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

Are there any defences available to GOIL?

Satisfying the Rylands rule, as we have aforementioned, does not take away any “defence” available to a Defendant. In the Rylands case, Blackburn J after stating the rule added that a defendant may “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”.  In the cases of RICKARDS V. LOTHIAN and PERRY V. KENDRICKS TRANSPORT, interference by third parties is a good defence that spares a Defendant.

With regards to the Circle Disaster, we honestly find no proper defence available to GOIL filling station, however, for the sake of objectivity, we shall consider the subject. Looking at the available defences, we find the defence ‘Act of God’ as a possible defence tool available to GOIL. We have scanned through several decided cases on Acts of God and we find it necessary to settle on the case of NICHOLS V. MARSLAND, perhaps because in the case, the Defendant succeeded under the defence. In the case, an extraordinary rainfall had caused the defendant’s ornamental pools to overflow, causing considerable damage to the plaintiff’s adjoining property. It was held that “A defendant…. cannot be properly said to have caused or allowed the water to escape if the Act of God…was the real cause of its escaping without any fault on the part of the Defendant.” It was also held that the defendant ought not to be liable for she could not have anticipated that the reservoir would overflow. 

We think therefore that to rely on this particular defence (Act of God) the defendant ought to satisfy the two principles espoused in the Nichols case. Firstly, the defendant ought to prove that the Act of God was the real cause of its escape without any fault on the part of the Defendant, and secondly that the defendant could not have anticipated the escape. From the above, it means that the slightest fault(negligence) on the part of the defendant takes away this defence. 

In applying the principles, GOIL would be successful and escape liability if they can prove that the heavy rainfall on that day was the real cause of the disaster in the absence of any fault on their part and also that they could not have anticipated the escape of the petrol and the consequent explosion. There seem to be conflicting stories regarding the real cause of the disaster; whereas some witnesses have attributed it to a nearby cigarette, others have pointed to point explosion from the filling station. 

Whichever the case, we have to keep two things in mind; first, that there had to be the absence of fault(negligence) on the part of GOIL and secondly that GOIL ought not to have reasonably anticipated the escape. Therefore, any evidence of negligence on the part of GOIL would take away the defence and make them liable under the rule. The crucial question to ask at this point, therefore, is whether there was negligence on the part of GOIL?

One common line running through the various stories is that there was a downpour for which many people sought refuge at the GOIL filling station. This in itself is evidence that the rain, qua rain, could not have on its own generate fire. In the case of KUSSASI V. GHANA CARGO HANDLING CO where the court had to establish whether or not there was negligence on the part of the Defendant who had in accident dropped a pallet of bags of rice on the Plaintiff, the court per Sarkodee J stated that “…the unexplained and unaccounted fact that the pallet fell as it was being lowered is evidence of negligence in the person responsible for the operation.” By this, the learned judge meant that the fact that there had been a fall of the rice and in the absence of any explanation or account for its fall was in itself evidence of negligence. 

Coming back to the GOIL case, there was evidence that the leaked petrol was the cause of the spread of the fire in addition to the gas explosion from GOIL’s premises. There was therefore no explanation and or account for the escape of the petrol and explosion, for fuel contained in a tank does not have the capacity (without a negligent act or being tampered with) of escaping itself. Perhaps if there were an explanation for the escape of the petrol or explosion, we could have considered the explanation. In the absence therefore of any explanation for the escape, we conclude, relying on Sarkodee J in the Kussasi case(supra) that: “the unexplained and unaccounted escape of the petrol and gas outside the confines of GOIL is evidence of negligence…” 

Having thus established negligence, we shall also consider the second requirement, that is, whether GOIL anticipated the escape of the fuel. Let us keep in mind that the escape of the fuel was facilitated by the rain. To satisfy the defence of the Act of God, it must be shown that the natural occurrence must have been unforeseeable, and that man could not have possibly anticipated its occurrence. It must be the kind that rarely happens. There are two rain seasons in southern Ghana. The heaviest rain is from April until June and a lighter rain between September and October. During the heavy rain season, most parts of the capital city Accra such as Kaneshie and Agbogbloshie are oft flooded due to poor drainage systems and poor town planning. Therefore, the issue of flood in the country is no news to its inhabitants for it occurs during almost every rainy season. To say that GOIL did not anticipate rain and perhaps subsequent flooding in Accra during the rainy season is tantamount to averring that one did not know that a fish could not breathe on land.

Besides, GOIL company brought the fuel and kept it on their land at their own peril, knowing very well that its escape would result in catastrophe. Knowing that the rains were heavy during that time of the year, they should have taken reasonable measures in ensuring that their fuel tanks were properly secured. They failed to take such reasonable measures and due to their carelessness (as established relying on the KUSSASSI case supra), over 150 people lost their lives. We are of the firm belief that GOIL should have anticipated the escape of the fuel, taking into consideration the time and circumstances surrounding the explosion.

