however, the rule is merely an extension of nuisance, then some interest in land would be
expected as a basis of a claim.
We have seen that in Read v Lyons the court took the view that the defendant would be the
person, even if it were only as a mere licensee, from whose land the ‘thing’ had escaped on to
another’s land while in British Celanese v Hunt liability could lie on the person from whose
control the ‘thing’ had escaped. The issue is still unclear.
b) Possible claimants also vary according to the judge:
o Blackburn J suggested there is no need for the claimant to have a proprietary interest. Lord
MacMillan in Read v Lyons concurred. o Lawton J in British Celanese was not prepared to
limit the rule that much, so that a claimant could even be a party who has suffered personal
injury.
o In Rigby v Chief Constable of Northamptonshire [1985], the view was expressed that if
there is an escape from the defendant’s control on the highway onto the claimant’s land the
rule in Rylands v Fletcher can apply. This was approved in Crown River Cruises Ltd v
Kimbolton Fireworks Ltd and Anor, where the judge was of the opinion that there were
strong arguments to extend the same principle to accumulations in or on a vessel in a
navigable river.
o Another successful claim is an escape from accumulations in a vessel escaping on to other

vessels (Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996)).
EXCEPTIONS/DEFENCES TO THE RULE
The law admits defences or exception to the rule in Rylands v Fletcher. In that case Blackburn
pointed out the exception to the rule as, consent of the plaintiff, default of the plaintiff, act of God,
act of a third party. Flemming suggests that this is an effort to interpret the rule in Rylands V
Fletcher in conformity with the default principles founded in negligence.
a) Consent of the plaintiff and Common Benefit.
One who consents to the accumulation cannot later complain when the thing escaped and damages
the land. This is common in the case of buildings in multiple occupation where a tenant will be
taken to have consented to the accumulation of a thing from which that land benefits. In Peters
v Prince of Wales Theatre (Birmingham) Ltd [1943], the defendant employed a sprinkler system to
protect the building from fire. The claimant also occupied the building and complained when stock
was damaged by water from the sprinklers. It was held that the water supply benefited both
claimant and defendant. There could be no liability.
Consent here may be express or implied consent. This defence is a mere application of volenti non
fit injuria. The rationale behind this rule is that accumulation is for the mutual benefit of both
parties and with express or implied consent. If the claimant has consented to the accumulation of
the dangerous things, there will be a defence to Rylands v Fletcher, particularly if the activity is for
the benefit of the claimant (Peter’s v Prince of Wales Theatre Ltd [1943]. The express or implied
consent of the claimant to the presence of source of the danger, provided there has been no
negligence by the defendant, will be a defence. Where the plaintiff has consented to the presence
of the hazard on the defendants land, he cannot seek redress when it escapes and damages his
property in the absence of negligence. The defence is similar to volenti non-fit injuria in respect of
negligence.
In North western Utilities v London Guarantee, the plaintiff was a consumer of gas supplied by the
defendant. There was an explosion in the gas pipes maintained by the defendant which caused
damage to the plaintiff’s premises. The court held that the plaintiff could recover on the basis of
the rule in Rylands v Fletcher and had not consented.
b) Common benefit
If the accumulation benefits both the plaintiff and the defendant, this is an important element in
deciding whether the plaintiff is deemed to have consented.
In Carstairs v Taylor (1871), the plaintiff rented premises on the ground floor of a warehouse from
the defendant. Water from the roof was collected by gluten into a box from which it was discharged
by a pipe into drains. A rat gnawed a hole into the box and water leaked through it and damaged
the plaintiff’s goods. The court held that the defendant was not liable in the absence of negligence.
Rainwater which had been collected on the roof of a block of flats for the benefit of several
occupants meant that the landlord was not liable when the water escaped as it had been
accumulated for a common benefit.
While, in Peters v Prince of Wales Theatre , a fire extinguisher which exploded, damaging part of
the building occupied by the plaintiffs, was held to have accumulated for a common benefit.
c) Vis major/Act of God.
The phrase “act of God” can be defined as an event which is beyond the control of any human
agency. Such acts happen exclusively due to natural reasons and cannot be prevented even while
exercising caution and foresight. The defendant wouldn’t be liable for the loss if the dangerous
substance escaped because of some unforeseen and natural event which couldn’t have been
controlled in any manner. Generally, an act of God is an event which 'no human foresight can
provide against, and of which human prudence is not bound to recognize the possibility' (per Lord
Westbury, Tennent v Earl of Glasgow (1864)
An act of God is an unforeseeable natural phenomenon. This was explained by Lord Hobhouse in
Transco v Stockport as describing events:- (i) Which involve no human agency;
(ii) Which it is not realistically possible to guard against;
(iii) Which is due directly and exclusively to natural causes; and
(iv) Which could not be prevented by any amount of foresight, pains and care.
The rule in Rylands v Fletcher does not apply where the escape of the dangerous thing is caused by
natural causes without human intervention. The defence was recognised in Rylands v Fletcher but
was first applied in Nichols v Marsland. In that case, Four bridges were washed away when artificial
lakes overflowed following rain ‘greater and more violent than any within the memory of
witnesses’. It was held that the defendant could not reasonably have anticipated such an act of
nature and she was not liable.
In Greenock Corporation v Caledonian Railway [1917], the defendants constructed an artificial

paddling pool by diverting a stream. There was a rainfall of extraordinary violence which caused
the pool to overflow. This resulted in damage to the claimants’ property. It was held that the
defendants were liable. Rainfall, even if exceptionally heavy, was not an Act of God.
In Attorney General v Cory Bros [1921], however, it was held that exceptionally heavy rain in the
Rhondda valley in Wales (where the Aberfan disaster occurred) was not an act of God.
d) Act of or default of the plaintiff.
If the plaintiff is at fault and any damage is caused, the defendant wouldn’t be held liable, as the
plaintiff himself came in contact with the dangerous thing.
In the pronouncement of Ponting v Noakes, the plaintiff’s horse died after it entered the property
of the defendant and ate some poisonous leaves. The Court held that it was a wrongful intrusion,
and the defendant was not to be held strictly liable for such loss. Where the escape of the hazard
is due to solely the act or default of the plaintiff they have no remedy in the law. This was recognised
by Blackburn in Rylands. However, where the plaintiff action only amounts to contributory
negligence, he can recover to the extent of the defendant’s responsibility.
In Hoare Co v Mc Alpine, vibrations from pile driving caused structural damage to a large hotel on
adjoining land. The judge was of the view that the plaintiff had not put his property to any special
use to deny them a remedy. There will be no liability under the rule if the escape was due to default
of the plaintiff to take action. Also the plaintiff conducts may amount to contributory negligence.
Also, there will be no liability if the damage would have occurred but for the abnormal sensitivity
of the plaintiff’s property or the use to which it is put.
In Eastern and Southern Telegraph Company v. Capetown Tramways Company Ltd., the plaintiff
complained that an escape of electricity stored on the defendant’s premises interfered with
sending of messages by the plaintiff through their submarine cables. The action failed since the
plaintiffs in such a case has put his property to special or unusually sensitive use.
e) Act of a stranger/an independent third party.
The defendant will not be liable if a stranger was responsible for the escape. If a stranger over whom
defendant exercises no control causes the escape then no liability. In Perry v Kendricks Transport
(1956), the plaintiff was injured by an explosion caused by a boy trespasser who threw a lighted
match into a petrol tank.
In Rickards v Lothian, the lavatory basin was blocked by a third party and this caused damage to
the plaintiff’s stock in trade. The court held that the defendant was not liable under the rule.
The rule also doesn’t apply when the damage is caused due to the act of a third party. The third
party means that the person is neither the servant of the defendant, nor the defendant has any
contract with them or control over their work. But where the acts of the third party can be foreseen,
the defendant must take due care. In Perry v Kendricks Transport Ltd: a child threw a lit match into
the empty petrol tank of an old motor coach parked on the defendant’s land. The petrol cap had
been removed by some unknown person. As their actions were unforeseeable, the defendant
escaped liability, and much of the language used was that of negligence.
The defence is limited to situations where the escape is as a result of the deliberate act of an
independent third party. Then onus is on the defendant to prove that the accident was a result of
the act of a stranger.
In North Western Utilities ltd v London Guarantee and accident Co, a hotel belonging to and
insured by the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas.
The gas had percolated into the hotel basement from a fractured welded joint in an intermediate
pressure main situated below street level and belonging to the defendants main by a third party.
The court held that the acts of the third party were reasonably foreseeable and the defendant could
not escape liability on that ground.
f) Statutory authority.
A statute may impose a duty on the defendant to accumulate the thing which has escaped. In such
a case, the defendant will not be liable for the escape, in the absence of negligence, provided the
damage is the inevitable consequence of any escape. This is illustrated by two contrasts;
In Charing Cross Electric Supply Co v Hydraulic Power Co [1914], the claimant’s land was damaged
by the escape of water maintained at high pressure in the defendant’s mains. The statute enabling
the provision of water for industrial purposes was permissive only. There was no duty to maintain
water under high pressure. Had the water not been maintained under high pressure it would not
have escaped. As the escape was not the inevitable consequence of the exercise of the statutory
power, the defendants were liable.
In Green v Chelsea Waterworks Co [1894], a water main belonging to a waterworks company,
which had been authorized by Parliament, burst. There had been no negligence on the part of the
waterworks company. The claimants’ premises were flooded but the waterworks company was held
to have no liability. The owner of land is, as an exception to the rule in Rylands -v- Fletcher, not
liable for damage caused by works executed under statutory authority. Lindley LJ said the decision
in Rylands decision ‘is not to be extended beyond the legitimate principle on which the House of
Lords decided it. If it were extended as far as strict logic might require, it would be a very oppressive
decision.’ The defendant was under a duty to maintain pressure in its water mains. Damage would
inevitably be caused by any escape of water thus the defendants were not liable when an escape
happened.
g) Remoteness.
Foreseeability of some kind is inherent in the rule as initially stated. The decision in Cambridge
Water employed an historical analysis to interpret Rylands as an aspect of the law of nuisance, and
thus determined that the normal rules on remoteness of damage, as expressed in The, apply also
to Rylands v Fletcher. Not only must the accumulated thing be liable to do mischief if it escapes,
but the eventual damage must in a relevant sense be foreseeable. On the rather peculiar facts of
Cambridge Water itself, the absence of foreseeability in respect of the claimants’ damage was plain;
but that damage was unforeseeable in a number of different ways.
REMEDIES AVAILABLE
Damages.
Damages must be proved under the rule since injury under the rule is not actionable per se. but,
where damages were indirectly and remotely connected to the escape, there will be no liability on
the part of the defendant. In Weller v. Foot and Mouth Disease Institute, the defendants were out
of business as the result of the action of Government in closing the cattle market. This was held to
be sufficient damage to sustain the action. The owner of land close to the escape can recover
damages for:
1. Physical harm to the land itself (as in Rylands v Fletcher) and to other property. See, for
example: · Halsey v Esso Petrol [1961] 2 All ER 145, where the owner of a car recovered
compensation for damage to its paintwork by acid smuts. Halsey lived down the road from an Esso
Petroleum oil factory. He claimed that the factory’s emissions produced an offensive smell, and
that the acidic residue from the factory’s smoke damaged his linen and car’s paint. Halsey was
also kept up at night by the noise from the trucks constantly moving about in the area. Held; Yes,
an injunction is granted at night to prevent the noise from affecting the neighbourhood. The
locality and character of the neighbourhood is important. Veale J determined that the factory
could operate without causing nuisance, and noted that there was little noise pollution during the
day. The smell can be a nuisance – the smell was held to be “a nauseating smell, and …so frequent
as to be an actionable nuisance.”
2. It is no longer clear if a claimant can recover for personal injury, as in: · Hale v Jennings
[1938]. P was injured when a chair-o-plane escaped from the D's fairground machine onto his
property. The trial judge awarded damages for personal injury. Doubt has now been cast upon
such authorities: · Cambridge Water v Eastern Counties - it was said that the rule in Rylands v
Fletcher is an offshoot or variety of nuisance. According to Lord Hoffman in Hunter v Canary Wharf
[1997], nuisance protects land or the use of land. Therefore, damages for personal injury per se
would not be recoverable in either nuisance or under Rylands v Fletcher.
Non-occupiers It is not clear if a person who is not an occupier of land close to the escape can
obtain damages for personal injuries, under this tort. · Cambridge Water v Eastern Counties - it
was said that the rule in Rylands v Fletcher is an offshoot or variety of nuisance. Therefore,
according to Hunter v Canary Wharf [1997], an interest in land is a prerequisite for bringing a
claim. However, there may be other causes of action, for example, negligence.
Where a claim in tort is for purely financial loss or for damage to property, the aim is to put the
claimant back into (as nearly as possible) the position he would have been in had the damage not
occurred. Where property is damaged, e.g., the award is based on the cost of a reasonable repair
or replacement. Where appropriate, damages may also be awarded for the cost of hiring a
substitute (e.g. a car) in the meantime, and interest is allowed from the date of formal claim. In
Rylands v Fletcher, The House of Lords awarded damages subsequently agreed at £937.
|Page T h e L aw b e t w e e n n e i g h b o u r s ) 21
Problems with the rule.
a) At first sight Rylands v Fletcher may be thought to have potential to ensure that dangerous
things are properly controlled. The definition of the tort seems quite clear – people who
accumulate something that is potentially dangerous will be liable if damage is caused as a result
of an escape even in the absence of negligence. The potential for dealing with the effects of
pollution is clear. However, when the tort is looked at in depth, its effectiveness in dealing with
anything other than a local, individual problem is questionable.
b) As a mere extension of nuisance, so there is no general strict liability for hazardous activities.
c) The principle has been constantly limited in scope:
o requirement of non- natural use; o Read v Lyons reasoning

on escape; o the breadth of defences available;
o the requirement of foreseeability in Cambridge Water ; o
Reluctance to expand the principle in Crown River Cruises.
d) Has doubtful modern relevance:
o most instances could be covered by negligence; o rarely
used now, and rarely successfully;
o since Cambridge Water the Australian High Court has

abolished the rule saying it was effectively swallowed up by
negligence ( Burnie Port Authority v General Jones);
o Many areas concerning hazards are now covered by statute

(Blue Circle v MOD).
Questions;
1) Discuss the principles in Ryands vs Fletcher and explain the problems that have been
encountered in its application.
2) “There will never be a case where the plaintiff will succeed in Rylands vs Fletcher without
also succeeding in Negligence, and there would rarely be a plaintiff who will succeed in nuisance
without also succeeding in Negligence” Critically examine this statement, clearly highlighting the
nexus among the three causes of action.
3) “The rule in Rylands vs Fletcher is an extension of both nuisance and negligence” Per
Ssekandi J in Paskali Bahizi vs Kibandama, Civil Appeal No. 93 of 1976. [1977]HCB 91 Critically
examine the above assertion in light of relevant authorities.
B. LIABILITY FOR ANIMALS
Notwithstanding the usefulness of animals, their propensity for harm may well justify imposing on
the owner a duty to protect the community, at his peril, against the typical risks involved in keeping
them for his own benefit. Ordinarily, the owner of animals is liable under the general law of tort in
negligence for the damage they inflict. There are however, cases where liability for animals is strict
ie where negligence need not be proved. These are; a) Liability for cattle trespass
b) Liability under Scienter rule. Both the cattle- trespass rule and liability for dangerous animals are
but instances of the wider principle of strict liability which, attaches to the control of all
exceptionally dangerous things.
INTRODUCTION
By the middle of the twentieth century, the law relating to liability for damage or injury done by
animals was confused. An owner could be liable under various torts on the requirements of those
torts being established. There were also other common law actions which imposed strict liability
for harm done by animals. It was acknowledged that animals are by their nature unpredictable and
that owners kept animals at their peril. Strict liability depended on whether the animals were ‘ferae
naturae’ (loosely translated as wild animals) or ‘mansuetae naturae’ (loosely translated as tame
animals). In the case of wild animals, the owner was presumed to know that they were dangerous
and would be liable without fault (strict liability), while in the case of tame animals, knowledge of
the animal’s dangerous tendency had to be proved before liability would be imposed. This is
perhaps the origin of the saying ‘Every dog is allowed one bite.’
COMMON LAW RELATING TO ANIMALS
Civil liability for damage caused by animals has its origins in the feudal tradition and in preenclosure
days when in many areas the main form of wealth was livestock and attitudes to straying animals
were very different to those which pertain today. Indeed, it was not until after the much overdue
rationalisation and reform of the law concerning animals in the Animals Act 1971 that the law
recognised that the safety of drivers of vehicles on the highway should take priority over the rights
of landowners to leave their property unfenced.
Under common law, a person who keeps animals is under a duty to keep them from trespassing and
prevent harm from animals whose dangerous tendencies he is aware or is presumed to be aware.
The liability for animals is an application of strict liability. Animals are divided into tame and
dangerous animals. At common law, since animals are not part of the human society, whoever
brings animals into human society does so at his own peril and therefore assumes the responsibility
to strictly control them so as to avoid damages being caused to other members of the human
society. This is why liability for damages caused by animals in the law of torts is strict. There are two
types of strict liability for damages by animals, i.e.:-Liability for cattle trespass; and Liability under
scienter rule.
a) LIABILITY FOR TRESPASS OF ANIMALS.
This is a common law tort based on the need to protect farmlands in predominantly agricultural
communities. This law of tort tries to strike a balance between the interest of the cattle rearrers
and the owners of farmland. Over the years, cattle trespass was extended not only to cover
residential properties and other types of land beyond farmlands; but also, to include other domestic
animals such as goat, sheep, pigs, horses, fowls and other animals which are normally domesticated
or have domestic disposition. But, curiously it does not include dogs and cats which are also
domestic animals with a propensity to stray beyond the control and care of their owners.
This is not an ordinary trespass, since trespass is ‘direct intentional interference’ It is not nuisance
since;
a) Substantial interference need not be proved.
b) The defendant’s conduct need not be unreasonable.
This head of claim is normally relied on where the invasion by cattle is not intentional on the cattle-
owner’s part. Where it is intentional or as a result of negligence, it is more sensible to proceed in
trespass and negligence respectively.
Cattle trespass is also different from Rylands vs Fletcher because;

a) It is irrelevant whether land from which animals escape is being put to natural use.
b) It is actionable per se (no need to prove damage).
c) It only arises when the land owner also has interest in the cattle.
d) It is possible to have cattle trespass without cattle Ingredients of cattle trespass.

