Nichols v Marsland: CA 1 Dec 1876

Flood following heavy rain was not negligent

The defendant was the owner of a series of artificial ornamental lakes, which had existed for a great number of years, and had never previous to 18th June, 1872 caused any damage. On that day, however, after a most unusual fall of rain, the lakes overflowed, the dams at their end gave way, and the water out of the lakes carried away the county bridges lower downstream.
Held: The jury found no negligence. An exceptionally heavy rainstorm was a sufficient excuse as an act of God, to escape liability under the rule in Rylands -v- Fletcher. Act of God is not, and never was, the same as inevitable accident or the absence of negligence. The defendant could not have anticipated the exceptional flood which caused her dam to break; no conduct of hers was a proximate cause of the plaintiff’s damage.
Mellish LJ distinguished Ryland v Fletcher: ‘But the present case is distinguished from that of Rylands -v- Fletcher in this, that it is not the act of the defendant in keeping this reservoir, an act in itself lawful, which alone leads to the escape of the water, and so renders wrongful that which but for such escape would have been lawful. It is the supervening vis major of the water caused by the flood, which, superadded to the water in the reservoir (which of itself would have been innocuous), causes the disaster.’ and
‘The remaining question is, did the defendant make out that the escape of the water was owing to the act of God? Now the jury have distinctly found, not only that there was no negligence in the construction or the maintenance of the reservoirs, but that the flood was so great that it could not reasonably have been anticipated, although, if it had been anticipated the effect might have been prevented; and this seems to us in substance a finding that the escape of the water was owing to the act of God. However great the flood had been, if it had not been greater than floods that had happened before and might be expected to occur again, the defendant might not have made out that she was free from fault; but we think she ought not to be held liable because she did not prevent the effect of an extraordinary act of nature, which she could not anticipate.
It was indeed ingeniously argued for the appellant that at any rate the escape of the water was not owing solely to the act of God, because the weight of the water originally in the reservoirs must have contributed to break down the dams, as well as the extraordinary water brought in by the flood. We think, however, that the extraordinary quantity of water brought in by the flood is in point of law the sole proximate cause of the escape of the water. It is the last drop which makes the cup overflow.’

Mellish LJ
[1876] 2 Ex D 1, [1876] UKLawRpExch 80
England and Wales
CitedRylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .

Cited by:
CitedTransco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
FollowedRickards v Lothian PC 11-Feb-1913
The claim arose because the outflow from a wash-basin on the top floor of premises was maliciously blocked and the tap left running, with the result that damage was caused to stock on a floor below.
Held: The provision of a domestic water . .

Lists of cited by and citing cases may be incomplete.


Updated: 05 January 2022; Ref: scu.188033