THREE SIX FIFTEEN; THE CIRCLE DISASTER AND THE APPLICABILITY OF THE RULE IN RYLANDS V. FLETCHER (PART I) by Akua Aduwaa Brifo and Dominic Ohene Ofori

On 3rd June 2015, Ghana recorded one of its most tragic events in history. There was a downpour in the country’s capital, Accra which resulted in the flooding of some areas of the city. At the GOIL filling station located at the Kwame Nkrumah Circle, was a fire explosion that caused substantial damage to neighbouring persons and property. According to Joy News, the explosion was a result of a leakage from one of the fuel tanks which had spread over the water hence causing a catastrophic scene of fire and flood in their worst elements.

The result was fatal. Over one hundred and fifty persons lost their lives and were burnt beyond recognition. Adjoining buildings and property were also razed to the ground. Indeed, it was a sad day for Ghana, and until this day her inhabitants are trying to recover from the grief. Families lost their breadwinners, parents lost their children, and friends lost their loved ones. The government and other NGOs supplied relief items to the persons affected. People and owners of property affected have called for compensation, and for someone to be held responsible for the tragedy. This raises several important questions that require prompt answers.

Could Goil Company be liable in torts? Could the persons affected seek legal relief? How about the owners of adjoining property that were destroyed?  Can the affected persons still bring an action six years after the disaster? These are the questions that this essay seeks to resolve. 

 

Is GOIL liable under the Rylands rule?

The rule propounded in this case is one of the remnants of the ancient concept of strict liability in the law of torts. The background to this rule is that a person acts at his own peril, that is, one will be held liable for his actions regardless of whether he may have acted intentionally or negligently.

In the case of RYLANDS V. FLETCHER, the plaintiff was an occupier of a mine while the defendant owned a mill which was situated on land adjoining that of the mine. The defendant decided to construct a water reservoir on their land. However, unbeknown to them, there were certain disused underground shafts and passageways connected to the mine. The construction was supervised by an engineer and a contractor who did not take reasonable steps in ensuring that the old shafts will not affect the operation of the reservoir. Subsequently, when the reservoir was filled with water, the pressure of the water broke the shafts and eventually entered the plaintiff’s mine thereby flooding it and causing considerable damage to the mine. The plaintiff sued and the Court of Exchequer, in holding the defendants liable, said through Blackburn J that;

“We think that the true rule of law is that the person who for his own purposes, brings on his own land and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”

The defendants appealed and the House of Lords dismissed the appeal. The House of Lords per Lord Cairns applied Blackburn’s test in the Court of Exchequer but narrowed the test to a non-natural user of the land, which means that the thing must have been brought unto the land and not acquired naturally. 

Street summarizes the rule thus; “a person who, in the course of a non-natural user of his land, accumulates or is held to be responsible for the accumulation on it of anything which he knew is likely to do harm if it escapes, is liable for the damage to the use of the land of another, which results from the escape of the thing from his land.”

We will surgically analyze the key elements (non-natural user, things, accumulation, and escape) as derived from the rule and in doing so determine whether Goil Company is liable under the rule.

NON-NATURAL USER

“Non-natural user” under the rule was comprehensively explained in RICKARDS V. LOTHIAN.

The defendant was a lessee of an entire building while the plaintiff was a tenant of the same building. On the fourth floor was a lavatory that contained a basin. Someone maliciously opened the basin tap and blocked the waste pipe causing an overflow and subsequent considerable damage to the plaintiff’s stock in trade. 

The Court (per Lord Moulton) held that for there to be a liability in the Rylands v. Fletcher rule, there must be “some special use bringing with it increased danger to others and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community. The Court also stated that the defendant having on his premises “a proper and reasonable supply of water,” which of course benefitted the Plaintiff, “was an almost necessary feature of town life…recognized as being so desirable in the interest of the community” thereby making it an ordinary use of the land. 

This case sheds new light on the concept of natural and non-natural use of land. Lord Moulton therein seems to suggest that if a thing was acquired unto the land, and that thing was a necessity to human life in that particular community, the defendant ought not to be liable even if that thing escaped. According to him, it would be unreasonable for the law to regard those who install or maintain such a system of supply as doing so at their own peril; for these things have become “a necessary feature of town life”. 

It can be inferred from the above opinion that the concept of non-natural use can vary over time in a particular society since the needs of man can change as a result of circumstances like the advent of technology. This is why we agree with Archer JSC when he said in VANDERPUYE v. PIONEER SHOE FACTORY that “In deciding the question whether the user is natural or not, all the circumstances of the time and place and practice of mankind must be taken into consideration so that what might be regarded as dangerous or non-natural may vary according to those circumstances”

In light of these cases, one might then cast doubt as to whether GOIL could be liable under the rule because they were involved in the supply of fuel which was to the general benefit of the community at the time of the explosion; for fuel is an essential commodity in today’s Ghanaian society.

However, we are still of the firm belief that regardless of the benefit that fuel serves to society, GOIL could still be held liable under the rule. In the case of CAMBRIDGE WATER COMPANY V. EASTERN COUNTIES LEATHER, Lord Goff of Chieveley was of the view that if the courts were to apply the concept of non-natural use in accordance to changing circumstances, the law will be swaying to the rhythm of social change instead of being recognizable on the basis of principle. To avoid this, Lord Goff averred that foreseeability of harm must be a prerequisite to an action under the rule and once that has been proved, it would be irrelevant to consider the vague concept of natural or non-natural use of land. We agree with Lord Goff’s position since it would fly in the face of all fairness and justice if top companies would be made to go scot-free for the grave damage done to lives and property on mere grounds that they supply essential services or they provide huge employment to the community. 

