Applying the Rule in Rylands and Fletcher and Trespass to Land to solve a legal problem by Amanda Nutakor

Dear April,

I am a young man who recently purchased my own place of abode. Last weekend, a local radio station organized a street carnival. The next day I woke up to realize that some of the people came into my compound, ended up littering my compound and destroyed maize plants and valuable ornamentals I sell. I was planning on selling the harvest from the maize and flowers to sustain me for the next couple of months. What cause of action do I have and against whom?

 

Dear Young Man Who Just Recently Purchased a Place of Abode,It is very unfortunate that you came to be a victim of such a situation upon just recently acquiring your own place.However, as William Alger once said, after every storm the sun will smile; for every problem there is a solution, and the soul’s indefeasible duty is to be of good cheer. So Young Man, don’t lower your spirits. There is absolutely a solution to your problem and I am very glad to hopefully be of some help to you.

Depending on your choice, there are two ways to go about your issue. However, if the first option fails, your next alternative could be the second option. The first option you have, and the one I recommend you try before opting for the second, is to settle the matter with the radio station privately without involving the courts of the country.

Litigation is a rigid, cumbersome and expensive process which could take years to conclude and be subject to appeal upon appeal. Moreover it is not the most amicable way of resolving disputes because of its adversarial nature. Visiting the radio station and negotiating a settlement or coming to another form of compromise would save you a lot of money, effort and nerves. It is best to attempt to succeed this way first, however, people can be very difficult sometimes. This means that the radio station might not be interested in you or your problem and might disregard you as effortlessly and dismissively as they would a fly. Your primary goal from what I have gathered is to be compensated for the damages you suffered from the actions of the people from the carnival. Thus, your next alternative would be to sue the radio station in tort on the basis of the rule in Rylands and Fletcher or to get the actual individuals who entered your property, sue them in trespass to land and claim damages. We shall now examine legally how you would be able to succeed in both causes of action.

Firstly, we must understand what the word ‘torts’ means. According to Professor Kofi Kumado in his book Introduction to the Law of Torts in Ghana, torts are generally concerned with “twisted” or wrongful behaviour. There are three elements of all torts: they are human behaviour categorized as wrongful by the law, such behaviour interferes with an interest of another protected by the law and the victim is allowed to seek redress in the civil courts for a monetary compensation.

Trespass to land and the rule in Rylands v Fletcher are both areas of Tort Law which allow the victim to claim monetary compensation in a civil court for a wrong or wrongs done to him.

Let us first examine the tort based on the rule in Rylands v Fletcher. Rylands v Fletcher is the case in which the rule was first propounded by Blackburn J. The rule states: a person who in the course of a non-natural use of his land accumulates/is held to be responsible for accumulation on it of anything which is likely to do harm if it escapes is liable for damage to the use of the land of another which results from the escape of the thing from his land.

From the rule as stated by Blackburn J, we have the elements the plaintiff has to prove in order to succeed in his case against the defendant: non-natural use; ‘anything’; accumulation and escape.

Let’s discuss the elements one by one.

The first element is non-natural use of the land by the defendant which means the defendant must use the land outside its ordinary use or use the land in a special way which brings with it increased danger. The use is also mostly ‘selfish’ instead of being beneficial for the general society. The Privy Council determined what “non-natural use” means in the case of Rickards v. Lothian per Lord Moulton: “It must be some special use, bringing with it increased danger to others, and must not merely be the ordinary use of the land or such use as is proper for the general benefit of the community.”

The second element – ‘anything’ simply means things. These things are likely to cause harm if they escape. The things need not be dangerous in themselves but must have the character of causing harm if they escape. Some things have so far been held to be within the rule: electricity; gas; water; explosives; fire and even humans. In the case of Attorney-General v. Corke, the defendant allowed some squatters to live on his land who committed several acts of nuisance including depositing human excrement, breaking down fences, making noise, trespassing and allowing their horses to trespass on adjoining lands. It was held that the defendant put his land to an abnormal use by admitting a large number of squatters on the land and was thus liable.

The third element is accumulation which is the bringing on the land or the importation unto the land by the defendant of the ‘things’ we have already discussed. Justice Blackburn in Ryland v Fletcher talked of “a person who (the defendant), for his own purposes brings, collects and keeps there the thing that caused the mischief.” This means that the rule will not apply to things which accumulate or grow on the land naturally. In Dublin v. Ghana Housing Corporation the defendant, to prevent flooding of his premises which usually occurred following heavy rains, constructed gutters on his premises leading to a natural water cause. The plaintiff alleged that owing to the act of defendant, there was excess flow of water into the water cause causing his land to be flooded and his tenants to move out. It was held that since the water did not accumulate on defendant’s land there was no liability under the rule. For the rule to apply, the thing that escaped must have been accumulated on the defendant’s land.

