Notes and questions 1 This is one of the great cases of the 19th century and there is no 20th century judge who can rival Blackburn J. He knew his Roman and his French law and this case is undoubtedly an educated reflex to the facts (one might note also that, at first instance, Bramwell J found for the plaintiffs, but on the ground of trespass). It is very sad indeed that the English common lawyers of the 20th century failed to appreciate that here was the English equivalent of Art 1384 of the French Code civil. What if this principle of liability for things had been applied to Esso v Southport Corporation? 2 It is said in the judgment of Lord Goff (below, in Cambridge Water) that Blackburn J never thought he was making new law as such. No doubt. But that is because the answer to the problem seemed obvious to him, as indeed it would to many trained both in the civil law and in the common law. Damage done by things under one’s control is a great principle even if it is a principle that can give rise to hard cases on the odd occasion. And it is a principle that can allocate insurance risks. Was there, however, ever any need to treat the rule in Rylands v Fletcher as a separate cause of action? 3 ‘[B]ut which he knows to be mischievous if it gets on his neighbour’s land.’ Is the rule in Rylands v Fletcher based upon foreseeability?
This was an action for damages for personal injury brought by a Ministry of
Supply factory inspector (the appellant) against the operators of a munitions
factory (the respondents) where she had been directed to work. The appellant
was injured by an unexplained explosion in the shell shop, and in her action
she did not plead or prove negligence; the trial judge accordingly treated her
action as based on the rule in Rylands v Fletcher. He held the respondents
liable. However, his decision was overturned by the Court of Appeal, whose
judgment was affirmed by the House of Lords.