Liability for the escape of dangerous things - an old tort revisited

Disputes between neighbours have occurred since the dawn of time and the law of tort has developed to reflect this. One of the more curious offshoots in this area is the so called rule in Rylands v Fletcher. This rule covers the harm done where a party had brought something dangerous onto his land that has then escaped and done harm to another party.

In recent years the continued survival of the rule in Rylands v Fletcher appeared to be under threat. However a recent judgment of the Judicial Committee of the Privy Council in Rubis Bahamas Ltd v Russell (Rubis Bahamas Ltd v Russell (The Bahamas) [2026] UKPC 9) has confirmed the rule is alive and well. In doing so it has provided a useful comparison with the torts of nuisance and negligence

Rubis Bahamas Ltd v Russell – The facts

At the junction of Robinson Road and Old Trail Road in Nassau, Bahamas, is a petrol service station. Rubis Bahamas Ltd has been its leasehold owner since its acquisition from Texaco Bahamas Ltd in 2012. In that year Rubis let the service station to Fiorente Management and Investments Ltd.

Lillian Russell owns a property opposite the service station.

In 1994 there was a leak of fuel from an underground storage tank that allegedly contaminated the groundwater and soil of the Russell property. In 2012 there was another leak of fuel that similarly was alleged to have contaminated the Russell property.

The issue was whether Rubis was liable for the 2012 contamination of the Russell property which was at a time when Rubis was the leasehold owner of the service station.

The Claim

The case came on appeal to the Judicial Committee of the Privy Council. One issue was whether Rubis was liable under the rule in Rylands v Fletcher for any damage caused to Ms Russell’s property by the 2012 leak.

The rule in Rylands v Fletcher

In 1860 John Rylands constructed a reservoir. When the reservoir was filled the water escaped thorough an old mineshaft and flooded the colliery of Thomas Fletcher. Although Rylands was not held to be negligent he was nevertheless held liable for harm resulting from the escape. The judge, Blackburn J, made the classic and often repeated statement of the rule covering escapes from land.

“We think that the true rule of law is, 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 in 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.” ((1866) LR 1 Exch 265)

The Rubis judgment

The Privy Council judgment in Rubis has confirmed that the rule in Rylands v Fletcher is a self contained tort distinct from the torts of nuisance and negligence and that is it very much alive. In approaching the rationale for the rule in Rylands v Fletcher the court provided a useful consideration of the relationship in general terms between the rule and the torts of (1) private nuisance and (2) negligence.

Relationship with private nuisance

The court recognised that liability under the rule in Rylands v Fletcher and in the tort of private nuisance have much in common. In both:

• the issue is centred on land
• liability created by the defendant is strict in the sense that it does not depend upon whether the defendant exercised reasonable care and skill:
• damages are limited to harm of a type which is reasonably foreseeable.

However there are, “well marked differences between the two juristic concepts” (Per Lord Wright Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903).

Private nuisance is a “tort against land” which protects the right of a person with an interest in land to use and enjoy their land free from undue interference. The tort arises where such activities or states of affairs on the defendant’s land cause an ongoing interference with the use and enjoyment of land by the claimant. Because the interest protected by the tort of private nuisance is the use and enjoyment of land, only a person with a legal interest in the land can sue.

It follows from the nature of the tort of private nuisance that the harm from which the law protects a claimant is diminution in the utility and amenity value of the claimant’s land, and not personal discomfort to the persons who are occupying it.

Nuisance can be caused by any means - there is no conceptual limit to what can constitute a nuisance.

“Frequently, such interference is caused by something emanating from land occupied by or under the control of the defendant which physically invades the claimant’s land. This may be something tangible….. Or it may be something intangible, such as fumes, noise, vibration or an unpleasant smell. In all such cases, however, the basis of the claim is not the physical invasion itself but the resulting interference with the utility or amenity value of the claimant’s land. Moreover, there is no requirement that the interference must be caused by a physical invasion and, as commentators have pointed out, there are many cases which do not fit this model.” (Fearn v Tate Gallery UKSC/2020/0056)

The cause of the nuisance does not have to escape or leave the land of the defendant.

The rule in Rylands v Fletcher, by contrast, is not concerned with activities or states of affairs on the defendant’s land as such. The harm from which the claimant is protected is physical damage caused by a tangible thing which escapes from land.

