The defendant occupied land near to where the plaintiff operated a coal mine. The coal seams extended under the defendant's land. These had been previously worked but the tunnels and shafts had been cut off and forgotten about. The defendant obtained approval to construct a reservoir to provide water for his mill. The water from this reservoir permeated the old coal shafts beneath and flooded the plaintiff's mine. The defendant succeeded in the Court of Exchequer. The plaintiff appealed to the Exchequer Chamber.
The issue was whether the law imposed an absolute duty upon an occupier to keep a potentially dangerous substance on his land or whether the occupier need take only reasonable and prudent precautions to do so.
Blackburn J (delivering the judgement of the court): "the person who for his own purpose brings on his lands […] anything likely to do mischief if it escapes, must keep it at his peril and is prima facie answerable for all the damage which is the natural consequence of its escape." Liability under this rule is strict and it is no defence that the thing escaped without the defendant’s wilful act, default or neglect or even that he had no knowledge of its existence. The only defence available to such an escape would to show that it was due to some fault of the plaintiff (or a third person). (However, for the modern view, refer to the Cambridge Water case.)
The decision in this landmark case created a new tort. The problem was how to determine and limit the scope of the rule. What is a 'non-natural' user?
The case eventually went to the House of Lords on appeal who upheld the original judgement that Fletcher was liable in tort.
During the appeal Lord Cairns, in agreeing with the above statement, added the qualification that the rule only applied to a “non-natural” use of the land, and not to circumstances where a substance accumulated naturally on land. The word “natural” has since been extended to mean “ordinary”.