The fourth and final element is that of escape where the ‘thing’ leaves the land on which it was accumulated by the defendant and goes to the land of another. The escape which will satisfy the rule was explained by Viscount Simon in Read v. Lyons. In that case, the plaintiff was injured in an explosives factory, while on an inspection duty, by a high explosive shell during the process of manufacture. There was no allegation of negligence on the part of the defendants who were operating the factory under a contract. The court held that there was no liability under Rylands v. Fletcher because there had been no escape of a thing from their premises and the rule would not apply because of the absence of an essential condition for its application. Viscount Simon clarified that escape means: “Escape, for the purpose of applying Rylands v. Fletcher, means escape from a place where the defendant has occupation of or control over land to a place which is outside his occupation or control.”

According to Professor Kumado, the defendant under the rule in Rylands v Fletcher is liable for any injury to land as well as consequential damage as a result of the escape of the thing. Unless the thing escaping causes damage, no action will lie under this rule so the plaintiff would have to prove damage caused by the thing that escaped. The case of Jones v. Festiniog Rly Co., sparks from the defendant’s locomotive train were blown to the plaintiff’s hay stack and it caught fire damaging it. The defendants were liable for damage to the hay. A defendant under the rule is liable for injury caused to his neighbour.

 

Now let’s apply the law to your situation. You stated that as a result of a local radio station organizing a street carnival, some of the people from the carnival came into your compound, littered it and destroyed your maize plants and valuable ornamentals.

In your case, since it would be difficult to find the actual individuals who did the acts complained of, it might be much more efficient to sue the radio station who organized the event during which the acts were done. This means we can take the radio station to be the defendant.

Concerning the first element- non-natural use of the land by the defendant, we can say that using land for a street carnival is not a natural use of land. Using land, especially when there are residential houses nearby, for a street carnival brings with it all forms of danger due to the large crowds that gather at carnivals. Different kinds of people with different behaviours and moral standards come together to make merry at carnivals thus anything from petty to serious crime can occur during such events. Organisers of such carnivals usually do them for private personal gains and not for the benefit of the society at large. Carnivals are used to make large sums of money from the people attending them and do not provide any benefit for those who do not attend them but could be affected by the activities which take place at the carnival. Thus we can say that using the land for a street carnival is not natural use of the land but a special use which gives no benefit to the society at large and rather brings with it special dangers.

Pertaining to the second element which is things that are likely to cause harm if they escape, it was held in the case of Attorney-General v. Corke that human beings could also be classified as ‘things’ within the rule in Rylands v Fletcher. In your case, it was individuals who left the radio station’s carnival to cause damage to your property and within the rule in Rylands v Fletcher they could be classified as ‘things’.

The third element as we have discussed is accumulation which is the bringing on the land or the importation unto the land of the ‘things’. In your case, the radio station brought onto the land many people for the purposes of a street carnival. Thus there was the accumulation of human beings on the land.

The final element is escape where, as already explained, the ‘thing’ leaves the land on which it was accumulated by the defendant and goes to the land of another. In your case, the human beings, being the ‘things’ left on the land which was occupied and controlled by the defendant at the material time and came unto your land to commit the acts you are complaining about. This means there was escape within the rule in Rylands v Fletcher.

However, for you to be able to get the monetary compensation, which would be the main purpose of you suing the radio station, apart from proving the necessary elements for an action in the rule in Rylands v Fletcher, you would also need to prove damage.

According to you, the people from the festival littered your compound and destroyed your maize plants and valuable ornamentals which you sell. You were planning on selling the harvest from the maize and flowers to sustain yourself for the next couple of months. This means that you are basically living off the earnings of your maize and flower business. The destruction of your plants would be material damage to property which would not only disrupt your business but also cost you a lot of money to replace. The littering of your compound created personal discomfort and inconvenience to you since you would have had to clean up the rubbish afterwards after people who came without your permission and caused it. This would be sufficient to prove damage.

Even though you prove all the elements as well damage in order to succeed under the rule, the radio station can raise the defence of the act of third parties. Liability is excluded if the escape is caused by the deliberate unforeseeable act of third parties. But if the defendant could have foreseen or prevented the act of the third parties and did not, then he is liable. This is illustrated in the case of Box v. Jubb where the defendants owned a reservoir connected to a watercourse. Owing to the emptying of the reservoir of a 3rd person who lived above the defendants and a blockage in the main drain, water was forced into defendant’s reservoir & overflowed to plaintiff’spremises. The defendants had no control over the main drain or third person’s reservoir.  Neither did they know of the facts that gave rise to the overflow of the water. It was held that thedefendants were not liable since the escape had been caused by the act of a third party.

