a. introduction - austlii

THE TORTIOUS LIABILITY OF THE USER OF A SOLAR ENERGY SYSTEM

By ADRIAN J. BRADBROOK*

[Although the purchaser and user of a solar energy system may gain the benefit of surviving a future energy crisis. one wonders whether he could survive the legal liability attaching to such use. The system may damage both neighbours and passers-by. It might explode, leak toxic chemicals, catch fire , or merely offend the eye. Dr Bradbrook comprehensively surveys the familiar torts of negligence, public and private nuisance, occupier's liability and Rylands v. Fletcher liability and app:ies the law to the unfamiliar area of activity. Concluding that the potential liability for damage may dissuade prospective purchasers of alternative energy systems, Dr Bradbrook considers various legislative measures which could be effected to reduce the user's liability. However, he concludes that the practical answer lies in the user obtaining indemnity insurance observing that house insurance premiums have not risen in the United States as a result of the practice.)

A. INTRODUCTION

In Australia the law relating to solar energy is at the incipient stage. In the United States of America the law in this area has progressed more rapidly. Since the fuel crisis in the early 1970's focused the nation's attention on the need to conserve fossil fuels and to encourage the rapid development of renewable sources of energy, a wide variety of Federal and State laws has been passed creating income and property tax credits and sales tax exemptions for solar appliances,1 mandatory design standards for solar energy systems2 and a variety of measures aimed at ensuring that a solar user has the right of access to his solar collector panels of the direct rays of the sun. These latter measures vary from the creation of a new proprietary right in sunlight, 3 to the creation of a solar access easement4 and

• M.A. (Cantab.), LL.M. (Osgoode Hall), Ph.D. (Melbourne). Barrister and Solicitor of the Supreme Courts of Victoria aiId Nova Scotia. Reader in Law. University of Melbourne. The research undertaken in tile preparation of this paper was funded by a grant from the National Energy Research Development and Demonstration Council and the Victorian Solar Energy Council. I am particularly indebted to Ms Karen Graham, Research Fellow, University of Melbourne, for her invaluable research work. I would also like to thank my colleagues Harold Luntz and Robert Evans for their helpful suglfestions and c~lDstructive cri~cism of an earlier draft of this ~c1e.

See e.g., Arizona: 1977 Ariz. Sess. Laws, ch. 42; 1977 Ariz. Sess. Laws, ch. 81; Arkansas: 1977 Ark. Acts, Act 535; Connecticut: 1977 Conn. Pub. Acts, ch. 457; Indiana: 1977 Ind. Acts, ch. 68; Kansas: 1977 Kan. Sess. Laws, ch. 345; Oklahoma: 1977 Okla. Sess. Laws, ch. 209.

2 See e.g., California: Cal. Pub. Res. Code, s. 25605 (WestSupp. 1982); Florida: PIa. Stat. Ann., s. 377.705 (Supp. 1982); New Mexico: 1981 N.M. Laws, ch. 379.

3 See e.g., New Mexico: 1977 N.M. Laws, ch. 169; Wyoming: 1981 Wyo. Sess. Laws, ch. 156. 4 See e.g., Colorado: Colo. Rev. Stat. s. 38-32.5-101 (1973); Maine: 1981 Me. Acts, ch. 341;

Nebraska: Neb. Rev. Stat. s. 66-901 to 914 (1982); California: Cal. Civ. Code s. 801.5West (1982); Cal. Gov't Code s. 66475.3 (West Supp. Pamphlet 1966 to 1981); New York: 1979 N.Y. Laws, ch. 705; Oregon: 1981 Or. Laws, ch. 590.

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152 Melbourne University Law Review [Vo!. 14, December '83]

to legislation declaring the shading of a solar energy system to be a public nuisance. 5

The assumption behind the development of the law relating to solar energy to date is that the only role of the law in this area is to safeguard the position of the user of a solar energy system (hereafter referred to as a 'solar user'), in respect of his need for solar access and in respect of his role as a consumer of goods. It is usually assumed that the solar user will be the plaintiff in any action relating to energy matters in which he is involved. This assumption is false. A variety of situations may arise in which the solar user may incur liability in tort, to the occupiers of neighbouring land, or to other persons. The liability may arise in cases either where the solar energy system malfunctions and causes personal injury or damage to neighbouring property, or where the normal use of the system amounts to an actionable nuisance. This article will examine the extent to which and the circumstances in which the solar user may incur tortious liability. It will consider the type of injury which a solar energy system may inflict on others and will then consider the application of the relevant principles of tort law concerned with each issue. In so doing the article will consider the liability of users of both active and passive solar energy systems.6

B. THE POSSIBLE TYPES OF INJURIES

Based on practical experience from the operation of solar energy systems in Australia and overseas, five problem areas can be identified in which the solar user may incur tortious liability. The problem areas are as follows:

(1) glare and/or increased heat caused by reflected sunlight striking the solar collector panels;

(2) leaking chemicals, or explosions, caused by faulty or inadequately maintained solar energy systems;

(3) fire damage; (4) scalding in showers caused by the lack of a thermostatic control in a solar

hot water tank; and (5) aesthetic injury caused by the ugly external appearance of a solar energy

system. The incidence and nature of these various types of injury will now be examined

in detail.

5 Calif. Pub. Res. Code, ss. 25980-25986 (West Supp. 1982). This legislation is discussed in Johnson, 'State Approaches to Solar Legislation: A Survey' (1979) I Solar Law Reporter 55, 119ff; Miller, 'Legal Obstacles to Decentralized Solar Energy Technologies (Part I), (1979) I Solar Law Reporter 595; Comment, 'Access Rights for the Solar User: In Search of the Best Statutory Approach' ( 1981) 16 Land and Water Law Review 50 I , 512; Eisenstadt ' Access to Solar Energy: The Problem and its Current Status' (1982) 22 Natural Resources lournal21, 34ff

6 A passive solar energy system involves designing a building so that its materials absorb and store solar heat when it is wanted, and reject it when it is not. Thus the building itself is the solar collector. On the other hand, an active solar energy system has separate solar collectors on the outside of the building to heat water or air which is then piped into the building for direct heating or storage. See Pausacker and Andrews J., Living Better with Less, (1981) 46. See also Preece, 'Solar Energy and the Law' (1981) 6 Queensland Lawyer 83,94.

Tortious Liability of the User of a Solar Energy System 153

I. Glare and increased heat

It is possible to envisage situations where glare from sunlight reflected from solar collector panels causes both personal injury and damage to neighbouring property. The damage to neighbouring property may take the form of economic loss by causing a reduction in the market value of neighbouring properties. It may also result in expenditure caused to the neighbours in installing blinds or other equipment designed to absorb or deflect the sunlight. More serious cases of personal injury can be conceived. If sunlight is reflected onto a public highway, this may lead to a road accident, particularly where this problem occurs at or near road intersections. Similarly, accidents may occur if glare from a solar collector is mistakenly identified by the captain of an aircraft or master of a ship for navigation lights.

Glare may also cause damage to eyesight. An alleged case of this nllture has recently been reported in Colorado, where a neighbour has claimed that a solar greenhouse has caused damage to eyesight, has killed household plants and has caused paint on his house to peel.?

Glare can be caused by any type of solar energy system,8 but is likely to have the most serious consequences when the system focuses the sun's rays. In recent years solar power towers and focusing parabolic dish collector systems have been designed, both consisting of a number of solar collector panels designed to focus the rays of the sun on a particular point. In addition, solar concentrators which use lenses have been designed to focus a large amount of sunlight on a high efficiency solar cell, which produces power in proportion to the concentration.9 The amount of light and heat generated by solar concentrators or any form of focusing system is awesome, in the range of tens to hundreds of times the light and heat of the sun. If solar equipment of this nature malfunctions and focuses its beam elsewhere, the results could be horrendous, causing blindness and even death by burning to neighbours and passing motorists. A plane flying through a misdirected focus could conceivabley be destroyed as a result of the melting of fuselage.

Problems may also arise in respect of passive solar energy systems 10 where all or

7 This incident is noted and discussed in ( 1981) 2 Solar Law Reporter 1050 and (1981) 3 Solar Law Reporter 28. According to the report, an offer by the owners of the solar greenhouse to buy reflective window shading materials has been refused; an insurance claim for the peeled paint has been filed, and the insurance company is seeking compensation from the owners of the solar greenhouse. Atthe time of writing the matter has not yet been resolved.

8 For a discussion of the various types of solar energy systems in use in Australia, see Andrews J. , Solar Jobs in Victoria: The Economic Impact o/the Solar Industry (1982) 2ff; Redfield, 'Photovoltaics: An Overview' (1981) 3 Solar Law Reporter 217, 221ff; Law Reform Committee of South Australia, Solar Energy and the Law in South Australia. Discussion Paper, (1978).

9 These types of systems are rarely found in the domestic sector as they are more suitable for higher temperature applications. A spectacular illustration is the Central Receiver Power Plant in the Mojave Desert. This is a ten-megawatt power plant constructed under a co-operative agreement between the U . S. Department of Energy and a consortium of the Southern California Edison Company, the Los Angeles Department of Water and Power, and the California Energy Commission. The system has 1818 heliostats which are focused on a central tower boiler to generate steam which drives conventional electricity-generating turbines. See Note, 'Central Receiver Power Plant in the Mojave Desert' (1982) 29 Solar Energy I. For a discussion on solar concentrators, see West, 'Photovoltaics: A Quiet Revolution' (1982) 3 Energy Detente 3,8.

10 See supra n. 6 for the meaning of 'passive' solar energy systems.

154 Melbourne University Law Review [Vol. 14, December '83]

a substantial part of a north-facing wall is built of glass. Even though passive solar energy systems do not focus the sun's rays, substantial problems of glare will arise where sunlight is reflected. The flat plate type of solar energy systems are less likely to cause excessive glare as they do not focus the sun's rays. In particular, the typical roof-top collectors associated with a householder's solar hot water system are unlikely to cause glare as in order to maximise their efficiency they are usually installed at an angle elevated above the horizontal position. 11 In this situation glare will only arise where the location of the neighbour suffering the alleged damage is above that of the solar user. This may occur where the solar system is installed in hilly or mountainous terrain where the solar collectors are downhill of the neighbours or where the alleged injury is caused to persons in a high-rise building.

If sufficient foresight is used, a solar user can avoid potential litigation arising from glare by the use of such measures as shielding or structural modification to his solar energy system. For example, in Arizona, in an application for a change in zoning so as to permit construction of a high-rise building, a 'sunbeam study' was conducted to determine the projected reflection from the building based on the materials to be used in its construction. The zoning application was successful subject to certain measures undertaken in the construction of the building to reduce the area of reflecting surface. I2 However, tortious liability may arise where insufficient foresight is used by the solar user.

The problem of increased heat to neighbouring property caused by the reflection of the sun's rays from solar collector panels is allied with that of glare. While it is difficult to conceive of personal injuries arising from increased heat, property damage or some form of economic loss may eventuate. The loss may take the form of damage to exterior paintwork, a reduction in the market value of the neighbouring property, or the need to install blinds. A number of incidents of alleged damage of this nature have been reported. I3 Particularly in tropical and sub-tropical latitudes, further loss will be caused to the occupiers of neighbouring property by the need to install or to increase the operation of air-conditioning systems.

2. Leaking chemicals and explosions

Solar energy systems employ heat transfer fluids in order t~ transfer heat from the solar collector panels to the storage medium and from the storage medium to the building. The heat transfer fluids currently in use are toxic chemicals. Although water could be used as a heat transfer fluid, and has good heat transfer properties, it has several major drawbacks, notably its high freezing temperature, its expansion upon freezing, and its corrosive effect on other materials. For this

11 Spivak P., Land-Use Barriers and Incentives to the Use of Solar Energy. Solar Energy Research Institute Report TR-63-267 (1979) 8.

12 This incident is noted and discussed in (1981) 3 Solar Law Reporter 203. 13 For example, in Colorado reflected sunlight from a solar energy system installed in a public

school allegedly increased the heat of neighbouring buildings. The dispute was settled when the school agreed to install blinds to deflect the sunlight. See (1980) Solar Law Reporter 259.


reason water is hardly ever used for this purpose. Instead, various water/ethylene glycol solutions are employed involving ethylene or propylene glycol. 14 Because of the toxicity of these chemicals, they are usually separated from potable water by double-walled heat exchangers.

Legal problems may arise where the system malfunctions and causes personal injury or property damage through leakage of the glycol solution. The nature of the possible damage will vary according to the type of leakage which may occur. The most likely occurrence is for the chemicals in a solar hot water system to leak into the attached hot water tank. The solar user may here incur tort liability if a member of his family or a visitor on the premises drinks the water and is poisoned. IS

Another possibility is that a chemical leak could cause a chemical bum if the glycol solution comes into contact with the skin of a family member or a visitor while that person is taking a shower. A final possibility is that the chemicals may leak outside the tank. Usually this type of leak will be gradual, but occasionally a major spillage may occur. This type of leakage may cause damage to property if the chemicals find their way onto neighbouring land or premises. This is most likely to occur in respect of a multi-unit dwelling where the lower part of the building is invaded by chemicals leaking from a solar energy system located in the property above.