The keeper of cattle is bound at his peril to keep them from trespassing and to prevent harm from
animals of whose dangerous tendencies he has actual or presumed knowledge.
a) There must be cattle: The definition of cattle extends to cows, bulls, goats, swine, sheep, horses,
asses, domestic birds (hens, geese, ducks, turkeys peacocks). But it does not include cats and
dogs.
b) The defendant need not have intended the trespass and need not have acted negligently.
c) There need not be damage suffered.
Thus, cattle includes livestock but not dogs: Tallents v. Ben and cat: Buckle v. Holmes. In the latter
case, the cat strayed into the plaintiff’s garden and killed 15 birds. An action for cattle trespass
failed.
Take Notice that there is no liability where cattle which are lawfully being laid along the high way
escape thereon to adjacent land for this is regarded as a normal hazard associated with the passage
of traffic along the highway: Tillett v. Ward. But if the escape is due to carelessness on the part of
the person in control of the cattle on the highway, the latter will be liable in negligence: Gayler &
Pope v. Davies. Besides, only a person having an interest in the land trespassed upon can sue.
Further Take Notice that liability for damages caused by dogs and cats is in negligence. Thus, in
Drapper v. Hodder, a pack of puppies dash across the premises and injured a three year old boy.
The defendants were liable because the dogs were kept at a place where it is reasonably
foreseeable that damages may result. Cattle trespass has also extended to residential property.
Liability for straying animals. Brock vs Richards-as a general proposition, the owner of animals is
under no liability to prevent them from straying, even though the straying may take a form of
leaping over or through hedges. No liability attaches to the owner of such animals simply because
he has allowed them to escape from his land. There is no obligation in such circumstances to fence
one's land and to keep one's domestic animals in. The rule although found in earlier common law
is usually referred to as the rule in Searle v. Wallbank[1947] A.C 341
In Searle v. Wallbank[1947] A.C 341 the plaintiff was injured when at 1.30 a.m. on 1 April 1944 the
bicycle which he was riding collided with the defendant's horse on a public highway. The plaintiff's
front light was masked in accordance with war-time regulations at the time of the accident. The
field, in which the horse was kept, with other animals, adjoined the highway and the horse escaped
because of a defective fence. The House of Lords in dismissing the plaintiff's appeal held that the
owner of a field adjoining the highway is under no prima facie legal obligation to users of the
highway so to keep and maintain his hedges and gates along the highway as to prevent his animals
from straying onto it. Nor is he under any duty to users of the highway to take reasonable care to
prevent any of his animals, not known to be dangerous, from straying onto the highway. The
justification for the rule in Searle v. Wallbank seems to be mainly historical. It has been stated that
“in early times, very few roads were fenced off from the adjoining land, and it would have been a
considerable imposition on the owner of cattle if he had been compelled to prevent them from
straying”. Moreover, road users were usually taken to have accepted the risks inherent in road travel
and this seems to have included the possibility of the presence of straying animals. In recent years,
however, because of the increasing speed with which road traffic moves, because of the increasing
number of wide and fast-surfaced roads, and because of the serious consequences which may occur
nowadays if fast moving traffic collides with animals on the highway, a great deal of dissatisfaction
has been expressed about the rule in
Searle v. Wallbank. Judicial precedents have put limits on the scope of the rule viz;
First, it seems that it does not apply in Ireland, if the animals are straying on the roadway in
sufficiently large numbers to cause an obstruction.
Second, it was held in Brock vs Richards [1951] 1 K.B 529 at p.535 that the rule does not apply to
wild animals or to domestic animals who show peculiar characteristics or where scienter is proved.
Thus, if a person knows that his dog has a mischievous propensity to chase passing motor-cyclists
he may be liable in scienter if he allows his dog to stray onto the highway.
Third, it was held in Gomberg vs Smith [1963]1Q.B 25 it does not apply if animals are brought onto
the highway. Fourth, in Howard v. Bergin, O'Connor & Co. O'Connor J., was inclined to limit the
application of Searle v. Wallbank to rural conditions. He was of the opinion that the defence that
there was no obligation on adjoining owners to fence and that there was no liability for any damage
caused by straying animals in any circumstances, was too wide a proposition to be accepted as law.
Although it was unnecessary for him to decide the question in the case before him, and although
he could find no authorities to support him, he was inclined to the view that the common law which
relieves occupiers of land adjoining the highway from fencing does not apply to cities. City dwellers,
should according to O'Connor's view, be obliged to fence.
Lastly in the case of Ellis v. Johnstone [1963] 2 Q.B. 8 it was stated that where there were special
circumstances such as peculiar topography or where the animal was engaged in an activity which
could only be carried on under a high degree of human control it has been suggested that liability
might also arise. See also Bativala v. West [1970] 1 Q.B. 716.
b) LIABILITY UNDER SCIENTER RULE
When an animal of harmless species betrays its own kind by perpetrating damage, its keeper will
not be held to strict liability unless actually of its dangerous disposition. This proof is known
technically as ‘the scienter rule’. This head is concerned with liability for damage done by animals
which are in the control of the defendant when he knows or is presumed to know of their tendency
to do harm of the type In the case of Behrens & Anor vs Bertram Mills circus Ltds [1957]2 QB 1
Lord Devlin. J stated that the law as follows; a person who keeps an animal with knowledge (scienter
retinuit) of its tendency to do harm is strictly liable for damage that it does if it escapes; he is under
absolute duty to confine or control it so that it shall not do injury to others. Unlike Rylands vs
Fletcher, no escape need have occurred. Secondly, it basically deals with personal injuries.. Thirdly
unlike Rylands vs fletcher rule that is based on the occupation of the land, scienter rule is based on
the possession of the animal,
By Scienter, we mean knowledge that an animal is vicious/dangerous and has the propensity to
cause harm or mischief. The requisite knowledge of an animal’s vicious propensity must relate to
the particular propensity that caused the damage. The scienter (Latin for knowledge) principle is
one of the special strict liability rules relating to animals that was developed by the common law.
There is a distinction between wild animals and domestic animals. In establishing Scienter, it is not
necessary to show that the animal had actually done the particular type of damage on the premises
on the previous occasion; it is sufficient to prove that it is has exhibited a tendency to do that
particular kind of harm. In proving a dog’s propensity to attack humans for instance; it is sufficient
to show that it habitually rushes out of it kennel where it was chained and attempted to bite a
passerby:
For purposes of this tort, animals are divided into; a) Ferae naturae; Animals which are dangerous
by nature b) Mansuetae naturae; ordinarily harmless animals “Harmless” animals are of two kinds;
Those harmless by their very character e.g rabbits, and those shown by long experience to be
harmless e.g sheep, horses and dogs.
FERAE NATURAE AND MANSUETAE NATURAE.
o POSITION AT COMMON LAW.

Under common law, a keeper of an animal was strictly liable, independently of negligence for any
damage done by the animal if it was faerae naturae (belonged to a dangerous specie) or
mansuatae naturae (did not belong to a dangerous specie) if he knew about its vicious character.
The law imposes strict liability on a possessor of a vicious animal for any damage it may cause. In
England, liability is governed by statute which classifies animals according to their propensity to do
severe damage to mankind. Wild animals are presumed to be dangerous. Ordinarily domesticated
animals are excluded.
o FERAE NATURAE
All animals, ferae naturae i.e. all animals which are not by nature harmless or have not been tamed
by man and domesticated are conclusively presumed to have such tendency to do harm so that the
scienter need not in their case be proved. Lord Macmillan in regard to liability for such animals
stated in Read vs Lyons & Co. Ltd [1946] that a person is under absolute duty to confine or control
(a dangerous animal) so that it shall not do injury. There must be failure to control. Whether or not
an animal is harmless under the scienter rule is a question of law. From decided cases, elephants,
zebras, bears, bees, and lions are ferae naturae. These are animal that are considered wild, vicious
by their nature, not tamed or domesticated by man and conclusively presumed to have a tendency
to do harm and as such, proof of scienter is not necessary. The owner of a wild animal keeps that
animal at his/her own peril. If the animal causes damage then the owner will be strictly liable for
that damage. Because the animal is wild, there is a presumption that he knew of that animal’s
vicious propensity. In the case of Animals Ferae Naturae, scienter is presumed.
In the case of Filburn vs Peoples Palace & Aquarium Co. Ltd (1890) the court of Appeal held as a
matter of law that an elephant is an animal ferae naturea. This decision was followed and
considered to be binding by Lord Devlin j in Behrens & Anor vs Bertram Mills circus Ltds [1957]2
QB 1. Lord Devlin J further stated that the reason why this is a question of law and not a question
of fact is because it is a matter of which judicial notice has to be taken and no evidence is required
to prove it. This doctrine has from its formulation, proceeded on the supposition that knowledge
of what kind of animals are tame and what kind are savage is common knowledge.
Thus, in Behrens & anor v. Bertram Mills Circus Ltd. [1957]. The claimants ran a booth in a fun fair
operated by the defendants who were the owners of a circus. The defendant’s troop of elephants
had to pass the booth on their way to the circus ring. One, Bullu, was frightened by a small dog and
in its fright trampled the booth injuring the claimants. Although Bullu was described as ‘no more
dangerous than a cow’ the defendants were liable. The court imposed strict liability on them on the
ground that it was farae naturae. Where the animal is not of a vicious character, the owner is only
liable where he is aware of its viciousness. The test of whether an animal is farae naturae is its
potential danger to mankind.
In May v Burdett (1846) 9 QB 181 the plaintiff recovered damages in respect of a monkey bite in
spite of the lack of negligence on the part of the owner. The law presumes that the keeper is aware
of the vicious instincts of the animal and it’s immaterial whether he appreciated the potential
danger or not. This is the action in scienter. The rule is also distinct from Rylands v Fletcher in that
the animal need not escape.
Animals that are farae naturae are regarded as unsafe in the face of and liability attaches
irrespective of any lack of savageness of the animal. Potentially ferocious animals such as tigers
clearly fall within that category. Other animals, not known for ferocity, are also caught if any damage
is likely to be severe. This would apply, for example, to elephants which rarely attack but whose
sheer size means that any damage would be likely to be severe.
In Tutin v Chipperfield Promotions Ltd [1980], the claimant agreed to take part in a camel race at
the Horse of the Year Show. As the race started she was thrown off the camel by its awkward gait.
It was held that the camel was a member of a dangerous species although the claimant did not
succeed in this claim as on the facts the defence of voluntary assumption of risk applied. (She had
also pleaded negligence on the part of the defendant and was successful on that basis.)
It is clear that whether or not an animal is a member of a dangerous species is a question of law
and not one of fact. Neither the elephant in Behrens v Bertram Mills nor the camel in Tutin v
Chipperfield Promotions was dangerous in the ordinary sense of the word but both species satisfied
the legal test.
In Buckle v. Holmes [1926]2 KB 125, the defendant’s cat strayed to the plaintiff’s land and killed
fowls and pigeon kept there. The defendant was unaware of the cat’s mischievous tendencies. The
court held that he was not liable.
However, common knowledge about the ordinary course of nature will extend to knowledge of the
propensities of animals according to their different genera, but cannot be supposed to extend to
the manner of behavior of animals of the same genus in the different parts of the world. The
classification being a question of law the precedent suffices to justify the classification for the
future. The balance of English authority before 1971 seemed to favour the view that whether an
animal was to be classed as a ferae naturea or not depended on whether the animal belonged to a
species which was a danger to mankind. See Buckle v Holmes [1926]2 K.B 125, although in
determining the issue the courts may have regard to the experience of other countries with the
animal. It seems that this was the reason why the English Court in McQuaker v. Goddard [1940] 1
K.B 687 classified a camel as mansuetae naturae. It seems that once a species has been judicially
classified as dangerous, then, subject to the doctrine of precedent, there is no room for distinctions
based upon the fact that some variants or individual animals within the species may not in fact be
at all dangerous.
o MANSUETAE NATURAE.
All animals in the second class (mansuetea naturae) are conclusively presumed to be harmless until
they have manifested a savage or vicious propensity; proof of such manifestation is proof of scienter
and serve so to transfer the animal, so to speak, out of its natural class into the class ferae naturea
(Behrens & Anor vs Bertram Mills circus Ltds [1957]2 QB 1). These are animals that are either;-
(i) Harmless by their very nature e.g. Rabbits or;
(ii) Those that are shown by long experience to be harmless e.g. Horses.
These animals are conclusively believed to be harmless until they manifest a savage or vicious
propensity. Proof of such manifestation is proof of scienter. Animals Mansuetae Naturae the
knowledge is accompanied by proof that the particular animal has a dangerous disposition. Again,
whether a specie of animal is to be classified as Ferae Naturae or Mansuetae Naturae is a question
of law for the Judge to decide either on the basis of judicial notice or expert evidence.
In order to make the owner of a domestic animal liable for damage caused by that animal, the
plaintiff must prove scienter. That is, the plaintiff must show that the owner of the animal had
knowledge of a vicious propensity in the animal. In Quinn v Quinn, the defendant’s sow attacked
and killed the plaintiff’s cow. Proof that the sow had previously attacked and killed fowl to the
defendant’s knowledge was sufficient to make the defendant liable.
Williams defined the principle as follows:
“The general principle in present day English Law is that, apart from cases in cattle trespass and the
ordinary torts of negligence, nuisance ad so on, liability for damage caused by one’s animal depends
on previous knowledge o it’s vicious nature. Such knowledge has originally to be proved in all cases,
but in modern law it is presumed if the animal in question is one of a dangerous class. The principle
is known as the scienter principle (from the words scienter retinuit in the old form of the writ), and
proof of knowledge is called, somewhat ungrammatically, proof of scienter.”
WILD OR DOMESTIC?
Wild Animals: The owner of a wild animal keeps that animal at his/her own peril. If the animal
causes damage then the owner will be strictly liable for that damage. Because the animal is wild,
there is a presumption that he knew of that animal’s vicious propensity.
Domestic Animals: In order to make the owner of a domestic animal liable for damage caused by
that animal, the plaintiff must prove scienter. That is, the plaintiff must show that the owner of the
animal had knowledge of a vicious propensity in the animal. In Quinn v Quinn, the defendant’s sow
attacked and killed the plaintiff’s cow. Proof that the sow had previously attacked and killed fowl to
the defendant’s knowledge was sufficient to make the defendant liable. Williams defined the
principle as follows:
“The general principle in present day English Law is that, apart from cases in cattle trespass and the
ordinary torts of negligence, nuisance ad so on, liability for damage caused by one’s animal depends
on previous knowledge o it’s vicious nature. Such knowledge has originally to be proved in all cases,
but in modern law it is presumed if the animal in question is one of a dangerous class. The principle
is known as the scienter principle (from the words scienter retinuit in the old form of the writ), and
proof of knowledge is called, somewhat ungrammatically, proof of scienter.”
The criterion used to classify animals into wild or tame categories seems to be whether the animal
belongs to a species which is a danger to mankind in general. In the American Restatement on Torts
a wild animal is defined as:
“An animal that is not by custom devoted to the service of mankind at the time and in the place in
which it is kept.”
It is an animal that belongs to a category which has not generally been domesticated and which is
likely, unless restrained, to cause personal injury. A domestic animal is defined in the same section
as:
“An animal that is by custom devoted to the service of mankind at the time and in the place in which
it is kept.”
The following are examples of animals that courts have determined are either wild or domestic:
Wild:
Bears (Wyatt v Rosherville Gardens Co);
Zebras (Marlour v Ball);
Elephants (Fitzgerald v ED & AD Cooke Bourne (Farms) Ltd; Behrens v Bertram Mills
Circus Ltd).
• Domestic:
Cats (Buckle v Holmes);
Dogs (Kelly v Wade);
Cattle, Horses,
Pheasant and Partridge (Filburn v Peoples Palace Aquarium); Bees
(O’Gorman v O’Gorman).
In the American case of Pate v Yeager 552 S.W.2d 513, the Court held that:
“monkeys of the type involved here are properly classified as animals which are capable of being
domesticated or tamed. The evidence shows conclusively that Mr. Jim was domesticated.
Therefore, in order to hold the defendants liable for injuries caused by Mr. Jim, there must be proof
that the defendants knew that the animal was accustomed to do mischief.”
PROOF/REQUIREMENTS OF SCIENTER
a) Constructive Knowledge:
Although the requirement for scienter had been actual knowledge in the past, there were some
cases and situations where there was implied or constructive knowledge. Thus Williams said:
“To summarise the law: (a) Knowledge mens actual knowledge, but it is immaterial whether it
be acquired (b) from personal observation or by hearsay, whether (c) by the defendant himself
or by his servant who has general charge of the animal, and whether (d) a long time before or
shortly before the injury complained of … Moreover, (e) both the vicious act and the defendant’s
knowledge of it may be proved by admission of a very general nature.”
In Forster v Donovan, the defendant owned an Alsatian. The plaintiff was employed by the post
office to deliver letters. On his first day on the job, he delivered a letter to the defendant’s hall door.
On that particular day, the Alsatian had been kept inside. The defendant had already placed a
warning which read “Beware of Alsatian” at his gate and had erected a post box outside the house.
When Mr. Donovan’s wife realised that the postman had delivered to the hall door she immediately
rang the post office. She warned them to tell the postman to deliver all letters to the post box
because of the Alsatian. The post office never passed on the message. On the second day when the
plaintiff delivered the letters to the hall door he was bitten by the Alsatian. Again, this case occurred
prior to the Dogs Act 1986, therefore the plaintiff took his action under the scienter principle. He
couldn’t take an action in negligence against the plaintiff because there was obviously no
negligence. The Donovans had taken all reasonable care to prevent the injury to the plaintiff. Held:
The plaintiff succeeded because he was able to prove scienter.
“I have sympathy for the *Donovans+, but when he keeps a dog, like the one referred to in evidence,
he runs the risk of some person being injured. This defendant had knowledge of the propensity of
the dog and accordingly, the plaintiff must succeed against him and there must be a decree against
him.”
The judge went on to find that the Post Office was also negligent in not conveying the warning to
the postman and that in the circumstances the plaintiff did not contribute to his own injury.
However, in considering the issue of who should pay the damages, the judge gave effect to his
sympathy for the Donovans y ordering the Post Office to provide a full indemnity to the Donovans.
In other words, the Post Office had to pay the damages instead of the Donovans.
“The *Donovans were+ required to keep the dog to protect [their] home and in the circumstances,
I hold that full responsibility rests with the second and third named defendants. Accordingly, I give
a decree for the agreed … damages and costs with the benefit of an order for contribution
amounting to full indemnity to the *Donovans+.”
b) Mischievous Propensity or viciousness:
When an animal ferae naturae causes injury, liability on the part of the keeper thereof automatically
arises. But when the animal is ‘harmles’ (mansuetae naturae), then the plaintiff must prove scienter
i.e. the dangerous propensity of the animal by showing;
a) That the animal had previously committed or attempted to commit an act showing that
particular trait of viciousness complained of
b) That the defendant knew of the act or attempt Knowledge of one particular act of biting is
sufficient. It is not necessary that the dog has been going around snapping at everybody. It is
irrelevant that it is long since the animal last committed the kind of act. The kind of harm inflicted
on the defendant must be direct and physical. Knowledge of particular propensity may be imputed
to the defendant General knowledge of the tendencies of a harmless species – e.g. bulls will attack
red, or greyhounds will chase running children – will not be sufficient evidence of mischievous
propensity. The evidence must be specific; it must relate to the particular animal in question as well
as the particular kind of damage complained of. The mischievous propensity need not be a chronic
or permanent element of its nature, but may be a passing or temporary phase of the character or
temper of the particular animal in question. Accordingly, a bitch with pups may have a mischievous
propensity to bite, and a cow with calf afoot may have a mischievous propensity to attack. In
Howard v. Bergin, O'Connor & Co. Kennedy C.J. put the matter in the following way: “In my opinion,
however, what is called a “mischievous propensity” may be as well a passing or temporary phase
of character or temper of the particular animal as a chronic or permanent element of its nature. If
this opinion needs any authority to support it, reference may be made to, inter alia, Turner v.
Coates; Manton v. Brocklebank. .... I understand by the expression “a mischievous propensity”, a
propensity to do mischief, a tendency to do harm or cause injury, whether, in one case, by some
single characteristic action such as kicking or goring or biting or, in another case, generally when
mischief may be done in any of a variety of ways.” The defendant must have the knowledge of the
vicious propensity before he will be liable in scienter. To summarize the law, a) Knowledge means
actual knowledge, but it is immaterial whether it be acquired, b) From personal observation or by
hearsay, whether c) By the defendant himself or by his servant who has general charge of the
animal, and d) A long time before or only shortly before injury complained of e) Both the vicious
act and the defendant’s knowledge of it may be proved by an admission of a very general nature.
In Bennet & Another vs Walsh knowledge of a mischievous propensity by a nine year old girl was
sufficient to render her father liable in scienter. In Brock vs Richards 1951] 1 K.B 529 the Court of
Appeal of England (Sir Raymond Evershed MR) stated that in order to impose liability, the
characteristics must be those of viciousness or mischievousness. That the word “vicious” as applied
to animals is well understood and indicates a savage disposition, a propensity to attack people. The
Master of Rolls (MR) further stated that an animal though not savage, which is dangerous because
of its frolicsome behavior, must equally be taken to have propensities against which (if known to
the owner) the owner has a duty to guard.
There are a number of key words that propensity. It is a vicious, mischievous or fierce tendency. It
is something in the animal which indicates bad blood. The mischievous propensity need not be a
chronic or permanent condition in the animal. Thus, Kennedy J in Howard v Bergin, O’Connor & Co
said:- “In my opinion, however, what is called ‘mischievous propensity’ may be as well a passing or
temporary phase of character or temper of the particular animal as a chronic or permanent element
of its nature … I understand by the expression ‘a mischievous you should remember when trying to
determine whether or not an animal had a mischievous propensity’, a propensity to do mischief, a
tendency to do harm or cause injury, whether, in one case, by some single characteristic action such
as kicking or goring or biting or, in another case, generally when mischief may be done in any of a
variety of ways.”
Therefore, knowledge of a passing phase may amount to scienter even though the defendant may
have no knowledge of any previous disposition to such activity.
According to Line v Taylor (1862), a dog who jumps upon people in play is not liable in scienter.
In Brock v. Richards [1951], the defendant’s horse was kept in a field adjoining a highway. The horse
leapt over the hedge bordering the highway and landed on the tank of the plaintiff’s motorcycle.
The plaintiff proved that the defendant knew that the horse had to stray. The court held that this
was not sufficient to prove scienter. The plaintiff must prove that the defendant was aware that the
horse was prone to jumping on the highway. Sir Raymond was of the view that in order to impose
liability, the characteristics must be those of viciousness or mischievousness. The term vicious when
applied to animals is well understood and it indicates a savage disposition or propensity to attack
people.
c) Previous conduct.
Knowledge of the animal’s dangerous tendency had to be proved before liability would be
imposed. This is perhaps the origin of the saying ‘Every dog is allowed one bite.’
d) Animal was trained to protect people and property.( Securicor Uganda V Mugenyi)
e) Implied knowledge
An individual ought to know that some domestic animals may be vicious. Eg animals with new
offspring tend to display viciousness to protect their young.
f) General knowledge
In Bennett & Another v Walsh knowledge of a mischievous propensity by a nine year old girl was
sufficient to render her father liable in scienter. It seems, therefore, that the Supreme Court were
not as radical as may have first appeared by imputing the knowledge rather than requiring actual
knowledge.
It is also important to remember that the original case was taken just before the Control of Dogs
Act 1986 came into effect. If they had been able to avail of the Act there would have been no need
to prove knowledge. This was probably in the minds of the judges in reaching their decision.
Res Ipsa Loquitur and Animals on the Highway:

