TUTORIAL 14 – WRITTEN OPINION
KAREN REBECCA EDWARDS
Summary of Facts
I am asked by the owner of The Friday Shop and the owners of the apartments (Claimants) to write an opinion to establish if they are able to claim for damages from Boutique Bugs (Defendant) for the amount of $1,100,000 based on the elements of the rule in Rylands v Fletcher. Rylands v Fletcher (R v. F) is based on the doctrine of Strict Liability. This means that the defendant is liable for all damages caused by engaging in hazardous of dangerous activities. Blackburn J at 279 states “We think that the true rule of the law is, that the personal 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 his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of the escape” This rule was on appeal amended to add another element - that the use of the land be “non-natural”. In Cambridge Water Co v Eastern Counties Leather plc  2 AC 264 (HL), the rule was amended to include that the damage created was “foreseeable” This rule was further endorsed by the Court of Appeal in Hamilton v Papakura District Council  1 NZLR 265. Non-Natural Use of Land
Lord Goff in Cambridge Water v Eastern Counties Leather “that the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost classic case of non-natural use”. Taking this approach, it is “non-natural” for a research facility to be in the vicinity of a residential area. In addition, the storage of specialty bugs in large quantities (as seen by the development of the borer bugs), would cause mischief if it escapes regardless of the way in which it escapes. In addition, the facts suggest that the borer bugs were not naturally there and was “brought” to the facility by means of breeding. This would also suggest that the quantities kept on the facility would be large if the bugs were breeding in the facility. It is not contentious from that the bugs were bred for profit which meets the element stated in Blackburn J’s ruling and it was for the purpose of making a profit. Some activities are suitable in some areas and not in others, for instance blasting in the midst of a large city carries extraordinary risks but not in remote areas. It is in my opinion that Boutique Bugs have met the element of “non-natural” use of land and “for its purposes”, where in this case is for the economic benefit of Boutique Bugs and is therefore liable in this instance. Mischief when it escapes (Escaping Substances Doctrine)
I would refer to “escape” in this case as it was referred to in R v. F. Blackburn J in his ruling mentions that an element of control “keep it in his peril” to mitigate damages in the event of escape. This clearly states that the defendant has full liability for damages regardless of how the dangerous item escapes (element of Strict Liability). Therefore Boutique Bugs is responsible for both the escapes i.e escape from the research facility as well as from the accident. The defence might argue that the context in which “escape” is used commented by Lord Macmillan in obiter in Read v Lyon is “where the defendant has occupation or, or control over, land to a place which is outside his occupation and control”. Did Boutique Bugs have control over the escape of the bugs? Was the escape of bugs foreseeable? 1. The escape of borer bugs by eating through the plastic containers Boutique Bugs had taken reasonable care in the containment of the borer bugs as they had used “international standards for the storage of ordinary live bugs.” This suggests that the plastic containers met those standards. Boutique Bugs were only aware of the escape of the bugs not instantly and therefore could not rectify or put a stop to the issue immediately. 2. The escape of borer bugs caused by the...
References: Cambridge Water Co v Eastern Counties Leather PLC, 2 WLR 53 (House of Lords 1994).
John Rylands and Thomas Fletcher (R v Fletcher), L.R 3 H.L. 330 (House of Lords 1868).
New Zealand Forest Products Ltd and Another v O 'Sullivan, 2 NZLR 80 (Supreme Court, Hamilton 1974).
Read v J Lyons & Company, Limited, A.C 156 (House of Lords 1947).
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