The explosion of a solar energy appliance is most unlikely to occur, but where it does it is capable of causing serious personal injury and property damage. The injuries may be caused by flying debris (especially glass), or chemicals. Claims in respect of personal injury may be made by invitees, licensees or even trespassers on the solar user's property, passers-by on the adjoining public road, or by the occupiers of neighbouring lands. Neighbouring landowners may also claim for any actual physical damage caused to their properties by the explosion.

3. Fire damage

Fire damage is another potential source of tort liability for a solar user. If the fire escapes onto or is caused to start on neighbouring property, the solar user may be liable in damages for the injury caused.

Damage by fire, although unlikely, may arise in respect of any type of solar energy system. The worst potential risk of hazard arises in respect of systems such as solar power towers and focusing parabolic dish collectors, which focus the rays of the sun on a given point. If the equipment malfunctions and focuses the rays on neighbouring property, the heat caused by the focused rays may be sufficiently intense to result in combustion. Other types of solar collectors may catch fire and

14 See generally Kern D. Q., Process Heat Transfer, (1950); McAdams W. H., Heat Transmission, (3rd ed. 1954); Kauffman, 'Non-corrosive, non-freezing, and non-toxic heat transfer fluids for solar heating and cooling' Proceedings of the 1977 Annual Meeting, American Section of the International Solar Energy Society (1977); Popplewell, 'Corrosion considerations in the use of aluminum, copper and steel flat plate collectors' (1975) (Paper presented at International Solar Energy Society Conference, V.C.L.A.).

IS The V. S. Food, Drug and Cosmetic Act of 1938 was prompted mainly by a poisoning episode the previous year involving 73 proven deaths resulting from diethylene glycol contained in a drug called 'Elixir Sulfanilamide'. Diethylene glycol is commonly used as a heat transfer fluid in solar hot water collectors.


indirectly cause damage to neighbouring property if the fire escapes from the solar user's property.

It appears that insufficient research in engineering has been undertaken to identify all possible causes of fire damage to solar energy systems. A number of incidents of fire damage caused by faulty solar collector panels have been reported in recent years, particularly involving panels designed with wooden parts. 16

4. Scalding in showers17

Incidents of personal injury caused by scalding in showers have been reported in respect of solar hot water systems comparatively frequently. The scalding is usually caused to young children or elderly people. The problem results from the absence of the usual type of thermostatic control found in the tanks of modem conventional gas and electric hot water services, as thermostatic controls would significantly impair the efficiency of the solar energy system.

5. Aesthetic injury

The final possible type of damage which may render the solar user liable in tort to his neighbours is that of alleged aesthetic injury. Even the most enthusiastic proponent of the use of solar energy would concede that the external appearance of a solar energy system can be ugly and in many cases fails to blend with the architectural design of the house or the integral architectural standard of the immediate neighbourhood. Many existing solar energy systems include large areas of glass or plastic and exposed piping. 18 The problem of their appearance is compounded by the fact that the solar collectors are situated on roof-tops in order to ensure their maximum efficiency, where they are often clearly visible to occupiers of neighbouring properties. 19 The allegation may be made that the unsightly appearance of a solar energy system may lead to economic loss to the neighbouring properties by causing a reduction in the real property values of the immediate neighbourhood.

C. THE APPLICA nON OF THE LAW OF TORTS 20

The relevant legal principles determining the tortious liability of the solar user will now be considered in respect of each of the situations discussed above.

i 6 See for example an incident noted in ( 1980) 2 Solar Law Reporter 693. 17 By its very nature this problem is confined to solar hot water services and does not apply to any

active or passive system of solar space heating or cooling. 18 See Thomas W. A., Miller A. S., and Robbins R. L., Overcoming Legal Uncertainties About

Use of Solar Energy Systems, (1978) 59. 19 Note, 'Solar Panels UnaestheticT (1979) I Solar Law Reporter 20. 20 See generally Luntz H., Hambly A. D., and Hayes R., Torts: Cases and Commentary (1980);

Higgins P. F. P., Elements of Torts in Australia, (1970); Win field and lolowicz on Tort (11 th ed. 1979); Salmond and Heuston on Torts (18th ed. 1981); Fleming J. G., The Law of Torts (6th ed. 1983); BuckleyR. A., The Law of Nuisance (1981).


I. Glare or increased heat

Damage caused by glare or increased heat may result in the application of a wide variety of tortious remedies. 21 The torts available will depend on the nature of the damage caused and the relevant circumstances in which the damage occurred.

In outline, the position appears to be as follows. If glare or increased heat from solar collector panels damages the property of a neighbouring landowner, the neighbour may sue the solar user in private nuisance and/or negligence. Although there is still some doubt as to whether damages for personal injury may be claimed under the tort of private nuisance, the probable position is that a neighbouring occupier of land who is personally injured by glare may also claim damages under this head in both private nuisance and negligence. If a person on neighbouring land other than the occupier (for example, the occupier's spouse 22 or child) suffers personal damage, this must be claimed in negligence. If glare causes personal injury to motorists or pedestrians on a public highway, a remedy will lie in public nuisance and/or negligence. The same rule will apply if damage is caused to passengers or crew on ships or to the ships themselves, but the legal position is uncertain if glare results in damage to aircraft or their occupants. Finally, if personal injury is caused to a person on the solar user's property, the solar user may be liable under the rules of occupier's liability.

(a) Liability to neighbours

(i) Private Nuisance

The principles of the law of private nuisance which are relevant to a possible action brought by a neighbouring occupier of land against a solar user for personal injury or damage to land caused by glare or increased heat will now be considered.

According to Lord Goddard C.J. in Howard v. Walker:

Nuisance is the unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it. 23

21 There is little doubt that the infliction of excessive light onto neighbouring property ('light pollution ') is actionable in tort. Although there is no Australian case directly on point, several cases in the United States have held that an action will lie in nuisance if the intensity of the light shining from adjoining land is strong enough to disturb significantly a person of ordinary sensibilities (see e.g., Amphitheaters.lnc. v. Portland Meadows (1948) 198 P.2d 847; McKinney v. Cityo!HighPoint(l954) 239 N.C. 232,79 S.E. 2d 730; Annotation, 'Casting of Light on Another's Premises as Constituting Actionable Wrong' 5 Am.L.R. 2d 705). Although the decided cases refer to artificial lighting, there appears to be no reason to distinguish relfected sunlight. The closest relevant Australian authority is Abbott v. Arcus (1948) 50 W.A.L.R. 41, where the combination of noise, artificial lights and players retrieving balls from the plaintiff's property was sufficient for Wolff J. to rule that the night-time use of a tennis court by the defendant constituted a nuisance.

22 If the occupier's spouse has a legal or equitable interest or estate in the land, he or she may also have a claim in private nuisance. On this point, see irifra n. 58-61 and accompanying text.

23 [194712 All E.R. 197, 199, adopting the definition given in Winfield SirP. H., A Textbook on the Law of Tort (3rd ed. 1946) 426. See also Gartner v. Kidman (1961) 108 C.L.R. 12,22, per Windeyer J.; Readv. 1. Lyons & Co. Ltd. [1945] K.B. 216, 236, per Scott L.J.; and Newcastle-UnderLyme Corporation v. Wolstanton Ltd [1947] Ch. 92, 107, per Evershed J.


It has been more fully described by Luntz, Hambly and Hayes as follows:

where private land or that which is upon it is actually damaged or where the use or enjoyment of it is disturbed, and where that damage or interference results from some kind of 'state of affairs' which has come into existence outside the land affected, then it is highly likely that the person in possession will obtain relief in an action of private nuisance; unless (a) there is something special in the circumstances or nature of the interference, e.g. the locality in which an intangible interference with enjoyment has occurred, or the nature of the interest affected (as where the plaintiff is deprived only of a pleasant view) or (b) the defendant's relationship with the 'state of affairs' is insufficiently close to warrant imposition of liability upon him (as where, for example, the 'state of affairs' was created by someone over whom he had neither authority nor control and where there was nothing he could reasonably have done to contain it).24

At an early stage in the development of the tort of nuisance a distinction was drawn by the courts between alleged nuisance which produces material injury to the property, and other types of alleged nuisance. The significance of this distinction was explained by Lord Westbury L.e. in St Helen's Smelting Co. v. Tipping as follows:25

in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that mayor may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.

This dictum has been applied in numerous cases. A useful illustration is Halsey v. Esso Petroleum Co. Ltd,26 where the plaintiff, a landowner adjoining an oil depot, claimed damages and an injunction in respect of alleged physical injury and discomfort caused by foul odours, excessive noise and oily smuts and drops emanating from the depot. Veale J. held that the claim in respect of smell and noise fell into the second category of nuisance in Lord Westbury' s analysis, and required closer judicial scrutiny than the claim in respect of the deposits of oily smuts and drops, which caused actual injury to the property.

Whether the damage caused by glare or increased heat amounts on Lord Westbury's analysis to a case of material injury to the property or one of sensible personal discomfort may vary from case to case. If the glare or increased heat merely necessitates the installation of blinds, air conditioning or other equipment designed to absorb or deflect the sunlight or heat, and does not cause any other

24 Luntz, Hambly and Hayes, op. cit. 895. 25 (1865) II E.R. 1483, 1486. See also Kraemers v. A-G. (Tas.)[1966]Tas. S.R. 113. 26 [196IJ2AllE.R. 145.


form of damage, then glare or increased heat is likely to be equated with smells and noises as in Halsey v. Esso Petroleum Co. Ltd and be treated as a case of sensible personal discomfort. On the other hand, if glare or increased heat causes a reduction in the market value of a neighbouring property, it may be regarded as a case of material injury to the property itself. This latter point should be regarded as contentious. The correct conclusion depends on whether material injury to property is construed broadly as meaning any activity done on neighbouring land which reduces the value of the plaintiff's land, or whether it should be construed narrowly and be limited to injury caused by actual physical deposits on the neighbouring land. The exact meaning of 'material injury to property' was not explained by Lord Westbury and has not been considered by any subsequent court.

The law of private nuisance does not permit the solar user to advance the defence that the glare or increased heat is an inevitable consequence of the use of solar energy systems and that in installing such a system he was merely making an ordinary or reasonable use of his own property. 27 A useful illustration of this point is Lester-Travers v. City of Frankston. 28 In this case, the plaintiff owned land abutting on municipal golf links. On numerous occasions golf balls struck by golfers on the links had entered the plaintiff's land, some causing slight damage. The plaintiff sued in nuisance for an injunction and damages. One of the arguments put by counsel for the defendant was that the defendant was merely making reasonable use ofthe land it occupied and controlled. He contended that it was not uncommon for municipal golf links to be constructed on relatively small pieces of land, and that the plaintiff, because she lived next to the links, should be prepared to tolerate the intrusion of golf balls from time to time, because to do otherwise was to interfere with the enjoyment of golfers playing on the golf links which the municipality had provided for them. Anderson J., in finding for the plaintiff, declared that this argument had no merit.

This general principle recognises exceptions in the case of 'natural use' by the defendant of his land and in the case of non-feasance. 29 In the context of damage by glare or increased heat, non-feasance is clearly irrelevant, but the defence of 'natural use' by the solar user may be applicable.

The exception in the case of 'natural use' is sometimes referred to as the 'give and take' rule. As stated by Baron Bramwell in Bamford v. Turnley,30 those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action'. Numerous illustrations of this defence exist in the law reports. For example, itwas held in Bell v. Pitt 31 that an owner of a farm is entitled for the purpose of improving the cultivation to carry out reasonable drainage operations even if the result is to

27 See Luntz, Hambly and Hayes, op. cit. 913ff; Higgins, op. cit. 163ff· 28 [1970] V.R. 2. 29 See e.g., Kraemers v. Attorney-General (Tasmania) [1966] Tas. S.R. 113, and Luntz, Hambly

and Hayes, op. cit. 918. 30 (1862) 122 E.R. 27, 33. This dictum was cited with approval by Windeyer 1. in Gartner v.

Kidman (1961) 108 C.L.R. 12,44. 31 [1956]Tas. S.R. 161.


cause an increased concentration of surface water to discharge on to a neighbouring property. Burbury C.l. stated that this right 'is an example of the application of the general principle that an owner of land is entitled to the natural and proper user of it even if in the course of such user damage is caused to his neighbour's land' .32

In the present context, the issue turns on whether the use of a solar energy system can be regarded as a 'natural use' of property. If the dictum of Baron Bramwell cited in the preceding paragraph is applied literally, it would be impossible for the solar user to claim that a solar energy system is 'necessary' for the ordinary use. and occupation of the land in light of the availability of other conventional sources of space and water heating. It appears, however, that 'natural' user ofland involves the criterion of reasonableness in relation to such user. As stated by Burbury C.l. in Kraemers v. Attorney-General (Tas.):

If a [landowner] in the course of draining his land diverts surface water on to his neighbour's land so that it reaches it in an increased flow or more concentrated form and causes material damage it will be for him to show that the drainage works were reaSonably required.33

It would be a comparatively simple task for the solar user to prove that the use of solar energy is a reasonable use of land.

