Law of Delict

ATTORNEYS-AT-LAW INTERMEDIATE YEAR EXAMINATION

COMPILATION – RIKAZ RIFFARD

ATTORNEY-AT-LAW, LLB (HONS) (LONDON)
CONTACT - 0776601016
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SUBJECT AREAS
1. The Nature Of Delict

2. Aquilian Action

3. Actio Injuriarum

4. General Defenses Excluding Or Limiting Liability

5. Res Ipsa Loquitar

6. Nervous Shock

7. Negligent Misstatements

8. Liability For Dangerous Property

9. Strict Liability – Rylands V. Fletcher

10. Defamation

11. Vicarious Liability

12. Seduction

13. Remedies

14. Malicious Prosecution

15. Remoteness Of Damages

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[Link] SHOCK

One of the earliest cases to consider recovery for nervous shock was Victorian Railways Commissioner
v. Coultas.

Nervous Shock is a term used to denote a psychiatric/ mental illness or injury inflicted upon a person by
intentional or negligent actions or omissions of another. It must extend beyond grief or emotional distress to
a recognized mental illness. For a claim of nervous shock, the illness must be recognized as a psychiatric
disorder such as depressive disorders, adjustment disorders, anxiety disorders etc.

Hinz V Berry

Facts:
The plaintiff (P) and her husband were out driving for the afternoon with their four children and four children
whom they were currently fostering. The group stopped in a lay-by for a picnic and the plaintiff took one of
the children across the road to pick flowers. The defendant, Mr Berry (D), was driving recklessly and crashed
into the couple’s van, where the plaintiff’s husband and the other children were making preparations. Most
of the children suffered injuries, and the plaintiff’s husband was so seriously hurt by the crash that he died
at the scene three hours later. P witnessed the entire event and its aftermath, developing long-term ‘morbid
depression’ as a consequence.
P had successfully sued D for negligence and had been awarded damages for, amongst other things, the
‘nervous shock’ she had suffered and an appeal was lodged by D.

Issues:
In this case it fell to be determined in which circumstances a person could recover damages for purely
nervous shock caused by the negligence of the defendant and, where damages were so recoverable, how
quantum fell to be determined, as it was alleged by D that the sum awarded at first instance (£4000) was
excessive.

Held:
C, being a person who would foreseeably suffer psychiatric harm as a consequence of D’s negligence, was
entitled to compensation; she was not so remote a victim as to be outside the contemplation of D and had
suffered recognised psychiatric harm, rather than non-clinical grief or sorrow, which is not compensatable.
Moreover, although considered to be on the high side, the quantum of damages awarded to C could not be
described as wholly erroneous and thus would not be revisited.

A person who suffers from extreme grief and sorrow, but which falls short of a recognized psychiatric illness
is not able to recover damages as one is expected to be able to deal with grief and sorrow.

Victorian Railways Commissioner v. Coultas.

Facts:
The appellant’s gatekeeper had negligently invited the plaintiffs to cross a railway line as a train approached.
There was no collision, but the plaintiff sought damages for physical and mental injuries from shock.
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The reason behind this decision was the fear of a wide field of imaginary claims.

Issue:
Could the Plaintiff sue for nervous shock?

Held:
The defendant’s appeal on liability succeeded. It was difficult, if not impossible, to recover damages for
‘illness which was the effect of shock caused by fright’. Such injury was regarded as being too remote a
head of damages in an action for negligence. There would be evidential difficulty in deciding upon the
causes of psychiatric symptoms. Mere sudden terror unaccompanied by actual physical injury could not in
such circumstances be considered a consequence which in the ordinary course would flow from the
negligence of the gate keeper.

Reasoning:
“Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning
a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a
consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper. If
it were held that they can, it appears to their Lordships that it would be extending the liability for
negligence much beyond what that liability has hitherto been held to be.”

In the case of Dulieu v White Justice Kennedy held that a claim for psychiatric injury could be made only if
they themselves were within the range of potential harm. He said recovery for nervous shock will only be
allowed if the injury arose ‘from a reasonable fear of immediate personal injury to one self.

Dulieu V White
Facts:
The claimant was pregnant and behind the bar in her husband’s public house. A horse and cart crashed
into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave
birth prematurely nine days later and the child suffered developmental problems.
Claim:
Dulieu brought a claim in the tort of negligence against White and sons. Inter alia, they sought damages for
the shock which was caused by the incident. The defendant argued that the tort of negligence requires
physical injury, and nevertheless the injury was too remote.
Judgement:
In principle ‘terror wrongfully induced and inducing physical mischief gives a cause of action.’ The plaintiff
could recover in respect of the physical consequences of ‘nervous shock’ caused by reason of ‘reasonable
fear of immediate personal injury to oneself’. Kennedy J considered the argument that fright, where physical
injury is directly produced by it, cannot be a ground of action merely because of the absence of any
accompanying impact, to be ‘both unreasonable and contrary to the weight of authority.’ The argument was
unreasonable and contrary to the weight of authority, but he limited the type of shock for which damages
were recoverable to that suffered from fear for oneself only: ‘The shock, where it operates through the mind,

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must be a shock which arises from a reasonable fear of immediate personal injury to oneself.’ The Court
held that Dulieu could recover damages from White and sons for her state of shock.

