Cambridge Water Co Ltd v Eastern Counties Leather plc
Cambridge Water Co Ltd v Eastern Counties Leather plc | |
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Court of Appeal of England and Wales ([1994] 2 AC) | |
Court membership | |
Judge(s) sitting | Lord Templeman Lord Goff Lord Jauncey Lord Lowry Lord Woolf |
Case opinions | |
Lord Goff | |
Keywords | |
nuisance, Rylands v Fletcher, foreseeability of harm |
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994]
The
The case first went to the
The decision in Cambridge Water Co made an immediate change to the law, for the first time requiring foreseeability of harm to be considered in cases brought under Rylands v Fletcher and the general tort of nuisance. It was also significant in implying that Rylands was not an independent tort, something later concluded in the Transco case. Goff's judgment has been criticised on several points by academics, who highlight flaws in wording which leave parts of the judgment ambiguous and a selective assessment of Rylands that ignores outside influences.
Facts
The Cambridge Water Company Ltd was established by a private Act of Parliament in 1853 to provide water to the residents of
An investigation immediately ensued. The investigators concluded that the PCE had come from Eastern Counties Leather plc, a leather tannery in Sawston. The tannery used PCE as a degreasing agent, beginning in the 1960s; by 1976, 100,000 US gallons (380,000 L) of this chemical were used by the tannery each year, with up to 25,000 US gallons (95,000 L) on the premises at any one time. PCE was leaking out of the drums it was carried in, first by being spilt when it was tipped into the degreasing machines and second by leaking from near-empty drums. Although these spills were individually small, it was estimated around 3,200 US gallons (12,000 L) of PCE were spilled each year. These spills collected in the chalk underlying Sawston until groundwater swept them into the Cambridge Water Company's borehole.[5]
Judgment
High Court and Court of Appeal
The Cambridge Water Company brought a case against Eastern Counties Leather in the High Court of Justice, wanting £1 million in damages for the cost of finding a new borehole and an unsuccessful attempt to decontaminate the original one, and an injunction to prevent any more use of PCE.[6] They argued that Eastern Counties Leather were liable in three ways; first, in negligence, second, in nuisance, and third, under the rule developed in Rylands v Fletcher.[7] The case came before Kennedy J, who dismissed all three of the Company's claims. On the matter of negligence, he held that the damage had to be reasonably foreseeable, as was required under Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd; he applied this same test to the claim under nuisance. Applying the case of Hughes v Lord Advocate, Kennedy found that the harm was not reasonably foreseeable, and both actions under nuisance and negligence must fail.[1]
Rylands v Fletcher contained the principle that "the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape", with a requirement that this use of land be "non-natural". On the Cambridge Water Company's third claim, Kennedy was forced to consider the meaning of "non-natural" in this setting. He held that the use of industrial chemicals was not "non-natural", given that it was on an industrial site, and that for a claim to succeed under Rylands the use must be "some special use bringing increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community"; Eastern Counties Leather created jobs in Sawston, and was thus providing a benefit for the community. As such, the Company's claim under Rylands was not valid. Kennedy also chose to consider foreseeability of harm a factor in cases brought under Rylands, and stated the fact that harm was not foreseeable was a factor in his decision.[8]
The Cambridge Water Company then appealed to the
House of Lords
The case was again appealed, this time to the House of Lords, where it was heard by Lord Templeman, Lord Goff, Lord Jauncey, Lord Lowry and Lord Woolf. The judgment was given by Lord Goff on 9 December 1993, and reinstated the decision of Kennedy J in the High Court of Justice; unlike the Court of Appeal decision, it directly addressed the issue of Rylands v Fletcher. Goff first addressed the Court of Appeal's use of Ballard v Tomlinson, stating that the decision there as based on the facts of the case, and did not establish either a rule that there was a right to clear water, nor that there was strict liability attached to that right.[11]