In O’Shea v Tilman Anhold and Horse Holiday Farm (“The Pegasus Case”), the plaintiff was driving
along a public road when suddenly a horse suddenly landed on the roof of his car, causing him
serious injuries. The horse was owned by the defendants and had somehow escaped from a field
which was fenced adequately and which had a gate with an automatic locking mechanism. There
was no way for the plaintiff to use the scienter principle because there was no evidence that the
animal had a previous tendency to jump out of fields onto the roadway. They were therefore left to
take their action in negligence. Again they had a problem. There was no way of proving that the
defendant had been negligent. This is where the principle of res ispa loquitur applied. Held: Animals
on the Highway: An immunity used to exist in respect of damage caused by animals that have
strayed onto the highway. In such cases the owner of the animal was not liable at common law. The
rule was established in Searle v Wallbank. The rule was consistently limited in application over the
years. Thus, in Cunningham v Whelan the court held that the immunity did not apply where animals
were straying onto the road in sufficiently large numbers to cause an obstruction. In Brock v
Richards the court held that an animal might have been known to have such characteristics as to
impose upon its owner a duty to take steps to prevent it from endangering the public by getting
onto the highway and exhibiting its characteristics to the danger of the users of the highway.
In Gombeg v Smith the court held that the rule did not apply where the animals were brought onto
the highway. Next, the court in Howard v Bergin O’Connor & Co said that the immunity was limited
to rural conditions, because city dwellers should be under an obligation to fence. Supporting this
view, McWilliam J in Gillick v O’Reilly said that:-
“An unfenced road running through rough mountain pasture gives rise to different
considerations from those arising on a modern main motor road running through fenced
farm land and I cannot see any logical reason for a principle which ignores the entirely
different circumstances of each when considering the duty owed to users of the road.”
In Yesero Mugenyi, a dog was an animal mansuaete naturae and was not within the class of wild
animals. Before the owner could be held liable it had to be shown that the particular dog had a
fierce nature and that such was known to the owner. The dog had been deliberately trained by the
defendant company to stay with human beings. The defendant could not claim that the particular
dog in the circumstances to be more than an ordinary dog. In attacking the plaintiff the dog was not
indulging in a natural propensity but was doing what it had been trained to do. The defendant knew
that the dog was so trained and would be liable.
In Curtis v Betts [1990], the claimant was an 11-year- old boy who succeeded in his action for
personal injury. The boy was bitten on the face by a 70 kg bull mastiff dog called Max whom he
knew well and whom he had called as he was passing the car that Max was being put into. Evidence
showed that a characteristic of bull mastiffs was defence of territory and also that Max regarded
the car as his own territory. The court held that no defences under contributory negligence applied
and, although Max was considered to be a docile animal, that the damage he was likely to cause if
unrestrained was likely to be severe. The court also held that there should be a causal link between
the characteristics of the animal and the type of damage suffered.
In Barry v. Campbell (1915-6) KLR 68, the defendant was the owner of a boar which he had bought
from the plaintiff. The boar escaped to the plaintiff’s farm and kicked the plaintiff’s mare. The
defendant had been told that the boar was fierce. The court held that any one keeping an animal,
which he knows to be fierce, does so at his own risk and is liable for any damage by such an animal
when it escapes. The defendant having failed to properly look after the animal and prevent it from
its fierce disposition was liable to the damage it caused.
In Mirvahedy v Henley [2003] UKHL 16; the defendant kept horses in a field. Something frightened
the horses and they escaped eventually onto a major road. There was then a collision between one
of the horses and the claimant’s car, in which the claimant suffered personal injury. The defendant’s
appeal in the House of Lords (now the Supreme Court) was unsuccessful. The key issue was the
characteristics of the animals. The House of Lords (now the Supreme Court), by a majority of three
to two, held that even though the behaviour of the horses was unusual for the species for the most
part, it was nevertheless normal for the species in the particular circumstances. Lord Walker gave
the reason for imposing liability:
‘It is common knowledge (and was known to the appellants in this case) that horses, if exposed
to a very frightening stimulus, will panic and stampede, knocking down obstacles in their path .
….. and may continue their flight for considerable distance. Horses loose in that state….are an
obvious danger on a road carrying fast moving traffic. The appellants knew these facts; they
could decide whether to run the risks involved in keeping horses…….Although I feel sympathy for
the appellants, who were held not to have been negligent in the fencing of the field, I see nothing
unjust or unreasonable in the appellants having to bear the loss’.
o LIABILITY TO TRESPASSERS
In Cummings v Grainger [1977] the defendant ran a breaker’s yard and at night a German shepherd
dog was allowed to run free for security purposes. The claimant knew about the dog when she
entered the yard one night with a friend who also knew about the dog. The claimant, who had no
right of entry and was a trespasser, was attacked and bitten by the dog. The issue was whether the
keeping of the dog for protection was reasonable. The claimant was also held to have voluntarily
accepted the risk when she entered the yard. Lord Denning MR held:
‘The only reasonable way of protecting the place was to have a guard dog. True it was a fierce
dog. But why not? A gentle dog would be no good. The thieves would soon make friends with
him. It seems to me that it was very reasonable – or at least not unreasonable – for the
defendant to keep this dog there.’
In Wallace v Newton [1982] a horse which was known to be unpredictable lashed out and injured
the claimant when being loaded into a trailer. It was held that this was a characteristic peculiar to
the animal. The defendant was liable as he was aware of the characteristic which is not usually
found in horses.
In Hussein Kijju v. Bura Lesso C. A. 93/1963, the plaintiff sued the defendant for the loss of his bull
as a result of a fight with the defendant’s bull. The court held that there was no evidence that the
bull was known to be savage or to have propensity for attacking its own species. As the animal was
a domestic breed there was no responsibility on the defendant to guard against unforeseen attack.
In Lowery v. Walker [1911] AC 10. The defendant was the owner of a savage horse which he knew
had the potential to cause damage to other individuals and without warning; he placed into a field
to graze, knowing that members of the public cross on their path to a local railway station. The
plaintiff crossed the field that contained the horse and was attacked, bitten and stamped on by the
horse. The plaintiff sued for damages by way of the injury. The trial judge found the defendant to
be negligent for creating this danger and found in favour of the plaintiff and ordered damages. The
decision was appealed on the basis that the land had been used as a shortcut for many years, as
well as those buying milk from the defendant, who had not taken any steps to remedy the trespass.
Issue; the key legal issue in this instance was whether the defendant was liable to the trespasser
for the injury that was caused. It was important to weigh whether the claimant had a right to be on
the property. The defendant had not taken action to prevent people from crossing the land
previously, particularly as some were customers who purchased milk from him. Held; the defendant
was liable to the claimant in this instance. The court held that whilst the plaintiff did not have
express permission to use or cross the defendant’s land, a licence to be on the land could be implied
from the repeated trespass which had occurred and the acquiescence of the defendant to this.
In Mirvahedy v Henley [2003], Dr Andrew Henley and his wife Susan kept a horse and two ponies
in a field next to their house. On the night of 28–29 August 1996, something frightened the animals,
which escaped past a wooden barrier and electrified wire fencing onto a track. They went 300 yards
up the track and about a mile along a minor road, and made their way onto the A380 dual
carriageway from Torquay to Exeter. Shortly after midnight, Mirvahedy, a hotel manager, who was
driving along this road, collided with the largest of the horses. Mr Mirvahedy suffered serious
injuries for which he sought damages. Held: The defendants were liable under section 2(2). To bolt
was a characteristic of horses which was normal ‘in the particular circumstances’, these being some
sort of fright or other external stimulus. Section 2 places all animals into one of two categories by
their species. Animals either belong to a dangerous species, or they do not. A keeper of an animal
is liable for damage caused by his animal dependant upon the category. A dangerous species must
meet two requirements, a) that it is not commonly domesticated here and b) that fully grown
animals ‘normally have such characteristics that they are likely, unless restrained, to cause severe
damage or that any damage they may cause is likely to be severe’. Lord Nicholls: ‘Take a large and
heavy domestic animal such as a mature cow.
There is a real risk that if a cow happens to stumble and fall onto someone, any damage suffered
will be severe. This would satisfy requirement (a). . . But a cow’s dangerousness in this regard may
not fall within requirement (b). This dangerousness is due to a characteristic normally found in all
cows at all times. The dangerousness results from their very size and weight. It is not due to a
characteristic not normally found in cows ‘except at particular times or in particular circumstances.”
In Whippey v Jones [2009] EWCA Civ 452. The claimant was running along a river embankment. A
large dog owned by the appellant, taking it for a walk, was off the leash. It ran out at the claimant
who broke his ankle falling into the river. The defendant appealed against a finding that he had been
negligent. Held: The dog owner’s appeal was allowed. The damage caused was found by the judge
only to be a possibility if the dog was released in these circumstances, but liability should only have
been found if such an injury was likely.
WHO DO YOU SUE?
Liability in scienter is by possession and not merely ownership. This may be problematic where it’s
difficult to distinguish between the two. In Walker v. Hall (1876), The owner of a horse knew it was
accustomed to biting. Held. Liable because the horse was in his possession as such was expected
to exercise control over it.
The Proper Defendant: Owner or Keeper? Liability in scienter is by possession rather than by
ownership. The problem becomes acute only where possession and ownership are separated as
where, for example, a person lends an animal to another or gives it to another under a contract of
bailment. The word used in the old writ – scienter retinuit – also supports the view that possession
should be the crucial factor in determining liability rather than ownership. In Walker v. Hall (1876)
40 J.P 456 the trainer of a horse which he knew was accustomed to bite was held liable simply
because he had control over the animal. Although it is doubtful whether the owner is liable as such
a master who obliges a servant to keep an animal in the course of his employment, may be
vicariously liable in scienter, or at any rate in negligence Read, Knott v. London County Council
[1934] 1 K.B. 126; North v. Wood [1914] 1 K.B. 629. In Crean v. Nolan & Others sheep belonging to
the plaintiff were killed by some beagles, which had strayed after the termination of a drag hunt
organised by the Festival of Kerry Committee. It was held that although a prima facie principal-agent
relationship existed between the Festival Committee and the owners of the beagles, this
relationship had ended at the time when the beagles had killed the sheep some considerable time
after the hunt was over. It is clearly suggested in this case that the defendants might have been
liable either in trespass, in negligence or if scienter was proved, if the damage was inflicted during
the hunt. During the hunt the Festival Committee it seems would have had sufficient control to
attract liability. What is the distinction between ferae naturae and mansuetera naturea animals?
What exactly amounts to a “mischievous propensity” on the part of a mansueturea animal? Who is
the proper defendant in the sceinter action; the owner of the animal or its keeper? What defences
are available to the defendant in such an action?
REMEDIES.
DEFENCES.
a) Acts of a third party.
b) Fault of the plaintiff.