At first, a claimant could only succeed in a claim if they were within the range of physical impact as in Dulieu
vs White. (In other words only the primary victim could sue, being the person who foreseeably suffer
physical damage.)
Claim allowable for a shock, where it operates through the mind, must be a shock which arises from a
reasonable fear of immediate personal injury to oneself.(Impact Theory)

The judges who decided this case refused to follow the principle followed in the Coultas case and the
decision in Dulieu vs White and Sons since followed by the English courts.

A shift in judicial thinking from this approach becomes apparent in Hambrook v. Stokes where a mother
was allowed recovery after suffering psychiatric illness due to an anticipated injury to her children, even
though she did not see her children being injured (extended to include people who saw or heard the
accident)

Hambrook V Stokes Brothers

Facts:
The defendant’s employee left a lorry at the top of a steep narrow street unattended, with the engine running
and without having taken proper steps to secure it. The lorry ran violently down the hill. The plaintiff’s wife
had been walking up the street with her children and had just parted with them a little below a point where
the street made a bend when she saw the lorry rushing around the bend towards her. She became very
frightened for the safety of her children, who by that time were out of sight and who she knew must have
met the lorry in its travels. She was almost immediately afterwards told by bystanders that a child answering
the description of one of hers had been injured. As a consequence of her fright and anxiety she suffered a
nervous shock which eventually caused her death.
Issue:
The plaintiff claimed compensation for the loss of his wife. His case was that his wife died as the result of
nervous shock caused by the negligence of the defendant’s servant. Could people outside the zone of
immediate physical danger be owed a duty of care?
Judgement:
It was held that, apart from the admissions in the pleadings, the lorry driver was in breach of his duty to the
mother, although she was not herself in any personal danger. Recovery of damages was allowed. People
outside the zone of danger could recover for mental injury (we’d now call these people secondary victims)
for fear for her children’s lives. For recovery to succeed, the claimant must have seen the event first hand
first hand, not had the event communicated by others in any way.
In the above case it was held that claim for nervous shock is recoverable:
1. If shock resulted from what one saw or realized by one’s own unaided senses and not from
something which someone told her/him.
2. Shock was due to reasonable fear of immediate personal injury either to one self or his/her children.
(Impact theory abandoned)

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Nervous shock is caused through fear of injury to a 3rd party.

[Link] an accident
[Link] screams of the victim
[Link] a person being killed

Bourhill V Young

Facts:
Mr Young had been negligently riding his motorcycle and was responsible for a collision with car in which
he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in the process of leaving a
tram about 50 feet away. C heard the crash and, after Mr Young’s body had been removed from the scene,
she approached and witnessed the immediate aftermath. C was 8 months pregnant at the time of the
incident and later gave birth to a stillborn child. C subsequently brought an action against Mr Young’s estate,
claiming she had suffered nervous shock, stress and sustained loss due to the negligence of D.

Issue:
The principal issue on appeal to the House of Lords was whether D owed a duty of care to C. In order for
such a duty to be found it had to be said that that C was both sufficiently proximate to the incident itself and,
if so, that D ought reasonably to have foreseen that, in driving negligently, he might cause psychiatric
damage to a person hearing the crash from C’s position.

Held:
D was not liable for any psychiatric harm that C might have suffered as a result of the accident. It was not
foreseeable that C would suffer psychiatric harm as a result of D negligently causing a loud traffic accident,
nor was C sufficiently proximate to the scene of the crash itself. D, therefore, could owe no duty of care to
C.

In the cases of pure Psychiatric injuries a distinction must be made between primary victims and secondary
victims.

Primary Victim

A person who was under actual threat of bodily harm or reasonably believed themselves to be so, as a
result of the negligent event.
 Dulieu Vs White & Sons
 Page Vs Smith
 Grieves Vs F T Everard & Sons Ltd

Prior to 1999, Rescuers were considered as primary victims and a duty of care was owed to a rescuer who
suffered mental trauma as a result of helping out in an accident.

However, in White Vs Chief Constable of South Yokshire the HOL made it clear that a rescuer could only
be classed as a primary victim if the rescuer was reasonably believed himself to be in danger of physical
injury.