Even if the solar user overcomes this initial hurdle, it is submitted that it is highly unlikely that the defence of 'natural use' of property will be available to him. There are two reasons for this. First, the solar user must prove that the interference with the neighbour's property flowing from the glare or increased heat from the solar collector panels could not have been prevented by taking reasonable precautions.34 As already discussed, in many situations glare or increased heat can be avoided by the use of such measures as shielding or structural modification. In many other situations, glare or increased heat are not an inherent feature of the solar energy system but are only caused when the system malfunctions. For these reasons the solar user will have great difficulty in proving that he took reasonable precautions to avoid damage to neighbouring property. Secondly, it appears that the defence of 'natural use' only applies to cases of interference with the enjoyment ofland and has no application where injury is caused to the plaintiff's land.3s

Although, as explained above, in some cases the glare or increased heat may merely cause personal discomfort to the neighbour, in the majority of cases a reduction in the market value of neighbouring properties and/or personal injury to the neighbour will result. Assuming that these situations constitute 'material injury to property' within the meaning of the dictum of Lord Westbury L.C. in St. Helen's Smelting Co. v. Tipping,36 the defence would not apply in the majority of allegations of damage resulting from glare or increased he.at.

If the solar user installed his solar energy system before the neighbour moved to the adjoining land, the solar user may seek to argue that the neighbour was deliberately engaging a known risk of interference and should not succeed in

321bid 184. 33 [1966] Tas. S.R. 113, 123. (Emphasis added). 34lbid 125, per 8urbury C.l. See also Luntz, Hambly and Hayes, op. cit. 918. 3S Kraemers v. Attorney-General (Tasmania) [1966] Tas. S.R. 113, 123, per 8urbury C.l. 36 Supra n. 25.


nuisance if damage is caused by glare or increased heat. However, this argument appears destined to fail as the established authorities have rejected the claim that the plaintiff 'came to the nuisance' .37 An interesting case in this context is Lester-Travers v. City of Frankston,38 the facts of which have been discussed earlier. Despite the fact that the plaintiff had bought her property seven years after the municipal golf links had been laid out and must therefore have realised the likelihood of some mis-struck balls entering her property, the court regarded this as irrelevant. An unsuccessful attempt to revive the defence was recently made by Lord Denning in Miller v. Jackson. 39 In this case the plaintiff, who had recently bought a house adjoining a cricket field, claimed that balls hit for six out of the ground onto his property constituted an unreasonable interference with the use and enjoyment of his house and garden. Lord Denning stated that the plaintiff should have guessed that there was a risk that a ball hit for six might possibly land on his property. If he does not like it, he should go out when cricket is being played, take advantage of the offer made by the cricket club of fitting unbreakable glass or sell his house and move elsewhere. This line of reasoning was not adopted by the majority of the Court of Appeal however, who considered themselves bound by nineteenth-century authorities40 and refused to consider changing the law even though conceding that it did not seem just that a long-established innocuous activity should be brought to an end because someone chooses to build a house nearby and so turn an innocent pastime into an actionable nuisance. 41

Even if the solar user has no defence to an action for nuisance, he may seek to acquire such a right by prescription.42 Before this can occur he must satisfy the requirements of the law of prescription and prove that the right to inflict glare or increased heat onto neighbouring land satisfies the characteristics of an easement.

The characteristics of a valid easement were enunciated by the English Court of Appeal in Re Ellenborough Park43 as follows:

1. there must be both a dominant and a servient tenement; 2. an easement must accommodate the servient tenement; 3. the dominant and servient owners must be different persons; 4. a right over land cannot amount to an easement unless it is capable of

forming the subject-matter of a grant. The applicability of these four characteristics in Australia was affirmed by Gillard J. in Riley v. Penttila.44

In the present context, the major difficulty for the solar user will be to prove that

37 See Luntz, Hambly and Hayes, op. cit. 932ff. 38 [1970] V.R. 2; see supra n. 28 and accompanying text. 39 [1977] Q.B. 966. 40 Sturges v. Bridgman (1879) 11 Ch.D. 852; Bliss v. Hall (1838) 132 E.R. 758. 41 [1977] Q.B. 966, 986, per Geoffrey Lane L.l. 42 For a discussion of the law of prescription, see Bradbrook A. 1. and Neave M. A., Easements

and Restrictive Covenants in Australia (1980) ch. 5; Gale on Easements, ( 14th ed. 1972) ch. 4; lackson P., The Law ofEasements and Profits (1978) ch. 7.

43 [1956] 1 Ch. 131; discussed in [1955] Cambridge Law Journal 154; [1956] Cambridge Law Journal 24; (1955) 71 Law Quarterly Review 324; (1956) 72 Law Quarterly Review 16. See also George Wimpey & Co. Ltd. v. Sohn [1967] Ch. 487.

44 [1974] V.R. 547; discussed in [1974] A.C.L.D. 204 and (1976) IOM.U.L.R. 445.


a right to inflict glare or increased heat from his solar energy system onto the neighbouring property is 'capable of forming the subject-matter of a grant'. In essence, the meaning of this requirement is that the claimed easement must not be expressed too widely and vaguely.45 The requirement has been used in the past to prevent a variety of claimed rights from constituting easements. This list includes a right of prospect46 and a right to deposit coal dust in injurious quantities anywhere on the servient tenement.47 If the glare is limited to a small part of the neighbouring land, it is more likely to satisfy this requirement in Re Ellenborough Park than if the problem occurs across the whole or a substantial part of the neighbouring land. Even in the latter situation, however, the solar user is not precluded from claiming a prescriptive right. In this situation, the solar user would be assisted by analogy by the High Court decision in Commonwealth v. Registrar o/Titles/or Victoria. 48

This case, which runs contrary to several English authorities49 held that a right to the general flow of light and air across neighbouring land is capable of constituting an easement and that such a right need not necessarily be confined to particular apertures or channels. Thus, the question whether a right to inflict glare or increased heat onto neighbouring property is capable of existing as an easement must be regarded as uncertain.

Even if this issue is decided in the affirmative, no easement will come into existence unless the right is exercised continuously as of right for at least twenty years. 50 In the case of New South Wales and South Australia the right can only be exercised in relation to general law land as the doctrine of prescription is inapplicable to Torrens land in those States.51

The preceding discussion indicates that the possibility of the solar user acquiring a prescriptive right in this context should be regarded as a theoretical rather than a practical issue.

Unlike in the case of increased heat, if excessive sunlight is reflected onto neighbouring property eye damage may result. The issue arises whether the occupier of the neighbouring land can claim for personal injury in an action for private nuisance. Although damages of this nature have been recognized in actions based on the rule in Rylands v. Fletcher ,52 the courts have not yet resolved the issue in the context of private nuisance. As such an action is based on interference with the use and enjoyment of land, personal injury may be regarded as irrelevant in that the capacity of the land to provide enjoyment is not affected.53 One case in which damages were awarded for personal injury in an action based on private nuisance is

45 Bradbrook and Neave, op. cit. paras 134ff. 46 Aldred's case (1610) 77 E.R. 816; Chastev v. Ackland(l895) 11 T.L.R. 460; Harris v. De Pinna

(1885) 33 Ch.D. 238; Palmer v. Board of Land and Works (1875) I V.L.R. (E.) 80. 47 Pwllbach Colliery Co. Ltd v. Woodman [1915] A.C. 634. 48 (1918) 24 C.L.R. 348. 49 See, e.g., Harris v. De Pinna (l 885) 33 Ch.D. 238; Bryantv. Lefever(l879)4C.P.D. 172; Webb

v. Bird (I 862) 143E.R. 332. 50 lohns v. Delaney (1890) 16 V.L.R. 729,731, per Higinbotham C.J. 51 For a detailed discussion of the application of the doctrine of prescription in each Australian State,

see Bradbrook and Neave, op. cit. paras. 1114(N.S.W.), 1120 (S.A.), 1126 (Qld.), 1131 (Vie.), 1136 (W.A.) and 1141 (Tas.).

52 See infra ns 5-7, 189 and accompanying text. 53 Buckley, op. cit. 76.


Cunard v. Antifyre Ltd,54 but the authority of the case in equivocal as the Divisional Court stated that the use by the plaintiff of the word 'nuisance' to describe what was complained of in that case was incorrect, and that the plaintiff s true cause of action was for negligence.55 Significantly, the court added that 'nuisance is correctly confined to injuries to property' .56 On the other hand, as stated by Luntz, Hambly and Hayes, there seems to be no greater way of destroying the occupier's peaceful occupation than by injuring him when he is on the premises. 57 It is submitted that the better view is that damages for personal injury to the landowner are recoverable in nuisance provided that the kind of damage caused is not too remote. There appears to be no problem of remoteness of damage in the present context.

Even if the occupier of the neighbouring land is able to sue in private nuisance for personal injury, on the established authorities it appears that other persons on the neighbouring land who may suffer eye damage from glare do not have sufficient standing to sue. This exclusion would extend to the neighbour's spouse if he or she were not a joint tenant or tenant in common of the premises, and to any other family member. The rule relating to standing to sue in private nuisance is that the plaintiff must be in actual occupation of the land affected. The major authority for this proposition is Malone v. Laskey.58 In this case the plaintiff was the wife of the manager of the company that was the sub-tenant of premises, in part of which the plaintiff and her husband resided. In an action for private nuisance based on damage caused by vibration, it Was held that the plaintiff had no right of action as she had no interest in the property. 59 This decision has been followed in numerous cases.60 The most recent Australian authority is Oldham v. Lawson (No. 1),61

where the plaintiffs, who were husband and wife, claimed damages for private nuisance for noise against the occupiers of the adjoining house. The wife owned the house in which the plaintiffs were residing. Harris J. held that the husband had no standing to sue on the ground that he was merely a licensee and could not sue in nuisance in the absence of some particular circumstances which would alter his status. His Honour added that circumstances such as the payment of money due by the owner on the house or the payment of rates would be insufficient to alter that status. It thus appears that the spouse or other family member must have a legal or equitable estate or interest in the land affected by the nuisance before being entitled to sue in private nuisance for personal injury.

54 [1933]1 K.B. 551. 55 Ibid. 557. 56 Ibid. 556-7. Note the dictum of Lord MacMillan in Readv.l. Lyons & Co. Ltd[1947] A.C. 156,

170-1. 57 Luntz, Hambly and Hayes, op. cit. 924. 58 [1907] 2 K. B. 141. Note that an unlawful possessor ofland has standing to sue (South Australian

Co. v. Corporation of the City of Port Pirie [1914] S.A.L.R. 16). See also Ruhan v. Water Conservation and Irrigation Commission (1920) 20 S.R. (N.S.W.) 439.

59 Although the House of Lords in A.C. Billings & Sons Ltd v. Riden [1958] A.C. 240 overruled Malone v. Laskey, it did so only in so far as that case dealt with negligence. Malone v. Laskey is still good law in respect of nuisance.

60 See e.g., Cunardv. Antifyre Ltd [1933]1 K.B. 551 ; Metropolitan Properties Ltdv. lones [1939] 2 All E.R. 202; and Newcastle-Under-Lyme Corporation v. Wolstanton Ltd [1947] Ch. 92.

61 [1976] V.R. 654. See also McLeod v. Rub-A-Dub Car Wash (Malvern) Pty Ltd unreported, Supreme Court of Victoria, 29 February 1972 per Stephen J.


(ii) Negligence

There is a substantial overlap between the torts of private nuisance and negligence. As an alternative to or in addition to suing in private nuisance for personal or physical damage caused by glare, the neighbouring landowner may sue in negligence. The possible availability of negligence as a cause of action in this context is particularly significant in light of the doubt surrounding the issue whether a claim for personal injury may be made in nuisance and the exclusion of actions brought by the neighbour's spouse or family members. These exclusions are inapplicable in an action based on negligence.

Negligence was defined by Baron Alderson in Blyth v. Birmingham Waterworks Co. as 'the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do' .62

Liability in negligence in any fact situation will not arise unless there is an affirmative answer to both of the following questions: first, was the defendant under any duty of care to the plaintiff?; and secondly, if so, did he observe the standard of care required in the circumstances of the case?63

In relation to the first of these questions, the seminal case traditionally relied upon to determine the existence of a duty is Donoghue v. Stevenson.64 In this case, Lord Atkin formulated the so-called 'neighbour principle' to determine the necessary proximity between the parties which gives rise to a duty of care. His Lordship stated:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injury your neighboUr. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directed affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. 65

There appears to be little doubt that the solar user would be considered to be under a duty of care to his immediate neighbours to prevent personal injury and damage to the land resulting from glare. The question of whether a duty of care exists in the solar context has not yet been judicially determined. The test which the courts will apply in all novel situations was laid down by Lord Wilberforce in Anns v. Merton London Borough as follows: 66

the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity of neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises.