Goff looked at the relationship between nuisance and Rylands v Fletcher, particularly how they treat strict liability. In nuisance, liability is strict in that the defendant can be liable even if he has taken reasonable care, but this is kept "under control" by the principle that a defendant is not liable for actions a reasonable user takes on his land. He took into consideration an article published by F.H. Newark in 1949, in which Newark called the decision in Rylands "a simple case of nuisance" rather than a revolutionary doctrine that established strict liability outside nuisance.[12] Goff also found similarities between the principle of "non-natural use" under Rylands and that of the "reasonable user" requirement in nuisance, concluding that "[I]t would lead to a more coherent body of common law principles if the rule [in Rylands] were to be regarded essentially as an extension of the law of nuisance".[13]
Lord Goff's judgment was primarily based on whether or not foreseeability of damage should be a factor in Rylands cases, and was that the matter was "open for consideration", saying that the need for foreseeability of damage to be a criterion was "a matter of principle".[14] He considered the case of Overseas Tankship (UK) Ltd v The Miller Steamship Co, in which the Privy Council concluded that foreseeability of damage was an essential part of determining liability in nuisance. The Council stated that "It could not be right to discriminate between different cases of nuisance so as to make foreseeability a necessary element in determining damages in those cases where it is a necessary element in determining liability, but not in others". If, as Goff was stating, Rylands was an element of nuisance, this decision should apply to it.[12] In the original judgment in Rylands, the judge had stated that it covered "anything likely to do mischief if it escapes", and that liability should be to "answer for the natural and anticipated consequences"; this wording implies that he intended for "knowledge to be a prerequisite for liability".[15]
Significance
Goff's judgment made several significant and immediate changes to the law. First, it was the first decision which imposed a requirement of foreseeability of harm to cases brought under Rylands v Fletcher; "it must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place or time, or ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be".[16] Secondly, it was the first decision to state that Rylands may be a sub-set of nuisance, and as such applied the same requirement of foreseeability of harm to nuisance, where previously such a requirement had not existed.[17]
Academic Tom Clearwater criticises some of the language Lord Goff picked out of Rylands v Fletcher for his judgment. In particular, Goff's use of "anything likely to do mischief if it escapes" and "answer for the natural and anticipated consequences" to justify his argument that Rylands had always intended foreseeability to be a factor suggests Goff "[overstepped] an appropriate reach of interpretation in drawing his conclusion...most cases gloss silently over the [wording]... three cases imply that foreseeability of damage is not a relevant consideration at all".[18] The reliance on Newark's article was also criticised, since "Neither he nor Goff attempted to justify their opinion with reference to anything external to [the Rylands] judgment". Clearwater points out that the original judgment in Rylands required modification "the price paid for which was legal uncertainty" to make it socially acceptable, which he sees as evidence that Rylands was, despite what Newark says, a significant change to the law.[19]
Peter Kutner, a professor of law at the
References
- ^ a b c Morton (1993) p.60
- ^ Wilkinson (1994) p.799
- ^ Quinn (2000) p.290
- ^ Kutner (1995) p.77
- ^ Quinn (2000) p.291
- ^ Wilkinson (1994) p.800
- ^ Kutner (1995) p.78
- ^ Wilkinson (1994) p.801
- ^ Kutner (1995) p.79
- ^ [1885] 29 ChD 115
- ^ Kutner (1995) p.80
- ^ a b Kutner (1995) p.81
- ^ Quinn (2000) p.292
- ^ Clearwater (1994) p.335
- ^ Kutner (1995) p.82
- ^ Bermingham (2008) p.253
- ^ Kutner (1995) p.86
- ^ Clearwater (1994) p.338
- ^ Clearwater (1994) p.344
- ^ Kutner (1995) p.87
- ^ Kutner (1995) p.88
Bibliography
- Clearwater, Tom (1994). "Cambridge Water Co Ltd v Eastern Counties Leather plc: A Case Comment". Saskatchewan Law Review. 58 (2): 333–356.
- Kutner, Peter B. (1995). "The End of Rylands v Fletcher? Cambridge Water Co v Eastern Counties Leather plc". Tort and Insurance Law Journal. 31 (1): 73–101.
- Morton, Sandra (1993). "Cambridge Water Company v Eastern Counties Leather plc". Nottingham Law Journal. 2: 59–62.
- O'Quinn, John C. (2000). "Not-So-Strict-Liability: A Foreseeability Test for Rylands v Fletcher and Other Lessons from Cambridge Water Co v Eastern Counties Leather plc". Harvard Environmental Law Review. 24 (1): 287–313.
- Wilkinson, David (1994). "Cambridge Water Company v Eastern Counties Leather plc: Diluting Liability for Continuing Escapes". Modern Law Review. 57 (5). Blackwell Publishing: 799–811. JSTOR 1096638.