CHAPTER 2: STRICT LIABILITY/TANGGUNGAN KERAS

CHECKLIST

A. INTRODUCTION
I. THE RULE IN RYLANDS v FLETCHER [1866]
- Rylands v Fletcher [1866]
B. ELEMENTS (*ALL ELEMENTS MUST BE FULFILLED)
I. ACCUMULATION/INTENTIONAL STORAGE
- Ang Hock Tai v Tan Sum Lee & Anor [1957]
II. DANGEROUS THINGS/THING LIKELY TO CAUSE DAMAGE IF IT ESCAPES
- Rainham Chemical Works v Belvedere Fish Guano [1921]
- Giles v Walker (1890)
- Pontardawe RDC v Moore-Gwyn [1929]
- Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918)
III. ESCAPE
- Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd [1972]
- Read v J Lyons & Co Ltd [1946]
- Ponting v Noakes [1894]
- Midwood & Co Ltd v Mayor, Aldermen, and Citizens of Manchaster [1905]
- Milik Perusahaan Sdn Bhd v Kembang Masyhur Sdn Bhd [2003]
IV. NON-NATURAL USE OF LAND
- Crowhurst v Amersham Burial Board [1878
- Yat Yueng Hong Co Ltd v Sheridanlea & Anor [1963
- Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978]
- Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966]
- Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia Consultants &
Ors [1997]
- British Celanese v AH Hunt [1969]
- Transco plc v Stockport Metropolitan Borough Council [2004]
V. FORESEEABILITY OF DAMAGE
- Cambridge Water Co v Eastern Counties Leather plc [1994]

C. DEFENCES
I. CONSENT OF THE PLAINTIFF
- Sheikh Amin bin Salleh v Chop Hup Seng [1974]
II. COMMON BENEFIT
- Carstairs v Taylor [1871]
- Dunne v North Western Gas Board [1964]
III. ACT OF A 3RD PARTY
- Box v Jubb [1879]
- Rickards v Lothian [1913]

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 1

 - Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd
[1936]
IV. ACT OF GOD (NATURAL DISASTER)
- Nichols v Marsland [1876]
- Greenock Corporation v Caleaonian Railway Co [1917]
- AG v Cory Brothers Ltd [1921]
- Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966]
V. THE PLAINTIFF’S DEFAULT
- Eastern and SA Telegraph Co Ltd v Cape Town Tramways Corporation
[1902]
- Hoare & Co v McAlpine [1923]
VI. STATUTORY AUTHORITY

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 2

 INTRODUCTION

 Originated from tort of private nuisance

 Strict liability: Term used to describe liability which is imposed on D without any proof of
fault on his part
 Although D might have taken all reasonable precautions to avoid or minimise risks arising
from his activity, he may still be found liable
 The mental state of D is irrelevant
 Not a requirement for D to have intention to do the alleged act

I. THE RULE IN RYLANDS v FLETCHER [1866]

Facts of the case:-
P was the lessee of mines. D was the owner of a mill standing on land adjoining that under
which the mines were worked. D desired to construct a reservoir and employed
competent persons (an engineer and a contractor) to construct it. P had worked his mines
up to a spot where there were certain old passages of above, and which had also been
out of use for years, and were apparently filled with marl and the earth of the surrounding
land. No one was taken by the engineer or the contractor to block up these shafts and
shortly after water had been introduced into the reservoir, it broke through some of the
shafts, flowed through the passages and flooded P’s mine.

Held: P was entitled to recover damages from D in respect of this injury

 Ds themselves weren’t negligent and neither were they vicariously liable for the
negligence of their independent contractors but the HOL held them liable to P

RULE OF RYLANDS v FLETCHER

Blackburn J:

“We think that the true of law is, that the person who for his own purposes brings onto
his lands and collects and keeps anything likely to do mischief if it escapes, must keep it
in his peril, and if he does not do so, is prime facie answerable for all the damages which
is natural consequences of its escape.”