62 (1856) II Exch. 781, 784; 156 E.R. 1047, 1049. Cited with approval by Windeyer J. in Munnings v. Hydro-Electric Commission (1971) 125 C.L.R. 1,21. Winfield and Jolowicz (op. cit. 66) define 'negligence' as 'the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff'. See also the definition of Lord Wright in Lochgelly Iron and Coal Co. Ltd v. M'Mullan [1934] A.C. 1,25.

63 See Higgins, op. cit. 214; Salmond and Heuston, op. cit. 188. See also Gorringev. The Transport Commission (Tasmania) (1950) 80 C.L.R. 357, 379, per Fullagar J.

64 [1932] A.C. 562. 65 Ibid. 579. 66 Anns v. Merton London Borough [1978] A.C. 728,751-2. See also Dorset Yacht Co. v. Home

Office [1970] A.C. 1004.


Secondly, if the first question is answered affmnatively, if is necessary to consider whether there are any considerations which ought to be negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.

The application of this test leaves little doubt that a solar user will be liable to his neighbour if his system malfunctions and causes damage. This conclusion is consistent with considerations of public policy. 67 While there is a public interest in the development of solar energy systems in light of the diminishing supplies of non-renewable energy resources, the fact that problems caused by glare are well known and documented within the solar manufacturing industry and the fact that measures to prevent or minimise the problem have been derived should be sufficient to convince the court that a duty of care exists in this situation.

The question whether the solar user has observed the standard of care required in the circumstances of the case is less straightforward. Based on the decision in 1837 in Vaughan v. Menlove,68 the solar user will be judged on an objective standard.69 Thus, on the traditional analysis, the solar user must exercise the foresight of the reasonable man. More recent cases, however, appear to look more to the question of ris1c rather than foreseeability in determining whether the defendant has complied with the standard of care demanded of him. According to Salmond and Heuston,70 'negligence is conduct which falls below the standard established by the law for the protection of others against unreasonable risk of harm'. On this analysis, the issue of negligence will be determined by a consideration of three factors: first, the degree of risk posed to others by the defendant's activities (in other words, the possibility of harm being caused by the defendant's activities and the gravity of th.e possible damage); secondly, the importance of the object which the defendant seeks to attain by his activities; and thirdly, whether the defendant has taken sufficient precautions to prevent damage from occurring in light of the cost and difficulty of such precautions. 71

Although the tortious liability of a solar user in negligence for glare has not yet been determined by the courts, an analysis of the application of the three factors above in the solar context leaves little doubt that the solar-user will be liable in these circumstances.

In relation to the frrst factor, the degree of risk posed by the defendant's activities, two competing legal propositions' have been advanced. The first proposition states that the defendant must guard against reasonable probabilities, but

67 There are recent dicta in Arenson v. Casson. Beckman. Rutley & Co. [1977] A.C. 405, 419, per Lord Simon of Glaidsdale supporting the relevance of public policy considerations in determining whether It duty of care exists.

68 (1837) 132 E.R. 490. 69 Lord MacMillan stated in Glasgow Corporation v. Muir [1943] A.C. 448. 457:

The standard of foresight of the reasonable man eliminates the personal equation and is independent of the idiosyncracies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and from overconfidence.

70 Salmond and Heuston. op. cit. 209. 71 Hicks v. British Transport Commission [1958]1 W.L.R. 493, 505, per ParkerL.J. See also Wan

v. Hertfordshire County Council [1954] 1 W.L.R. 835; Morris v. West Hartlepool Steam Navigation Co. Ltd. [1956] A.C. 552.


not unlikely possibilities. In other words, there must be a reasonable likelihood of damage occurring. On this view a risk of injury which is remote is of necessity not a real risk and falls outside the concept of foreseeability. In recent times this view has been supported by Dixon J. in Mount [sa Mines Ltd v. Pusey72 and by Barwick C.J. in Caterson v. Commissioner for Railways.73 On this view there is at least a chance that the solar user could escape liability for negligence for injury caused by glare or increased heat. However, the second proposition seems to represent the current Australian position. The major authority on this issue is Wyong Shire Council v. Shirt.74 In this case, the meaning of foreseeability in the context of a breach of a duty of care was exhaustively examined by Mason J., with whose judgment Stephen, Murphy and Aickin 11. agreed. This second proposition completely separates the foreseeability of the risk of injury from the likelihood of that risk occuring. Mason J. explained the proposition as follows:

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikly to occur is not foreseeable.75

Thus, a risk of injury which is remote in the sense that it is entirely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not farfetched or fanciful is real and is therefore foreseeable. 76 Mason J. relied for support on the decision of the Privy Council in Overseas Tankship (U.K.) Ltd v. The Miller Steamship Co. Pty Ltd (The Wagon Mound (No. 2)),77 particularly the judgment of Lord Reid.

If it is correct to conclude that the second proposition represents good law, then it appears that the first factor in determining negligence, namely the degree of risk posed by the defendant's activities, will be determined in the plaintiffs favour in the present context in light of the previous history of problems of glare or increased heat caused by solar energy systems.

The second factor requires the court to weigh the degree of risk of injury with the importance of the object to be attained.78 If the court merely examines the importance of solar energy for the solar user, it is most unlikely to determine the case in the solar user's favour. The risk of eye damage and property damage to the neighbour clearly outweighs the cost savings for the solar user in using solar energy. The result may possibly be less predictable if the court, when considering the importance of the object to be attained, considers the advantages to .the community at large from the use of solar energy. Dabom v. Bath Tramways Motor

72 (1970) 125 C.L.R. 383, 3~!I. 73 (1972) 128 C.L.R. 99. 101-2. 74 (1980) 146 C.L.R. 40. See also Introvigne v. Commonwealth (1980) 32 A.L.R. 251;

Ba'4fermaatschappij Boz & Kalis B. V. v. Australian Shipping Commission (1980) 30 A.L.R. 387. Ibid. 221.

76 Ibid. 77 [1967]1 A.C. 6. 78 Salmond and Heuston, op. cit. 2\3.


Co. Ltd79 is an authority in favour of the latter approach. In this case, the driver of an ambulance succeeded in an action for damages for negligence against the employer of a bus driver with whose vehicle she collided. The accident occurred during the Second W orId War. The defendant company sought to deny liability on the basis, inter alia, that the ambulance was a left-hand drive vehicle which was completely shut in at the back and which severely reduced the driver's vision. On the facts, the Court of Appeal unanimously decided in favour of the ambulance driver. Asquith L.J. stated that the plaintiff had done all that could reasonably have been expected of her in light of the necessity in a time of national emergency of employing all available transport resources, and the inherent limitations and incapacities of this particular form of transport. 80 Thus, the public interest in prosecuting the war to a successful conclusion was entitled to consideration in the determination of civil liability in negligence. These remarks are not merely relevant to wartime conditions. Elsewhere in his judgment, Asquith L.J. stated:

A relevant circumstance to take into account may be the importance of the end to be served by behaving in this way or in that. As has often been pointed out. if all the trains in this country were restricted to a speed of five miles an hour. there would be fewer accidents, but our national life would be intolerably slowed down. 81

Even if wider issues of public policy are considered by the courts, the position of the solar user will not necessarily be improved. At least at the present time, before the impending energy crisis predicted to affect Australia in the 1990's, the public policy in favour of the development of solar energy is unlikely to be considered as important as the policy of the national wartime effort or of an effective system of public rail transport. For this reason the dicta of Asquith L.J. in Daborn v. Bath Transport Motor Co. Ltd would in all probability be distinguished in the solar context and, it is submitted, would not in itself provide a sufficient defence to an action in negligence in respect of damage caused by glare.

The third factor requires the court to weigh the risk of damage against the measures necessary to eliminate it.82 The solar user may argue that the time, trouble or cost of installing safety mechanisms to prevent a solar power tower or focusing parabolic dish collector from concentrating the rays of the sun on the wrong source outweighs the risks of damage resulting from malfunction. A solar user using a conventional solar energy system may make a similar argument in relation to the employment of shielding mechanisms or structural modifications. As these measures would involve the solar user in considerable expense, this is a factor in favour of rejecting a negligence claim, which must be weighed with the other considerations. 83 In light of the gravity of the hazard posed by glare, however, this factor is likely to be outweighed by the nature of the risk.

Thus, it appears that under the existing law of negligence a solar user will be liable to his neighbour if glare from his solar energy system inflicts personal injury

79 [1946) 2 All E.R. 333. Approved in Wattv. Hertfordshire County Council [1954) I W.L.R. 835. 80 Ibid. 336. 81 Ibid. See also Bank of England v. Vagliano Brothers [1891) A.C. 107, 157, per Lord

Macnaghten; Watt v. Herifordshire County Council [1954) I W.L.R. 835. 82 Salmond and Heuston, op. cit. 213. 83 See Hicks v. British Transport Commission [1958) I W.L.R. 493, 505.


or damage to other land. The only situation in which this result might be doubted is where the glare does not cause any actual physical injury to the neighbour or his property, but merely leads to economic loss.84 This could occur where the neighbour alleges that the glare has caused a reduction in the market value of his property.

The High Court held in Caltex Oil Ltd v. The Dredge 'Willemstad' 85 that although the tort of negligence is sufficiently wide to include damage from economic loss, the traditional test of foreseeability is not sufficient in this case to lead to a duty of care. While it is clear from this decision that something more than foreseeability is required, the nature of this additional requirement was not made entirely certain. According to Salmond and Heuston,86 a distinction must be drawn between the direct and indirect economic loss caused by a defendant's careless act. If the damage is indirect, whereby damage caused by A to B causes C to suffer an economic loss, damages will not be awarded to C in respect of the loss. On the other hand, if the damage is direct, negligence will lie but only 'if the plaintiff can prove personal injury or damage to his property in addition to the economic loss.87 However, such a distinction is based on dubious logic and was in fact rejected by the Bigh Court in the Caltex case.

The most recent decision on this area is that of the House of Lords in Junior Books Ltd v. Veitchi Ltd,88 which throws doubt on the correctness of this conclusion. A claim for damages in negligence was brought by the plaintiff company against the defendants, specialist flooring contractors, who allegedly installed defective flooring in the plaintiff's building which needed replacing. The issue raised on appeal was whether the defendants, having (as was assumed) negligently laid flooring which was defective but which had not endangered the safety of any person nor caused any risk of damage to any property owned by the plaintiff company, could be liable for the economic loss caused to the plaintiff in replacing the floor. The plaintiff company succeeded by a 4 to 1 majority. Lord Roskill, with whose judgement Lord Fraser and Lord Russell agreed, stated that in his opinion the fact that there was no physical damage to the flooring was irrelevant. His Lordship continued:

I think today the proper [approach ] lies not ... in somewhat artificial distinctions between physical and economic or financial loss when the two sometimes go together and sometimes do not ... but in the first instance in establishing the relevant principles and then deciding whether that particular case faUs within or without those principles ... The first is 'sufficient relationship of proximity' , the second any considerations negativing, reducing or limiting the scope of the duty or the class of person to whom it is owed or the damages to which a breach of the duty may give rise. My Lords, it is I think in the application of those two principles that the ability to control the extent of liability in delict or in negligence lies. 89

84 On the question of liability for negligent acts causing economic loss, see Luntz, Hambly and Hayes, op. cit. 679ff, Atiyah P. S., 'Negligence and Economic Loss' (1967) 83 Law Quarterly Review 248; and Craig P. P., 'Negligent Misstatements, Negligent Acts and Economic Loss' (1976) 92 Law Quarterly Review 213.

85 (1976) 136 C.L.R. 529. Discussed in Glass, 'Duty to Avoid Economic Loss' (1977) 51 Australian Law Journal 372; Cane, 'Recovery in the Hi~ Court of Purely Economic Loss' Caused by Negligent Act' (1977) 13 University o/Western Austrail~ Law Review 243; and Hayes, 'The Duty of Care and Liability for Purely Economic Loss' (1979) 12 M. U.L.R. 79.

86 Salmond and Heuston, op. cit. 191-2. 87 Spartan Steel and Alloys Ltd v. Martin & Co. (Contractors) Ltd [1973] Q.B. 27. 88 [1983] A.C. 520. 89 Ibid. 545.


The effect of this decision is to equate economic loss with physical damage to property. Besides simplifying the law and removing unnecessary divisions in the law, the decision has a logical foundation. As stated by Lord Roskill, 'it is sometimes overlooked that virtually all damage including physical damage is in one sense financial or economic for it is compensated by an award of damages. '90

It remains to be seen whether the High Court of Australia will follow the lead of the House of Lords in Junior Books Ltdv. Veitchi Ltd. If it does, then the solar user will be liable in all cases where loss is suffered by a neighbouring landowner as the result of a solar energy system. If it does not, and adheres to its decision in Caltex Oil Ltd v. The Dredge 'Willemstad', then the legal position appears to be as follows. Where the damage caused to a neighbour by glare is limited to economic loss only, the neighbour will be limited to a claim in nuisance. However, in the more usual situation where the glare causes physical damage to the neighbour's property, negligence will be available as an alternative to or in additiun to nuisance. 91

(b) Liability to users of public roads

In some situations, the glare may cause damage to the users of public roads. 92

The most likely situation is where it causes eye damage to a passing motorist or pedestrian. Alternatively a motorist or pedestrian may be temporarily blinded and may be involved in an accident as a direct consequence. In these situations the motorist or pedestrian may sue the solar user in negligence.93 Similar principles

90 Ibid. 91 For a discussion of the interrelationship of negligence and private nuisance, see Winfield and

Jolowicz, op. cit. 357ff. See also Friedman W., 'Nuisance and the Overlapping of Torts' (1939) 3 Modern Law Review 305; Buxton 'Nuisance and Negligence Again' (1966) 29 Modern Law Review 676; Newark, 'The Boundaries of Nuisance' (1949) 65 Law Quarterly Review 480.

