Transco Plc v Stockport MBC [2004] A.C. 1

D built and let a multi-storey block of flats to residents. Water was carried using a mains pipe leading to tanks in the basement. The capacity of this pipe was much greater than that of a pipe for a single dwelling but was otherwise regular and carried water at mains pressure. Without negligence by D or its agents, the pipe failed at a point within the block, leading to the escape of water. The pipe failure went undetected for a prolonged period, allowing a very considerable quantity of water to escape. The escaping water flowed some distance from the block into an embankment supporting C’s high-pressure gas main. The water pressure on the gas main caused the embankment to collapse, leaving the gas main exposed and unsupported. C took prompt action to return the gas main to an unexposed and secure state to prevent it from cracking.

• Was the water ‘something likely to cause danger or mischief if it escaped,’ and was D’s use of the water an ordinary use of the land?

Finding for D, that piping a water supply to a block of flats was a routine function that would not have struck anyone as giving rise to an exceptionally high risk of danger or mischief if it escaped. Furthermore, D had not accumulated any water on their land, but had arranged for an adequate supply for the needs of residents. This was not an unusual or extraordinary use of the land. As such, it would be unfair to impose strict liability on D. There is a broad and ill-defined exception for ‘natural’ uses of land, which has left it very difficult for a claim under the Rylands v Fletcher rule to succeed. It must be remembered that the rule is only concerned with property damage, and that insurance against this in various forms is extremely common. A guide to deciding whether the risk was created by a ‘non-natural’ use of land would be to ask whether the damage was something against which the occupier could reasonably be expected to have insured himself. People should be encouraged to insure their own property rather than pursue litigation with heavy transactional costs.

Rylands remains a narrow form of nuisance requiring an extraordinary or unusual use involving exceptional danger on escape. An ordinary domestic water supply to a block of flats did not meet that standard in Transco, despite the extensive damage caused by the leak.

Transco retained Rylands rather than absorbing it into negligence, but insisted on its limited scope. Ordinary plumbing does not become extraordinary solely because it serves many dwellings or causes a large loss when it fails. The judgment also explains the rule's protection of property interests and the importance of an escape beyond the defendant's land. Compare the substantial reservoir in Rylands itself. Assess the character of the use and danger prospectively, not by reasoning backwards from the scale of the damage.