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Page V Smith
Facts:
The claimant (C) was involved in a collision with the defendant (D) whilst both were driving. C suffered no
physical injuries as a result of the crash but, several hours later, he felt exhausted and the exhaustion had
not abated. For a number of years prior to the accident Cc had suffered from chronic fatigue syndrome, the
symptoms of which manifested sporadically.
C brought an action claiming damages for personal injury caused by the negligence of D, in that, as a result
of the collision, his condition had since become both chronic and permanent, making it unlikely that he would
be able to pursue full-time employment in the future. D was found liable and the Court of Appeal allowed his
appeal on the ground that C’s injury was not reasonably foreseeable and leave was given to remit the case
to the House of Lords.
Issues:
The principal issue that the House of Lords were called upon to resolve was whether, in a claim brought in
negligence for psychiatric damage caused by D, it was necessary to establish that this particular type of
harm was a foreseeable consequence of D’s negligence, or whether it would suffice merely that some form
of compensatable harm was foreseeable, such as a physical injury.
Judgement:
The House of Lords found in favour of C, albeit by a bare majority (Lords Keith and Jauncey dissenting) and
held that, provided it was reasonably foreseeable that C would suffer some physical injury as a result of D’s
negligence, it was not necessary that the type of harm caused was itself reasonably foreseeable; C was
thus within the ambit of D’s duty of care.
Alcock V Chief Constable Of South Yorkshire

Facts:
A joined action was brought by Alcock (C) and several other claimants against the head of the South
Yorkshire Police. C and the other claimants all had relatives who were caught up in the Hillsborough Stadium
disaster, in which 95 fans of Liverpool FC died in a crush due, it was later established, to the negligence of
the police in permitting too many supporters to crowd in one part of the stadium. The disaster was broadcast
on live television, where several claimants alleged they had witnessed friends and relatives die. Others were
present in the stadium or had heard about the events in other ways. All claimed damages for the psychiatric
harm they suffered as a result.

Issue:
The House of Lords were called upon to determine whether, for the purposes of establishing liability in
negligence, those who suffer purely psychiatric harm from witnessing an event at which they are not
physically present are sufficiently proximate for a duty to be owed, and thus can be said to be reasonably
within the contemplation of the tortfeasor.

Held:
The House of Lords, in finding for D, held that, in cases of purely psychiatric damage caused by negligence,
a distinction must be drawn between ‘primary’ and ‘secondary’ victims. A primary victim was one who was
present at the event as a participant, and would thus be owed a duty-of-care by D, subject to harm caused

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being foreseeable, of course. A secondary victim, by contrast, would only succeed if they fell within certain
criteria. Such persons must establish:
 A close tie of love and affection to a primary victim
 Appreciation of the event with their own unaided senses
 Proximity to the event or its immediate aftermath
 The psychiatric harm must be caused by a sufficiently shocking event.
Neither C nor the other claimants could meet these conditions, therefore the appeal was dismissed.

White and Others V Chief Constable of the South Yorkshire Police

Facts:
The claimants (C) were all police officers who had been on duty within Hillsborough Stadium during the
eponymous disaster, in which 95 Liverpool FC fans were killed and many others injured. C brought an action
in negligence (and/or breach of statutory duty) against their employer, the Chief Constable of South
Yorkshire Police (D), for the psychiatric harm they had suffered as a result of witnessing the tragedy first-
hand. It was not disputed that D was negligent or, indeed, that this had caused nervous shock to C. The
Court of Appeal had previously found in favour of C and D appealed to the House of Lords.

Issues:
This case raised two principal questions. Firstly, it fell to be determined whether an employer owed a duty
of care to protect their employees from psychiatric injuries they may incur in the course of their employment.
Secondly, C argued that they fell within the ambit of ‘primary’ victims, and should thus be permitted to
succeed with an ordinary claim in negligence. The House of Lord were thus called upon to revisit the
distinction between primary and secondary victims set out in Alcock v Chief Constable of South
Yorkshire ([1992] 1 AC 310).

Held:
D was under a duty to take reasonable steps to protect his employees from the risk of physical harm, but
there was no extension of this duty to protect C from psychiatric harm when they were not exposed to any
risk of physical injury. Thus, there could be no duty of care owed to C for purely psychiatric harm, as they
were not at any point in any physical danger. Moreover, a rescuer in relation to whom physical injury was
not reasonably foreseeable could not recover damages for psychiatric injury sustained by witnessing, or
participating in the aftermath of, an accident which had caused death or injury to others; such rescuers were
to be categorised as secondary victims, and so would have to meet the conditions specified by Lord Oliver
in Alcock.

Secondary Victim

A secondary victim is a person who suffers a psychiatric illness as a result of witnessing an accident of it
immediate aftermath. The person himself is in no danger but suffers shock as result of either seeing another
person injured, reasonably being that another person is injured or coming to the scene immediately
afterwards. In addition, a secondary victim must have a close tie of love and affection for the victim of the
accident.