c) Act of God.
d) Consent. Cummings v Grainger [1977] QB 397
Questions.
1. Whats the difference between Ferae naturae and mensuatae naturae?
2. With aid of authorities, define scienter and the possible ways of proving it.
3. Discuss the defences under liability for dangerous animals.
C. LIABILITY FOR FIRE ESCAPE:
The law relating to damage caused by fire and its spread is confused. Most fire damage today is
compensated by insurance, and it is only very occasionally that liability at common law or by statute
requires consideration.
Common law
The early common law provided a special action of trespass on the case against occupiers for
“negligently using fire and allowing its escape contrary to the general custom of the realm”.
However the later judicial developments remodeled the law. It fire was readily treated as a Ryland
vs Fletcher object in E. Asia Nav. Co vs Fremantle Harbour (1951) 83 C.L.R 353. The new principle
of strict liability came to be applied not only to escaping fire that has been brought on the land (like
igniting rubbish) but also to all other things likely to catch fire and kept under conditions involving
substantial risk of spreading to neighbours. The law has been concerned about liability for the
spread of fire since mediaeval times and, in very early common law, the usual remedy was by means
of a special action on the case for allowing the escape of the fire. However, none of the writers is
clear as to the exact basis of liability for fire or its spread, or as to whether liability was strict or
required proof of fault. Three possible actions are available at common law:-
a) Rylands v Fletcher
If the fire was deliberately started, in the sense of being accumulated on the defendant’s land, there
could be liability under the rule in Rylands v Fletcher.
However, it appears from the case of Mason v Levy Auto Parts Ltd that the approach of the courts
is to consider the reasonableness of the defendant’s conduct in keeping things on the land in the
process of non-natural use, which are likely to ignite and the fire spread to the claimant’s land. In
the case of Mason v. Levy Auto Parts of England, the court held that the rule in Rylands v Fletcher
applied to fires intentionally brought on the defendant’s premises as well as materials kept under
conditions involving a substantial risk of fire. In that case it was flammable material that was kept
in a congested store. This appears to be closer to negligence than strict liability, and is in keeping
with the views expressed in cases such as H&N Emmanuel-v- The GLC [1971] 2 All
ER 835 in which Denning MR said that an occupier would not be liable for the escape of fire which
was not caused by negligence. In E Hobbs (Farms) Ltd v The Baxenden Chemical Co Ltd, in which a
fire started in some debris below a workbench and spread to an adjoining building, it was held that
there was liability under the rule.
b) Nuisance
In the case of Goldman v Hargrave [1967] 1 AC 645, the Privy Council held that an occupier may
be liable for the spread of a fire which began naturally, through lightning or even deliberately
through the act of a stranger, if he failed to take steps to prevent its foreseeable spread to adjoining
land.
c) Negligence
If a person is injured (Ogwo v Taylor [1987] 2 WLR 988) or suffers property damage (Attia v British
Gas [1987] 3 All ER 455) in a fire, there will be the possibility of a claim for negligence or under the
Occupiers’ Liability Act 1957. If the activity which causes the fire is ultra-hazardous, an employer
will be liable for the acts of his independent contractors.
In Balfour v. Barty-King & anor [1957]1 All ER 156, the court held that the defendant could escape
liability where the fire was started by a stranger. The stranger had to be someone, over whom the
defendant had no control. In that case the fire was started as a result of the negligence of court
actors invited on the land by the defendants and as such they were liable.
Statutory authorities are not liable for the escape of fire which is kept by them in the pursuance of
their statutory duties.
Accidental Fire
In Filliter v. Phippard (1843-60) All ER Rep 879, the word accidental was interpreted to mean fire
produced by mere chance or incapable of being traced to any cause.
In Collingwood v. Home & Colonial Stores [1936]3 All ER 200. A fire broke out on the defendant’s
premises and spread to those of the plaintiff. It originated in the defective condition of the wiring
on the defendant’s premises. There was no negligence on their part. The use of electric wiring was
held to be ordinary and reasonable use of premises and the defendants were not liable under the
rule in Rylands v Fletcher.
In Musgrove v Pandelis. The plaintiff occupied room over a garage and let part of the garage to the
defendants who kept a car in there. The defendant’s servant who had no experience as a driver
started the car and out of no negligence on his part, the petrol in the carburetor caught fire. He
could have shut the tap connecting the tank to the carburetor but he did not for lack of experience.
The fire spread and damaged the plaintiff’s property. The defendants were held liable.
In Goldman v Hargrave [1966], Fire started naturally but spread out of negligence. Act did not apply,
NOTE; The Fire Prevention Act of 1774 is not applicable in Uganda. Therefore Uganda courts still
apply the common law and the defence of accident does not apply.
The case of Collingwood vs Home & Colonial Stores Ltd (1936) CA, highlights the position before the
Fire Prevetion (Metropolis) Act 1774 and after. Lord Wright MR stated that, the state of law before
the statute was that a man was liable at common law for damage done by fire originating on his
property; (i) by the mere escape of fire - that was the old rule; (ii) if the damage was caused by the
negligence of himself or his servants,or by his own willful act; and (iii) On the principle of Rylands
vs Fetcher However, sec. 86 of the Fire Prevention (Metropolis) Act 1774 altered the earlier position.
That section provides in effect that no action shall be brought against any person in whose house
chamber, or other building any fire shall accidentally begin, any law usage or custom to the contrary
notwithstanding. That Act changed the law, because before the Act if fire spread from a man’s
premises and did damage to adjoining premises, he was liable in damage on the broad ground that
it was his duty at his own peril to keep any fire that originated on his premises from spreading to
and damaging his neighbor’s premises. The protection of the section is limited by the word
“accidentally”. Read Goldman vs Hargraves & Ors *1966+2 ALLER 989, [1967]1 AC 645. The Act did
not apply to a fire caused deliberately or negligently. The common law position was reiterated in
the Ugandan case of Uganda Motors Limited vs Wavvah Holdings SCCA No. 19/1991 where the
Supreme Court further sated that the Fire Prevention ( Metropolis) Act 1774 though an Act of
general Application was no longer applicable in Uganda because reference to Acts of general
applicability was deleted from the 1967 Judicature Act. It followed therefore that if fire originated
from the appellant’s premises, then having in mind that the premises comprised a motor garage
and repair shop that it pointed to negligence on the part of the appellant. Much as earlier
authorities in Uganda reflected that the defendant could claim protection under Fire Prevention
(Metropolis) Act 1774, where there was no negligence, the Supreme Court imputed negligence
where no explanation could be given on what caused fire. It further expressly stated that the Act
was no longer applicable in Uganda. This position is different from the Tanzanian position as
reflected in Rahmtulla Bandali vs The Commmisioner of Transport, The East African Railways &
Harbours, Tanzania Civil Case No. 1576 of 1967 where Court stated that in order to hold the
occupier of the premises liable in damages for fire breaking out on such premises, negligence on
his part must be positively established. Read, Balfour vs Barty King [1957] 1 QB 496.
Uganda Motors v. Wavah Holdings [1992]2 KALR 8 Per;
JUDGMENT OF PLATT, J.S.C.
Having heard counsel for both parties, it would seem that a central issue related to the application
of the doctrine of res ipsa loquitur. As I have pointed out in the introductory paragraph of this
judgment, the learned judge was faced with little or no evidence as to the cause of this fire. The
argument concerned the application of either the doctrine of Res Ipsa Loquitur or the Fires
Prevention (Metropolis) Act 1774.
For the appellant, it was contended that the doctrine did not apply while the Act of 1774 did apply
as an Act of general application. For the Respondent it was of course asserted that the Act of 1774
did not apply. The common law was relied upon which therefore brought the doctrine into play.
The effect of the argument is this. At common law, if a fire began on a man’s own premises, by
which those of his neighbor were injured, the latter in an action brought for such injury, would not
be bound in the first instance to show how the fire began, but the presumption would be (unless it
were shown to have originated from some external cause) that it arose from the neglect of some
person in the house. (See Lord Tenterden C.J. in BECQUET vs. McCARTHY set out in MASON vs.
LEVY AUTO PARTS (1967) 2ALL ER p. 62 & 67, see also Lord Wright’s speech in COLLINGWOOD vs.
HOME AND COLONIAL STORES (1936) 3 ALL E.R. 200,203). The common law, therefore, held the
person upon those premises the fire originated liable if he was negligent, and presumed him
negligent if the cause was not known, unless that person could show that the fire was caused by a
stranger or act of God. On the other hand the Act of 1774 relieved him of liability if the fire started
accidentally. There is no burden on the Defendant of disproving negligence, that the proof of
negligence would be on the Plaintiff. If the Act of 1774 did not apply there would be a burden of
disproving negligence on the part of the Defendant, the Plaintiff being able to rely on the doctrine.
It can be seen then that grounds 2, 4 and 5 can be answered by deciding whether the doctrine of
Res Ipsa Loquitur applied or the Act of 1774.
There seems no doubt that the Act of 1774 did not apply. Its application stems from the fact that
although it was originally an Act to control actions due to fire damage in London, it was applied
throughout England. It therefore had some claim to be an act of general application. In the
Judicature Act (Cap 34) of 1962, section 2 declared that the jurisdiction of the High Court was to be
exercised subject to the constitution:-
a) in conformity with the written laws in force on 9 October 1962 including the laws applied by
the act, or may hereafter be applied or enacted;
b) Subject to such written laws and so far as the same do not extend or apply –
o In conformity with the substance of the common law,
o The doctrines of equity and the statutes of general application in force in

England on the 11th August 1902 (not applicable.)
c) Provided that the said common law, doctrines of equity and statutes of general application
shall be in force in Uganda only so far as the circumstances of Uganda permit, and subject to
such qualifications as local circumstances may render necessary.”
The argument presented by Mr. Mugisha concerned the existence of the Act of 1774 as a statute of
general application on 11th August 1902. The submission of Mr. Tumusingize concerned the
inapplicability of the Act of 1774; he said that the common law had greater sense in Uganda than
the Act of 1774. But these arguments are with respect beside the point. The reference to Acts of
general applicability was deleted from the 1967 Judicature Act. Such acts consequently no longer
apply to Uganda. Section 3(2) of Act 11 of 1967 provides for the supremacy of the Constitution and
continues that the jurisdiction of the High Court shall be exercised:-
a) In conformity with the written law including any law in force immediately before the
commencement of this act;
b) Subject to any written law and in so far as the same does not extend or apply, and in
conformity with,
o the common law and the doctrines of equity; o any

established and current customs or usage; and o
(matters of practice and procedure)
c) Where no express law, or rule is applicable to any matter in issue before the High Court in
conformity with the principles of justice, equity and good conscience;
(3) The applied law, the common law and the doctrines of equity shall be in force only in so far
as the circumstances in Uganda and of its people permit and subject to such qualifications as the
circumstances may render necessary.
The “applied law” refers to the laws applied in the Act (see Sec 47 of Act 11 of 1967 and the
schedules). They follow on from the schedules to the Judicature Act of 1962.
These are not the Acts of general application which later acts are not specified in the schedules of
the Judicature Act of 1962. The reference to 11 August 1902 in the 1967 Act is that in section 47
and is related to amendments in scheduled Acts before that date. The conclusion can only be that
the Acts of general application no longer have any place in the jurisdiction of the High Court, and
that is perhaps as it should be.
On that basis then, the appellant’s arguments fell to the ground as based on the Act of 1774, and
the learned Judge turns out to have been right for not applying it, though he gave no particular
reasons for not doing so. The Judge was right to rely on the doctrine of Res Ipsa Loquitur, and there
is no place for the concept of the Appellant’s liability being excluded if the fire arose accidentally.
Presuming that the appellant was guilty of negligence, the burden would fall on it to show that it
was not negligent, which would involve such notions as to whether any steps had been taken to
prevent fire. It would in all probability necessitate the disclosure why the fire had occurred, or at
least to show that it must have been accidental. It would also be a good defence if the fire had been
caused by an external cause.
D. NUISANCE
History of the Tort of Nuisance.
Hargrave v Goldman (1963) 110 CLR 40 per Windeyer J nuisance is “an unlawful interference with
a person’s use or enjoyment of land, or some right over or in connection with it.”
Under the common law, persons in possession of real property (either land owners or tenants) are
entitled to the quiet enjoyment of their lands. If a neighbor interferes with that quiet enjoyment,
either by creating smells, sounds, pollution or any other hazard that extends past the boundaries
of the property, the affected party may make a claim in nuisance. It is closely concerned with
“protection of the environment’. Nuisances come in two forms: private and public. Nuisance
emerged as tort in respect of any interference with the beneficial user of another’s land be of
exercise of natural rights or enjoyment of sacristies over land. It was developed in the 13th century.
At that time it covered interference with possession and which did not take place on the kind of
self. In the 15th century in a choir on the case for nuisance was developed. This choir could be
brought by persons who did not have title to the land in question.
The law of nuisance was developed prior to the development of the law of negligence. Negligence
has influenced the scope of nuisance to some extent. It introduced the notions of fault that were
originally outside the scope of liability for nuisance. Secondly, replaced nuisance as a basis for
physical harm in cases of isolated as distinct from continuing occurrence.
The important feature of nuisance is that of focus on the harmful result rather than the conduct
causing the harm. Nuisance therefore only describes the nature of harm that will attract liability as
distinct from the conduct causing such harm. This distinguishes it from the aspect of the law of tort,
which focus on conduct rather than result.
The ingredients of the tort are three key elements:
a) unlawful use of land;
b) indirect interference with land;
c) Indirect interference with the claimant’s use or enjoyment of his/her land.
PUBLIC NUISANCE
Public nuisance is primarily a crime. As a tort it bears little relationship to private nuisance and, to
some extent, is a misnomer, perhaps being best described as a ‘conceptual dustbin’ into which a
number of disparate and unconnected acts of interference with peoples’ interests have been
dumped. It is only available when the claimant has suffered damage over and above other members
of the public. Public nuisance affects the public at large, is a crime, the action is brought by the
Attorney General, and private individuals don’t have standing to sue unless they have suffered
particular damage that is over that which suffered by the public at large.
AG v PYA Quarries Ltd (1957) 2 QB 169 Denning J held the following on the question of how many
persons are “the Public”: “I decline to answer how many people…I prefer to look at the reason of
the thing… a public nuisance is…so widespread in its range or so indiscriminate in its effect that it
would not be reasonable to expect one person to take proceedings…but it should be taken on the
responsibility of the community at large.”
Outline definition
A public nuisance is an unreasonable interference with the public's right to property. It includes
conduct that interferes with public health, safety, peace or convenience. The unreasonableness
may be evidenced by statute or by the nature of the act, including how long and how bad the effects
of the activity may be. In Gillingham Borough council vs Medway (Chatham) Dock Co Ltd & Others
(1991) Buckley J stated that public nuisance is primarily concerned with the effect of the act
complained of (as opposed to its inherent lawfulness or unlawfulness) to the sufficient number of
the public.
No civil action can be brought by a private individual for public nuisance. The reason normally given
is that it prevents multiplicity of actions. The Attorney General may bring an action for an injunction
(‘relator action’). However, where any person is injured in some way peculiar to himself ie if he can
show that he has suffered some special or particular loss over and above the ordinary
inconvenience or annoyance suffered by the public at large, then he may sue in tort For the
distinction between public and private nuisance In the 13th Century it was extended to a wider
variety of annoyances that were not necessarily physical for example emitting smoke or fouling
water. It was criminal until the 16th century when the court allowed an individual to bring an action
in public nuisance where he could prove that he suffered greater hurt or inconvenience than every
man had. This characteristic of the tort has been retained through the ages.
In Arima Nantongo & Anor v. Hiral Mohammed [1974], the defendant’s oil tanker broke down and
parked it in Nakivubo area. The residents tried to siphon the fuel and they were injured when it
ignited. The court held that parking the petrol tanker constituted a public nuisance. The court
defined a public nuisance as some unlawful act or omission which endangers the lives, health,
safety or comfort of the public or some considerable section of the public is obstructed in the
exercise of a common right.
An individual could bring an action if he could show that he had suffered a particular injury to
himself beyond that which is suffered by the rest of the public.
o He has suffered direct injury. o The
injury is of substantial natural
An individual may sue in respect of an obstruction of public rights although no rights to have and
have been violated. It covers personal injury.
Elements.
a) Materiality.
In many of the other cases on nuisance, the relevant question was the degree of interference which
the activity caused. The acts complained of must have been such as to cause real disturbance, but
this is a question of fact in each case.
Some examples of acts amounting to public nuisance are: organising a pop festival, which caused
noise and a large amount of traffic (Attorney General of Ontario v Orange (1971) 21 DLR 257);
blocking a canal (Rose v Miles (1815) 4 M & S 101); queuing on a highway, so causing an obstruction
(Lyons v Gulliver [1914] 1 Ch 631); picketing on a highway (Thomas v NUM (South Wales Area)
[1985] 2 All ER 1); interference with navigation rights in the River Thames (Tate and Lyle Industries
v GLC [1983] 1 All ER 1159).
In R v Johnson (Anthony Thomas) (1996) 160 JP 605, the Court of Appeal held that making obscene
telephone calls to numerous women on many occasions constituted a public nuisance. The conduct
materially affected the reasonable comfort and convenience of a class of people. In R v Gaud (1999)
unreported, a surgeon who operated on a large number of patients knowing that he was suffering
from an infectious disease was convicted of causing a public nuisance.
Kitamirike v. Mutagubya [1965] EA 443. The defendant left a car parked on the road when it broke
down. It was not properly parked and the plaintiff suffered injury as a result. Court held that the
defendant had committed a public nuisance by obstructing the road.
b) Reasonable comfort and convenience