 Lord Cairns approved this rule  added: the rule only applied where D had used his
land for non-natural use

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 3

 B. ELEMENTS OF STRICT LIABILITY

I. DANGEROUS THING/THING LIKELY TO CAUSE DAMAGE IF IT ESCAPES

 There must exist a dangerous thing (what is dangerous?  question of fact)

 It applies to anything that can cause danger if it escapes
 The object need not to be dangerous per se because there are objects which are safe
if properly kept, but are dangerous if they escape
 Examples: Gas, noxious fumes, explosives, fire, electricity, water and sewage
 Whether the thing is considered dangerous in that it may cause damage if it escapes
 determined through the ordinary experience of mankind
 Cambridge Water v Eastern Counties Leather Plc:-
Winfield: There can’t be liability under the rule in Rylands v Fletcher unless the
relevant type of damage was foreseeable  whether the thing is dangerous or not
would be irrelevant
 *Malaysian judgements still refer to this requirement (dangerous thing) in
determining liability under the rule

Case: Ang Hock Tai v Tan Sum Lee & Anor [1957]
Facts of the case:-
- P rented a shop house and lived on the 1st floor of the building
- The ground floor was sublet to the D, who was in the business of repairing &
distributing tyres
- D stored petrol for the purposes of his business  D’s premises caught fire  spread
to the 1st floor  P’s wife & children died

Court held:-
D liable under the rule in Ryland v Fletcher  petrol was a dangerous thing

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 4

II. ACCUMULATION/INTENTIONAL STORAGE

 Only apply to an object/thing which D purposely keeps & collects

 The storing of the thing must be for D’s own purpose
 If the thing is brought onto D’s land by or for the use of another person  THE RULE
ISN’T APPLICABLE
 Licensee will liable:
o If he accumulates the thing on the land  the thing escapes  causes damage
 Landowner will liable:
o If the licensee accumulates the thing with the authorisation of the owner
OR
o If the accumulation was done in pursuance of a contractual duty owed by the
owner to a 3rd party

Case: Rainham Chemical Works v Belvedere Fish Guano [1921]

Facts of the case:-

In August, 1915, directors of the Rainham Chemical Works F. (Feldman) and P.

(Partridge), who were interested in a novel process for making picric acid, a high explosive,
from dinitrophenol (D.N.P.), entered into an agreement with the Minister of Munitions to
manufacture for him picric acid at Rainham, Essex. The contractors as agents for the
Minister were to erect works for the purpose, the buildings, plant and machinery to be
paid for by the Minister and to remain his property. The Minister was to deliver D.N.P. to
the contractors, who were on their sole responsibility, and at their risk, to convert it into
picric acid at an agreed price. In September, 1915, F. and P. entered into an agreement
for the tenancy of the land on which the factory was to be established and thereby
covenanted not to assign or underlet or part with the possession of the premises without
the previous consent of the landlords except to a Government Department.

In March, 1916, a private company formed by F. and P. for the purpose of acquiring
and carrying on the undertaking, entered into agreements with F. and P. for the sale to
the company, first, of the rights of the vendors under their agreement with the Minister
of Munitions, and secondly of the benefit of the tenancy agreement and of the buildings
erected by the vendors, completion to take place on payment of the consideration (which
was never paid). The vendors also agreed to allow the company to go into and remain in
occupation of the premises as tenants until the purchase consideration had been paid,
but until payment the company were to be deemed to be in possession of the premises,
machinery and plant as agents for the vendors. F. & P. never obtained the consent of the
landlords under the tenancy agreement to the assignment or parting with possession of
the premises. The company carried on the manufacture of explosives on the premises and
large quantities of D.N.P. were delivered at the factory by the Minister and were stored
there close to other inflammable materials, and as a result an explosion occurred which

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 5

 caused damage to neighbouring property. In an action for damages by the owners against
the company and F. and P.:-

Court held:-

1) That the company were liable on the principle of Fletcher v. Rylands (1866) L. R. 1 Ex.
265; (1868) L. R. 3 H. L. 330 for the damage caused by storing dangerous substances on
land of which they were in actual physical possession;

2) That F. and P. had not effectively divested themselves of the occupation which they
held under the tenancy agreement, and that they also were liable on the same principle
as occupiers.