McLoughlin v O’Brian – The claimant’s husband and three of her children were involved in a serious road
traffic accident in which their car was struck by a lorry due to the negligence of the defendant lorry driver.
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Unfortunately, one of the children was killed on impact. An ambulance took the injured parties to hospital.
Another of the claimant’s sons was a passenger in a car behind the family. The driver took him home and
told his mother of the incident and immediately drove her to the hospital. She saw her family suffering before
they had been treated and cleaned up. As a result, she suffered severe shock, organic depression and a
personality change. She brought an action against the defendant for the psychiatric injury she suffered. The
Court of Appeal held that no duty of care was owed. She appealed to the House of Lords. The appeal was
allowed and the claimant was entitled to recover for the psychiatric injury received. The House of Lords
extended the class of persons who would be considered proximate to the event to those who come within
the immediate aftermath of the event.

There are legal limitations on the claims of secondary victims. In the case of Alcock & Ors v Chief
Constable of South Yorkshire HOL set out criteria necessary for a defendant to be liable for psychiatric
injury caused to a secondary victim.

I. A close tie of love and affection between the claimant and victim so that it is reasonable foreseeable
that the claimant will suffer psychiatric illness. (eg: spouses, parents and children etc)
II. A geographical proximity to the accident or its aftermath. The claimant must be either present at the
scene of the accident, see the build up to the accident, or its immediate effects. The claimant must
have seen or heard the accident or the immediate aftermath with its own unaided senses.
III. A medically recognizable psychiatric illness.

Nervous Shock can be caused in two ways:

1. Nervous Shock causing willfully
2. Nervous shock causing negligently

Nervous Shock causing willfully

It is well established in the English Law that a person who has intentionally caused another emotional
distress be liable for any psychiatric injury that follows.

Wilkinson v Downton – a person who does an act intending to cause shock is liable for harm that results
from the shock. Two things must be noted –
o The defendant intended to cause shock to the plaintiff therefore no question could arise
whether or not the defendant could reasonably foresee that his wrongful act caused a shock
to the plaintiff
o The shock which the plaintiff suffered was not due to any fear of injury to herself but was due
to fear of injury which she thought her husband had suffered.

Nervous shock causing negligently

Before a claimant can recover damages for the nervous shock which he suffered as a result of the
defendant’s negligence, he must prove all the elements of the negligence in delicts.

[Link] existence of duty of care

[Link] of that duty
3.A causal link between the breach and the psychiatric illness
[Link] nervous shock was not too remote a consequence of the breach.
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The RDL on this point is the same as the English Law and it is not necessary for the plaintiff to prove the
physical impact under neither system of law.

[Link] MISSTATEMENTS

Generally, no duty of care is owed to avoid causing another to suffer a loss which is purely economic i.e.
one where the financial loss is not related to a personal injury or damage to property. Murphy v Brentwood

However, where the economic is caused by negligent misstatement as oppose to a negligent act liability
may be imposed as established by a House of Lords obiter in Hedley Byrne Co. Ltd. v Heller & Partners
Ltd.

Hedley Byrne Co. Ltd. v Heller & Partners Ltd – Hedley (a firm) wanted to know if it would be advisable
to extend credit to a customer, Easipower. Hedley asked Heller whether it would be advisable. Heller
advised Hedley that it was appropriate to extend credit to Easipower. Hedley extended credit and Easipower
went out of business. Hedley sued Heller. The court dismissed the case since there was no duty of care
based on the facts. Significant obiter: A duty of care can arise with respect to careless statements that cause
pure economic loss.

Under the Roman Dutch law, the principles of the Lex Acquilia must be used as a solution for this problem.
The plaintiff must show that he has suffered damages at the hands of the defendant who was in culpa.

Perlman v Zoutendyk

Chissel v Chapman (Sri Lankan Case) – If A, in discharge of a contractual obligation which he owes to B,
makes to B a negligent but honest and non-defamatory statement in relation to a third party C, A is not liable
to C for pecuniary loss sustained by him in consequence of the statement. In this case the court discussed
that Perlman v Zoutendyk should be followed in Sri Lanka but the instance case was distinguished
therefrom.

[Link] FOR DANGEROUS PROPERTY

It is an EL principle that if a person brings on his premises anything which is likely to cause mischief if it
escapes and if it does escape, he is liable in damages and it is immaterial whether or not such damage was
due to his negligence. This is known as strict liability or absolute liability.

Strict Liability is a legal doctrine that holds a party responsible for their actions (or omissions) without the
plaintiff having to prove negligence or fault.

a) Dangerous Chattels (Liability for Dangerous Movable Property)

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Colman v Danbar – Vessels C.J. observed that “if the circumstances are such that a person of common
sense who has the authority of control of a certain thing could recognise that it is likely to be a danger to
others then it is his duty to take care to avoid such injury”

Donoghue v Stevenson – McMillan J said “where the article of consumption is so prepared as to be

inserted to reach the customer in the condition which it leaves the manufacturer and the manufacturer takes
steps to ensure this by sealing or otherwise closing the container so that the contents cannot be tampered
with, I regard his control as remaining effective until the article reaches the consumer and the container is
opened by him.”