The requirement of reasonable comfort and convenience is thought to be the common factor
between public and private nuisance, which have little else in common. In both torts, the claimant
must establish that the interference with comfort and convenience is substantial enough to amount
to a nuisance and is beyond what would reasonably be expected. To succeed in a claim in tort for
public nuisance, however, the claimant must prove that he or she has suffered special or extra
damage over and above that suffered by other members of the community. The criminal law is
adequate to prevent repetitions of the harm, but the object of the civil law is to compensate, and
tort is limited to those cases in which extra harm has been suffered. For example if, as has happened
in recent years, large numbers of ‘new age travellers’ were to congregate on farmland, the whole
neighbourhood may complain of the crime of public nuisance, and the farmer whose land had been
camped upon could sue for trespass. People whose livelihoods had been affected by close proximity
to loud noise, which had for example interfered with breeding animals, could sue in tort for public,
and possibly private nuisance. One important distinction between public and private nuisance here
is that for acts to amount to private nuisance there must be continuity or repetition of the acts over
a period of time whereas, in public nuisance, there appears to be no such requirement and a single
act is probably enough to amount to the tort.
The requirement of interference with comfort covers noise damage to public health and other
disturbances, but there is no need, as there is in private nuisance, to prove injury to health or even
substantial interference in order to succeed in a claim for public nuisance. Interference with
convenience could include the obstruction of entrances to land and highway obstruction. It is
unusual for inconvenience caused by delay to the claimant to amount to sufficient inconvenience
to be a public nuisance.
If the public nuisance arises from a condition on land that arises naturally, the tort is committed by
the failure of the defendant to remedy the situation, as in Wandsworth LBC v Railtrack plc [2001]
EWCA Civ 1236 in which pigeons had roosted in large numbers under a railway bridge to the
knowledge of the defendant and he had done nothing about it.
AG v. Kafeero Mambule [1959] EA 665. A Lorry parked slightly on the road- obstructed use of the
road and constituted a public nuisance.
Mombasa Auto Services v. Esso Petroleum [1968] Ch 605. Noise which is ordinary, uninseparable
from ordinary conduct of particular business does not constitute nuisance.
Public nuisance is a criminal offence under S 156 of PC therefore, a private individual may only sue
when he has suffered greater damage over and above the general inconvenience.
Arima Nantongo Tindarwesire v Kabale Town Council
This requirement is justified on the ground that unless the plaintiff can prove some special or
particular damage to himself over and above the public inconvenience then the public nuisance
should be redressed in the name of the general public by the state.
Some authorities hold that the particular damage must be distinct from general inconvenience both
in kind and in degree. This is a very strict approach which would prevent recovery even in extreme
cases. The more liberal approach is to allow a plaintiff to recover so long as the injury and
inconvenience was appreciably more substantial, more direct and immediate without necessarily
differing in nature. This includes all personal injury as in Nantongo, Mutagubya as well as pure
economic loss as in Kafeero, Nambule. The modern approach is to allow a plaintiff to recover
whenever his injury goes beyond the obstruction of his individual theoretical right shared by the
general public.
The damage of the plaintiff must be direct. Where it is remote, he cannot recover. Direct here refers
to being distinct from general not as in weigh around.
Tale (lyle) Industries. The defendant constructed ferry terminals in the thamus which caused silting.
This obstructed access of large vehicles to the plaintiff’s ferry and the plaintiff had to spend large
sums of money on dredging operations. The court held that they could succeed in public nuisance.
The interference caused by silting was in respect of a public right of navigation which the plaintiffs
enjoyed along with the river users. The expenditure incurred by the plaintiffs was particular damage
sufficient to entitle them to bring an action in public nuisance.
REMEDIES FOR PUBLIC NUISANCE
The basic remedies of damages and injunctions are sought by claimants in public nuisance cases.
Often a remedy provided to one claimant can be of benefit to a whole community.
a) Damages.
If the claimant has suffered personal injuries or financial loss, this would have to be pleaded as
particular damage over and above that suffered by the general public, and damages will be awarded
accordingly. However, only compensatory damages will be payable. In Gibbons v South West Water
Services Ltd [1993] QB 507, the Court of Appeal held that exemplary damages would not be
awarded to claimants who had suffered illness as a result of drinking water which had been
contaminated by a grossly excessive dose of aluminum accidentally introduced into the water
supply at a treatment works.
The defendants had acted in a high handed manner and had sent a misleading letter which stated
that the water was safe to drink. Even before the rule in Rookes v Barnard [1964] AC 1129, and
Cassell & Co v Broome [1972] 1 All ER 801, which laid down the limits for the awarding of exemplary
damages, it had never been contemplated by the House of Lords that exemplary damages could be
awarded for public nuisance, and it was not for the courts to consider such an award now, given the
much restricted use of exemplary damages. Even if it had been possible to apply Rookes v Barnard
to this case, the court could not award exemplary damages, as the defendants were not exercising
executive power derived from government, nor was their behaviour calculated to make a profit by
committing the tort, as was required by that case. The
Court of Appeal made it clear in claimants appearing on the Register of the Corby Group Litigation
v Corby Borough Council [2008] EWCA Civ 463, that Hunter v Canary Wharf Ltd [1997] AC 655 and
Transco Plc v Stockport MBC [2003] UKHL 61, [2004] 2 AC 1 had not reversed, by implication, the
principle that damages for personal injury could be recovered in public nuisance. Observations
concerning public nuisance in those cases were obiter dicta.
b) Injunctions. The claimant will frequently be seeking an injunction to restrain further

repetition of acts of public nuisance. As an equitable remedy this is discretionary, and could
be refused in some circumstances. In Gillingham BC v Medway (Chatham) Dock Co [1993]
QB 343, Buckley J held that, even if a public nuisance had been committed, he would have
exercised his discretion and refused an injunction because the claimant had assured the
defendant when granting planning permission for change of use, that access to the area
would be unrestricted.
In Heathrow Airport Ltd v Garman [2007] is a case which demonstrates the comprehensive
protection afforded by the law to landowners in certain cases. Here, an injunction was granted to
prevent people protesting at Heathrow airport. Protestors were organizing demonstrations in the
wake of concerns about the impact of airports on climate change, and were in the process of setting
up a camp close to the airport. The court took the view that the protests would have serious and
damaging consequences on the running of the airport, and had the potential to Increase the risk of
a terrorist attack on the users of the airport, and an injunction was awarded.
PRIVATE NUISANCE.
Private nuisance complements the tort of trespass, and offers options for action to a claimant who
is unlikely to succeed in a claim for trespass. Traditionally, this tort has protected against physical
interference of an indirect nature with crops, land and the use or enjoyment of land.
Although it is a very ancient tort, the law of nuisance is continuing to develop. The Tort of
Harassment was recognised by the courts within the framework of nuisance in Khorasandjian v
Bush [1993] QB 727, though more recently doubts have been cast on that decision. Harassment is
now treated as a statutory tort created by s 3 of the Protection from Harassment Act 1997. The new
statutory tort affords protection to victims of stalkers and other forms of harassment regardless of
the mental state of the defendant. The claimant must prove ‘a course of conduct’ on the part of the
defendant, and may be awarded damages and/or an injunction.
St Helens Smelting Co v Tipping (1865) the court held that a private nuisance could occur:
(i) By interference with the P’s use and enjoyment of land.
(ii) By material damage to property.
It was held that the factor of locality was irrelevant where there is material damage to property (i.e.
who’s there first). In other cases, the question of locality is a factor to be considered. (Not
necessarily a decisive factor. This case was approved in Harley v Esso.
Outline definition.
A private nuisance is simply a violation of one's use of quiet enjoyment of land. It does not include
trespass. Private nuisance traditionally was, and is still is confined to invasions of the interest in the
use and enjoyment of land, although occasionally an occupier may recover for incidental injuries
sustained by him in exercise of an interest in land. Justice Lugayizi in Dr. Bwogi Richard Kanyerezi
vs The management Committee Rubaga Girls School, High Court Civil appeal No.3 of 1996 quoting
Winfield on tort 8th Edition pp 353-367 stated that “a nuisance is private where it exclusively affects
a private person and not a sizeable number of the community where it occurs. The learned author
of the said book described a nuisance as an unlawful interference with a person’s use or enjoyment
of land. Such interference in essence being either a continuous or recurrent nature and usually
stenches and smoke would qualify under that description. Whether a nuisance is actionable or not
will depend upon a variety of considerations especially the character of the defendant’s conduct
and the balancing of conflicting interests ( ie the right of the defendant to enjoy his property as he
wishes as against the right of his neighbuors to enjoy theirs without interference)”
Private nuisance is the interference with a person’s use and enjoyment of land. Those protected by
nuisance include the use of land for some physical purpose as well as the comfort and enjoyment
of land. The interference may take some form of physical damage as well as nonphysical
interference. It should be noted that in nuisance as opposed to trespass, the thing causing the
interference is outside the land of the plaintiff.
Alleged interference with the beneficial interest in land must be substantial and unreasonable.
In Cunard v Antifyre Ltd, 1933] 1 KB 551 Talbot J, at p 557, succinctly defined private nuisances as
interferences by owners or occupiers of property with the use or enjoyment of neighbouring
property. “Property” here means land, and should be amplified to include rights over it, or in
connection with it.
Any affected property owner has standing to sue for a private nuisance. If a nuisance is widespread
enough, but yet has a public purpose, it is often treated at law as a public nuisance. Owners of
interests in real property (whether owners, lessors, or holders of an easement or other interest)
have standing only to bring private nuisance suits. Similarly, a person cannot extend his rights by
making his property abnormally sensitive at the expense of others. E and African Telegraph v Cape
Town Tramways 1902.
Where an occupier is entitled to recover, the quantum of damages recoverable is not affected by
the size, commodiousness and value of his property but cannot be increased merely because more
people are in occupation and therefore suffer greater collective discomfort. If more than one person
has an interest in the property, the damages will have to be divided among them but the damages
cannot be increased by the fact that the interests in land are divided, still less according to the
number of persons residing in the premises.
1. Continuous interference/ an overt act (act causing the nuisance).
Claims for private nuisance arise when there has been continuous interference over a period of
time with the claimant’s use or enjoyment of land. In Delaware Mansions and Fleckson Ltd v
Westminster CC [2001] UKHL 55, the House of Lords held that a local authority had a duty to abate
a nuisance caused by tree roots undermining the foundation of a block of flats.
That duty was not nullified simply because the damage had occurred before the freehold interest
was obtained. There was a continuous nuisance in this case which could have been remedied at
very little cost if immediate action had been taken. There is no set period of time over which the
events must occur to amount to a private nuisance. Much depends upon the neighbourhood and
the other surrounding circumstances but the common law imposes a fair and just duty as between
neighbours. A situation that may not have been a nuisance in the past can become a nuisance later.
In Bybrook Barn Garden Centre Ltd v Kent CC [2001] BLR 55, it was held that a culvert had not been
a nuisance when it was created, but became a nuisance later when the volume of water passing
through it greatly increased.
Temporary interferences do not usually amount to actionable nuisances. However, a temporary, but
very substantial state of affairs may amount to a nuisance, as in De Keyser’s Royal Hotel Ltd v Spicer
Bros Ltd (1914) 30 TLR 257, in which noisy pile driving at night during temporary building works
was held to be a private nuisance. Some nuisance claims involve regular temporary events such as
the ringing of church bells (Calvert v Gardiner [2002] EWHC 1394 QB).
A single act giving rise to a complaint will not normally constitute private nuisance, though it could
be a public nuisance. However, there are one or two instances of cases in which what appears to
be a single act has been held to amount to a private nuisance.
On closer examination, it will be observed that these apparently isolated acts were the culminating
event in a state of affairs which has prevailed for some time. In SCM v Whittall & Son Ltd [1970] 1
WLR 1017, Thesiger J explained that a single escape of materials from the defendant’s land may
constitute a private nuisance, if the same event had occurred before as a result of activities on the
land as it had in British Celanese v Hunt (Capacitators) Ltd [1969] 2 All ER 749. In that case foil had
blown from the defendant’s land where it was stored and had damaged an electricity substation,
causing the electricity to a small industrial estate to be cut off.
The same problem had occurred once a few years previously and had arisen because of the way in
which the material was stored on the defendant’s property. The judge had no difficulty in finding
that what had occurred was a private nuisance.
However, the case of Crown River Cruises Ltd v Kimbolton Fireworks Ltd and Another [1996] 2 Lloyd’s
Rep 533 is difficult to reconcile with these cases. Here, a barge moored on the Thames close to the
Battle of Britain fireworks display in 1990, and a passenger vessel moored to it, had been set alight
after a firework display of about 20 minutes which had been held close by. Potentially inflammable
material had fallen for 15 or 20 minutes onto the barge, and several hours later the passenger vessel
caught alight and was very badly damaged. The time involved was so short that it could hardly have
amounted to ‘continuous interference’ and the case is best explained by reference to the authorities
on fire and liability for its spread which rest on principles not directly applicable to the ordinary law
of private nuisance.
Temporary building works may amount to nuisance, but builders will not be liable if they can show
that they have used all reasonable care and skill to avoid disturbance or annoyance. However, if
there is more than mere inconvenience, and if what is done amounts to physical damage to the
claimant’s land, damages may be recoverable (Clift and Another v Welsh Office [1999] 1 WLR 796.
Also Video London Sound Studios Ltd v Asticus (GMS) Ltd (2001) WL 542314).
2. Unlawful interference.
Scot L.J in Read vs Lyons & Co. Ltd [1945]K.B 216 at p.236 defined private nuisance as unlawful
interference with a person’s use or enjoyment of land or some right over, or in connection with it.
The essence of nuisance is a state of affairs that is either continuous or recurrent, a condition or
activity which unduly interferes with the use or enjoyment of land
The unlawfulness of the defendant’s conduct is to be found in the element of unreasonableness

which the claimant must prove. Reasonable activities on the defendant’s land do not amount to
nuisance. It is only when they become unreasonable in character because of the way in which they
interfere with the claimant’s use or enjoyment of neighbouring property that they are unlawful and
may be actionable. The factors which courts take into account in assessing the reasonableness or
otherwise of the defendant’s use of land are as follows:-
o The defendant’s conduct in the light of all the circumstances

