Dear Jason;

Thanks for posting about this excellent decision: Rubis Bahamas Ltd v Russell (The Bahamas) [2026] UKPC 9 (13 March 2026 https://www.bailii.org/uk/cases/UKPC/2026/9.html . 

Having read it now, I don’t have much to say because I think it is precisely correct! They offer very good reasons as to why Rylands is not an example of private nuisance (because the persons harmed of course do not need to be in possession of land), and why it can apply to personal injury (again, because it is not primarily about interference with enjoyment of land). The discussion of the “non-natural use” issue I think does the best one can with this criterion- see [119] "a specialised one, not carried on by a large proportion of persons, which is exceptionally dangerous if it leads to an escape”. This means that even if it is common for petrol stations to store large amounts of fuel in underground tanks, they can still be liable under Rylands for an escape. This adjustment of the “risk” seems right.

All of the above means of course that I disagree with the decision of the High Court of Australia in Burnie Port Authority to abolish the tort for the purposes of Australian law. (Accepting of course that this has stood for so long it is unlikely to be changed now.)

Our colleague John Murphy’s article on the merits of the action seems to have been influential in this decision, and deservedly so.

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

 The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

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My publications: http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past and present.
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

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Dear Colleagues:

 

There is an interesting discussion of the rule in Rylands v Fletcher in the recent decision of the PC in Rubis Bahamas Ltd  v  Russell, [2026] UKPC 9 (with lots of citations to ODGers).

The decision concerns a long-running dispute between a homeowner, Russell, and Rubis Bahamas Ltd arising from fuel leaks at a petrol station opposite her property.  The lower courts had upheld liability solely under the rule in Rylands v Fletcher, despite the absence of findings supporting negligence, nuisance, or trespass. The Privy Council took the opportunity to restate the structure and rationale of the Rylands rule.

 

The Board clarified two contested elements of the Rylands rule. First, liability does not depend on formal ownership or occupation of land, but on who created and controlled the risk—i.e., who brought and kept the dangerous substance on the land. This requires a close examination of the contractual and operational arrangements (here, between Rubis and its lessee).

 

Second, the “non-natural use” requirement was examined. The court noted that the authorities showed some ambiguity about whether “non-natural use” required both (i) an extraordinary use that departs from community standards and (ii) an extraordinary risk, or only the latter. They decided that the key point is that “ordinary” does not mean merely “common in the locality.” Rather, the inquiry must focus on whether the activity exposes others to a risk of a different order from the ordinary incidents of social life. Even if an activity is widespread or commercially normal, it may still qualify as non-natural if it carries a sufficiently high and abnormal risk.

 

Applying that framework, the Board concluded that storing large quantities of petroleum products qualified as a classic non-natural use that justifies the imposition of strict liability when escape causes damage. Although operating a petrol station is an ordinary and appropriate use of land in the locality, the storage of substantial quantities of fuel is a specialized, inherently dangerous activity that creates an exceptional risk if leakage occurs. The risks involved are far beyond the everyday inconveniences neighbours are expected to tolerate, and it would be unjust to leave those neighbours to bear the losses unless they can prove negligence. Accordingly, the Board held that such storage falls squarely within the Rylands principle. They also suggested that there was no reason in principle why personal injury could not be compensated using the principle.

 

Would be interested in hearing what other’s thought of the decision.

 

Happy Reading,

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)