Grant v Austrailian Knitting Mills Ltd. – the defendants were held liable to the plaintiff who had purchased
a pair of underwear from a retail dealer which, owing to the negligence of the defendants (manufacturers)
contained some substance that caused a skin disease to the plaintiff

Union Government v Mathee – defendant’s servant had negligently loaded timber into a lorry. Although
the lorry had passed outside the control of the defendants, they were liable for the injuries caused

Herschtal v Stewart – held that mere existence of opportunity for examination is not sufficient to break the
chain or destroy the proximate relationship. If the defendant realised as a reasonable man would, that there
was a reasonable possibility for the danger to be left undetected in the examination, the defendant must
bear the responsibility for injury caused to the plaintiff unless the plaintiff is adequately warned of the danger.

Homes v Ashford – manufacturer of hair dye escaped liability by an effective warning to the hair dressers
that dye should be tested before use.

b) Dangerous Premises (Liability for Dangerous Immovable Property)

In general the duty falls upon the person who exercises effective control over the premises

Cape Town Municipality v Paine – a duty to repair a building or structure without a right to use it may
constitute sufficient control to create responsibility. According to this decision, a lessor may be held liable
not only to the lessee but also to third parties

In English law where there is no contract between the person to whom a duty of care is owed may be
determined by examining the relationship between the parties. The categories of persons to whom a duty
may be owed are categories as invitees, licensees and trespassers.

The South African Courts look at the question from the point of view of the occupier by applying the test of
forseeability irrespective of whether the person entering is an invitee or otherwise. However, the test of
foreseeability would account for the relationship between the person entering the premises and the occupier.

An invitee is entitled to the highest degree of care e.g. a customer in a shop

London Gravind Dock v Horton – welder suffered injuries caused by a defective stage. House of Lords
held that as the plaintiff had knowledge of the risk, his claim was not entitled to succeed. The principle is
that an invitor is under no duty to an invitee who has knowledge or due notice of the relevant danger.

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However, in this case a minority view was that the invitor was under a duty to take reasonable care to protect
the invitee from the relevant danger.

McKerron states that the South African courts prefer the minority view in London Gravind Dock v Horton

A licensee is a person who enters with the permission, express or implied, of the occupier for a purpose in
which the occupier himself has no interest. In English law the duty owed to a licensee is merely to warn him
against any concealed dangers known to the occupant. Under Roman Dutch law, McKerron points out that
the duty extends to dangers which the occupier should have known about.

The distinction between licensees and invitees has sometimes led to absurdity e.g. a business canvasser
who enters the premises without a common interest with the occupier becomes an invitee if he convinces
the occupier to place an order. This has led to the reclassification between lawful invitees (invitees and
licensees) and unlawful invitees (trespassers)

Generally no duty of care is owed to trespassers. In English law a duty is owed to trespassers injured by an
intentional act to harm him. In the Roman Dutch law the same result is reached because no duty is owed
because a trespasser’s presence is not foreseen but where the presence is foreseen, a duty is owed.

Farmer v Robinson Ltd. (South African Case) – duty of care may be owed to a trespasser

Addie v Dumbrek – defendants were not liable for injuries caused to trespassers where the defendants
were unaware that they had entered the premises

Excelcio Wire Rope Co. v Callen – defendants were liable for injuries caused to trespassers where the
defendants were aware that they had entered the premises

The harshness of the rule that no duty is owed to trespassers is mitigated by the concept of implied licences

Videans v British Transport Commission – where a child, without express permission, who went out to
the railway line was killed by a train, it was held that the engine driver owed a duty of care to the father of
the child who went to rescue him. Since permission would not have been refused to the father in such
circumstances, the father was treated as having obtained implied permission. It was also held that though
the child was not reasonably foreseen by the engine driver, the driver should have anticipated the presence
of the father.

c) Liability of owners for damages caused by animals

Two kinds of action are recognised for recovery of damage done by animals,

(i) action de pauperie; and (ii) acquilian action

The following elements are essential for an Actio de Pauperie –

I. Liability of the defendant arises out of the fact of his ownership of the offending animal and
independent of the negligence

Ceylon Ice Cold Stores v Bandaranayke – defendant’s horse escaped from its stable and did damage to
a glass window belonging to the plaintiff
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De Soysa v Punchirala; Thawaites v Jackson – under the Roman Dutch law, the owner of the animal is
liable for damage caused by the it even in the absence of negligence on the part of the owner

II. If the damage is caused by a domesticated animal which is ordinarily of gentle disposition but for the
time being was acting contra naturam i.e. viscously against the nature of its own class, the owner
must pay the full amount of damage which the animal caused (De Soysa v Punchirala)

Thawaites v Jackson – held that the defendant, owner of a hunting dog which killed a calf, was liable in
damages to the owner of the calf. The damages included not only the value of the calf but also the loss of
milk consequent upon the death of the calf.