SUMMARY
- X & Y set up a company Z Ltd  operating as a factory
- The functions of Z Ltd was to perform a contract entered into by both X & Y with
another party  manufacture explosives
- Z Ltd was a licensee  Z Ltd was to manufacture the explosives on X & Y’s land
- A big explosion happened  damaging neighbouring property & killed many people

Court held:-
1) Z Ltd liable as the licensee which had accumulated the thing
2) X & Y (as occupiers & landowners) were also liable for the escape of the thing
accumulated by their licensee  the accumulation was a discharge of X and Y’s
contractual duty to another party

 If the thing is natural on the land  THE RULE ISN’T APPLICABLE

Case: Giles v Walker (1890)

Facts of the case:-

D ploughed his land but thereafter left it unattended  thistles grew on the land 
escaped to P’s land & seeded

Court held:-
- The thistles were natural growth of D’s land  he couldn’t be found liable
- In cases like this  liability maybe sought under tort of negligence & nuisance

 If the occupier of the land hasn’t accumulated it & the escape was independent of D’s
conduct  THE OCCUPIER WON’T BE HELD LIABLE FOR DAMAGE CAUSED BY THE
ESCAPE OF A THING NATURALLY ON THE LAND

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 6

 Case: Pontardawe RDC v Moore-Gwyn [1929]
Facts of the case:-

- Some rocks from D’s land fell onto P’s land due to changes in the weather
- D was held not liable as he didn’t accumulate the rocks
- The escape wasn’t caused by D’s act

Case: Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918)

Facts of the case:-

- D used some explosives to blast some rocks on his lands  some of the rocks fell onto
the land below & injured P
- The court found that although the rocks weren’t purposely collected/kept on the land,
the explosives were purposely collected & kept
- D was held liable for this deliberate accumulation which caused the escape of the rocks
and also because the way in which the injury was sustained (through rock-blasting) 
held to be non-natural use of land
- It was the accumulation that gave rise to liability  the explosives (if they escaped)
would likely to cause damage  dangerous thing
- They’re deliberately collected & stored by D
- There’s an escape as the use of the explosives caused the rocks to fall away from D’s
land  the damage was caused to P
- D ought to have foreseen that their rock-blasting activity may result in the escape of
rocks which may in turn cause damage
- If the thing that escapes is the dangerous thing itself  liability is rather
straightforward
- If what escapes isn’t the dangerous thing itself but another object arising from the use
of the dangerous thing  the occupier of the land may still be held liable provided the
escape occurs during a non-natural use of land

 The rule is only applicable where the occupier brings, collects or keeps something on
his land
 When something that is naturally on the land escapes & causes damage  the
occupier won’t be liable unless:-
- He intentionally allows the escape to occur
OR
- The escape is foreseeable & yet D does nothing to prevent the probable escape

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 7

III. ESCAPE
 P must prove that there has been an escape
 Escape: The thing has escaped from a place over which D has control & authority to a
place over which the D has no control & authority
 It isn’t necessary that D has a proprietary interest in the land which the escape occurs

Case: Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd [1972]

Court held: Escape must be proven before the principle in Rylands v Fletcher is
applicable

Case: Read v J Lyons & Co Ltd [1946]

Facts of the case:-

An inspector of munitions was injured when a shell that was being manufactured at
D’s factory where she was employed, exploded & caused her substantial injuries

Court held: D wasn’t liable as there’s no escape

Case: Ponting v Noakes [1894]

Facts of the case:-

P’s horse reached its head into D’s land  ate poisonous leaves of a yew tree which was
planted on D’s land
Court held: There’s no escape as the tree & it leaves didn’t extend beyond D’s boundary
 P’s failed in his action

