momentum week 5

LAW131 WEEK 5

Background Concept – Absolute Liability
RYLANDS V FLETCHER
What you should know for the test:
• fault or whether someone intended to
commit the act is irrelevant
• often attached to activities which are
inherently dangerous and have no social utility
• rationale: if someone is engaging in a risky
activity, they should pay damages for any harm
that arises as a result
• Material facts
• Issue
• Ratio/Key Principles
• Elements

RYLANDS V FLETCHER
Summary
• A reservoir was built on the defendant’s land, and without their fault, the water escaped through old mine shafts and
flooded the plaintiff’s new coal mine
• The House of Lords held that if the water had escaped naturally and with no action on the part of the defendant, then
no action would lie
• However, in this case the water was brought onto the land, stored, and used in a non-natural way. Therefore, the risk is
on the defendant and they were found liable
Key Principle
When the defendant brings or collects on land something likely to do mischief it it escapes and the use of the land is
non-natural then the defendant is liable for damage which is the natural consequence of the escape of that thing.

RYLANDS V FLETCHER
Elements
• brings or collects on the land
• non-natural use of the land
• for own purposes
• escape to an area outside control (Read v Lyons: escape from a place where the defendant has occupation or
control over land to a place which is outside his occupation or control)
• likely to cause mischief (foreseeability) (Cambridge Water: one could only be strictly liable for damage which
is deemed reasonably foreseeable.) This is an objective test.
• There is likely going to be some contentious and some non-contentious elements. Identify which are noncontentious
and state (listing the elements) that they are non-contentious/made up on the facts. Then, move
onto the contentious elements
• Give both sides of the argument for the non-contentious elements and suggest which side is stronger

RYLANDS V FLETCHER
Even if all elements are fulfilled, your client/the defendant may have a defence available to them.
• The plaintiff did something which caused the damage
• The defendant had taken all reasonable care
• It escaped naturally as a result of a third party and with no action on the part of the defendant
• Act of God
Nichols v Marsland – rainfall was sudden and unexpected, and the volume/extent of rain had not happened before
Potential ways to distinguish
• If the mischief/harm occurs on the defendant’s property, meaning that it does not escape to a neighbouring
property
• If it is a natural use of land – look at time, place and common practice. For example, if there is a munitions
factory in an industrial community during the war time, this is less likely to be found as a non-natural use of
land. Read v Lyons

IN THE TEST
Material Facts
• look out for facts that prove or disprove elements (bringing or collecting anything on land this is likely to cause mischief, non-natural use of land) that need to be fulfilled
in order to find your client liable. This is because these are the facts that if changed, will change the outcome. You are likely to be given a fact scenario that is very similar to
one of the main cases you have studied in class (though they may change some material facts).
Issue
• ’Whether … when’ structure
• Use this to incorporate significant material facts
• Identify the umbrella/broad issue first, then identify sub-issues. You will need to follow the IRAC structure for each sub-issue.
Relevant Law/Rule
• Identify relevant authorities and state why/how they are relevant – it is not enough to just state that the case might be relevant
Application
• Develop reasoned arguments, and make sure that you have a strong logic chain
• reasoning by analogy
• deductive reasoning (E.g. rule, your situation, conclusion)
• if an additional material fact would significantly change the outcome, state what the fact is and how it would impact the outcome
• Consider both sides of the argument for contentious points
Conclusion

DONOGHUE V STEVENSON
Summary
• A friend buys ginger beer from a shopkeeper
• A partially decomposed snail is poured out
after some of it has been drunk
• The plaintiff suffered bodily injury and shock
• The glass was opaque

Issue – Lord Aitken
The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which
prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any
legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to
cause injury to health.
Key Concepts
• Corrective Justice – the idea that liability must be bound by fault. This needs to be balanced with pragmatic need
to develop laws which limit the range of complainants and the extent of their remedy.
• Neighbour Principle – this involves taking reasonable steps to avoid acts or omissions which one could
reasonably believe would lead to injury (duty of care arises). This has an objective standard.
• We now also associate the concept of proximity with this. Lord Atkin acknowledges that this is not just physical proximity.
• Modern Test – Whether the intermediate examination afforded the Plaintiff adequate protection against the
damage?
Important Reasoning
• As the bottle was opaque, the purchaser could not see the contents. Hence, the defence of intermediate
examination does not apply in this case. In contrast, in cases concerning leaky homes, the defence may apply as the
purchaser can examine the home beforehand.

PROVING NEGLIGENCE
• Duty of Care
- This is important because it limits the ambit of the tort to perceived reasonable bounds to prevent limitless liability
- Richmond P: A builder is not liable to a purchaser with actual knowledge of the defect or if they are in a circumstance where they could have used
the opportunity of inspection in a way that would have alerted them to the defect
- Woodhouse J reflects a similar idea: Not liable to a purchaser who has knowledge or could reasonably obtain knowledge through inspection
• Breach
- Whether the plaintiff has departed from the standard of a reasonable person
- Focus on the quality of the defendant’s conduct and whether it is blameworthy
- Objective standard but reasonable person in their circumstances
• Cause
- Whether the plaintiff’s conduct has caused the defendant loss
- Focus on the causal link between the breach and loss. It may be helpful to use the ‘but for’ test
- Cooke J: Buyers are not expected to check building plans – they rely entirely on the builder
• Remoteness
- Focus on the type of harm and whether it is a sufficiently proximate consequence

POLICY CONSIDERATIONS
Reasons suggesting that there may NOT be a duty
• Floodgates
• Economic loss
• Negligent Misstatements
• Alternative Remedy
• Commercial Certainty
• Liability should be proportional to fault
• Interference with other areas of law
Reasons suggesting that there SHOULD be a duty
• Compensation
•Vulnerable plaintiff
• Improving professional standards

MARKING GUIDE – HIGHER GRADES
• Focus on key issues – identify and word them accurately. Ensure that you pick contentious ones!
• Convincing conclusion – explain why one side is more persuasive than the other and ensure that you have
a strong logic chain
• Needs to be succinct and have clarity
• Use a full range of legal arguments: learn the 8 ways of distinguishing and the material facts and issues of
case law you have been given really well
• Integrate awareness of whether a decision is binding or not