Namasivayam v Heenbanda – The plaintiff, while he was walking quietly along a lane, was bitten by the
defendant's dog near the house of the defendant. There was no evidence to indicate that the dog was of
mischievous habits with a tendency to attack innocent pedestrians. The plaintiff was awarded Rs. 500 by
the trial Court as compensation for the injuries suffered by him. The defendant-appellant conceded that the
sum of Rs. 500 was a fair compensation but submitted that under the law of Ceylon she was entitled to be
permitted, alternatively, to surrender the dog or its value to the plaintiff. Held, that although the pauperian
action is available in Ceylon and the owner of the animal is liable for the full amount of the damage as
compensation, the right of the owner to surrender the offending animal in lieu of paying damages (noxae
deditio) is no part of our law today.

III. If the offending animal is a species of a fierce disposition, the owner is liable under the actio pauperie
for the full amount of the damage (De Soysa v Punchirala).

The following defences are open to the defendant in an actio de pauperie –

a) The plaintiff is at fault in that he either provoked the animal or contributed to his injury by his own
improper conduct

Harmie v Hoffman – plaintiff stooped down to pat the defendant’s dog and was bitten. It was held that the
plaintiff’s actions were imprudent and he had only himself to blame

b) There is no remedy if the animal was provoked by a third party. The third party may be sued under
the Lex Acquilia but the owner of the animal may not be sued
c) The plaintiff cannot recover damage if he had no legal right to be at the place where he was injured
by the animal

If the plaintiff can prove negligence of the owner of the animal, he can sue him under the Lex Acquillia. The
owner must have been negligent either in the control or custody of the animal where he was under a duty
of care to see that the animal did not cause harm. The likelihood of the animal causing harm would be
determined by the character of the particular animal or the class of animals to which the animal belongs.

[Link] RULE IN RYLANDS V FLETCHER

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Liability under Rylands v Fletcher is now regarded as a particular type of nuisance. It is a form of strict
liability, in that the defendant may be liable in the absence of any negligent conduct on their part. Imposing
liability without proof of negligence is controversial and therefore a restrictive approach has been taken with
regards to liability under Rylands v Fletcher. There have been attempts to do away with liability under
Rylands v Fletcher but the House of Lords have retained it.

Rylands v Fletcher – The defendant owned a mill and constructed a reservoir on their land. The reservoir
was placed over a disused mine. Water from the reservoir filtered through to the disused mine shafts and
then spread to a working mine owned by the claimant causing extensive damage. Held, that the defendants
were strictly liable for the damage caused by a non- natural use of land.

“A person who for his own purposes bring on his lands and collects and keeps there anything, which is likely
to cause mischief if it escapes, must keep it in at his peril, and ,if does not do so ,is prima facie answerable
for all the damage was due to his negligence” - Blackburn J in Rylands V Fletcher

REQUIREMENTS:

1. Accumulation

The defendant must bring the hazardous material on to his land and keep it there. If the thing is already on
the land or is there naturally, no liability will arise under Rylands v Fletcher. The thing must be accumulated
for the defendant's own purposes

Dunne v North West Gas Board – Gas escaped from a gas main caused by a burst water main. The gas
travelled along a sewer and was ignited causing a series of explosions resulting in injuries to five claimants.
One was blown off her bicycle, two young children were injured playing in the street and a husband and wife
suffered injuries in their home. They each brought an action based on liability under Rylands v Fletcher.
The defendant was not liable. The Gas Board had not accumulated gas for their own purposes.
The thing that escapes need not be the thing accumulated

Miles v Forest Rock Granite – The defendant was blasting rocks using explosives which they had brought
onto their land. Some of the rocks flew onto the highway and injured the claimant. The claimant brought an
action based on the principal established in Rylands v Fletcher. The defendant was liable despite the fact
that the rocks were not brought on to the land nor purposively collected and kept there. The explosives were
accumulated and caused the rocks to escape.

Giles V Walker
Carstairs V Taylor
Perason V North Western Gas Board

2. A thing likely to do mischief

The thing need not be inherently hazardous, it need only be a thing likely to cause damage if it escapes:

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Hale v Jennings Bros – The defendant operated a chair-o-plane roundabout at a fairground. One of the
chairs broke loose and hit the claimant. This was held to amount to an escape for the purposes of Rylands
v Fletcher. The defendant was liable for the personal injury sustained.

Shiffman vs The Grand Prioity of St. Jhons - A flagpole belonging to the defendant fell and hit the
claimant. This was held to amount to an escape for the purposes of Rylands vs Fletcher. The defendant
was liable to pay damages for the personal injury sustained.