Case: Midwood & Co Ltd v Mayor, Aldermen, and Citizens of Manchaster [1905]
Facts of the case:-

Ds were held liable when an explosion on their property caused inflammable gas to
escape into P’s house & set fire to P’s property

Case: Milik Perusahaan Sdn Bhd v Kembang Masyhur Sdn Bhd [2003]
Facts of the case:-
D was found liable when earthwork activities conducted on its land resulted in a
mudslide & considerable soil deposits were made on P’s adjoining (lower-level land)

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 8

  The meaning of escape  extended to include a situation where the use of dangerous
thing causes/creates an event from which damage is sustained
 Allowing an escape to occur from one’s own land onto another person’s property over
which one has no control isn’t the same as damage incurred by a 3rd party as a result
of one’s action in preventing danger from occurring on one’s land  liability will be
imposed in the former situation but not in the latter

Damage caused by fire

 P still required to prove either D himself/a person whose conduct he was answerable
has been negligent  through act/omission
 The negligence must have caused either the start of the fire/of its spreading to P’s
premises
 Alternative – P may prove that D has caused/permitted to exist on his premises a
source of fire danger which constituted a material injury to P’s property
 If there’s no escape of anything brought onto D’s land  D could still be found liable
if P is able to prove (as laid down in Lembaga Kemajuan Tanah Persekutuan v TNB
[1997] – following Musgrove v Pandelis [1919]):-
o D had brought onto their land things likely to catch fire, and kept them there in
such a condition that if they did ignite, the fire would be likely to spread to P’s land
o D had brought the things onto his land in the course of some non-natural use of
land
o The things had ignited & the fire spread
 Cases:-
1. Lembaga Kemajuan Tanah Persekutuan v TNB
2. Lee Kee v Gui See & Anor
 Liability is imposed for the spread of fire if the spread was due to the default of D’s
servant, his guest & independent contractor
 Liability will be excluded where the fire spread/occurred due to an act of nature/the
act of a stranger/trespasser over whom the D has no control
 Liable – if he has knowledge about the fire though started by another party whom D
has no control

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 9

IV. NON-NATURAL USE OF LAND
 D will only liable if in bringing or accumulating the thing onto his land  he makes a
non-natural use of the land
 Meaning of “non-natural use of land”:-
Lord Moulton – Rickards v Lothian [1913]

“It must be some special use bringing with it increased danger to others and must not
merely be ordinary use of the land or such a use as is proper for the general benefit of
the community.”

 Lord Porter – Read v Lyons & Co Ltd [1947]  all factors such as time, location and
the ordinary activities of mankind must be taken into consideration  what is
dangerous/constitutes a non-natural use of land may differ in different circumstances
 Court will consider public benefit of an activity but has to be weighed against the
extent of risk that arises from that activity
 Courts will balance the probability of damage occurring + the seriousness of the
probable damage compared to the social benefit derived from the activity
 Factors that will be taken into account by the courts:-
o The quantity of the thing
o The way in which it was stored
o The location of D’s land

 Cases:-
CASE FACTS OF THE CASE
Crowhurst v Amersham Burial Board D planted a yew tree on his land (yew
[1878] leaves are poisonous)  branches & leaves
of the tree extended into P’s land  P’s
horse died upon eating the leaves

Court held: D liable as planting a poisonous

Yat Yueng Hong Co Ltd v Sheridanlea
& Anor [1963]
tree isn’t a natural use of a land. This
decision may be justified on the basis that
an ‘escape’ of the tree had occurred as the
branches & leaves had encroached onto P’s
land
As were developing their land which was
adjacent to R’s land. As’ land was situated
on higher ground than R’s land  some
earth fell onto R’s land & damaged R’s
nursery

Court held: Piling loose earth on a steep

slope so that more flat land would be
available was a non-natural use of land.
Rylands v Fletcher applied