Was your situation foreseeable by the radio station? Although your exact circumstances might not have been foreseeable, the fact that a carnival entails a large gathering of people of different personalities and characters who could do all manner of things at the venue of the carnival, should have been foreseen by the radio station. The station should have thus either made sure that the carnival was not held in an area where people lived or that adequate measures were taken to prevent all sorts of unreasonable behaviour by the people attending the carnival. It is generally known that police or private security personnel employed by the event organisers are usually present at such events to ensure law and order.

Thus, the station in the course of a non-natural use of the land it occupied and controlled at the material time accumulated on it things which were likely to do harm if they escaped therefore the station would be liable for damage to the use of your land which resulted from the escape of the things from its land.

Based on everything discussed above, Young Man, you might be able to succeed in an action in the rule in Rylands v Fletcher against the radio station.

However, it is also necessary for you to know that in the event that you find the actual individuals who caused damage to your property, you might also have a cause of action in the tort of trespass to land.

Trespass to land deals with unjustifiable interference with land in the possession of another. According to Professor Kofi Kumado, the tort protects the interest of the plaintiff (which would be you) in having his land free from physical intrusion. The subject matter of trespass is land and everything attached to it.

The tort does not protect ownership as such, but possession which is the power to use the land and to exclude others. Proof of ownership is however prima facie proof of possession. So is occupation.​

To succeed in an action in this tort, the plaintiff must prove that he was first of all in possession of the land at the time of the interference. In Wuta Ofei v. Danquah, the plaintiff acquired land which he did not immediately occupy but put pillars on. The defendant built on it. It was held to be trespass. The presence of the pillars was taken to evidence possession.

Then he must prove that there was a direct act of the defendant. This means that the act complained of was through the immediate act of the defendant. In the case of Pickering v. Rudd, Lord Ellenborough expressed the view that it is even a trespass to fire a gun into someone’s land or to pass over a man’s land in a balloon.

Next, there must have been a positive act and not an omission to act by the defendant.

There must also have been physical interference with the land. In Perera v. Vandiyar, the plaintiff was a statutory tenant. To evict him, the landlord cut off the supply of gas and electricity to the house from his end of the premises and the tenant was forced to leave. After a week, the supply was reconnected. In this case the court held that there was no interference with any part of the premises and therefore no action in trespass.

Also, the act of the defendant must have been voluntary. This means that the presence of the defendant on the land was through his own volition. In the case of Smith v. Stone, an action was brought against Stone for trespass to Smith’s land. Stone pleaded that he was forcibly carried onto Smith’s land by others and did not go there on his own volition. Justice Roll held that the trespass was committed by those who carried Stone onto Smith’s land and not Stone.

There must also have been a lack of consent meaning that interference with the land was without the leave and license of the land owner. So if you are on somebody’s land with his permission, then you commit no trespass. You can however become a trespasser if he revokes your licence and you still remain there after as was held in Robson v. Hallett.

Lastly, the plaintiff must prove that the defendant acted intentionally or negligently. Proof of damage, unlike in an action in nuisance, is not required to succeed in an action in trespass to land.

Now we can apply the law to your particular situation.

Since the subject matter of trespass to land is land and everything attached to it, we can say that the unjustifiable interference with your plants as well as the littering of your compound by the people from the carnival would allow you to seek damages for trespass to land. From the information you’ve given I believe I can also assume that you are in possession of the property, damage to which you are seeking redress for. It is clear that the acts of the people from the carnival on your property were direct and positive as well as the fact that there was physical interference because it is impossible for people to litter and damage plants without making positive and direct acts and physically interfering with the land. However, it is difficult to prove without more information that the people from the carnival acted intentionally or negligently and that their acts were voluntary. But all this can be ascertained if evidence is gathered from witnesses who were also present at the carnival at the time the acts you are complaining of were committed. On the other hand, it is evident that you, as the land owner, did not give your consent for the people from the carnival to enter your land. They entered when you were asleep thus they did not even bother to seek your permission to enter your land.

From this you can see that you would be able to pursue a cause of action in trespass to land. It is however important for you to realize that if you are planning on suing in this tort you would have to find the actual persons who entered your land and committed the acts which affected you. Trespass to land is a direct and intentional tort and by its elements you would not be able to get the radio station liable for the individuals’ acts since the radio station itself did not enter your property directly nor commit any of the acts complained of.

So now, Young Man, you have choices. You can try to negotiate with the radio station to come to a good settlement, sue the radio station in the rule in Rylands and Fletcher or sue the individuals who damaged your property in trespass to land. Whatever you choose, I hope you get the compensation you need for you to put your affairs in order. I hope to hear of the resolution of your issue in due time. Good luck!