Cambridge Water Co v Eastern Counties Leather plc  2 AC 264 House of Lords
Lord Goff: My Lords, this appeal is concerned with the question whether the appellant company, Eastern Counties Leather plc (ECL), is liable to the respondent company, Cambridge Water Co (CWC), in damages in respect of damage suffered by reason of the contamination of water available for abstraction at CWC’s borehole at Sawston Mill near Cambridge. The contamination was caused by a solvent known as perchloroethene (PCE), used by ECL in the process of degreasing pelts at its tanning works in Sawston, about 1.3 miles away from CWC’s borehole, the PCE having seeped into the ground beneath ECL’s works and thence having been conveyed in percolating water in the direction of the borehole. CWC’s claim against ECL was based on three alternative grounds, viz, negligence, nuisance and the rule in Rylands v Fletcher (1868) LR 3 HL 330. The judge, Ian Kennedy J, dismissed CWC’s claim on all three grounds-on the first two grounds, because (as I will explain hereafter) he held that ECL could not reasonably have foreseen that such damage would occur, and on the third ground because he held that the use of a solvent such as PCE in ECL’s tanning business constituted, in the circumstances, a natural use of ECL’s land. The Court of Appeal, however, allowed CWC’s appeal from the decision of the judge, on the ground that ECL was strictly liable for the contamination of the water percolating under CWC’s land, on the authority of Ballard v Tomlinson (1885) 29 Ch D 115, and awarded damages against ECL in the sum assessed by the judge, viz, £1,064,886 together with interest totalling £642,885, and costs. It is against that decision that ECL now appeals to your Lordships’ House, with leave of this House…
Nuisance and the rule in Rylands v Fletcher
The question of ECL’s liability in nuisance has really only arisen again because the Court of Appeal allowed CWC’s appeal on the ground that ECL was liable on the basis of strict liability in nuisance on the principle laid down, as they saw it, in Ballard v Tomlinson. Since…that case does not give rise to any principle of law independent of the ordinary law of nuisance
or the rule in Rylands v Fletcher LR 3 HL 330, the strict position now is that CWC, having abandoned its claim in nuisance, can only uphold the decision of the Court of Appeal on the basis of the rule in Rylands v Fletcher. However, one important submission advanced by ECL before the Appellate Committee was that strict liability for an escape only arises under that rule where the defendant knows, or reasonably ought to have foreseen, when collecting the relevant things on his land, that those things might, if they escaped, cause damage of the relevant kind. Since there is a close relationship between nuisance and the rule in Rylands v Fletcher, I myself find it very difficult to form an opinion as to the validity of that submission, without first considering whether foreseeability of such damage is an essential element in the law of nuisance. For that reason, therefore, I do not feel able altogether to ignore the latter question simply because it was no longer pursued by CWC before the Court of Appeal.