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 10

 Abdul Rahman bin Che Ngah & Ors v
Puteh bin Samat [1978]
Hoon Wee Thim v Pacific Tin
Consolidated Corporation [1966]
Dr Abdul Hamid Abdul Rashid & Anor
v Jurusan Malaysia Consultants & Ors
[1997]
INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18
D was a contractor engaged to clear an
irrigation canal which went through P’s
rubber estate  the work involved clearing
bushes & weeds in the stream & on the
banks  these bushes & weeds were
negligently set on fire by D & the ignition
escaped on to P’s land & destroying the
rubber trees on it
Court held: D liable in negligence & under
the rule in Rylands v Fletcher for the escape
of fire resulting from a non-natural use of
the land
Ds had built a reservoir on their land which
was above ground level  a heavy rainfall
caused the water-bounds to collapse as a
result of which water escaped onto the
adjacent land & the deceased drowned 
the administrator of the deceased’s estate
claim for damages
Court held: Using sand-bunds to separate
ponds of water constituted a dangerous &
non-natural use of land & any resulting
damage would be caught under the rule in
Rylands v Fletcher. As the reservoir as
situated close to an area which was thickly
populated, Ds were using their land in a
special way bringing with it increased
danger to others.
Court added: Even if a landowner uses his
property for natural use, it doesn’t mean
that he may conduct hazardous activities
causing adverse effects to his neighbours
*Non-natural use of land: Artificial
accumulation of rainwater on higher
ground which was then sipped
underground causing increased infiltration
rate and saturation of soil
A landslide occurred & damaged P’s house
 the accumulation of water was held to
be a non-natural use as the excavation of a
trench purportedly for the foundation of
retaining wall, constituted an alteration to
the nature of the land  it interfered with
the natural flow of water
11
 British Celanese v AH Hunt [1969] -
Transco plc v Stockport Metropolitan Water in a pipe isn’t a dangerous thing &
Borough Council [2004] isn’t an unusual/non-natural use of land

 Test of “non-natural use”:-

o Lord Bingham  the Ordinary use – the rule only applied where the use of land is
shown to be unusual/extraordinary
o Lord Hoffman  the Increased risk (more focused & narrower test than the
ordinary use test) – to determine whether the use of land was a non-natural use

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 12

V. FORESEEABILITY OF DAMAGE
 D won’t be liable for all consequential damage that results from an escape
 The concept of ‘reasonable & foreseeable damage’ (as laid down in The Wagon
Mound) is applicable in strict liability  confirmed in Cambridge Water Co v Eastern
Counties Leather plc
 For liability to arise  the type of damage must be foreseeable

Case: Cambridge Water Co v Eastern Counties Leather plc [1994]

Facts of the case:-
- D (leather manufacturer) used a chemical (PCE) in the process of manufacturing
- The chemical had been spilled little by little on the concrete floor of their factory
- PCE wasn’t soluble in water and it had been seeped through the factory floor until
50m below the ground
- It had been spread at the rate of 8m per day until it reached the area the P used
to pump water for the daily supply of the residents in that area
- The distance between D’s factory and P’s borehole was 1.3 miles & it had taken 9
months for the PCE spillage to reach the borehole
- P (statutory water company) had to spent £1M to find & operate another borehole
- HC dismissed the claims for negligence & nuisance as it was unforeseeable that the
spillage would accumulate underground/it would spread & cause damage to P
- Strict liability claim: Court held that D’s activity was not a non-natural use of land
taking into account the public benefit in the form of employment that arose from
the activity
- The rule of Rylands v Fletcher was inapplicable unless it could be foreseen that
damage of a relevant type would occur as a result of an escape from occurring
- If the damage was unknown through any scientific knowledge  no liability will
be imposed
- Prerequisite to liability in strict liability: Foreseeability of the type of damage
- P must prove that:-
o there’s a dangerous thing
o the thing has been actively accumulated & could reasonably be foreseen to
escape
o the escape occurred
o D is using his land for non-natural purpose
o the type of damage incurred by P is reasonably foresee