92 It is impossible to conceive of a realistic situation in which damage could be caused to the users of public roads by increased heat.

93 Note that the solar user may also be guilty of an offence under the various State local government enactments. For example, s. 558(1) of the Local Government Act 1958 (Vic.) imposes a statutory penalty on any person who 'makes or causes to be made any building hedge . . . or obstruction on across or in any street or road within any municipal district. . .. ' Interference by glare may be deemed to be an 'obstruction' under the section. Similar legislation exists in the other States. For example, the Local Government Act 1970-1982 (W .A.), s. 332(1) creates an offence for' A person who wilfully and unlawfully obstructs a street or way' and 'neglects or refuses to remove the obstruction when required to do so by the Council'. (For cases on the meaning of 'obstruction', see Auburn Municipal Council v. Ivanoff(l964) \0 L.G.R.A. 258, 259,per Maguire J.; Gill v. Carson & Nield [1917]2 K.B. 674, 677-8, per Lord Reading C.J.; Trevett v. Lee [1955] I All E.R. 406, 409, per Evershed M.R.; Hay~ood v. Mumford (1908) 7 C.L.R. 133, 140-1 , per O'Connor J.; Haydon v. Kent County Council [1978]2 All E.R. 97, 102-3, per Lord Denning M.R.).

Note also that the State legislation gives the care and management of public roads to local councils. For example, the Local Government Act 1958 (Vic.) s. 553(1) states:

It shall be the duty of the council of every municipality except as by this or any other Act of Parliament now or hereafter to be in force provided, to open and keep open for public use and free from obstruction every road street or highway required for public traffic.

The Local Government Act 1919 (NSW), s. 267(1) provides that '[t]he Council may order that any obstruction or encroachment upon a public road be removed therefrom.' Section 249 gives to the Council the 'care control and management of every public road' including the power to:

(e) control and regulate, prevent the erection or order the removal of, buildings, balconies, verandahs, awnings, or structures of any kind on any road or extending from any land over the alignment of any road.

A motorist or pedestrian injured by glare could conceivably bring an action against the local council for damages for breach of statutory duty on the basis that the Council should have taken action against the solar user to remove the source of the glare. This tort is subject to numerous limitations, however. For a discussion of its application, see Luntz, Hambly and Hayes, op. cit. ch. 10.


will be applied in this case as where an action for negligence is brought by a neighbour.

As an alternative or in addition to suing in negligence, the motorist or pedestrian may sue in public nuisance. As will be shown, in certain circumstances allegations of public nuisance in this context will be more certain of success than allegations of negligence. For this reason the elements of the tort of public nuisance will now be examined.

In the context of interference with public roads, public nuisance has been defined by Lord Sirnonds as:

any wrongful act or omission upon or near a highway, whereby the public are prevented from freely, safely and conveniently passing along the highway.94

A more general definition has been given by Luntz, Hambly and Hayes:

Some act or omission likely to affect the comfort or safety of people generally which is such as to amount to a criminal offence punishable at common law or by statute and which causes greater damage or inconvenience to the plaintiff than to the generality of the public. 95

As this definition indicates public nuisance is a crime unlike private nuisance which is only a tort. Despite the fact that the breach of duty to the public is a criminal offence, in certain circumstances an individual can bring a civil action against the wrongdoer. For this to occur the individual must be able to prove that he has suffered 'particular' or 'special' damage in excess of that likely to be suffered by the general public as a result of the defendant's activities. 96 The reason for this requirement is the need to avoid multiplicity of actions.

In order for a civil action for public nuisance to be successful, the plaintiff in addition to establishing special damage must also establish that the defendant's activities have affected a class of Her Majesty's subjects who come within the sphere or neighbourhood of their operation. 97 This is a question of fact to be determined in each case. According to Lord Denning in Attorney-General v. P. Y.A. Quarries Ltd, the test applied to determine this is whether the nuisance is:

a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large. 98

Once this element is established, the onus lies on the defendant to negate the nuisance by showing justification or excuse (for example, that his action constituted ordinary use of the land and that he was acting reasonably). 99 This again is determined on the facts of each case.!

Another essential hallmark of public nuisance is that it is not confined to interference with a person's use or enjoyment of land. For the latter reason the tort

94 Jacobs v. London County Council [19501 A.C. 361, 375. 95 Luntz, Hambly and Hayes, op. cit. 826. Cj. the definitions of 'public nuisance' contained in the

various State criminal codes: Criminal Code Act 1913-1982 (W.A.), s. 207; Criminal Code Act 1899-1982 (Qld.), s. 230; Criminal Code Act 1924 (Tas.), s.14O.

96 See e.g., Benjamin v. Storr (1874) L.R. 9 c.P. 400; Harper v. G.N. Haden & Sons [1933] Ch. 298; Walsh v. Ervin [1952] V.L.R. 361.

97 Winfield and Jolowicz, op. cit. 353. 98 [1957J2Q.B. 169, 191. 99 Southport Corporation v. Esso Petroleum Co. Ltd [1954]2 Q.B. 182, 197, per Lord Denning.

! Hubbardv.Pitt[1976]Q.B.142.


of public nuisance has a much wider scope than that of private nuisance. Interests which have been protected by public nuisance where the plaintiff has suffered special damage include, for example, economic loss2 and infringements of personal security. 3

The final relevant feature of 'public nuisance' is that it imposes strict liability on the occupier of land who creates the nuisance. Authority for this proposition is Wringe v. Cohen.4 In this case, the Court of Appeal stated:

If premises become dangerous as the result of something done by an occupier and they cause damage, the occupier is liable although he did not know of the danger and was not negligent in not knowing.S

Similarly, in Cushing v. Walker & Son6 Hallett J. stated that if the gravamen of the complaint is the causing of the nuisance, in particular by the breach of duty to repair, it is irrelevant whether the defendant knew, or ought to have known, that the nuisance had in fact been caused. Despite Wringe v. Cohen, in certain circumstances public nuisance will not lie in the absence of fault. In the present context, the only relevant circumstance is where the damage is the result of an interference by someone other than the occupier of the land. As stated by Lord Porter in Sedleigh-Denfield v. O'CaUaghan7 and reiterated by Gibbs A-C.J. in Cartwright v. McLaine & Long Pty Ltd,8 an occupier of land upon which a nuisance has been created by another will not be liable unless he has continued the nuisance; he continues a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end even though he has ample time to do so.

These rules would seem to be tailor-made to suit the complaint of the motorist or pedestrian in the present context. A person injured on the road as a result of glare could easily prove that he had suffered 'particular' or 'special' damage by virtue of his injury. Similarly, there should be no difficulty in proving that the solar user's activities have affected a class of Her Majesty's subjects who come within the sphere or neighbourhood of their operation. Unlike in private nuisance, a solar user cannot escape liability for public nuisance by claiming that he has acquired a prescriptive easement to impose reflection or glare on the highway by twenty years continuous user of the solar energy system as of right. 9

As there is no case directly concerning the liability of a solar user for public nuisance for injuring users of public roads by glare, the courts will apply the closest analogous case. This would appear to be Castle v. St Augustine's Links Ltd. 10 .In this case, golf links abutted a public road. From one of the tees golf balls

2 See e.g., Lyons. Sons & Co. v.Gulliver [1914] I Ch. 631. Cf. Silservice Pry Ltd v. Supreme Bread Pry Ltd(l950) 50 S.R. (N.S.W.) 127.

3 See e.g., Castle v. St. Augustine's Links Ltd (1922) 38 T.L.R. 615. 4 [1940]1 K.S. 229. S Ibid. 248. 6 [1"941]2 AII E.R. 693, 699. Cited with approval by Gibbs, A-C.J. in Cartwright v. McLaine &

Lon~ Pry Ltd(l979) 24 A.L.R. 97, 103. [1940] A.C. 880,917-8.

8 (1979) 24 A.L.R. 97, 101. 9 R. v. Cross (1812) 170E.R. 1362; Dewell v. Sanders(l618)79E.R. 419; Harveyv. TruroRural

District Council [1903]2 Ch. 638. 10 (1922) 38 T.L.R. 615.

172 Melbourne University Law Review [Vo!. 14, December '83]

were frequently sliced onto or over the road. On one occasion a misstruck golf ball smashed a passing car's windscreen and damaged the driver's eyes. Damages were awarded for breach of the tort of public nuisance.

There appears to be no reason in principle to distinguish between damage caused by golf balls and damage caused by glare. Thus, on the basis of Castle v. St Augustine's Links Ltd it is submitted that the solar user will be liable in public nuisance for damage caused in this manner. The only situation in which he may conceivably escape liability is if the solar energy system was installed by his predecessor-in-title. Following Sedleigh-Denfield v. 0' CaUaghan, 11 the solar user may claim that he has not continued the nuisance. However, this defence will only apply if the damage arises very shortly after the solar user takes possession of the premises, in which case he will be excused because he has not had sufficient time to abate the nuisance. In all other situations he will most likely be held to have knowledge or presumed knowledge of the existence of the risk and thus be liable in damages for the consequences.

( c) Liability in respect of ships and aircraft

As explained earlier, in certain circumstances glare from a solar energy system may cause damage in respect of ships or aircraft. 12 The glare may cause eye damage to the crew or passengers and in extreme cases in the case of aircraft may instigate a crash if the eye damage is caused around the time of landing or take-off. The most vulnerable time for an aircraft is shortly before landing, and this is the time that glare is most likely to affect the aircraft's crew given the aircraft's low altitude and 'nose-down' position. In the case of ships, the glare may be mistakenly taken for navigation lights and in crowded harbour waters may conceivably lead to a collision or grounding.

In all those situations, the solar user may be sued for damages for negligence. If this occurs, the courts will resolve the issue on the same reasoning and legal authorities as if the damage is caused to the occupier of neighbouring land. 13 The only major difference is that in the case of damage involving ships or aircraft there will be no issue of damage merely causing economic loss. Where ships or aircraft are involved, the damage will consist of either personal injury or actual damage to the ship or aircraft. In the situations under discussion, the solar user will be liable in negligence if it can be shown that he had a duty of care, and if so, that he observed the requisite standard of care. This issue had already been analysed in the context of damage to neighbouring property, and the conclusion was reached on the authorities that negligence would probably lie. In the present context, the only significant distinction concerns whether the requisite standard of care has been breached. The relevant law on this issue has been discussed earlier .14 It could well be argued that the likelihood of damage occuring to neighbours is much greater

11 [1940] A.C. 880. 12 It is impossible to conceive of a realistic situation in which damage could be caused in respect of

shifs or aircraft by increased heat. 3 See supra ns 62-91 and accompanying text.

14 See supra ns 68-83 and accompanying text.


than to persons in ships and aircraft and that a distinction should be drawn on that basis. Whether such an argument would be successful is an open question. On the one hand, the chances of injury occurring are extremely small. On the other hand, the possibility of injury is well discussed and documented and thus cannot be said to be unforeseeable; in addition, the injury (if it occurs) is likely to be very serious. 15

Liability may also arise under the tort of public nuisance. 16 In respect of ships, there appears to be little doubt that damages may be awarded in this context. As in the case of damage to users of public roads, damage caused in respect of ships would appear to fall squarely within the elements of the tort of public nuisance. Like public roads, naviagable waters fall within the public domain and thus may ground liability. As before, the only situation where the solar user might escape liability is where the solar energy system was installed by the previous occupier and the solar user can show that he has not had sufficient time to rectify the problem of glare. 17

Liability in respect of aircraft under the tort of public nuisance is more problematical. The difficulty arises because of the requirement that the defendant must interfere with the public domain. Whether the airspace through which an aircraft is flying when damage is caused by glare constitutes part of the public domain is open to doubt.

The starting point to determine this issue must be the ancient common law maxim cujus est solum ejus est usque ad coelum ad inferas, which suggests that the landowner owns the whole airspace above his land up to the outer limits of the atmosphere. IS There is considerable doubt whether the maxim still applies with full rigour. One line of reasoning suggests that the maxim only applies to the airspace which is requisite for the proper use and enjoyment of the land. This possible limitation is very significant in the present context. If the maxim applies in respect of all airspace, the airspace through which aircraft fly will not constitute part of the public domain and hence the action for public nuisance will not lie. Conversely, if the maxim is limited in the manner suggested above, the airspace through which aircraft fly will be in the public domain and hence the action for public nuisance will lie.