Ponting vs Noakes (1849) - The horse of the claimant reached over a fence and ate leaves of a yew tree
and died. It was held that the defendant was not liable as tree was within the defendant’s land and had not
escaped it.

3. Escape

There must be an escape from the defendant's land. An injury inflicted by the accumulation of a hazardous
substance on the land itself will not invoke liability under Rylands v Fletcher:

Ponting v Noakes – The claimant’s horse died after it had reached over the defendant’s fence and ate
some leaves from a Yew tree. The defendant was not liable under Rylands v Fletcher as the Yew tree was
entirely in the confines of the defendant’s land and there had therefore been no escape.

Read V Lyons - The claimant was employed by the defendant in his factory which made explosive for the
ministry of supply. During the course of her employment an explosion occurred which killed a man and
injured others including the claimant. There was no evidence that the negligence has caused the
explosion.

Trial judge held that the case is governed by the Rylands vs Fletcher rule and therefore the liability is strict.
CA- Reversed the decision stating that the Rylands vs Fletcher required an escape of the hazardous matter.
House of Lords- Dismissed the appeal. In the absence of any proof of negligence on behalf of the defendant
or an escape from the dangerous thing.

Hale V Jennings bros

Shiffman V The Grand Priority of St. Jhons

4. Non-natural use

Rickards v Lothian – The claimant ran a business from the second floor of a building. The defendant owned
the building and leased different parts to other business tenants. An unknown person had blocked all the
sinks in the lavatory on the fourth floor and turned on all the taps in order to cause a flood. This damaged
the claimant’s stock and the claimant brought an action based on the principle set out in Rylands v Fletcher.
The defendants were not liable. The act which caused the damage was a wrongful act by a third party and
there was no non-natural use of land.

Read V Leon
British Velanese Ltd V AH Hunt

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Sochaki V Sas - The defendant was a lodger in claimant's house. He lit and open fire in his room and
then went out. Unfortunately, a spark jump from the fire and set the room alight. The fire spread to the rest
of the house and claimant brought an action against the defendant based on liability arising under Rylands
vs Fletcher.

The defendant was not liable. Whilst the fire was likely to do mischief if it escaped, the use of an open fire
in the claimant's fireplace was not considered a non-natural use of land.

5. Remoteness of damage / forseeability

Liability in Rylands v Fletcher is subject to the rules on remoteness of damage. This point was established
in the Cambridge Water case:

Cambridge Water V Eastern Countries Leather Plc

Facts:
The Defendants were engaged in leather tanning at Sawston. During their work, as a result of the process
of degreasing pelts, small quantities of a solvent known as Perchloroethene (PCE) was spilt on the floor of
the building in which the Defendants carried out their activities. These solvents eventually seeped through
the building floor and into the soil, which eventually meant that they contaminated the Claimant’s borehole
at Sawston Mill near Cambridge, some 1.3 miles away. The borehole was used to extract and supply water
to local residents and consequently this meant that the water available for extraction as contaminated and
to such a degree that it could not be safely used by the Claimants. The Claimants brought a claim against
the Defendants on the grounds of nuisance, negligence and the rule in Rylands v Fletcher.

Issue:
The issue in the case was whether the rules for remoteness of damage and foreseeability of the type of
damage caused apply to cases involving the rule in Rylands v Fletcher and nuisance in the same way they
do for negligence cases.

Judgement:
It was held that the necessity to prove foreseeability of the type of damage suffered and to deal with
remoteness of damage more generally applies equally to cases based on negligence, nuisance and the rule
in Rylands v Fletcher. It was held further that the damage in this case was too remote as it was not possible
for the Defendants to reasonably foresee a spillage which would eventually lead to contamination of a water
borehole so far away. The Defendants were therefore not liable for the damage.

Waller V Foot & Mouth Disease Research Institute - A virus escaped from the defendants premises and
affected cattle rendering them unstable. The claimant, an auctioneer brought an action under Rylands vs
Fletcher for loss of profit he would have made has the cattle not been so affected.
The claim failed. Pure economic loss is not recoverable under Rylands vs Fletcher.

DEFENCES:

1. Act of stranger
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Ricktards V Lothain
Perry V Knedricks Transport Ltd
a. If the escape was caused by the act of a stranger over which the defendant has no control, the
defendant will escape liability:
b. If however, the act which caused the escape was committed by a person over whom the
defendant may exercise some control the defendant may still be liable.

Northwestern Utilities Ltd vs London Guarantee and Accident Co. Ltd - 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
has percolated into the hotel basement from a fractured welded joint in an intermediate pressure main
situated below street level and belonging to the defendants, a public utility company. The fracture was
caused during the construction of a storm sewer, involving underground work beneath defendant’s mains,
by a third party.