We, therefore, conclude by saying that the defence of an Act of God cannot be relied on due to the evidence of fault or negligence on the part of GOIL and also that GOIL should have anticipated the escape.

 

REMEDIES; Who has the capacity to sue? And for what reliefs?

The Circle explosion primarily claimed lives and destroyed properties; therefore, we can narrow the remedies to only those necessary in settling the issues. We shall tackle first the issue of property and second “personal injuries”. Decided cases on suits claiming damages for property destruction are chiefly smooth. In the Rylands case, the plaintiff succeeded in recovering damages to its mines. In the case of HALSEY V. ESSO PETROLEUM, the plaintiff succeeded in a claim for the damage of his garment and car (albeit the car was not on his land but a highway) by the emission of acid smuts from the defendant’s broiler house. 

However, in a trend of cases including CATTLE V STOCKTON WATERWORKS, the plaintiff’s action failed on the ground that the Plaintiff had no interest in the land on which the harm had been done. These cases affirm the position that an owner or a person with an interest in any adjoining land or property, damaged by the escape from a defendant becomes entitled to a claim against the defendant provided the damage is a direct and natural consequence of the escape. 

Applying this to the Circle disaster, Vienna City (an adjoining land), the storey building next to the filling station, cars parked on the road (per Halsey case supra), and all other property which directly got destroyed as a result of the natural escape of the fuel resulting in fire give rise to owners of such properties to sue under the rule. 

The next hurdle to cross has to do with personal injuries. By personal injuries, we mean those who lost their lives or all those who sustained various forms of injuries due to the natural escape of the fire. Are such people entitled to a remedy in law under the rule? There is a visibly chequered struggle as to whether personal injuries should be recoverable under the rule. On the one hand, the cases of HALE V. JENNINGS BROTHERS, PERRY V. KENDRICKS TRANSPORT LTD and READ V. J LYONS (per Lord Porter) emphasize that personal injuries are recoverable. On the other hand, cases including READ V. J LYONS (per Lord MacMillan) and WELLER V. FOOT & MOUTH DISEASE RESEARCH INSTITUTE indicate that injuries to the person ought not to be recoverable. Careful consideration of both schools of thought reveal that the latter position is quite inaccurate. This shall be shown in our consideration of the READ V J LYONS and WELLER V FOOT & MOUTH DISEASE RESEARCH INSTITUTE cases.

Lord MacMillan on his part in the READ case dismissed the suit on grounds that “…persons injured by the explosion inside or outside the Defendant’s premises would alike require to aver and prove negligence to render the Defendant liable”. According to the learned judge the doctrine of Rylands, “when studied in its setting is truly a case on the mutual obligations” and should be exclusively limited to adjoining lands. We tend to disagree with the learned judge and it shall be proven on two grounds.

 

Firstly, the learned judge by implication seems to be saying that ‘damages to land are justiciable whereas damages to human life or personal injury are non-justiciable’. In other words, the judge is certainly implying that destruction of property is remediable but the destruction of the human person is not remediable under the rule and that any personal injury ought to be claimed elsewhere (by proving negligence). Are the laws protecting human property at the expense of human lives? Do the laws care more about some property and have no such care for human life? Averring that personal injury should lie elsewhere (until where negligence should be proved) whereas damage to property should readily avail an owner seems to us, even if correctly applied, harsh and unreasonable. In certain circumstances where there has been an injury to a person but in an absence of negligence should a court turn away such persons? And only admit situations where damages are made to the property? Such a proposition as espoused by Lord MacMillan, to our minds, is repugnant to natural justice, equity, and good conscience and should have no place in our legal dispensation. It is therefore not surprising that even in the same case (READ case), Lord Porter, although refraining from that discussion cited numerous cases where personal injuries were recoverable under the rule.

Secondly, since the learned judge in his judgment purported to rely on the Rylands case we deem it necessary to reproduce the Ryland rule espoused by BLACKBURN J;

 

We think that the true rule of law is, that the person who for his 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 he does not do so, is primâ facie ANSWERABLE FOR ALL THE DAMAGE WHICH IS THE NATURAL CONSEQUENCE OF ITS ESCAPE.” 

We find it necessary to reecho “answerable for all the damage which…”. We form the view that all damages be it land, cattle, garment, motor vehicle, personal injuries naturally arising from the escape falls within the ambit of the rule and should give persons affected a cause of action. This “expansion” was accepted by Lord Goff in the case of CAMBRIDGE WATER COMPANY V. EASTERN COUNTIES LEATHER where he opined that the rule “should logically apply to liability to all persons suffering injury because of the ultra-hazardous operations”. On the two grounds carefully explained, we conclude that Lord MacMillan and his likes erred in law and that position is clearly repugnant to good conscience.