In light of the importance of this issue in the present context, a brief examination of the authorities is justified. The major case in recent times supporting the wide

15 Cj. Paris v. Stepney Borough Council (1951) A.C. 367. 16 For a discussion of the relevant principles of this tort, see supra ns 94-9 and accompanying text. 17 See supra ns 7-8, 171 and accompanying text. IS Numerous articles have been written on the scope and application of this maxim, the most

significant in the context of the present discussion being Morgan, 'The Law Relating to the Use of Remote Sensing Techniques in Mineral Exploration' (1982) 56 Australian Law Journal 30. See also Preece, 'Solar Energy and the Law' (1981) 6 Queensland Lawyer 83, 84ff; Myers, 'The Common Law of Solar Access: An Insufficient Protection for Users of Solar Energy' (1978) 6 Real Estate 320, 323ff, Miller, 'Legal Obstacles to Decentralized Solar Energy Technologies (Part I), (1979) I Solar Law Reporter 595, 60 1; Hayes G. B., Solar Access Law: Protecting Access to Sunlight for Solar Energy Systems, (1978) 9ff; Thomas, MiJlerand Robbins, op. cit. 21ff.

174 Melbourne University Law Review [Vot. 14, December '83]

application ofthe maxim is Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. 19 In this case, the plaintiff sought an injuction based on a claim of trespass to airspace to require the defendant to remove an advertising sign which projected into the airspace above the plaintiff's shop. McNair J. held that the plaintiff, as tenant, had the right to use the airspace and that the interference by the sign constituted a trespass. His conclusion was influenced by the terms of the Civil Aviation Act 1949 (U. K.), section 4O( 1), which states:

No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property or height above the ground, which, having regard to wind, weather and all the circumstances of the case is reasonable.

His Lordship reasoned that the enactment of the legislation implies that the legislature considered that the maxim applies in respect of all aircraft or else such legislation would be unnecessary. As there is legislation in the Australian States similar to the Civil Aviation Act 1949 (U.K.), section 40(1),20 Kelsen's case and its reasoning is a highly persuasive authority in this country.

Other authorities, however, suggest a different result. The best-known case limiting the scope of the maxim is Lord Bernstein of Leigh v. Skyviews and General Ltd. 21 The defendants had flown over the plaintiff's land and had taken an aerial photograph with the intention of selling it to him. The plaintiff unsuccessfully sued the defendents in trespass on the basis of his alleged unrestricted ownership of the airspace above his land. Griffith J. distinguished the earlier cases in favour of the broad application of the maxim on the ground that they concerned rights in the airspace immediately adjacent to the surface of the land. His Honour rejected the claim that a landowner's rights extend to an unlimited height, and stated:

The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it and declaring that above that height he had no greater rights in the air space than any other member of the pUblic. 22

A further authority in favour of a narrow scope for the maxim is Graham v. K. D. Morris & Sons Pty Ltd. 23 In this case, the jib of a crane infringed the airspace of the neighbouring property at certain times when the wind blew from the north-east or the north-west. On these occasions the jib was suspended twenty metres over the neighbour's house. On these facts W. B. Campbell J. held that there was a trespass to land. Although purporting to apply Kelsen v.lmperialTobacco Co., his Honour

19 [1957]2 Q.B. 334. See also Gifford v. Dent [1926] W.N. 336. Note, however, that Morgan (op. cit. 36) argues that Kelsen' s case was decided on the basis that the defendant had deliberately exploited the airspace above the plaintiff s land and had derived a material benefit for himself by the occupation of the airspace. There is a dictum by Stamp 1. in Wool/erton & Wilson Ltd v. Richard Costa in Ltd [1970]1 W.L.R. 411, 413 supporting this view.

20 See e.g., Wrongs Act 1958 (Vic.), s. 30; Damage by Aircraft Act 1952 (N.S.W.), s. 2(1); Damage by Aircraft Act 1963 (Tas.), s. 3; Air Navigation Regulations 1920 (Cth), reg. 90.

21 [1978] Q.B. 479. Cf. Commissioner/or Railways v. Valuer-General [1974] A.C. 328. 22 Ibid. 488. 23 [1974] Qd.R. I.


stated that the plaintiff succeeded because the defendant 'interfere[d] with that part of the airspace above her land which is requisite for the proper use and enjoyment of that land' .24 The judge indicated that the proper use and enjoyment was affected in as much as the overhanging of the jib could adversely affect the market value of the property. By inference the judgment suggests that there would be no trespass if the infringement of the airspace did not adversely affect the use and enjoyment of the land.

These latter authorities support the proposition that private ownership of the airspace does not extend to a height beyond that which can reasonably be held to be within the control of the occupier.25 If this line of reasoning is adopted, the public domain for the purposes of the tort of public nuisance may be held to include the airspace above the land which a landowner cannot use effectively. On this analysis the public domain would undoubtedly include airspace at the height above the land at which aircraft fly, and as a result the tort of public nuisance will lie if the glare from a solar energy system causes damage to the aircraft or its occupants.

As all these cases discussed above relate to trespass to land rather than public nuisance, it may be questioned whether they are relevant in the solar context. As there are no reported cases on the issue whether airspace is in the public domain, they appear to be the nearest possible analogy. Even conceding their relevance, however, in light of the conflicting judgments it is impossible on the present authorities to determine the outcome of a claim for public nuisance brought in respect of damage to aircraft or personal injury to any of the crew or passengers. For this reason it is likely that a plaintiff damaged by glare will place primary reliance on his claim in negligence, where it is not necessary that the damage occurred in the public domain, though he may also argue a breach of the tort of public nuisance in the alternative.

(d) Liability under occupiers' liability for negligence

Liability for glare may be incurred by a solar user in negligence if personal injury is caused to any person on the solar user's property. The issue of occupiers' liability for negligence is more likely to arise in the context of damage by leaking chemicals and/or explosions ana will be discussed in that context. 26

2. Leaking chemicals aruf explosions

In outline, the solar user may incur liability under the following torts if his solar energy system leaks chemicals or explodes in circumstances causing physical injury to others or physical damage to neighbouring property. He may be liable under the law of occupiers' liability if a licensee or invitee (or in certain circumstances, a trespasser) on his property suffers personal injury as a result of an explosion or is poisoned by drinking water out of the solar hot water tank. If neighbouring land is injUred by the escape of chemicals or by flying debris as a

24 Ibid. 4. 25 Morgan, op. cit. 33. 26 See infra ns 27-72, 176ff. and accompanying text.


result of an explosion, remedies may lie in negligence or under the rule in Rylands v. F letcher. Finally, the torts of public nuisance or negligence may be relevant if the debris from an explosion or leaking chemicals causes injury to a motorist or pedestrian travelling on the adjoining public road.

These various remedies and the circumstances in which they apply will now be considered in detail. No further mention, however, will be made of liability under public nuisance or negligence in respect of injuries to users of the public road as the circumstances in which these torts are relevant have already been discussed in the context of damage by glare. The same rules will apply where the damage is caused by leaking chemicals and explosions.

(a) Liability under occupiers' liability for negligence

In England, the liabilty of a landowner under occupiers' liability for negligence is regulated by the Occupiers' Liability Act 1957 (U.K.), which by section 2(1) imposes a 'common duty of care' on the occupier in respect of all lawful entrants onto his property.27 In Australia, however, the common law rules apply as no equivalent legislation has been enacted in any of the States or Territories.

At common law, the duty of care owed by the occupier depends on the reason for the entry onto the land of the injured person. As pointed out by Dixon 1. in Lipman v. Clendinnen, apart from contractual relations there are three mutually exclusive categories of entrants: invitees, licensees and trespassers; a particular set of rules has been formulated for the protection of each category and the issue whether the defendant is liable as an occupier for negligence must be judged by reference to the appropriate formula. 28 The artificial nature of the categories has been criticised on numerous occasions. A well-known illustration is the following dictum of Denning L.l. in Dunster v. Abbott: 29

A canvasser who comes without your consent is a trespasser. Once he has your consent, he is a licensee. Not until you do business with him is he an invitee. Even when you have done business with him it seems rather strange that your duty to him should be different when he comes up to the door than when he goes away. Does he really change his colour in the middle of the conversation? And what is the position when you discuss business with him and it comes to nothing? No confident answer can be given to these questions. Such is the morass into which the law has floundered in trying to distinguish between licensees and invitees.

In the present context, in order to determine the solar user's liability to a person on his land who is injured by leaking chemicals or an explosion the first issue is to determine into which category of entrant the injured person falls. As will be shown, he has the greatest liability to contractual entrant and the least liability to a trespasser.

27 Cf, Occupiers' Liability (Scotland) Act 1962 (U.K.) s. 2(1) which extends the scope of the 'common duty of care' to trespassers. The New South Wales Law Reform Commission (Working Paper, 1969), the South Australian Law Reform Committee (24th Report, 1973), and the English Law Commission (L.e. No. 75, 1976) have made recommendations for similar legislation ofthis nature. To date, these recommendations have not been acted upon.

28 (1932) 46 e.L.R. 550, 555. See also Read v. J. Lyons & Co. Ltd [1947] A.e. 156, 184-5, per Lord Uthwatt.

29 [1953] 2 All E.R. 1572, 1574. This dictum was applied in Slade v. Battersea & Putney Group Hospital Management Committee [1955] 1 All E.R. 429.


(i) Liability to Contractual entrants

The only situation in the solar context in which the duty of care owed by occupiers to contractual entrants is likely to be raised is the case of a hotel or motel guest who is poisoned by drinking water contaminated by leaking chemicals.

According to Baron Martin in Francis v. Cockrell, 'it is the duty of a person, who so holds out a building ... to have it in a fit and proper state for the safe reception of persons who are admitted'. 30 The most recent statement of the applicable duty of care is that of McCardie J. in MacLenan v. Segar:

Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction. alteration. repair, or maintenace of the premises ... But subject to this limitation it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independant contractor or his servants, or whether the negligence takes place before or after the occupation by the defendant of the premises. 31

This passage has been quoted with approval in the High Court of Australia by FuUagar J. in Watson v. George 32 and by Windeyer J. in Voli v. Inglewood Shire Council. 33

In Watson v. George,34 the High Court emphasized that someone must have been at fault before the occupier will be held liable in damages to a contractual entrant. In this case a boarding house proprietor was held not liable for occupiers' liability for negligence to a guest who was overcome by fumes from a defective bath-heater. The basis of the decision was that there was nothing in the heater to cause the occupier, as a reasonable man, to conclude that the heater was in need of maintenance.

An application of these principles would almost certainly render the owner of a hotel or motel liable to a paying guest poisoned by drinking contaminated water. As a reasonable man, the owner should have known of the need for periodic maintenance of a solar energy system in light of the reported incidents of malfunctions of solar energy systems in the past. Once the owner has called in an expert to repair or maintain the system, the owner will presumably be responsible for injury caused to hotel guests by the failure of the expert to rectify the problem of leaking chemicals.

(ii) Liability to invitees

Dixon J. in Lipman v. Clendinnen described an invitee as a person who enters 'not merely with the consent but upon the invitation of the occupier, express or implied, for a purpose in which the occupier himself has some pecuniary, material,

30 (1870) L.R. 5 Q.B. 501,509. 31 [1917]2 K.B. 325, 332-3. 32 (1953) 89 C.L.R. 409, 424. 33 (1963) 110 C.L.R. 74, 92. 34 (1953) 89 C. L. R. 409. See the discussion of this case in Luntz, Hambly and Hayes, op. cit. 480.


or business interest' .35 It is thus clear that a person is not an invitee merely because he has been invited by the occupier. Accordingly, the spouse of the occupier36 or a social guest37 will be a licensee rather than an invitee as the occupier has no 'pecuniary, material or business interest' in the presence of these people. In all cases the occupier must derive an economic advantage from the visit. 38 This requirement drastically reduces the incidence of liability in respect of poisoning due to chemicals in the hot water tanle It is highly unlikely that anyone other than a social guest or a member of the occupier's family would take a drink in the occupier's house. Damage may be caused to invitees by explosions, however, and for this reason it is necessary to consider the standard of care owed by an occupier to this category of entrants.

The classic statement of the standard of care owed to invitees was made by Willes, J. in Indermaur v. Dames: 39

And with respect to such a visitor at least, we consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows, or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by the jury as matter of fact.

There are two major points to be noted in this dictum. The first is that liability is limited to danger that is 'unusual'. Lord Porter in London Graving Dock eo. Ltdv. Horton 40 explained the meaning of 'unusual danger' as:

such danger as is not usually found in carrying out the task of fulfilling the function which the invitee has in hand, though what is unusual will, of course, vary with the reasons for which the invitee enters the premises.