It was held that the defendants were liable for negligence. The risk involved in the defendants’ operation
was so great that a high degree of care was expected for them. They knew the construction of the sewer
and they ought to have appreciated the possibility of damage to their mains and taken appropriate action to
prevent or rectify it.

2. Act of God

If the escape is caused directly by natural causes without human intervention in circumstances
which no human foresight can provide against and of which human prudence is not bound to
recognize the possibility, the defense of act of god applies.

The Act of God/Vis Major is a plea which is very frequently brought forward to excuse the
negligence of a man. It really amounts to nothing more than an event which, as between the
parties, and for the purpose of the litigation, is to be regarded as incapable of being controlled.
Eg: Lightning, earthquakes etc.

In order that a phenomenon should fall without the operation of the rule of law with regard to the
act of God, it is not necessary that it should be unique ,that it should happen for the first time, it is
enough that it is extraordinary, and such as could not reasonably be anticipated.

Nicholos V Marsland
Box v Jubb
Moffat V Rawstorne
Abdul Lathiff V Ceylon Wharfage Co Ltd

3. Escape of substance is necessary

Unless there is an escape of the substance from the land where it is kept, there is no liability under
the rule.

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Read vs Lyons and Co. Ltd (1947) AC 156 - Ryland vs Fletcher was inapplicable because there
had been no “escape” of the thing that inflicted the injury.

4. Statutory Authority

The rule in Rylands vs Fletcher may be excluded by statute. The rule of strict liability as laid down
in the case does not apply where the defendant is authorized to accumulate, keep or collect the
dangerous thing which escaped and caused injury to the plaintiff unless such injury was caused by
the defendants own negligence.

Green vs Chelsea Water Works Co. - In this case a main belonging to a water works company,
which was authorized by parliament to lay the main, burst without any negligence on the part of the
company and the plaintiff’s premises were flooded; it was held that since there was no negligence
on the part of the Company, the action was not maintainable.

Charing Cross Electricity Co V Hydraulic Power Co

Smeaton V Ilford Corp

5. Default of the plaintiff

If the damage is caused solely by the act or default of the plaintiff himself, he has no remedy. In fact
if the defendant knows that there is danger of harm being caused to his land by the acts of the
neighbor and if his own act render the danger more probable, he will have no cause of action.

Postmaster General V Liverpool Corp

Ponting V Noakes
Townsend V Wathen
Eastern And SA Telegraph Co V Cape Town Tramways

It is important to look at following in the defense if “Default of the Plaintiff”:

1. The defendant can excuse himself by showing that the escape as due to the plaintiff’s default

2. It is not every damage that is regarded as the damage in the eyes of the law. Legal damage
neither is identical to actual damage nor is necessarily pecuniary. (damnum sine injuria and injuria
sine damnum)

6. Consent / common benefit

If the claimant receives a benefit from the thing accumulated, they may be deemed to have
consented to the accumulation.

Carstairs V Taylor - In this case, A had hired from B the ground floor of a warehouse. The upper
part of which was occupied by B. Water from the roof was collected by gutters in to a box, from
which it was discharged by a pipe in to drains. A gnawed a hole in the box and water leaked
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through it and injured A’s goods. It was held that there was no negligence on B’s part. B was
held not liable.

Anderson V Oppenhemier - The defendant was a owner of a house and the plaintiff was one
of the tenants. The different floors were supplied with water from a cistern at the top of the house.
One of the supply pipes burst and the plaintiffs floor was flooded. As the defendant had stored
water for the common benefit of all tenants, he was held to be not liable.

APPLICATION IN SRI LANKA

 The rule in Rylands v Fletcher is inconsistent with Roman Dutch law

 However, in Subaida Umma v Wadood the rule in Rylands v Fletcher was held to be in force in Sri
Lanka
 Nevertheless, in Samed v Seguthamby, the application of the rule in Rylands v Fletcher was
rejected
 Gooneratne v Wimalawathie – plaintiff sued defendant for damages cause by defendant’s tree
falling on plaintiff’s roof. Liability for damages was on negligence rather than the rule in Rylands v
Fletcher
 Aloysius Silva v Upali Silva – Court of Appeal applied the rule in Rylands v Fletcher. The
respondent in this case alleged that the appellant had caused dirty water accumulated of his land to
flow into the respondent’s land and damage his crops. Appellant was held liable regardless of
negligence.

 There are two approaches –

 Amarasinghe - rule in Rylands v Fletcher is not part of our law

 Cooray – purist attitude resists the application of English principles. Both the English
law and the Roman Dutch law are alien systems and where there is a lacuna, any
principle which is near at hand and suitable should be adopted

 Since the principles underlying the two systems are different, one cannot be accepted as a
superstructure on the other. However, in considering the fair principle of fault liability, a
selective approach causing erosions into the Roman Dutch law is unwarranted.

E & S Africa Telegraph Co V Cape Town Tramway Co

Elpinston V Boustead

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