The court also considers the nature of the defendant’s activity. The importance of the activity and the
general benefit to society must be taken into account. Ordinary usages of land, which may be an
inconvenience to other landowners may not necessarily be actionable. However, the fact that act
provides a benefit to the general public may not justify an interference with private rights to use and
enjoyment of land. Where the defendant’s conduct is for the sole purpose of the plaintiff’s property, it
is actionable irrespective of the fact that it may not be substantial.
In Hollywood Silver Fox Farm v Emmett, (1936) 1 ALL ER 825, the defendant spitefully fired guns in close
proximity to the plaintiff’s breeding pens in order to cause his silver foxes to miscarry. The court held
that although the conduct was not extremely unreasonable it constituted a nuisance in light of the
defendant’s intention.
In Christie v. Davie [1893] Ch 316, a defendant who hammered and beat trays against a wall with the
intent of disrupting the plaintiff’s music lesson was held to be liable in nuisance. This in spite of the fact
that the noise was ordinary. The malicious intent was the deciding factor.
In reality, what the courts are considering here is the question of fault, but the approach is more
flexible than that taken in negligence actions. Thus less is expected of defendants who are poor
or infirm. In relation to nuisance arising from naturally occurring hazards, the courts have
adopted a subjective approach to the reasonableness or otherwise of the defendant’s conduct,
based, among other matters, on his or her financial circumstances.
This distinguishes nuisance from negligence, where the approach is ostensibly objective. An
example of the way in which the courts deal with the question of reasonableness is to be found
in Leakey v National Trust [1980] QB 485. The National Trust owned land upon which was
located a large mound of earth which was being gradually eroded by natural processes, and was
sliding onto the claimant’s property.
It was held by the Court of Appeal that natural encroachments of this kind could amount to
nuisances in some circumstances, and that landowners had a duty to do all that was reasonable
in the circumstances to prevent encroachments onto adjoining property, but that in these cases,
the relevant circumstances included the ability of landowners, both physically and financially,
to take steps to prevent the danger, and also the neighbours’ ability to protect themselves from
the danger. Megaw LJ said:
The criteria of reasonableness include, in respect of a duty of this nature, the fact of what the particular
man, not the average man, can be expected to do, having regard, amongst other things, where a serious
expenditure of money is required to eliminate or reduce the danger, to his means.
In Delaware Mansions and Fleckson Ltd v Westminster CC [2001], the council had refused to
remove a tree despite knowing that its roots were causing damage to a block of flats.
All the damage had been caused and had occurred before Fleckson became the freeholder of
the flats. The House of Lords applied the concept of ‘reasonableness between neighbours’ and
viewed the situation from the perspective of reasonable foresight.
It was held that there was a continuing nuisance about which the defendants knew or ought to
have known and ruled that reasonable remedial expenditure was recoverable by the landowner
who was forced to incur that expenditure.
o The locality
Whether the defendant’s activities amount to a nuisance will depend upon the area in which
they are carried out. It was explained in Sturges v Bridgman (1879) 11 Ch D 892 that: ‘What
would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey.’
An area like Bermondsey which was full of tanneries using excreta in the tanning process, and
which was accustomed to the noise and pollution of heavy industry is less likely to provide fertile
ground for successful private nuisance claims than a quiet residential suburb, but this does not
mean that people living in industrial areas will never be able to succeed in nuisance, as much
will depend upon the extent and degree of the activities of the defendant in the light of what is
customary in the particular area, and there will be limits as to what people are able to tolerate
even in commercial or industrial localities.
It has been argued that this rule as to the locality of the nuisance only applies to cases in which
a claimant complains of interference with use or enjoyment of land, and that if the activities
cause physical harm to the land itself, the character of the neighbourhood is not a relevant
consideration. This view is based on the old case of St Helen’s Smelting Co v Tipping , in which
the claimant complained of damage to trees as a result of fumes from copper smelting by the
defendants. He succeeded in his claim despite the fact that he lived in a manufacturing area. The
House of Lords drew a rather forced distinction between nuisances which caused damage to the
land and to crops, and those which merely affected the use or enjoyment of the land, stating
that the character of the neighbourhood is only of relevance in the case of the latter.
Nevertheless, in Blackburn v ARC Ltd [1998], it was held that permission to fill in a quarry was
granted for only a temporary period, and this should not mean that nuisances were inevitable.
The smells and noise generated by the work amounted to a nuisance because they were held to
be more than those which must be tolerated in modern living conditions. The position was
revised in Murdoch v Glacier Metal Co Ltd [1998] in which the COA confirmed the principle that
noise must be judged in the context of the character of the locality. The character of a locality
can change over the years.
o Sensitivity of the claimant
In considering what is reasonable the law does not take account of abnormal sensitivity in either
persons or property. The standard of deciding whether a particular use of land exposes others
to an unreasonable interference is objective, in the sense that it has regard to reactions of
normal persons in the locality, not to the idiosyncrasies of the particular plaintiff. The leading
case is Robinson vs Kilvert (1889), the defendant began a manufacture paperboxes in the cellar
of a house the upper part of which was in occupation of the plaintiff. The defendant’s business
required hot and dry air and he heated the cellar accordingly. This raised temperature on the
plaintiff’s floor and dried and diminished the value of brown paper which the plaintiff
warehoused there; but it did not inconvenience the plaintiff’s workmen nor would it have injured
paper generally. It was held that the defendant was not liable in nuisance. That “a man who
carries on an exceptionally delicate trade cannot complain because it is injured by his neighbor
doing something lawful on his property, if it is something which would not injure anything but
exceptionally delicate trade”.It is consistent with the notion of ‘give and take’ which pervades
the law of nuisance that abnormally sensitive claimants are unlikely to succeed in their claims
for private nuisance, since their perceptions of the defendant’s conduct are not the criterion by
which the activities are to be judged. The standard of tolerance is that of the ‘normal’ neighbour.
In Nor-video v Ontario Hydro, an open air cinema sought an injunction in respect of

interferences from the flood light in a right race track. Court held that the abnormally sensitive
use to which the plaintiff had put his land did not warrant protection at the expense of others.
o The utility of the defendant’s conduct
In nuisance cases judges are concerned with balancing the conflicting interests of neighbouring
landowners and householders, and will be less inclined to consider that an activity amounts to
a nuisance if it is useful for the community as a whole taking into account all the surrounding
circumstances, such as locality and the duration of the activities. Although it has been stated on
several occasions that ‘public benefit’ is no defence to nuisance, if an activity is beneficial to the
community as a whole, the judge will sometimes be prepared to find that the defendant has not
Behaved unreasonably.
In Miller v Jackson [1977] 3 WLR 20, the Court of Appeal held that the playing of cricket on a
particular ground had been for many years a benefit to the whole community but that, since the
construction of houses close to the cricket ground, it had become a nuisance because the
interference with the use and enjoyment of the adjoining properties was substantial.
o Malice
Malicious behaviour on the part of the defendant will certainly contribute to the impression that
his or her conduct has not been reasonable, and may therefore amount to a nuisance. It is not
necessary to establish malice in order to succeed in a nuisance claim but, if it is possible to prove
that the defendant’s activities were motivated by malice, the claimant has a good chance of
succeeding. In Christie v Davey [1893] 1 Ch 316, the claimant had for several years been giving
music lessons and holding musical evenings in his semi-detached house. The defendant, irritated
by the noise, banged the party walls, shouted, blew whistles and beat tin trays with the malicious
intention of annoying his neighbour and spoiling the music lessons. An injunction was granted
to restrain the defendant’s behaviour.
o The state of the defendant’s land

It is no longer the case, as it appears to have been at common law, that the defendant is able to
leave the processes of nature to do their worst on his or her land without the fear of a nuisance
claim by neighbours. The law was changed in Goldman v Hargrave [1967], a Privy Council
decision. This case is rather confusing as it appears to equate nuisance and negligence, and much
of the terminology used in it by the judges is the language of negligence. An occupier of land in
Australia did not take steps to extinguish a burning tree which had been struck by lightning, even
though it was foreseeable that a wind, common in that area, could fan the flames and cause
danger to adjoining land. He was liable for nuisance when the fire damaged neighbouring
property.
This was adopted into English law by the Court of Appeal in Leakey v National Trust [1980] QB
485, in which it was held that an occupier must take such steps as are reasonable to prevent or
minimise dangers to adjoining property from natural hazards on his land, in this case the risk of
landslides caused by the processes of nature.
In Bradburn v Lindsay, it was held that the owner of one semidetached house was liable in
nuisance to the adjoining house owner for the spread of dry rot, a naturally occurring fungus
which damages the fabric of buildings and which he should have attempted to eradicate.
3. Indirect interference.
The requirement that the interference with the claimant’s use or enjoyment of land be indirect
distinguishes nuisance from trespass, which covers only direct entry onto land, and negligence,
which encompasses both direct and indirect acts.
Indirect interference includes the following: allowing smoke and fumes to drift onto the
neighbouring land (St Helen’s Smelting Co v Tipping (1865); allowing unpleasant stenches to invade
adjoining land (Bliss v Hall (1838) 4 Bing NC 183); smells and fumes from candle-making (Bone v
Searle [1975] ; smells from manure; disturbing neighbours’ sleep by noise and vibrations (Halsey v
Esso [1961] 2 All ER 145); allowing tree roots to suck moisture from adjoining soil, so causing
subsidence (Solloway v Hampshire CC (1981) 79 LGR 449); quarry blasting (Harris v James (1876);
pollution of rivers with factory effluent (Pride of Derby and Derbyshire Angling Association v British
Celanese [1953] Ch 149).
4. Interference with the use or enjoyment of land or some right over or in connection with it.
The tort of private nuisance is concerned primarily with land, and provided the damage complained
of is physical damage to the land itself, including buildings, fixtures, crops, rights of way and anything
else which falls within the definition of land in s 205 of the Law of Property Act 1925, there is no
doubt that such damage will be covered by private nuisance. In the case of interference with
servitudes, that is, rights of way and other easements, profits à prendre, rights of support, riparian
rights and so on, liability is strict in many cases, and there is no need to prove damage. This, however,
is an exception to the general rule in nuisance. In the case of rights of way, the test for nuisance is
whether a right of way can be exercised as conveniently as it could before the interference (B & Q
plc v Liverpool and Lancashire Properties Ltd [2000] 1 EGLR 92).
In Crown River Cruises Ltd v Kimbolton Fireworks Ltd and Another [1996] 2 Lloyd’s Rep 533, it was
held in a first instance decision that damage to a floating barge on the Thames permanently attached
to a mooring on the river bed of which the claimants had exclusive possession under a licence was
actionable in private nuisance. There were two vessels involved, a ‘dumb’ barge which acted as a
mooring for other barges and vessels, and a passenger barge which was attached to it. The barge
which was itself also used as mooring was for the better use and enjoyment of the claimant’s
mooring right, and thusvgave rise to the possibility of a claim for private nuisance. There was also a
finding of negligence against the defendants who had not themselves taken any steps to inspect the
contents of the barge for inflammable material, but had relied on the diligence of the second
defendants. The fire on board the passenger vessel was caused by the negligent failure of the second
defendants to attend to flammable material which had fallen onto the barge.
There has been some doubt as to whether other types of damage will be protected by private
nuisance. ‘Enjoyment’ of land is a somewhat nebulous concept, but it is protected by the tort as long
as the court is satisfied that the interference is substantial after balancing all the various interests
involved, including those of the defendant. Much depends on the degree of interference.
Interference with purely recreational activities, such as watching television, has been held not to be
actionable in private nuisance (Bridlington Relay v Yorkshire Electricity Board [1965] 1 All ER 264).
Where the interference was carried out by electrical means, doubt has been expressed as to whether
this type of case would be decided in the same way today, when television serves educational and
other purposes besides mere recreation (see the Canadian case of Nor-Video Services Ltd v Ontario
Hydro (1978) 84 DLR (3d) 221).
However, in Hunter and Another v Canary Wharf Ltd; Hunter and Another v London Docklands
Development Corpn, the House of Lords held that interference with television reception by a tall
building with stainless steel cladding could not amount to an actionable public or private nuisance.
This view was reached by analogy with a well-established line of cases, some of them very old, in
which the same conclusion was reached in relation to the presence or erection of a building in the
line of vision, on the basis that this was not interference with use or enjoyment of land.
In the first claim, the claimant with many others, was seeking damages in nuisance for years of
interference with television reception caused by Canary Wharf Tower which is 250 metres high and
50 metres square. In the second claim, the claimants were suing the London Docklands Development
Council in negligence for deposits of dust on their properties caused by the building of the
Limehouse Road. The issues raised in both cases were heard together as preliminary issues.
5. Proof of damage is usually necessary
Yet another factor which distinguishes nuisance from its companion trespass, is that, in order to
succeed in nuisance, the claimant must prove that damage has been suffered. Private nuisance is
not actionable per se, with the exception of interferences with servitudes, discussed above.
WHO CAN BE SUED?
a) The creator of the nuisance, Whether or not he is in occupation of the land on which
nuisance originates and it is no defence that the land is now occupied by someone else and that he
has no power to abate the nuisance without committing trespass. Creation may be construed to
include continuing nuisance when you should have abated it if in occupation of the premises where
it originates.
In Sedleigh-Denfield Vs O’Callaghan, Lord Atkin stated that, “In the context in which it is
used,“continued” must indicate mere passive continuance. If a man uses on premises something
which he finds there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is
himself, in continuing to bring into existence the noise, vibration, smell or fumes, causing a
nuisance. Continuing, in this sense, and causing are the same thing. It seems to me clear that, if a
man permits an offensive thing on his premises to continue to offend—that is, if he knows that it is
operating offensively, is able to prevent it, and omits to prevent it—he is permitting the nuisance
to continue. In other words, he is continuing it”
In Harley v Esso Petroleum (1961). This was a test case brought by the plaintiff, who lived in a
terrace in Fullham London against Esso who had an oil depot on the banks of the River Thames.
Tankers would arrive from up the river and oil would be transferred from the river tankers and into
storage tanks. Then, road tankers would come and take the oil from there. A night shift was
introduced. The plaintiff sued under nuisance for the noise from the pumps, a pungent smell, and
acid smuts which rose out of the chimneys which soiled their washing, and damaged their cars. The
P sought an injunction - the general remedy for nuisance. The courts held that the P was entitled
to succeed as it was held that the emissions of acid smuts seriously impaired the enjoyment of land.
Further, the smell wasn’t “merely trivial” and was particularly pungent.
Finally, the noise at night was held to be a serious nuisance which went beyond a triviality.
b) The occupier. The occupier of the premises where nuisance exists is in general liable during
the period of his occupancy. It is simple where he himself created the nuisance, but further
questions arise where it originated.
(i) With someone lawfully on the premises; or
(ii) With a trespasser or as a result of an act of God; or
(iii) With someone from whom the occupier acquired the property.
Rowlatt J in the Division Court summaries this liability in Noble v Harrison ([1926] the damage
there was caused by an overhanging tree with a latent defect and the decision was against
liability. His Lordship stated that;”… a person is liable for a nuisance constituted by the state of
his property;- (i) If he causes it;
(ii) If by neglect of some duty he allows it to arise; and
(iii) If, when it has arisen without his own act or default, he omits to remedy it within a
reasonable time after he did or ought to have become aware of it.”
It will be seen that the learned judge in the third category makes no distinction according to
whether the “nuisance” is caused by trespassers or by natural causes, and that he does not
enter into any question as to the limits of the effort or expenditure required of the occupier.
As a general statement of the law it was cited with apparent approval by Dixon J in Torette
House Proprietary Ltd v Berkman ((1940), 62 CLR 637 at p 652). In 1940 the dictum of Scrutton LJ
([1924] 1 KB at pp 357, 358) passed into the law of England when it was approved by the House of
Lords in Sedleigh-Denfield v O’Callaghan. It establishes the occupier’s liability with regard to a
hazard created on his land by a trespasser, of which he has knowledge, when he fails to take
reasonable steps to remove it. It was clear in that case that the hazard could have been removed
by what Viscount Maugham ([1940] AC at p 895) described as the “very simple step” of placing a
grid in the proper place. This statement of the law has been adopted in Salmond’s Law of Torts
(5th Edn)(1920) pp 258–265: “When a nuisance has been created by the act of a trespasser or
otherwise without the act, authority, or permission of the occupier, the occupier is not responsible
for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to
continue without taking reasonably prompt and efficient means for its abatement.” if the occupier
“adopts” or “continues” the nuisance, he will be liable if damage is caused. This is the view taken
of the decision in Barker v Herbert [1911] 2 KB 633. Vaughan Williams LJ, at p 640, said that, to
impose a liability upon the possessor of land in such a case, there must be either the creation of a
nuisance by him or a continuance by him of a nuisance.
Fletcher Moulton LJ in Salsbury vs Woodland [1970] said, at pp 642, 643: “In a case where the
nuisance is created by the act of a trespasser, it is done without the permission of the owner and
against his will, and he cannot in any sense be said to have caused the nuisance; but the law
recognises that there may be a continuance by him of the nuisance. In that case the gravamen is the
continuance of the nuisance, and not the original causing of it”. He added that the knowledge of
servants and agents for whom the owner is responsible must be attributed to him, and that cases
might arise in which his or their want of knowledge might be due to neglect of duty. Read, · Salsbury
vs Woodland [1970], Matania vs National Provisional Bank [1938] · In SedleighDenfield v.
O’Callaghan (1940), the defendant occupied land on which there was a ditch. A trespasser laid a
pipe in it with a grating designed to keep out leaves but placed in such an ill position that it caused
a blockage of the pipe, when a heavy rain occurred and in consequence the plaintiff’s adjacent land
was flooded. The rain storm occurred nearly 3 years after the pipe was placed there and the
defendant’s servant who was responsible for clearing the ditch should have appreciated the danger
of flooding. The court held that the occupier was liable. c) The landlord
The general rule is that a landlord is not liable for nuisance on the premises, as he is not in
occupation; the proper person to sue is the tenant. However, the landlord may be liable,
(i) If he has authorized nuisance
(ii) If he knew of nuisance before letting.
(iii) If he ought to have known of nuisance before letting
(iv) Where the landlord reserves right to enter and repair or has implied right to do so.
Read, · Goldman vs Hangrave [1967] 1 A.C 645 · Leakey vs National Trust [1980] Q. 485 An
occupier is liable if after acquiring knowledge of the existence of the nuisance fails to take
reasonable steps to remove it (or a bat et)
WHO CAN SUE IN PRIVATE NUISANCE?
In Thompson Swab vs Ostak [1956] WLR 335, the general principle is that title is the basis for an
action in nuisance. Lord Goff stated that, the essence of the law of nuisance is about real property.
Thus a person with no interest in land has no right of occupancy and cannot sustain an action in
nuisance. A person who has merely the use of the land without either the possession of it or any
other proprietary interest in it eg a mere licensee on the land, a lodger, or a guest cannot sustain
an action in nuisance.
See, Hunter vs Canary Wharf Ltd 1997] 2 WLR 684, a person with exclusive possession of the land.
Lord Wright in Sedleigh-Denfield Vs O’Callaghan [1940] A.C 880 at 902-903 stated that “He alone
has a lawful claim who has suffered an invasion of some proprietary or other interest in land” That
the ground of responsibility is the possession and control of the land from which the nuisance
proceeds.
DEFENCES TO NUISANCE.
a) Statutory Authority.
There will be a defence to private nuisance if it can be shown that the activities complained of by
the claimant were authorised expressly or impliedly by a statute. As Lord Dunedin explained in
Corpn of Manchester v Farnworth [1930] AC 171: When Parliament has authorised a certain thing
to be made or done in a certain place, there can be no action for nuisance caused by the making or
doing of that thing if the nuisance is the inevitable result . . . The onus of proving that the result is
inevitable is on those who wish to escape liability for nuisance.
Where the alleged nuisance was caused by public authority acting under a statutory power, the
defendant may have this defence that the conduct is permitted by statute. However, this defence
will depend on the construction of the particular statute in question. In Tate & Lyle Industries Ltd
vs Greater London Council [1983], Lord Templeman summarized this defence that, “it is now well
settled that where parliament by express direction or by necessary implication has authorized the
construction and use of the undertaking or works, that carries with it an authority to do what is
authorized with immunity from action based on nuisance. The right of action is taken away… To
this, there is made the qualification, or condition, that the statutory powers are exercised without
negligence..” His Lordship further stated that one of the reasons for this approach is that parliament
is presumed to have considered the interests of those who will be affected by the undertaking or
works and decided that the benefits from those outweigh any necessary adverse side effects.
b) Planning permission · Lord Templeman in Tate & Lyle Industries Ltd vs Greater London
Council [1983] 1 ALLER 1159, [1983] 2 AC 509, stressed that the principle underlying the
defence of statutory authority should be extended to planning permission. That parliament
set up a statutory framework and delegated the task of balancing the interests of the
community against those of individuals and of holding scales between individuals to the
local planning authority. There is a right to object to any proposed grant, provisions for
appeals and inquiries. There is an added safeguard for judicial review. If a planning
authority grants permission for a particular construction or use in its area it is almost
certain that some local inhabitants will be prejudiced in quite enjoyment of their
properties. “Can they defeat the scheme by bringing an action for nuisance? If not why?”
Planning permission is not a license to commit nuisance and a planning authority has no
jurisdiction to authorize nuisance. However, a planning authority can, through its
development plans and decisions, alter the character of a neighbourhood. This may have an
effect of rendering innocent activities which, prior to the change, would have been an
actionable nuisance. See Allen vs Gulf Refining Ltd [179] 3 ALLER1008 at 1020 ,[1980] QB
156 at 174-175 per Cummimng-Bruce LJ, quoted with approval on appeal.
c) Prescription.
If the nuisance has been continued for 20 years without interruption the defendant will escape
liability by pleading a prescriptive right to commit the nuisance. The 20 years is counted from the
time that the claimant becomes aware of the nuisance for the first time, even if the nuisance had
been continued for many years before the claimant moved into the neighbourhood. The leading
case is Sturges v Bridgman (1879) 11 Ch D 852, in which the defendant had operated a
confectionary manufacturing business for more than 20 years when the claimant, a doctor, built a
new set of consulting rooms in his garden immediately adjacent to the building which housed sweet
making machinery. The claimant then complained of nuisance from the noisy machinery and
brought a successful legal action against the defendant. The court decided on the facts that there
was no nuisance until the consulting rooms were built, and that the 20 years began to run from that
date, so the defence of prescription was not available.
A privilege to commit a private nuisance may be acquired by prescription, if it would qualify as an