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 13

 C. DEFENCES

P’S CONSENT

- The rule isn’t applicable to the escape of things brought/kept upon his premises by D with
the consent of P  D isn’t liable except for negligence
- If P either expressly/impliedly consents to the existence of the dangerous thing & D isn’t
negligent in any way  D isn’t liable for any escape & resulting damage

P has consented YES YES NO

D is negligent YES NO YES
Result (as for D’s part) LIABLE NOT LIABLE LIABLE

- Implied consent may be raised as a defence in cases where different floors of the same
building were occupied by different persons who are aware yet do not complain of any
activity conducted by any of them
- The accumulation of the thing was usual & not dangerous: P would be said to have
consented unless the occupiers weren’t aware of the fact of the accumulation
- The accumulation was unusual & dangerous: Doesn’t necessarily mean that P consented
to the consequences of any escape of that thing

Case: Sheikh Amin bin Salleh v Chop Hup Seng [1974]

Facts of the case:-
The plaintiff was the owner of a piece of land on which was a wooden bungalow, in which
he lived. The plaintiff also built 8 terrace houses on his land, four of which were rented
by the defendants. The defendants built a big brick oven at the back of two of those
premises and also made alterations so as to form the four houses into one unit. The
defendants used the premises for the purpose of a bakery and this fact was known to
the plaintiff. A fire broke out in the premises and this resulted in the total destruction
of the eight terrace houses. The plaintiff claimed damages for loss arising from the
outbreak of the fire on the allegation that the fire started from the defendant's oven.

Held:
(1) on the facts, it would seem clear that the only place where the fire could have
started was the defendant's oven;
(2) there was ample evidence in this case to show that the plaintiff assented to or
acquiesced in the use of the defendant's premises as a bakery with an oven therein
and therefore the defendants could not be held liable in damages under the rule in
Rylands v. Fletcher;
(3) there was no evidence in this case that the defendants had caused or permitted to
exist on their premises a source of fire danger constituting a material injury to the

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 14

 plaintiff's property and therefore the plaintiff's claim on the basis of nuisance must
fail;
(4) in all the circumstances of this case, the failure of the defendants to have someone
to keep watch over the premises until the fire had been put out or extinguished
itself was sufficient evidence of negligence and therefore the defendants were liable
in damages on the basis of negligence;
(5) the measure of damages in the present case would be the cost of rebuilding the
eight houses within a reasonable period after their destruction bearing in mind that
it was the duty of the plaintiff to minimise the damages.

SUMMARY
- P owned a piece of land  8 terrace houses were built
- 4/8 houses were rented to D
- D used the rented premises for bakery purposes  P KNOWS
- D’s negligence had caused fire  all 8 houses were destroyed
- Court found that P consented in the use of D’s premises as a bakery

Court held: D was liable for negligence not strict liability

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 15

COMMON BENEFIT
If the dangerous thing is allowed to exist for the common benefit of both P & D  D won’t be
held liable

Case: Carstairs v Taylor [1871]

Facts of the case:-

- P rented the ground floor of a factory from D (who occupied the floor above)
- Water from the roof was collected through gutters which were connected to a box 
flowed into some pipes  into the drain
- Rats had made holes in the box  water dripped from it  damaged P’s property
- D wasn’t negligent
- Court found that though the method was dangerous – D wasn’t liable  the act was done
for the common benefit of both parties

Case: Dunne v North Western Gas Board [1964]

ACT OF 3RD PARTY

- Test: Whether that person acts outside D’s control
- D is liable: If he ought reasonably foresee the act of the 3rd party
- D isn’t liable: The act of a 3rd party who isn’t under D’s control is unforeseeable
- Generally:-
o 3rd parties: Trespassers & those who act on land that doesn’t belong to D
o Not 3rd parties: D’s workers, employees, independent contractors employed by him
- D is liable: If the 3rd party’s act is foreseeable/the consequences towards P may have been
prevented
Cases:-