According to Fleming, the quality of unusualness depends not only on the character of the danger itself, but also on the nature of the premises on which it is found and the range of experience with which the invitee may fairly be credited. 41 The second point is that the invitor's knowledge is assessed objectively, and the invitor will accordingly be liable for any dangerous situation of which a reasonable man

35 (1932) 46 C.L.R. 550, 556. This definition has been adopted by Higgins, op. cit. 319. Fleming (op. cit. 445) defines invitees as 'all persons whose presence is referable to some arrangement from which the occupier derives a financial advantage, though by no means necessarily a consideration moving from the particular visitor himself' . See also Calvert v. Stollznow [1982)1 N.S.W.L.R. 175.

36 The spouse of the occupier will be treated as a co-occupier rather than a licensee if he or she has a legal or equitable estate or interest in the land; see supra ns 58-61 and accompanying text.

37 Southcote v. Stanlev (1856) 156 E.R. 1195. 38 See Fleming, op. cif. 425. 39 (1866) L.R. I C.P. 274, 288. Cited with approval by DixonJ. in Lipman v. Clendinnen (1932)46

C.L.R. 550,556; Commissioner for Railways (N.S. W.) v. Anderson (1961) 105 C.L.R. 42, 55-6,per Fullagar J.; and Introvigne v. Commonwealth (1980) 32 A.L.R. 251, 255,perBowenC.J., Connorand Lockhart 11. See also Gautret v. Egerton (1867) L.R. 2 c.P. 371.

40 [1951) A.C. 737,748. See also Cullev v. Silhouette Health Studios Ptv Ltd [1966)2 N.S.W.R. 640. Ct. Commissioner for Railways (N.S.'W.) v. Anderson (1961) 105 C,LR. 42, 54, 61,69. The objective test of Lord Porter as to the meaning of 'unusual danger' has been applied in W.H. Wright Pty Ltdv. Commonwealth [1958) V.R. 318; Pinborough v. Minister of Agriculture (1974) 7 S.A.S.R. 493; Black v. City of South Melbourne (1964) 38 A.L.J.R. 309; and Christmas v. General Cleaning Contractors Ltd [1952) I K.B. 141.

41 Fleming, op. cit. 432-3. See also Sultons Foodlands Store Pty Ltd v. Goldsworthy [1969) S.A.S.R.282.


would have been aware.42 In essence, it appears that the occupier will be liable to an invitee if a reasonable man in his position would have foreseen the potential danger and would have guarded against the risk of injury. 43

In the present context, it is submitted that an application of the legal principles stated above would render the solar user liable to an invitee for damage caused by explosions or leaking chemicals from the solar energy system. Hazards of this nature would undoubtedly be classed as an 'unusual danger'. In addition, as a reasonable man, the solar user should have known of the possibility of these types of damage occuring in light of the reported incidents of malfunctions of solar energy systems in the past. 44

(iii) Liability to licensees

A licensee is described by Dixon J. in Lipman v. Clendinnen as a person who 'enters land or buildings with the consent of the occupier but for purposes in which the occupier has no direct or indirect material interest or concern' .45 The definition thus encompasses social guests and members of the occupier's family, who are the persons most likely to be affected by drinking water poisoned from a solar hot water tank contaminated by leaking chemicals.

The duty of an occupier to his licensees at common law is to warn them of any concealed danger or trap of which he is aware and which would not be obvious to a reasonably careful person.46 Dixon J. in Lipman v. Clendinnen explained the nature of the liability in more detail:

the obligation of an occupier towards a licensee is to take reasonable care to prevent harm to him from a state or condition ofthe premises known to the occupier, but unknown to the visitor, which the use of reasonable care on his part would not disclose and which, considering the nature of the premises, the occasion of the leave and licence, and the circumstances generally, a reasonable man would be misled into failing to anticipate or suspect.47

It is thus cleat that the occupier will be liable to a licensee if he has actual knowledge of the danger.48 He may conceivably also be liable if it can be shown

42 See Fleming, op. cit. 430;Swinton v. China Mutual Steam Navigation Co. Ltd(1951) 83 C.L.R. 553; Burton v. Melbourne Harbour Trust Commissionets [1954) V.L.R. 353.

43 However, there may be no liability if the risk of injury is very small and cannot reasonably be eliminated; Cf. Australian Iron cl! Steel Ltd v. Krstevski (1973) 128 C.L.R. 666.

44 In theory, it is possible for the solar user to claim that the damages awarded to the plaintiff injured by a solar energy system should be reduced because of the plaintiffs contributory negligence (see Wrongs Act 1958 (Vic.) s. 26(1); Law Reform (Miscellaneous Provisions) Act 1965 (N.S.W.); Law Reform (Tortfeasors' Contribution, Contributory Negligence, and Division of Chattels) Act 1952 (Qld), Part Ill; Wrongs Act 1936 (S.A.) ss 27a. 27b; Tortfeasors and Contributory Negligence Act 1954 (Tas.); Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (W.A.); Law Refort (Miscellaneous Provisions) Ordinance 1955 (A.C.T.), ss 15-20). In practice. however. it will be extremely difficult for the solar user to prove that the invitee was gUilty of contributory negligence.

45 (1932) 46 C.L.R. 550,556. This definition has been adopted by Higgins. op. cit. 325. 46 See Hawkins v. Coulsdon and Purley Urban District Council [1954) I Q.B. 319. 326. per

Somervell L.J. According to Hamilton L.J. in Latham v. R. Johnson cl! Nephew, Ltd [1913)1 K.B. 398, 415. 'A trap is a figure of speech, not a formula. It involves the idea of concealment and surprise of an afpearance of safety under circumstances cloaking a reality of danger' .

4 (1932) 46 C.L.R. 550. 569-70. . 48 See especially Aiken v. Kingborough Corporation (1939) 62 C.L.R. 179.208. per Dixon J.


that he ought to have known of the existence of the danger.49 This latter point is unsettled. The doubt arises from the decision of the English Court of Appeal in Baker v. Borough ofBethnal Green.50 In this case, Lord Greene M.R. stated that he found the suggestion of counsel for the respondent that an occupier who was ignorant of the danger should be liable to licensees if he ought to have known of the existence of the problem attractive, but was not prepared to act upon it in the absence of authorities. 51

There seems to be little doubt that an exploding solar energy system or a poisoned solar hot water tank is capable at law of constituting a concealed trap. However, it is submitted that unlike in the case of invitees a solar user will not be liable under the law of occupiers' liability for negligence for damage to a licensee caused by explosions or leaking chemicals unless he has actual knowledge that the solar energy system was malfunctioning in such a manner that an explosion or leak of chemicals was likely to occur. If the wider view of the occupier's liability argued for in Baker's case is accepted, the occupier will also be liable if he ought to have known of the malfunctioning of the system. In the majority of situations the malfunction will occur without the occupier being aware of the fact. In some circumstances the occupier may be put on notice that the system is defective if its efficiency declines markedly, but in most cases chemicals may leak without any noticeable drop in efficiency and an explosion may occur without prior warning. The fact that the majority of solar collector panels are located on roof-tops rather than at ground level 52 means that the occupier is very unlikely to notice a leak of chemicals.

(iv) Liability to trespassers 53

It is difficult to conceive of a realistic situation where a trespasser is likely to drink water from an occupier's solar hot tank and be poisoned by chemicals which have leaked inside the tank.54 As in the case of invitees, however, a trespasser on the occupier's land may suffer personal injury as a result of an exploding solar energy system and for this reason the liability of an occupier in these circumstances must be examained.

The common law rules governing the liability of occupiers to trespassers in negligence has recently been substantially revised by the courts. The old law was

49 It is sometimes said that the duty of an occupier to a licensee is only to warn of dangers actually known to the occupier, whereas his duty to an invitee is to warn him, not only of dangers of which the occupier actually knows, but also of those of which he ought to know. This argument was rejected, however, by Denning L.l. in Hawkins v. Coulsdon and Purley Urban District CoUncil [1954]1 Q.B. 319, 330 .. Cf. Pearson v. Lambeth Borough Council [1950]2 K.B. 353; Vale v. Whiddon (1950) 50 S.R. (N.S.W.) 90.

50 [1945]1 All E.R. 135. 51 Ibid. 140. See also Jackson v. Vaughan [1966]2 N.S.W.R. 147. 52 The problem of shading of solar collector panels by trees or buildings on neighbouring land is

minimised if the panels are located on roof-tops. 53 See generally Gerber, 'Occupiers' Liability - A Fossilised Duty of Care' in Simos T.,

Ne~ligence and Economic Torts, (1980). 4 This may possibly occur in the case of young children. Cf Clayton v. State o/Victoria [1968]

V. R. 562 where a young child was taken by his child-minder into a school and drank some sulphuric acid stored in a science classroom. The child's action for damages for negligence was dismissed on the ground that the child was a trespasser whose presence could not have been anticipated by the defendant's servants; for this reason, the defendant owed the child no duty of care.


aptly summarised by Lord Hailsham L.e. in Robert Addie & Sons (Collieries) Ltd v. Dumbreck:

Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser. or at least some act done with reckless disregard of the presence of the trespasser. 55

Despite various attempts by the High Court to circumvent this harsh rule during the 1950' S,56 the validity of the rule in Addie' s case was strongly reasserted by the Privy Council in Commissioner for Railways v. Quinlan.57 It was not until the 1970's that a new rule, the so-called 'duty of common humanity' was introduced. This rule was first devised by the House of Lords in British Railways Board v. Herrington. 58 In this case the court unanimously rejected the idea of a test of 'reasonable foreseeability', and held that the occupier's duty to trespassers must vary according to his knowledge, ability and resources. Lord Morris of Borth-yGest coined the test of 'common humanity' and defined the phrase as meaning '[in accordance with] ordinary civilized behaviour' .59

The major authority in Australia is now Southern Portland Cement Ltd v. Cooper/"-) a decision of the Privy Council on appeal from the High Court of Australia, in which the court endorsed the new duty of common humanity and departed from its earlier decision in Quinlan's case. In this case the court upheld the verdict of the High Court awarding damages to a 13-year-old boy, who was electrocuted by touching an electric cable while trespassing on land. The defendant company was a quarrier of limestone and in the course of its operations deposited waste material from crushing operations. The height of the mounds of waste material gradually reduced the distance between the ground level and the overhead electric cable. The company was aware of the potential danger and ordered that no more material should be dumped there, but the order was ignored. The plaintiff was later injured when he grabbed at the cable while standing on one of the mounds. Lord Reid, delivering the judgment of the court, first dealt with the rights and interests of the occupier. His Lordship stated:

No unreasonable burden must be put on him. With regard to dangers which have arisen on his land without his knowledge he can have no obligation to make inquiries or inspection. With regard to dangers of which he had knowledge but which he did not create he cannot be required to incur what for him would be large expense.

55 [1929) A.C. 358, 365. See also Victorian Railwavs Commissioners v. Seal [1966) V.R. 107, 132-3, per GiIlard J. .

56 See Thompson v. Municipality of Bankstown (1957) 87 C.L.R. 619; Rich v. Commissioner for Railways (N.S. W.)(1959) 101 C.L.R. 135; Commissionerfor Railways (N.S. W.) v. Cardy (1960) 104 C.L.R. 274. See also Luntz, Hambly and Hayes, op. cit. 509-12.

57 [1964) A.C. 1054. This case is regarded by Gerber (op. cit. 100) as being 'the disaster of the century' .

58 [1972) A.C. 877. This case has been applied in England in Pannett v. P.M. McGuinness & Co. Ltd [1972)2 Q.B. 599 and Harris v. BirkenheadCorporation [1976)1 All E.R. 341.

59 [1972) A.C. 877,906,908,909. 60 [1974) A.C. 623. See also dicta in Public Transport Commission (N.S.W.) v. Perry (1977) 137

C.L.R. 107.


If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realize the danger he may have to do more. There may be difficult cases where the occupier will be hampered in the conduct of his own affairs if he has to take elaborate precautions. But in the present case it would have been easy to prevent the development of the dangerous situation which caused the plaintiffs injuries. The more serious the danger the greater is the obligation to avoid it. 61

Lord Reid then referred to the question to whom the occupier owes a duty:

Their Lordships have already rejected the view that no duty is owed unless the advent of a trespasser is extremely probable. It was argued that the duty could be limited to cases where the coming of trespassers is more probable than not. Their Lordships can find neither principle nor authority nor any practical reason to justify such a limitation. The only rational or practical answer would seem to be that the occupier is entitled to neglect a bare possibility that trespassers may come to a particular place on his land but is bound at least to give consideration to the matter when he knows facts which show a substantial chance that they may come there.

Such consideration should be all-embracing. On the one hand the occupier is entitled to put in the scales every kind of disadvantage to him if he takes or refrains from action for the benefit of trespassers. On the other hand he must consider the degree of likelihood of trespassers coming and the degree of hidden or unexpected danger to which they may be exposed if they come. 62

It thus appears that the duty of common humanity requires the occupier to consider the likelihood of a trespass occurring and to issue a warning where a trespass is considered likely. However, this duty to trespassers only arises where the occupier has actual knowledge of the danger; he is not required to undertake an inspection. 63

As in the case of liability to licensees, based on the authorities discussed above it is highly unlikely that the solar user will be liable under occupiers' liability for negligence to a trespasser who is injured if the system explodes. In these circumstances liability will only arise if the solar user has actual knowledge of the likelihood of an explosion. Because of the advanced technology built into modem solar energy systems, it is most unlikely that the solar user will have knowledge of the danger unless he is a mechanical engineer or (in certain circumstances) a plumber.

