We have recently passed the 20 year anniversary of the High Court’s decision in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 (24 March 1994). However, the judgment is still subject to debate. Our current exploitation of land for natural resources has encouraged further consideration of this High Court decision.

In the Burnie Port Authority case the High Court (with Brennan J and McHugh J dissenting in separate opinions) decided that the rule from Rylands v Fletcher had been and could be subsumed into the tort of negligence, particularly supported by the concept of the non-delegable duty. The rule in Rylands v Fletcher offered courts a strict liability principle, where a defendant would be liable for damage suffered by a plaintiff arising from the escape of a dangerous substance from the defendant’s land. The majority thought that liability under the rule would typically only arise when negligence can also be proven.

McHugh J offered a fierce defence of the rule, rejecting the conclusion of the majority of the High Court that the rule offered no alternative route to liability compared with negligence. McHugh J claimed (at [33]) that:

If plaintiffs were deprived of the benefit of the rule in Rylands v Fletcher, they would often have difficulty in obtaining compensation for their damage. It often happens that the cause of an escape of a harmful product either is unknown or cannot be established on the probabilities. …  Even when the cause of an escape can be identified, it does not follow that negligence will be established. … In many, perhaps the majority of cases of escape arising from the non-natural use of land, proof of negligence involves a contest between experts as to whether the risk of escape in the process or system was reasonably foreseeable and whether this or that precaution should reasonably have been taken. Such cases are expensive to run and uncertain of result.

McHugh J thought that in the context of bushfires the rule would offer those who suffer harm an alternative cause of action (at [38]). We can only wonder how the Rylands rule would have played out in the drawn-out Black Saturday class action.

Meanwhile, in a recent publication in an Irish context, Róisín Áine Costello identifies the Rylands rule as an appropriate cause of action for landholders who suffer harm from the socially and scientifically contentious and contested practice of fracking. In the abstract to her article, Costello comments:

Having fallen out of favour in the twentieth century, this article proposes a re-articulation of the rule to cover situations in modern society in which invasive methods are used in the extraction of volatile fuels from the earth, specifically in the case of ‘fracking’.

Although unconventional gas exploration including through the use of fracking is occurring in Australia now and there have been reports of environmental damage associated with underground gas exploration, the Australian situation differs from the picture painted by Costello. This is because the High Court decision in Burnie Port Authority means that Australian jurisprudence would require the Rylands rule to be resuscitated not simply ‘re-articulated’ for affected landholders to use the strict liability principle to recover for their losses in the courts.