CASE FACTS OF THE CASE

Box v Jubb [1879] - D’s reservoir overflowed  damaged
P’s property
- The cause was the overflowing of D’s
neighbour’s reservoir  flooded D’s
reservoir

Court held: Since the consequence of

events weren’t foreseeable & D wasn’t
negligent  D wasn’t liable

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 16

 Rickards v Lothian [1913] - A 3rd party deliberately blocked the
waste-pipe of a lavatory basin in D’s
premises  turned on the water tap
- Water overflowed  damaged P’s
property

Court held: D wasn’t liable

Northwestern Utilities Ltd v London
Guarantee and Accident Co Ltd [1936]
- D wasn’t held liable under strict liability
on the defence of the unforeseeable act
of a 3rd party for failing to inspect
whether there was any damage to their
main gas supply which exploded when a
3rd party constructed a sewerage
nearby  causing damage to P’s hotel
- They’re found liable in negligence for
failing to foresee that non-inspection of
their pipes might lead to foreseeable
injury

ACT OF GOD (NATURAL DISASTER)

- The escape occurs through natural causes which are unforeseeable
- Without any human intervention
- A heavy rainfall in a tropical country (eg: Malaysia) can’t be held to be an act of God
- What is included under the act of god?  Depends on the fact of the case
- Court will consider “whether the possibility of the event occurring could have been
reasonably anticipated & prevented”:-
o If the answer is NO  this defence will prevail
o If the answer is YES  this defence can’t be used
Cases:-

CASE FACTS OF THE CASE

Nichols v Marsland [1876] - D owned many artificial lakes
- A heavy rainfall caused the lakes’
embankments collapsed  water from
the lake swept away 4 bridges

Court held: D wasn’t liable

Greenock Corporation v Caleaonian
Railway Co [1917]
- An extraordinary heavy rainfall caused
D’s pool to flood
- Water flowed from it onto the highway
 onto Ps’ land  caused damage to
Ps’ property

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 17


AG v Cory Brothers Ltd [1921]
Hoon Wee Thim v Pacific Tin Consolidated
Corporation [1966]
THE P’S DEFAULT
- P won’t be compensated if the damage is caused by his own action/wrongdoing
- If P contributes to the end damage  He’ll be held to be contributory negligent under
S.12(1) of CLA1
Cases:-
CASE
Eastern and SA Telegraph Co Ltd v Cape
Town Tramways Corporation [1902]
1
CLA – Civil Law Act 1956 (Act 67)
INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18
Court held: D was liable & rejected the
defence
Nichols vs Greenock
Nichols:
The flood was so great that it couldn’t
reasonably have been anticipated, and so
the escape of the water was an act of God
Greenock:
In collecting & damming up the water of a
stream, it had a duty to ensure that people
who were staying on lower ground
wouldn’t be injured/adversely affected as a
consequence of their activities
An artificial danger which escaped through
natural causes was no excuse to the person
who brought the artificial danger there in
the 1st place
A heavy rainfall in a tropical country can’t
be held to be an act of God
FACTS OF THE CASE
D’s tramways operation (electrically
operated) affected the sending of
messages by P through their submarine
cable
Court held: Ps weren’t entitled to any
compensation as they didn’t suffer any
damage to their cable  A person
couldn’t impose liability on his neighbour
just because he used his property in a
special/extraordinary way
18
 Hoare & Co v McAlpine [1923] D was held liable as tremors under the
earth caused by D’s activities had caused
damage to the structure of P’s hotel

*P didn’t use his land for any special

purpose/in any extraordinary manner

STATUTORY AUTHORITY
- Liability won’t be imposed on D who acts under the authority of a statute which excludes
liability for such acts
- If D was found to be careless in exercising his discretionary power  LIABLE
- S.72(1)(a) – (j) Local Government Act 19762

2
Act 171

INSYIRAH MOHAMAD NOH UKM LAW SCHOOL ’18 19