598

CHAPTER XII.

DUTIES OF INSURING SAFETY.

Exceptions to general limits of duties of caution. In general, those who in person go about an undertaking attended with risk to their neighbours, or set it in motion by the hand of a servant, are answerable for the conduct of that undertaking with diligence proportioned to the apparent risk. To this rule the policy of the law makes exceptions on both sides. As we have seen in the chapter of General Exceptions, men are free to seek their own advantage in the ordinary pursuit of business or uses of property, though a probable or even intended result may be to diminish the profit or convenience of others. We now have to consider the cases where a stricter duty has been imposed. As a matter of history, such cases cannot easily be referred to any definite principle. But the ground on which a rule of strict obligation has been maintained and consolidated by modern authorities is the magnitude of the danger, coupled with the difficulty of

Exceptions to general limits of duties of caution. In the case of Morgan v. Cox (22 Mo. 376), the court said: "Every person, however, who is performing an act, is bound to take some care in what he is doing. He cannot exercise his own indisputable rights without observing proper precaution not to cause others more damage than can be deemed fairly incident to such exercise. 'Sic utero tuo ut alienum non laedas.' And therefore, although the mere exercise of a right is not a wrong in any case, any negligence in the exercise of it, that causes a loss to another, is an injury conferring upon him a right of action. It is correctly said, that generally between persons standing in no particular relation to each other, that alone is reasonable care, which, in the judgment of men in general, is proportionate to the probability of injury to others; and consequently, he who does what is more than ordinarily dangerous, is bound to use more than ordinary care.' See Todd v. Cochell, 17 Cal. 98.

proving negligence as the specific cause in the event of the danger having ripened into actual harm. The law might have been content with applying the general standard of reasonable care, in the sense that a reasonable man dealing with a dangerous thing-fire, flood-water, poison, deadly weapons, weights projecting or suspended over a thoroughfare, or whatsoever else it be will exercise a keener foresight and use more anxious precaution than if it were an object unlikely to cause harm, such as a faggot, or a loaf of bread. A prudent man does not handle a loaded gun or a sharp sword in the same fashion as a stick or a shovel. But the course adopted in England has been to preclude questions of detail by making the duty absolute; or, if we prefer to put it in that form, to consolidate the judgment of fact into an unbending rule of law. The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbour to such risk is held, although his act is not of itself wrongful, to insure his neighbour against any consequent harm not due to some cause beyond human foresight and control.

Rylands v. Fletcher. Various particular rules of this kind (now to be regarded as applications of a more general one) are recognized in our law from early times. The generalization was effected as late as 1868, by the leading case of Rylands v. Fletcher, where the judgment of the Exchequer Chamber delivered by Blackburn J. was adopted in terms by the House of Lords.

The nature of the facts in Fletcher v. Rylands, and the question of law raised by them, are for our purpose best shown by the judgment itself (a):

Judgment of Ex. Ch. "It appears from the statement in the case, that the plaintiff was damaged by his property

(a) L. R. 1 Ex. at p. 278, per Willes, Blackburn, Keating, Mellor, Montague

Smith, and Lush JJ. For the statements of fact referred to, see at pp. 267-269.

being flooded by water, which, without any fault on his part, broke out of a reservoir, constructed on the defendants' land by the defendants' orders, and maintained by the defendants.

"It appears from the statement in the case, that the coal under the defendants' land had at some remote period been worked out; but this was unknown at the time when the defendants gave directions to erect the reservoir, and the water in the reservoir would not have escaped from the defendants' land, and no mischief would have been done to the plaintiff, but for this latent defect in the defendants' subsoil. And it further appears that the defendants selected competent engineers and contractors to make their reservoir, and themselves personally continued in total ignorance of what we have called the latent defect in the subsoil; but that these persons employed by them in the course of the work became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings.

"It is found that the defendants personally were free from all blame, but that in fact proper care and skill was not used by the persons employed by them, to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir when filled with water burst into the shafts, the water flowed down through them into the old workings, and thence into the plaintiff's mine, and there did the mischief.

"The plaintiff, though free from all blame on his part, must bear the loss unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all

hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect.

"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 it does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome. vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property which was not

naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches."

Affirmation thereof by H. L. Not only was this decision affirmed in the House of Lords (b), but the reasons given for it were fully confirmed. "If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage" (c). It was not overlooked that a line had to be drawn between this rule and the general immunity given to landowners for acts done in the "natural user" of their land, or "exercise of ordinary rights"—an immunity which extends, as had already been settled by the House of Lords itself (d), even to obviously probable consequences. Here Lord Cairns pointed out that the defendants had for their own purposes made " a non-natural use of their land, by collecting water"in quantities and in a manner not the result of any work or operation on or under the land."

The detailed illustration of the rule in Rylands v. Fletcher, as governing the mutual claims and duties of

(b) Rylands v. Fletcher (1868), L. R 3.

H. L. 330, 37 L. J. Ex. 161.

(c) Lord Cranworth, at p. 340.

(d) Chasemore v. Richards (1859), 7 H. L. C. 349, 29 L. J. Ex. 81.