easement See, Hulley v Silversprings Bleaching co. [1922] 2 Ch.268.
According to the author of Ckark and Lindsell on Tort, the right to commit a nuisance may be
acquired by prescription as an easement in cases where such right is capable of being an easement.
After 20 years of user the nuisance is legalised retrospectively by grant of the owner of the land.
There must be certainty and uniformity in measuring the user by which extent the right is to be
acquired. None for smoke or shell or noise.
In Miller v Jackson [1977] 3 WLR 20, the argument favoured by Lord Denning that the claimants
who had bought property near a place where they knew that cricket had been played for many
years had no right to complain of the nuisance it caused, was rejected by the majority of the Court
of Appeal, as it is not a defence to argue that the claimant ‘came to the nuisance’.
d) Consent of the plaintiff see; Kiddle vs City Business Properties Ltd [1942] 1 K.B 269, Miller
vs Jackson [1977] Q.B 966.
e) Common benefit. Bamford vs Turner (1862) 3B& S 66 (judgment of Bramwell B). His
Lordship questioned such a defence that if an act that causes nuisance is for public benefit, the
plaintiff cannot recover. That whenever a thing is for public benefit as properly understood- the
loss to the individuals of the public who lose will bear compensation out of the gains of those who
gain. See also St. Helen’s Smelting Co. vs Tipping (1865) QB 66 6. Inevitable accident, see;
Southport Corporation vs Esso Petroleum Co. Ltd [1956] A.C 218 at 226 7. Default of the plaintiff
Read; East S.A Telegraph Co. Ltd vs Cape Town Tramways Companies Ltd [1902] A.C 381 at 393.
REMEDIES FOR PRIVATE NUISANCE
There are a number of remedies for private nuisance. Some are self-help remedies for which the
aggrieved party need not trouble the courts.
a) Damages
Compensation will be paid if it can be proved that damage to land, personal injuries or substantial
inconvenience have been caused. Reasonable remedial expenditure may be recovered (Delaware
Mansions and Fleckson Ltd v Westminster CC). The amount payable will be calculated according to
the basic principles for assessing damages in tort. The appropriate measure of damages has been
questioned since the implementation of the Human Rights Act 1998. In addition to an award for
past losses, it appears that in appropriate cases damages may be awarded for future losses if there
has been a breach of the claimant’s Convention rights.
In Fowler v Jones (2002) unreported, the claimants complained of nuisances from barking dogs,
smoke and smells. The judge ruled, applying Hunter v Canary Wharf, that the claimants were
entitled to damages for the diminution in the amenity value of their property during the
continuation of the nuisance.
b) Injunction
A very common remedy for nuisance is the award of an injunction, and this will be almost automatic
in many cases, though the court does have a discretion to award damages in lieu of an injunction.
An injunction will be refused if the interference with the claimant’s land is trivial (Shelfer v City of
London Electric Lighting Co [1895] 1 Ch 287), as the courts do not wish to collude in allowing
defendants to ‘buy off’ the rights of claimants (Kennaway v Thompson *1981+ QB 88). However, an
injunction was refused in Miller v Jackson, and damages were paid instead, which would have been
small consolation to the claimants who were in real physical danger in their gardens from stray
cricket balls.
A similar situation arose in Goode v Owen where an injunction was refused because the defendants
could not be expected to put up a 40 foot fence to protect an area of only one and a half acres from
falling golf balls.
The prerequisite for damages being awarded in lieu of an injunction is that it would be oppressive
for the defendant if an injunction were to be granted. In Gafford v Graham [1999] EGLR 75, the basis
for the award of damages was the sum which the claimant might reasonably have demanded for
relaxing the relevant restrictions in perpetuity. The claimant in that case was refused an injunction
because he had stood by and watched while the defendant had built a structure and had made no
complaint at the time.
An injunction was granted in Mika v Chetwynd (2000) unreported when unpleasant odours from
the defendant’s knackers yard interfered with the claimants’ caravan business.
However, in Jacklin v Chief Constable of West Yorkshire [2007] EWCA Civ 181, the Court of Appeal
approved the decision of judge to grant a mandatory injunction requiring the police authority to
remove a container obstructing a stretch of land over which a landowner had a right of way.
Damages in lieu would not have been appropriate.
Although the police authority had been able to satisfy the first three criteria in the rule in Shelfer v
City of London Electric Lighting Co (No 1), it had been unableto satisfy the fourth, since it had not
shown that granting such an injunction would be oppressive. The matter was further considered in
Regan v Paul Properties Ltd, in which the Court of Appeal ruled that the trial judge who had found
it proved that there had been an infringement of the claimant’s right to light, misdirected himself
by placing the burden of proof on the claimant to persuade the court as to why he should not be
left to a remedy in damages but should be awarded a mandatory injunction.
c) Abatement of the nuisance

This ancient self-help remedy involves the claimant in taking steps to prevent the nuisance by
entering the defendant’s property and removing the source of the nuisance.
Anything belonging to the defendant must be left on his property; even tree branches which have
spread from adjoining land should, strictly, be returned. A person entering land in the process of
abating a nuisance will have a defence to trespass.
The claimant must normally give notice of the abatement, but need not do so in an emergency or
if the nuisance can be abated without entering the defendant’s land. Tree roots and overhanging
branches are often the subject of abatement (Jones Ltd v Portsmouth CC [2002].
Even this remedy can give rise to problems as the landowner who feels aggrieved by damage to
boundary trees or hedges may seek an injunction and damages against the neighbour attempting
to abate the nuisance. This is what happened in the much publicised case of a dispute between
neighbours over a 22 feet high hedge (Stanton v Jones (1995) unreported).
In Burton v Winters [1993], there had been a long standing boundary dispute between the parties,
which arose out of the fact that a garage had been built along the boundary line by the defendant’s
predecessors in title. The wall did encroach onto the claimant’s property by four and a half inches,
and technically this amounted to a trespass, but the judge refused an injunction because the
encroachment was minimal, but he ordered the payment of damages because of the diminution in
value of the claimant’s property. There continued a campaign of harassment by the claimant which
meant that the garage was damaged and eventually the defendants obtained an injunction to
prevent the claimant interfering further with their property.
E OCCUPIERS LIABILTY
Occupiers’ liability concerns the liability of an ‘occupier’ of land or premises for the injury or loss or
damage to property suffered by claimants while on the occupier’s ‘premises’. Therefore it must
immediately be distinguished from damage caused by the defendant’s use of his land, which is
suffered by the claimant outside of the occupier’s land.
Occupier’s liability was developed before the modern law of negligence took its previous form in
1932 with the decision in Donoghue v Stevenson.
Common law imposed a duty of care on an occupier of premises in respect of four classes of people,
invites, licensees and trespassers and those who come in respect of contract. The standard of care
expected of the occupier in respect of the above categories differed.
a) According to Winfield and Jolowich, the highest standard was owed to the one who entered
the premises in pursuance of a contract. The occupier had a duty to exercise reasonable care
and skill to make the premises safe.
b) Second it was the invitee, who entered the premises on business of interest to himself and
the occupier. The occupier was under a duty to prevent damage from unusual damages of
which he knew or ought to have known.
c) Third was the licensee, who entered with the express or implied consent of the occupier. The
occupier had a duty to warn him of any concealed damages of which he actually knew.
d) Lastly there was a trespasser who had no consent to enter the premises. The lowest standard
of care was expected of the occupier in the sense that he was only expected to abstain from
intentional or reckless injury to him.
The distinction between contractual entrants, invitees, and licensees was very pronounced in
respect of injury as a result of the state of the premises.
The courts were of the view that the distinction between the classes only applied where the injury
was as a result of the state of the premises. Where the injury resulted from an activity being carried
out on the premises the general law of negligence applied and there was no distinction. This state
of law was reformed by the Occupiers Liability Act of 1957.
APPLICATION IN UGANDA
Wavah Holdings v Uganda Motors
The Act abolished the distinction between licensees and invitees and the occupancy duty and
activity duty, S.1
“The rules in the Act shall have effect in place of the rules of common law, to regulate the duty
which an occupier of premises owes to his visitor in respect of dangers due to the state of the
premises or to things done or omitted to be done to the premises.”
The Act regulates liability to visitors which concerns the old categories of invitees and licensees.
Common law covers liability to trespassers as well as the act of 1984.
WHO IS AN OCCUPIER OF PREMISES?
The Act does not define an occupier and the rules of common law apply to determine whether ones
an occupier or not. In the case of Wheat v. E. Lacon & Co. Ltd [1966] AC 552, the word occupier
was held to denote a person who has sufficient control of premises. The person need not have
exclusive or entire control of the premises. The fact that a person has immediate supervision or
default control is sufficient to make him an occupier of premises. There is no requirement that the
person has any estate in the land in question to be an occupier.
The issue whether one is an occupier or not is a question of fact which depends on the
circumstances of each case especially on the nature and extent on the occupation or control which
a party has over the premises.
A contractor may qualify as an occupier of premises.
Visitors.
These are persons who are present on the premises with the express or implied consent of the
occupier of the premises. This include persons who enter the premises on the basis of a right
granted by law. Permission to enter open premises may be express or implied. The presence of
implied consent is a question of fact to be proved by the one who seeks to rely on it. Where the
premises are open to the public there is implied consent for persons to enter upon such premises
e.g. shops etc.
An invitation to the general public is an implied invitation to particular individuals.
In Bakaboineki v. Bunyoro District Administration (1970) EA 310. The defendant’s predecessor in