The WELLER V. FOOT & MOUTH DISEASE the case which is oft-cited to support the exclusion of personal injuries needs to be considered here. In that case, there had been an escape of a virus from the defendant’s premises which affected cattle in the entire neighbourhood leading to the closure of all markets. The Plaintiffs who were auctioneers and made a living out of the opening of markets sued the defendant for damages. Under the rule in the Rylands case, the court relied on the case of CATTLE V. STOCKTON WATERWORKS and held that the defendants could not be liable to the plaintiffs for the escape of the virus from their land because the plaintiffs had no interest in the land to which the virus could have escaped. We again think that the court therein failed to distinguish the case before it from the CATTLE case(supra) which it relied on. 

In the Cattle case, the plaintiff had been employed by the landowner to make a tunnel. Due to a leakage in the defendant’s pipe, water-filled the landowner’s soil and delayed the plaintiff’s work. He sued for damages. The case was summarily dismissed on grounds that no injury had been made to the plaintiff’s property; the land belonging to the landowner. This case is distinguishable from the Weller case. In the Cattle case, the property affected (land) was not owned by the plaintiff for which the court dismissed the case but in the Weller case, the virus had caused injuries to cattle and not land.

Therefore, the court therein, relying on the Cattle case and further holding that “the defendants could not be absolutely liable to the plaintiffs for the escape of the virus from their land because the Plaintiffs had no interest in the land to which the virus could have escaped” is quite strange. The court in the Weller case ought to have recognized whilst discussing the Rylands rule that the injury had been caused to cattle and issues of land did not arise. Altogether the court held mainly when discussing the issue of duty that the Plaintiffs would only have had a claim should they have owned any of the cattle which had suffered. The Weller case itself recognizes that the care of duty, which the Ryland rule lies, is available not only in instances of land but also all other direct damages arising out of an escape (in this case cattle). 

In summary, we think the proper position, considering the cases and discussion made, is that all direct damages naturally caused by an escape should be recoverable and the Weller case itself as explained demonstrates that an owner of a cattle can maintain an action if her cattle suffers injury from an escape from a defendant. Since damage to cattle (Weller case), shirts and cars (Halsey case), mines or lands (Rylands case) gives rise to an action, then, as we have carefully explained, direct personal injuries also (should) give(s) rise to an action.

Having harmonized and settled on the best principle to apply, we can conclude that all persons who directly suffered injury from the escape of the explosion have a cause of action. However, we deem it necessary to intimate that all those who sustained injuries whilst on the premises of GOIL filling station would have no action under the rule due to the rule in READ V. J LYONS and can only maintain an action if they can aver and prove negligence on the part of the filling station.

 

Can an action under the rule be maintained 6 years after the Circle disaster?

Now, it is important to find out whether the persons affected by the Circle Disaster can bring an action under the rule in RYLANDS v. FLETCHER after six years or whether the action is statute-barred because of lapse of time. 

The Limitation Decree “provides for the automatic termination of litigation after a fixed period of time”, as a rule of public policy. Section 3 stipulates that an action for damages for negligence, nuisance or breach of duty shall not be brought after the expiration of three years from the date on which the cause of action accrued. The same section also sets forth the rule that an action by the dependents of a deceased person shall not be brought after the expiration of three years from the death of the deceased. The section purports to bar any litigation which is found on the tort of negligence in any form or character. This at least brings an end to litigation and avoids the situation of instigating overly remote cause of action.

 

It is our considered view that GOIL, owners of the filling station, who brought unto their land a fuel tank, owed a duty to the world to prevent the escape of the fuel, for they should have reasonably foreseen that the escape of the fuel was likely to harm adjoining property. They collected the fuel and kept it in at their own peril and must be held liable whether the act that led to the escape of the fuel was intentional or negligent. Since section 3 of NRCD 54 prevents one from bringing an action for breach of duty three years after the action accrues, persons affected as well owners of adjoining property cannot bring an action against GOIL by reason of lapse of time.

However, if similar events, like that of the Circle disaster, where a dangerous thing escapes and causes mischief to adjoining property happen soon, persons affected can bring an action under the RYLANDS v. FLETCHER rule within three years of the occurrence. There have been many such explosions even before and after the Circle disaster. In these circumstances, we find this article potent in solving future similar occurrences.

 

CONCLUSION

This article has attempted to establish the principle under which victims of the Circle disaster could bring an action under the rule under RYLANDS V. FLETCHER and has espoused that although such an action is statute-barred by reason of lapse of time, victims of similar incidents in the future can bring an action under the rule. The article has also sought to demystify the age-old notion that one can bring an action against another under the Rylands rule to recover only property and sheds new light on the proposition that an action can be brought for the recovery of personal injuries citing and critically analyzing cases. We believe that this article has highlighted the claims that victims of such incidents are entitled to and we are of the firm belief that in the event of any such occurrence, the general public is now seized with the relevant information to seek legal relief.