This is because we believe that human life takes preeminence over everything. Companies that supply essential commodities like fuel and gas for the general benefit of the community owe a duty of care to the general public to ensure that these commodities do not cause harm. Therefore, although GOIL supplied essential services to the community and which might have been a “natural use of the land” under the RICKARDS case, they could still be liable under the Rylands v. Fletcher rule per the CAMBRIDGE CASE.

 

THINGS

‘Things’ as espoused in the rule need not be dangerous per se. However, they should have the capacity to cause injury once they escape.  The courts have considered ‘things’ to be water, fire, and explosives within the import of the Rylands v. Fletcher rule. Interestingly, the Courts in the case of ATTORNEY-GENERAL v. CORK, have held humans to be ‘things’ under the Rylands rule. The facts were that the defendants leased a piece of land to a group of caravan dwellers whose lifestyle interfered with neighbours’ ordinary comfort and enjoyment of their property; the issue raised was whether or not the defendant could be held responsible for the nuisance which was caused to the neighbourhood by persons licensed by him to dwell in caravans on the land. The court was of the view that the caravan settlers, moving about from place to place, had habits of life many of which were offensive to those who had fixed homes, and when collected together in large numbers on a comparatively small piece of land, the caravan settlers had the capacity to cause harm.

Considering the circumstances under review, fuel may not be straightforward dangerous per se; for it is undisputed that it does ‘more good than harm in the society. However, because of its inflammable nature, when it comes into contact with fire, it has the tendency of exploding hence causing a considerable amount of damage when it escapes. Such was what happened on 3rd June, 2015; there was an explosion which caused a fire to start and the fire was spread by the fuel that had leaked and mixed with the floodwaters. GOIL could therefore be liable under the Rylands rule for the escape of the fuel.

 

ACCUMULATION

The third component necessary for a claimant to succeed under the rule is by showing that there was an accumulation of the “thing.” In grasping the term accumulation, Lord Cairns helped in the Rylands case when he used the phrase “…introducing into the close….” In the case of VANDERPUYE v. PIONEER SHOE FACTORY, the Ghanaian court asked; “Did the Defendants bring to their land things…?” The indication, therefore, is that a “thing” should be introduced unto the land by the Defendants.

In the case of PONTARDAWE RURAL DISTRICT COUNCIL V. MOORE-GWYN, where a rock broke away and fell down the slope; crashing into the Plaintiff’s dwelling house and causing damage, the Plaintiff’s action under the rule failed on grounds, inter alia, that the rock which broke away to cause the damage to the Plaintiff was naturally found on the land and was not “introduced” by the Defendant. Also, in the case of DUBLIN V. GHANA HOUSING CORPORATION, the action for damages failed on the ground that the water which had caused damage to the Plaintiff’s land had not been deliberately accumulated by the Defendant. Therefore, to found a claim under this component, it seems to us that there ought to be a deliberate act of introducing and ‘keeping a thing unto the land.

In the Circle disaster, there was a deliberate introduction and keeping of petrol, gas and other things unto the land by Goil Company. These “things” were brought by tankers, offloaded into underground storage tanks, and distributed through pipes; hence satisfying the accumulation test.

 

ESCAPE

It is not enough for there to be a (non-natural) thing accumulated unto the land, in addition, there ought to be an escape of the thing. The case of READ V. J. LYONS  captures aptly the component of escape. In the case, the Plaintiff, pursuant to a public duty of inspecting the factory on the Defendant’s premises sustained damages due to an explosion. The action failed on grounds, inter alia, that the explosion had occurred on the Defendant’s premises and not outside of it. It seems to us that to constitute an escape, the “thing” “deliberately introduced unto the land (occupied or controlled by the defendant)” must leave the land to a place outside the occupation or control of the Defendant. 

In applying this to the Circle disaster, there is no doubt that the resulting fire borne out of the explosion was from the fuel escape outside the confines of the filling station; giving rise to a possible cause of action. One might argue that Goil Company did not accumulate and keep the fire which caused the subsequent damage to adjoining property. To this argument, we adopt holding (6) of VANDERPUYE v. PIONEER SHOE FACTORY, where it had that a defendant would be liable, “if he brought onto his land things likely to catch fire and kept them in such conditions that if they ignited, the fire would be likely to spread to the plaintiff’s land”. In the present case, petrol (a thing likely to catch fire) was brought onto the land and it ignited the fire, causing damage. We think under such a circumstance it would be quite immaterial to raise the argument that since the petrol, did not by itself destroy property, the Rylands rule should fail. Taking such a stand would ipso facto bar all future actions resulting from fire damage since no one ordinarily introduces fire onto land.

 

Having carefully considered the essential components of the Rylands rule, we are of the firm opinion that the Circle Disaster, like many other similar scenarios, which claimed lives and destroyed properties, falls squarely within the Rylands rule and gives entitlement to all who are legally capable of bringing an action against GOIL. We shall now take a look at the possible defences to be raised by GOIL and the remedies available to affected persons.