title had invited the general public to celebrations to mark the return of the lost counties of Bunyoro
Kitara. The plaintiff attended the celebrations and while the celebrations were going on he went off
on his own and fell in an open pit latrine.
The court held that the open invitation to the general public in form of a circular was an implied
invitation to the plaintiff and as such he was an invitee who was owed a duty of care under the law.
Persons seeking to see the occupier eg people soliciting for charitable contribution are visitors
unless they are expressly forbidden from entering the premises.
In the old case of Lowery v Walker 1911 AC 10, the defendant owned a farm. The public used a
short cut through his land to reach the railway station for 35 years. On some occasion he had
confronted them but did not take any legal proceedings. The plaintiff was attacked by a savage horse
while using the short cut through the defendant’s land. The court held the occupier by his
acquiescence in the use of his premises by trespasser had impliedly consented to such use and was
liable to the plaintiff.
However, this position was changed by the decision in Edwards & anor v. Railway Executive [1952]
AC 737 Gorddard L.J “ Repeated trespass itself confers no license, how it is to be said that the
occupier has licensed what he cannot prevent.”
The plaintiff aged 9 years got through a fence dividing a recreation ground and the railway. He
climbed up the embankment to fetch a ball on the other side of the railway and was injured by a
passing train. For many years, children had climbed through the fence by breaking the wire to slide
down the embankment and the railway executive had repaired it whenever he saw the damage.
The court held that repeated trespass does not confer a licence and the boy was a trespasser.
The duty owed to a visitor does not extend to parts of the premises which he has no permission to
go. In Bakaboineki’s case, the court held that by fearing the open ground and crossing the foot path
the plaintiff was a trespasser.
Permission to enter the premises may be granted by an employee of the occupier acting in the
scope of duty. Even where the employee is acting contrary to instructions, he may be acting in the
scope of employment according to the rules of vicarious liability.
Stone v Taffe 1974 WLR 575
An invitation to enter premises may be limited. In cases of implied consent, it applies to areas where
the visitor may reasonably be supposed or likely to go.
Mersey Docks and Harbour Board v Procter
Lord Care. “ When you invite a person into your house to use the stairs, you do not invite him to
slide down the barristers”
Bakaboineki
Making wrongful, dangerous and improper use of premises made him a trespasser.
However, an involuntary encroachment outside the premises caused by negligence of the occupier
does not turn an invitee into a trespasser.
Where an invitee is a child the courts impose a higher standard on the occupier. Where a child
trespasses as a result of the occupier’s negligence he is owed a duty of care as an invitee.
Under common law, the standard of care required of an occupier depended on the nature of
permission granted. Where the plaintiff was an invitee, the occupier was under a duty to protect
him from unusual dangers of which he was aware or ought to be aware.
Where the plaintiff was a licensee it was on the premises pursuant to implied permission the
occupier’s duty was limited to warning him of concealed danger of which he was aware. This
destruction was highlighted in Horton V London graving Dock
The distinction was removed by the 1957 Act in England and in Uganda Ssekandi advocates for
similar treatment in Kibedi v. Uganda Sugar Factory Ltd [1978] HCB 195.
There is now a general duty to visitors which is to ensure that the premises are reasonably safe for
the purpose for which permission for their use was given. In determining whether the duty has
been complied with the following factors should be taken into account.
• The gravity and likelihood of the probable injury
• The circumstances of entry onto premises
• The nature of the premises
• The knowledge which the occupier ought to have of the presence of property or persons
• on the premises
• The age of the entrants
• The ability of entrants to appreciate risks
The burden of eliminating the danger as contrasts with the magnitude of the risk of the injury.
Knowledge of the danger by the occupier is no longer the determining factor when dealing with
occupiers liability. Where the danger is simple one which is apparent knowledge of its existence on
the part of the visitor is sufficient. Also where the occupier has given notice to the visitor of the
existence of the danger, he discharges his duty to him.
In Roles v. Nathan [1963]1 WLR 1117, court held that where an occupier of premises warned the
chimney sweep of fumes he was not liable as occupier for injury as a result. However, such notice
must be sufficient to ensure the reasonable safety of the entrant on the premises.
Where the visitor does not have the capacity to appreciate the presence of the danger or avoid of,
the occupier is under a duty to remove it entirely in order to discharge his duty.
In order to escape liability, the occupier must prove that the visitor was able to appreciate both
presence of the hazard and the magnitude of the risk posed by it. The hazard must also be present
to the visitor’s mind at the time he is required to protect himself. Where the visitor willingly accepts
risks the duty the occupier is discharged. The visitor must have done something that is tantamount
to contributory negligence.
An occupier may also escape liability in respect of a fireman/police where the latter assumed a
specific risk. This is contrary to the United States where firefighters cannot recover even if the fire
started intentionally. Ogwo v Taylor
In Ashdown v. Samuel Williams & Sons [1957]1 QB 409, The defendants posted a large notice to
the effect that persons entering and crossing railway lines did so at their own risk and would not
recover for negligent injury. An employer of a nearby firm was negligently injured by shunting on
her way to work. The court held that she had consumed the risk and could not recover.
The occupier also has a duty to control the entrants from his premises for the safety of others.
In Glasgow Corp v. Muir [1943] AC 448; [1943]2 All ER 44, a manager of tea room allowed picnickers
to carry a tea can was held liable when it scalded other entrants on the premises.
a) LIABILITY TO CHILDREN.
The common law could be particularly harsh when it was applied to child trespassers who might
have limited understanding, either of the risks confronting them, or indeed the nature of trespass
itself.
In Addie v Dumbreck [1929] AC 358, Children frequently played on colliery premises and near to
dangerous machinery and were turned away by the owners. When one child was injured the court
held that there was no liability on the occupier since the child was a trespasser.
Because of the growth of more dangerous premises and taking into account the difficulties of
making children appreciate danger many attempts were made to change the law and this was finally
achieved with the establishment of the so- called ‘common duty of humanity’.
In British Railways Board v Herrington [1972] AC 877, A six- year-old was badly burned when
straying on to an electrified railway line, through vandalized fencing. It was well known that the
fences were often broken and that small children played near the line and the railway board
regularly repaired it. The House of Lords, using the Practice Statement, established the ‘common
duty of humanity’. This was a limited duty owed to child trespassers when the occupier knew of the
danger and of the likelihood of the trespass, and had the skill, knowledge and resources to avoid
an accident.
The court must also take into account the degree of care owed to children. An occupier should be
prepared for children to be less careful than adults and should guard them against all ordinary risks.
The standard of safety due to children must be applied with due regard to their physical power and
mental facilities which the occupier knew or ought to have known they possessed. A child may see
a warning but is incapable of comprehending it.
In Moloney v Lambeth LBC [1966] 64 LGR 440, a four- year-old fell through a gap in railings guarding
a stairwell and was injured. An adult could not have fallen through the gap so such an injury would
have been impossible. Nevertheless it was dangerous to a child and a child in any case may have
been incapable of appreciating the risk involved. The occupier was held to be liable by the court.
Allurements. (common law)
Children in any case are taken to be unlikely to appreciate risks in a way that an adult would and
indeed might even be attracted to the danger. As a result an occupier should do nothing to attract
the child to the danger and must guard against any kind of ‘allure-ment’ which places a child visitor
at risk of harm.
In Glasgow Corporation v Taylor [1922] 1 AC 44, a seven- year-old child ate poisonous berries in a
botanical gardens and died as a result. The shrub on which the berries grew was not fenced off in
any way. The court held that the occupier should have expected that the berries might naturally
attract a young child’s interest and the occupier was liable.
In Latham v. Johnson & Nephew Ltd [1913]1 KB 398, the court held that the occupier is also under
a duty not to lay traps to allure children to trespass in order to qualify as an allurement or trap if it
must be both fascinating and fatal. It is also not enough that the object in question is attractive, it
must also have a character of hidden danger.
Nevertheless, the mere existence of an allurement on its own is not sufficient ground for liability.
In Liddle v Yorkshire (North Riding) CC [1944] 2 KB 101, A child was injured when he jumped off a
soil bank while showing off to his friends. The court held that, despite the obvious allurement, the
defendant was not liable since the occupier had warned the child away from the bank on numerous
previous occasions.
Even though an allurement exists there will be no liability on the occupier if the damage or injury
suffered is not foreseeable. As with negligence generally it is the general type of damage that must
be foreseen rather than the specific circumstances in which the damage occurs.
In Jolley v London Borough of Sutton [2000] 3 All ER 409, HL; [1998] 3 All ER 559, CA, The council
failed to move an abandoned boat from an estuary shore for two years. Children regularly played
in the boat and it was clearly a potential danger. When two young boys of 14 jacked the boat up to
repair it, the boat fell on one, injuring him. In the Court of Appeal the action for compensation
failed, since it was held that, while the boat was an obvious allurement, the course of action taken
by the boys and therefore the specific type of damage were not foreseeable. The House of Lords
reversed this. The House felt that it was an obvious risk that children playing on or near the boat
might be injured. It was sufficient for liability that some injury was foreseeable.
Parental responsibility for young children. (Common law)
In any case the courts will sometimes take the view that very young children should be under the
supervision of a parent or other adult. In this case the occupier might find that he is relieved of
liability.
In Phipps v Rochester Corporation [1955] 1 QB 450, A five- year-old child was injured having fallen
down a trench dug by the defendant council where the child frequently played. The defendant was
not liable because the court concluded that the parents should have had a child of that age under
proper control. In his judgment Devlin J explained the position:-
‘the responsibility for the safety of little children must rest primarily upon the parents; it is their
duty to see that such children are not allowed to wander about by themselves, or at the least
to satisfy themselves that the places to which they do allow their children to go unaccompanied
are safe for them to go. It would not be socially desirable if parents were, as a matter of course,
able to shift the burden of looking after their children from their own shoulders to those persons
who happen to have accessible bits of land.’
b) LIABILITY FOR THE TORTS OF INDEPENDENT CONTRACTORS
Where the visitor is a contractor, the occupier, may assume that he appreciated the dangers that
are ordinarily incidental to the job. He should also satisfy himself of the safety of the site and
determine how he will perform his tasks. An occupier would not be liable where the contractor
himself chose an unsafe manner of carrying out his duties and injured his employer.
In Ferguson v. Welsh & ors [1987]3 All ER 77, where the contractor or entrant knows more about
the work for which he requires the premises than the occupier should ensure that it is suitable for
such work.
It is reasonable to hire a contractor.
It must be reasonable for the occupier to have entrusted the work to the independent contractor
in the first place. This in itself depends on the character of the occupier and also on the nature of
the work done. For example, much less might be expected of a private householder than of a
business which might already employ its own specialists. The duty of an occupier is to take
reasonable steps to ensure the safety of the premises for the lawful entrants therein. He may
delegate the duty to make it safe to an independent contractor.
In Haseldine v Daw & Son Ltd [1941] 2 KB 343, the issue was the death of the claimant following
the negligent repair of a lift by the independent contractors. The occupier was not liable because
repair of a lift is a highly specialist activity and could not be expected of the occupier. The court
accepted that the occupier had discharged his duty by hiring a supposedly competent contractor to
carry out the work.
Where, he delegates he is not liable for negligence of the independent contractor. Haseldine v CA
Dan & son. However, he must take reasonable care in selecting and supervising the independent
contractor.
Davie v New Merto. This is limited to technical aspects of the premises that he is not expected to
repair on his own. Some authorities hold that he is under a non derogable duty for those aspects
which are not technical and which he should undertake himself.
In Viral Housing Comm.. (1976) 1 NSWLR 388, CA held that the cleaning of stairs was nontechnical
and would not be delegated occupancy and activity duty.
Under common law there is also a duty in respect of activities that are carried out on the premises
of the occupier as opposed to the condition of the premises as such.
The contractor must be competent to carry out the work
For the occupier to avoid liability, the contractor that he hired must be competent to carry out the
actual task required. Again there is little adequate check that somebody like a householder can
make. They might improve their chance of avoiding liability as an occupier by using contractors
recommended by a trade association etc.
In Ferguson v Welsh [1987] 3 All ER 777, Demolition contractors were hired by the local authority
and also employed the claimant to complete the work. When the claimant was injured as a result
of their unsafe working systems the court held that the local authority was liable.
c) TRESPASSERS
Common law rule

At common law, the original rule was that there was a mere duty not to deliberately or recklessly
injure a trespasser (Addie v Dumbreck (1929)). There was a change of policy in the case of British
Railways Board v Herrington (1972) when it was held that an occupier was under a duty to act
humanely towards trespassers. This was owed when a reasonable man knowing the physical facts
which the occupier actually knew would appreciate that a trespasser’s presence at the point and
time of danger was so likely that, in all the circumstances, it would be inhumane not to give effective
warning of the danger.
A trespasser is anyone who enters premises without consent of the occupier or some privilege
allowing him to enter thereupon. The question of consent is one of fact to be judged objectively.
Any conduct that gives the impression that others may enter the premises on the part of the
occupier amounts to implied consent. In order to prevent implied consent the occupier must take
steps to prevent intrusions although he must not go to the extremes.
In Edwards v Railway Executive, a person who enters premises as a lawful visitor may become a
trespasser by exceeding the limit of his permission outstaying his welcome or making improper use
of the premises. In Bakaboineki, Pearson v Coleman Bros, a little girl strayed from the circus to the
zoo and got maused by a lion. She was held to be a licensee.
An occupier, if he wishes to limit the scope of the permission to enter upon his premises should do
so clearly. Under common law, the occupier’s duty is only to prevent reckless and intentional harm
being inflicted on the trespasser. The courts devised the doctrine of allurements in respect of
children in order to allow plaintiffs of tender years to recover even when they exceeded the limits
of their invitations.
Eventually the House of Lords adopted the standard of humane man with financial and other
limitations to judge the standards of an occupier in respect of trespassers. This was devised in the
case of British Rlys Board v Herrington. This was intended to be an intermediate position between
the standard of a reasonable man and the old standard of recklessness on the part of the occupier.
There was no duty to prevent trespass on the part of the occupier. Similarly the trespasser did not
have to prove any likelihood of trespass in order to recover. Although the occupier had no duty to
put any safeguards he had such a duty to trespassers of tender years.
In the UK the position of trespassers is subject to 1984 Occupier’s Liability Act.
The duty of common humanity propounded in the case of Herrington required the occupier to take
reasonable steps to ensure that the trespasser is not injured. The occupier must be aware of the
danger concerned. The occupier discharges his duty by giving sufficient warning of the presence of
the danger in question. He should not do more. In determining the standard of care required of an
occupier the same precautions are expected in respect of child trespassers as required in respect
of lawful visitors.
The occupier still has the defence of volenti non-fit injuria. Where a trespasser is injured as a result
of his own act as opposed to recklessness on the part of the occupier he cannot recover.
The nature of trespass is also relevant in determining the nature of precautions to be expected of
the occupier. He does not have any duty to take any precautions where the trespasser is criminal.
In Robert Addie and Sons v Dumbrek 1929 AC 885, the duty of the occupier is in respect of the
state of the premises and doesn’t extend to liability for activities that may be carried out on the
premises. However, it may extend to activities that are part and parcel of the occupationHerrington,
Videan v British Transport Commission
d) LIABILITY FOR DEFECTIVE PREMISES.
There are, however, other categories of people who may be fixed with liability for the state of the
premises and damages that occur as a result of the defective state of the premises.
Landlords
It is possible that a landlord might retain control of certain parts of premises. If the test in Wheat v
Lacon is satisfied then the landlord may be classed as an occupier The early common law was based
on the contract between landlord and tenant and the maxim caveat emptor was applied so that
there was general immunity from negligence actions. This has been reaffirmed.
In Rimmer v Liverpool Corporation [1984] 2 WLR 426, there was held to be no duty of care owed
by a landlord to ensure the safety of the premises at the time of letting. The claimant was injured
when he put his hand through a glass panel but there was no liability on the landlord.
Builders
The expression ‘builder’ has been used in the widest sense to include all persons involved in the
construction or sale of a building. In this way the term might arguably include surveyors, architects
and others. Where a builder merely worked on premises he may in any case face liability under
straightforward Donoghue v Stevenson [1932] AC 562 principles. However, where the builder was
also owner and sold on, then traditionally there was no liability because of the doctrine of privity
of contract.
e) THE NATURE OF THE DUTY
The character of the duty is to ‘take such care as is reasonable in all the circumstances’ to prevent
injury to the non- visitor ‘by reason of the danger concerned’.
So the standard of care is clearly an objective standard based on negligence. What is required of
the occupier depends on the circumstances of each case. The greater the degree of risk the more
precautions the occupier will have to take. Factors to be taken into account include the nature of
the premises, the degree of danger, the practicality of taking precautions and of course the age of
the trespasser.
In Tomlinson v Congleton Borough Council [2003] 3 WLR 705, the local authority owned a park
including a lake. Warning signs were posted prohibiting swimming and diving because the water
was dangerous, but the council knew that these were generally ignored. The council decided to
make the lake inaccessible to the public but delayed start on this work because of lack of funds. The
claimant, aged 18, dived into the lake, struck his head and suffered paralysis as a result of a severe
spinal injury. His claim under the 1984 Act was initially rejected by the trial judge but succeeded in
the Court of Appeal. The Court of Appeal was satisfied that all three aspects of s1(3) were satisfied.
The Court felt that the gravity of the risk of injury, the frequency with which people were exposed
to the risk and the fact that the lake acted as an allurement, all meant that the scheme to make the
lake inaccessible should have been completed with greater urgency. However, the Court reduced
damages by two- thirds because of the contributory negligence of the claimant. The House of Lords,
however, accepted the council’s appeal. It based its decision on three reasons. First that the danger
was not due to the state of the premises (although Lord Hutton felt that because the water was so
dark and murky it was). Second, the House felt that it was not the sort of risk that a defendant
should have to guard against but one that the trespasser in fact chose to run.
Finally, the House felt that the council would not have breached its duty even in the case of a lawful
visitor since the practicality and financial cost of avoiding the danger was not such that a reasonable
occupier ought to be obliged to go to such ends.
The mere fact that the occupier has taken precautions or fenced the premises does not in itself
indicate that the occupier knew or ought to have known of the existence of a danger.
GENERAL DEFENCES
a) The claimant’s contributory negligence. Unlike voluntary assumption of risk which is a total
defence, contributory negligence is a partial defence which allows the court to apportion blame
between the claimant and the other parties.
b) Volenti non fit injuria – consent. The visitor must have also have freely and voluntarily
accepted the risk. In such circumstances an occupier will not be liable for accidents caused to adults
who are fully warned and ought to take responsibility for their own safety when they engage in
obvious risks.
In Simms v Leigh RFC [1960] 2 All ER 923, there was no liability to a rugby football player when the
injury was sustained within the normal rules of the game.
In Ratcliffe v McConnell [1999] 1 WLR 670, A warning notice at the shallow end of a swimming pool
read: ‘Deep end shallow dive’. The pool was always kept locked after hours and the claimant knew
that entry was prohibited at this time. He was a trespasser and when he was injured while diving
into the shallow end his claim failed. The court held that he was aware of the risk and had freely
accepted it.
Mere knowledge of the risk is also insufficient, it must actually be accepted by the visitor and the
knowledge must be sufficient to make the visitor safe.
In White v Blackmore [1972] 2 QB 651, General knowledge that ‘jalopy racing’ was a dangerous
activity did not mean that the claimant had accepted inadequate safety arrangements. The court
held the occupier liable.
If the claimant has no choice but to enter the premises then he cannot be taken to have accepted
the risk and the defence will be unavailable.
In Burnett v British Waterways Board [1973] 2 All ER 631, A claimant entering the defendant’s dry
dock on a barge had no choice but to be there and so volenti was unavailable as a defence.
In summary the duty of common humanity is to the effect that although the occupier was not
obliged to institute checks for the presence of trespassers or dangers, a duty arose if on the facts
of which he knew there was a likelihood of serious harm to the trespasser to make it inhuman to
fail to take such steps. The duty takes into account the resources of the occupier. The duty is limited
to personal injury.

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UGANDA CHRISTIAN UNIVERSITY

THE LAW BETWEEN NEIGHBOURS

CONCEPT OF STRICT LIABILITY AND ABSOLUTE LIABILITY

a) Liability under the rule in Rylands v. Fletcher.

b) Liability for damages caused by animals.

A. STRICT LIABILITY UNDER RYLANDS V. FLETCHER (1868).

FACTS OF THE CASE.

THE INGREDIENTS OF THE RULE.

b) That the defendant made a "non-natural use" of his land;

c) The thing in question is likely to do mischief if it escapes;

d) The thing did escape and cause damage.

ESSENTIALS/REQUIREMENTS OF STRICT LIABILITY

3. The thing was something likely to do mischief if it escaped;

5. Foreseeability of the harm.

THE PARTIES TO AN ACTION

b) Possible claimants also vary according to the judge:

o Another successful claim is an escape from accumulations in a vessel escaping on to other

EXCEPTIONS/DEFENCES TO THE RULE

c) Vis major/Act of God.

In Greenock Corporation v Caledonian Railway [1917], the defendants constructed an artificial

d) Act of or default of the plaintiff.

e) Act of a stranger/an independent third party.

In Green v Chelsea Waterworks Co [1894], a water main belonging to a waterworks company,

c) The principle has been constantly limited in scope:

o requirement of non- natural use; o Read v Lyons reasoning

o the requirement of foreseeability in Cambridge Water ; o

Reluctance to expand the principle in Crown River Cruises.

d) Has doubtful modern relevance:

o most instances could be covered by negligence; o rarely

used now, and rarely successfully;

o since Cambridge Water the Australian High Court has

o Many areas concerning hazards are now covered by statute

B. LIABILITY FOR ANIMALS

COMMON LAW RELATING TO ANIMALS

a) LIABILITY FOR TRESPASS OF ANIMALS.

Cattle trespass is also different from Rylands vs Fletcher because;

d) It is possible to have cattle trespass without cattle Ingredients of cattle trespass.

b) LIABILITY UNDER SCIENTER RULE

FERAE NATURAE AND MANSUETAE NATURAE.

o POSITION AT COMMON LAW.

(i) Harmless by their very nature e.g. Rabbits or;

Williams defined the principle as follows:

b) Mischievous Propensity or viciousness:

Res Ipsa Loquitur and Animals on the Highway:

WHO DO YOU SUE?

a) Acts of a third party.

b) Fault of the plaintiff.

d) Consent. Cummings v Grainger [1977] QB 397

1. Whats the difference between Ferae naturae and mensuatae naturae?

3. Discuss the defences under liability for dangerous animals.

C. LIABILITY FOR FIRE ESCAPE:

Uganda Motors v. Wavah Holdings [1992]2 KALR 8 Per;

JUDGMENT OF PLATT, J.S.C.

o In conformity with the substance of the common law,

o The doctrines of equity and the statutes of general application in force in

o the common law and the doctrines of equity; o any

History of the Tort of Nuisance.

The ingredients of the tort are three key elements:

a) unlawful use of land;

b) indirect interference with land;