Unlike nuisance the rule does not restrict the defendant’s freedom to use land by prohibiting a particular use or activity. It recognises the defendant’s freedom to use the land as it chooses, even though that choice involves bringing something dangerous onto the land which carries a high risk of causing physical harm to others if it escapes.

It is thus not about breach of duty or whether the actions of the defendant are unlawful. Rather it is a rule about “who pays when things go wrong rather than about whether the defendant’s activity is wrongful. (“Rylands Confined” (2004) 120 LQR 388, 388–389)” It has been said that liability under the rule in Rylands v Fletcher is not based on a concept of fault but on a concept of risk (Per Lord Hobhouse Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61; [2004] 2 AC 1,).

The harm covered by the rule in Rylands v Fletcher is not restricted to property damage but may also extend to any other harm including death or personal injury. It follows that potential claimants are not limited to persons with an interest in land.

Some of the differences may be conveniently set out in the table below:

Relationship with negligence

Where liability arises under the rule in Rylands v Fletcher the defendant may also be liable in the tort of negligence if it can be shown that the escape of the dangerous thing was a result of a breach of a duty of care by the defendant (or someone for whose acts or omissions the defendant was responsible). However the rule in Rylands v Fletcher does not depend on fault. The rule is triggered by causation and as such is about strict liability. As stated earlier the rule is not about fault but about risk.

The court in Rubis noted in recent times the growth of statutory regulation has reduced the need for application of the rule but nevertheless saw no reason to remove or restrict such residual protection as it may afford.

The court dismissed the idea that the imposition of strict liability might be unnecessary or undesirable if a claim based on negligence would lead to the same outcome.

“To make that assumption is “to overlook the practical implications, in a case of this sort, of bringing a claim in negligence, perhaps against a powerful corporate opponent”. Proving a failure to exercise reasonable care typically requires expert evidence and raises questions about compliance with specialised industry standards and other matters in relation to which there is likely to be a significant imbalance in terms of knowledge and resources between the potential defendant and an individual citizen who has suffered damage caused by the escape of a dangerous thing. (Rubis 80)

Who is liable under the Rule in Rylands v Fletcher

The court in Rubis also considered whether Rubis should be liable as they had let the service station to Fiorente and it was the latter who were the occupiers and owners of the fuel that escaped. The conclusion was:

“Although the cases sometimes refer to the person liable where the rule applies as the “owner” or “occupier” of the land, and such a description is often correct on the facts, both on principle and authority neither ownership nor occupation is necessary or sufficient to give rise to liability under the rule. In accordance with the rationale discussed above, the person responsible for damage caused by the escape of the dangerous thing is the person who created the risk of such damage by bringing the dangerous thing onto and keeping it on the land from which the escape occurred. That person need not own the land. Nor is there any reason why liability should turn on whether that person is classified as an “occupier” for the purposes of the law governing the liability of “occupiers” to persons present on land.” (Rubis 83)

In this case what mattered was whether or not Rubis was responsible for bringing the fuel which escaped onto the premises and for the conditions under which it was kept there. Here Rubis required the fuel to be brought onto the site and in addition was solely responsible for maintaining the tanks and equipment. The court was thus satisfied that Rubis was responsible for bringing the fuel onto the site and keeping it there and thus potentially liable under the rule in Rylands v Fletcher.

Further comment

• The Rubis judgment confirms that Rylands v Fletcher remains relevant and provides a useful update on the rule and its relationship with nuisance and negligence.
• It is of interest that the UK Supreme Court has separately considered the subject of nuisance in Fearn v Tate Gallery UKSC/2020/0056. In addition the subject of the interrelationship between nuisance and negligence has recently been the subject of the recent UK Court of Appeal decision split 2.1 in Thomas & Anor v Nicholas & Ors ([2026] EWCA Civ 847) which may considered further if this case goes before the UK Supreme Court on appeal.
• Hitherto Rylands v Fletcher has been concerned only with harms resulting from the escape of tangible things. The question of digital escapes and harm caused by rogue Artificial Intelligence raises the possibility that in the future an attempt may be made to include within the rule (or within the ambit of nuisance) harm done by the escape of intangible things.