The High Court yesterday overturned nearly 900 years of legal reasoning.
It overturned what lawyers know as the rule in Rylands v Fletcher.
Gasp. Lawyers and law students will be mortified. It would be like saying to a mathematician that Pythagoras’s theorem is wrong, or to a musician that Beethoven’s Fifth was written by Mozart, or that accountants should revert to single-entry accounting.
The rule, put simply, is if you bring anything dangerous on to your land you are strictly liable for any damage resulting from its escape, even if the escape was not your fault. It has applied to water, chlorine, wild animals and a host of dangerous and unnatural things.
The rule had it genisis in a case in 1089 (SUBS CORRECT 1089 that is TEN EIGHTY NINE), and was built upon in subsequent cases, culminating in a classic exposition by Lord Blackburn in 1866 in the case of Rylands v Fletcher. In that case water flowed from a dam from Rylands’ land and ruined a coal mine on Fletcher’s land. Rylands did not commit any negligence, but he was held liable.
Nearly all other tort (civil wrongs) law involves negligence: no negligence, no damages. The courts have evolved hundreds of exceptions and qualifications that have made the stuff of law exams for as long as there have been exams.
Now the High Court in a six-to-one judgment has ruled (and this is put very simply) that if you bring nasty unnatural things on to your land and damage results you are going to be done under general negligence anyway, so why have two sets of rules.
Generations of law students have learned the principles of English law through the rule in Rylands v Fletcher and the intricate differences between it and negligence law. And so have students of jurisprudence: should legal liability be contingent upon moral fault, they have asked.
Only Justice Michael McHugh held out. He said that sometimes harmful things escape from land and no cause can be found, so no negligence can be proved. Should the innocent damage-sufferer in these circumstances go uncompensated? Clearly not, he thought.
And thousands of professors, lawyers and law students who have struggled and mastered the rule would agree.
The facts in yesterday’s ruling do not matter, but they had something to do with welding gas and a fire in a cold storage room in Tasmania and some rotting sprouts.