(v) Liability to children

In certain circumstances the liability of an occupier for negligence under the law of occupiers' liability for personal injuries suffered by a child on his premises is more extensive than where the injuries are caused to an adult. This situation has arisen because the law has recognized that children are peculiarly susceptible to injury from concealed traps which may attract their curiosity. As explained by Fleming,

[An occupier] is under a duty, not merely not to dig pitfalls for [children), but not to lead them into temptation. But in order to constitute a trap in this sense, the object or condition must combine the properties of temptation and retribution; it must be both fascinating and fatal. Being merely attractive to children is not sufficient unless it also harbours an element of inherent danger. 64

61 (1974) A.C. 623, 644. 62 Ibid. 644. 63 Fleming, op. cif. 445. See also Shaw v. Hackshaw [1983]2 V.R. 65,91, per McInerney 1. The

duty to trespassers probably also arises where the occupier knows of the facts constituting the danger, even if he does not know of the danger: Cj. Commissioner for Railways v. Cardy (1960) 104 C.L.R. 274, approved in Commissioner for Railways v. Quinlan [1964) A.C. 1054 as to its result.

64 Fleming, Op.cif. 449.


Devlin J. ·explained in Phipps v. Rochester Corporation that the duty of an occupier in respect of children has been framed so as to compromise between the robustness that would make children take the world as they found it and the tenderness which would give them nurseries wherever they go' .65

This area of law is relevant in one respect in the solar context. Although the majority of solar energy systems are located on roof-tops, well removed from the grasp of young children, a significant number are situated at ground level. This frequently arises in the case of solar panels collecting heat for private swimming pools. The presence of the panels within easy reach would undoubtedly attract the attention of young children. In these circumstances the panels may constitute a concealed trap for children,66 although the nature of the potential danger from leaking chemicals which would result from tampering with the panels would be obvious to an adult. For this reason, the special duty of care imposed by the law of negligence on occupiers in respect of children must be considered.

If a court wishes to award a child damages for injuries sustained on another person's land under occupiers' liability for negligence, the court has traditionally declared that the child should be regarded as an implied licensee rather than a trespasser, even though no permission to enter was given or intended by the occupier.67 This elevation in the legal status of a child from a trespasser to an implied licensee is in reality a fiction, the purpose of which is to make the occupier liable to the duty of care which he has' in respect of licensees generally to guard against concealed traps. Although this fiction does not arise by operation of law in all cases involving physical injury to children, it has been applied by the courts widely in either or both of the following situations. The first situation is where children have persistently intruded into the occupier's premises in the past and the occupier has failed to take effective measures to ensure that further intrusions do not occur. In this case, the occupier is deemed by acquiescence to have consented to the entry of the children.68 The second situation is where the occupier does not actually know of the presence of the children but where there is present on his land something particularly alluring to young children which he should have known

65 Phipps v. RochesterCorporation [1955]1 Q.B. 450,459. . 66 The court may draw useful analogies with Chapman v. Amos (1957) 18 D.L.R. 2d 140; Glasgow

Corporation v. Taylor [1922]1 A.C. 44; 80ydv. Glasgow/ron & Steel Co. [1923] S.C. 758; Williams v. Cardiff Corporation [1950]1 K.B. 514. Cf. Perry v. Thomas Wrigley Ltd [1955]1 W.L.R. 1164; Latham v. R. lohnson & Nephew Ltd. [1913]1 K.B. 398; Liddle v. Yorkshire (North Riding) County Council [1934]2 K.B. 101; Dyer v./lfracombe Urban District Council [1956]1 W.L.R. 218.

67 See e.g .. Adams v. Naylor [1944] K.B. 750; Commissioner for Railways (N.S.W.) v. Cardy (1960) 104 C.L.R. 274; Commissionerfor Railways v. Quinlan [1964] A.C. 1054.

68 A well-known illustration of this is Phipps v. Rochester Corporation [1955]1 Q.B. 450. In this case Devlin J. stated (at 456):

There must be a class of people who form something of a habit; and then one must ask oneself whether a reasonable owner would feel that unless he acted to stop the trespass, the belief would naturally be induced in those who used the land that they had his tacit permission to do so. This is a matter of degree. . .

Note that an occupier will not automatically be liable for damages in respect of children injured on his premises even if the children are held to be implied licensees. Thus, on the facts in Phipps v. Rochester Corporation, where a five-year old boy was injured when falling into a trench dug on the defendant's land, the defendant was held not liable on the basis that a reasonable man in its position would have expected the child's parents either to satisfy themselves that the place held no danger for the child or to accompany the child. See also Davidlones (Canberra) Pty Ltdv. Stone (1970) 123 C.L.R. 185.


would make them likely to enter his property.69 In the case of ground-level solar collector panels, both these situations could occur singly or in combination and render the solar user liable in damages as a licensor.

Based on the recent cases of British Railways Board v. Herrington 70 and Southern Portland Cement Ltd v. Cooper,71 an alternative approach for the courts would be to drop the fiction of an implied licence and to declare the child entitled to recover damages against the occupier as a trespasser by virtue of the occupier's expanded duty to trespassers under the 'common duty of humanity'. That this newly-devised duty of care imposes a greater onus on occupiers in respect of children than in respect of adults is clear from the Privy Council decision in Cooper's case. For example, in one passage of its judgment the Court stated that more will be required of the occupier than a mere warning as warnings are generally of little value to protect children. 72 The inference thus appears to be that the solar user must take affirmative action to safeguard young children against the potential risks associated with touching leaking solar energy systems located at ground level.

Regardless of which approach the court adopts, it is submitted that in order to escape liability for negligence in respect of young children in these circumstances the solar user must either relocate the panels in such a position that young children cannot reach them or build a child-proof fence around the panels. If he does neither the solar user will be liable for damages for creating a concealed trap either under the notion of an implied licence or under the 'common duty of humanity' owed to trespassers. It appears to make no practical difference in the present context as to which of these tests the court adopts as the result is likely to be identical in both cases.

(b) Liability to neighbours

If an occupier of neighbouring land suffers personal injury or property damage as a result of leaking chemicals or an explosion, he may bring an action for damages in negligence, private nuisance or under the rule in Rylands v. F letcher. 73 The application of the laws of negligence and private nuisance have already been discussed in the context of damage by glare or increased heat,74 and for this reason no further discussion of these areas of law is necessary. It might be thought that the leak of chemicals or the deposit of debris from an explosion would constitute a trespass to land and be actionable by the neighbour accordingly. Trespass would

69 See e.g., Cooke v. Midland Great Western Railway of Ireland [1909] A.C. 229; Williams v. Cardiff Corporation (1950)1 K.B. 514; Gough v. National Coal Board [1954]1 Q.B. 191; Glasgow Corpora(ion v. Taylor (1922) I A.C. 44; Ramsay v. Appe/ (1972) 46 A.L.l.R. 510. Ct. Edwards v. Railways Executive (1952) A.C. 737.

70 (1972) A.C. 877. 71 (1974) A.C. 623. 72 Ibid. 644. 73 (1868) L. R. 3 H. L. 330. Note thatthe rule in Rylands v. Fletcher may also be relevant where legal

problems arise from the collection and transmission of solar energy over a distance. If solar energy is transmitted either as electrical energy or as liquid hydrogen, the rule will apply if there is an escape of energy from the damage. On this point, see Zelling, 'Legal Aspects of Solar Energy', in Solar Realities in Western Australia in the /980's (Conference Proceedings, A.N.Z. Section, International Solar Energy Society, 1979) 66.

74 See supra ns 23-91, 157 if. and accompanying text.


appear to be inapplicable in this context, however, because of the requirement of the law of trespass that the injury be direct as opposed to consequential.75 The remainder of the discussion in this section will be devoted to the application of the rule in Rylands v. Fletcher.

Blackburn J. stated the relevant proposition of law in Rylands v. Fletcher as follows:

the true rule oflaw is, that the person, who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and ifhe does not do so, is primafacie answerable for all the damage which is the natural consequence of its escape. 76

Strict liability is imposed under this rule, and it is no defence for the defendant to prove that he had taken reasonable precautions to prevent the escape of the dangerous object. On the other hand, liability is not absolute since, as will be discussed later, 77 a number of defences have been recognised.

The rule differs from trespass in that there is no requirement that the injury be direct rather than consequential.78 The relationship of the rule with the law of private nuisance, however, is much closer.79 There are dicta to the effect that the rule is merely an illustration ofa nuisance. For example, in Read v. J. Lyons & Co. Ltd, Lord Simonds stated that 'the judgment of Blackburn J. in the case itself shows that the law of nuisance and the rule in Rylands v. Fletcher might in most cases be invoked indifferently' .80 More recently, Windeyer J. of the High Court of Australia stated that the rule is 'a special form of the ancient cause of action for nuisance' .81 While the rule has a much narrower scope than the law of private nuisance in many situations the plaintiff could succeed under both torts. This appears to be the case in the present context. Damage caused by leaking chemicals or an explosion would amount to a 'material injury to property' within the meaning of the dictum of Lord Westbury L.C. inSt Helen's Smelting Co. v. Tipping;82 the solar user would be unable to advance the defence that the damage was an inevitable consequence of the use of a solar energy system and that in installing such a system he was merely making an ordinary or reasonable use of his own property. While an exception to this latter principle exists in the case of 'natural use' by the defendant of his land, based on the authorities discussed earlier it is most unlikely that the court would regard the use of a solar energy system as a 'natural use' of property. 83

There are two factors affecting the scope of the rule in Rylands v. Fletcher: fIrst, there must be an escape of a dangerous object; and second, the rule is limited to cases where the defendant is making a 'non-natural' use of his land.84

75 See Salmond and Heuston, op. cit. 5, 39-40. See also Hutchins v. Maughan [1947] V.L.R. 131, 133; per Herring C.J.; Leame v. Bray (1803) \02 E.R. 724, 727,perLe Blanc J.

76 (1866) L.R. I Exch. 265, 279 Crt. of Exchequer Chamber); adopted by Lord Cairns in the House of Lords in (1868) L.R. 3 H.L. 330, 339-40.

77 See irifra ns 99-6, and accompanying text. 78 Salmond and Heuston, op. cit. 302. 79 See Winfield and Jolowicz, op. cit. 419; Luntz, Hambly and Hayes, op. cit. 970. 80 [1947] A.C. 156, 183. 81 Benningv. Wong(l969) 122C.L.R. 249,296. 82 (1865) 1I H.L. Cas. 642, 650; 11 E.R. 1483,1486. Seesupran. 25, 158 and accompanying text. 83 See supra ns 33-6, 160 and accompanying text. 84 See Higgins, op. cit. 199.


On the application of existing authorities, it is clear that the escape of leaking chemicals or flying debris from an explosion satisfies the first factor. In relation to an explosion, Rainham Chemical Works Ltd (In Liq.) v. Belvedere Fish Guano Co. Ltd85 is a direct authority. In this case, the House of Lords held the appellants to be liable in damages under the rule in Rylands v. Fletcher where dangerous substances manufactured and stored by them on their land exploded and damaged neighbouring property. There is no direct authority in relation to leaking chemicals, but by analogy with other cases86 there appears to be no doubt that liability would also be incurred by a solar user in these circumstances.

The application of the second factor in the present context is more uncertain. Its application is always a question of fact for the judge, and the courts have been keen to preserve the maximum degree of flexibility. As stated by Lord Porter in Read v. J. Lyons & Co. Ltd,87 in each case 'all the circumstances of the time and place and practice of mankind must be taken into consideration so that what might be regarded as dangerous or non-natural may vary according to these circumstances' .

In the absence of any direct authority, the courts will apply analogies to determine whether a solar energy system is a 'non-natural' use of the land. The reported cases are difficult to reconcile. There are authorities for the proposition that the escape of water from a domestic water system or lavatory 88 or the escape of electricity from a normal domestic supply89 is a natural use of land and therefore beyond the scope of the rule in Rylands v. Fletcher. In contrast, the rule has been held to apply in the case of an escape of water from a water main 90 and an escape of electricity from an industrial supplY.91 There are dicta in Ricl«zrds v. Lothian92

which suggest that ordinary household installations do not constitute a 'nonnatural' use of land and therefore are not susceptible to the rule. In a particularly interesting passage of his judgment, Lord Moulton stated:

In such matters as the domestic supply of water or gas it is essential that the mode of supply should be such as to permit ready access for the purpose of use, and hence it is impossible to guard against wilful mischief. Taps may be turned on, ball-cocks fastened open, supply pipes cut, and waste-pipes blocked. Against such acts no precaution can prevail. It would be wholly unreasonable to hold an occupier responsible for the consequences of such acts which he is powerless to prevent, when the provision of the supply is not only a reasonable act on his part but probably a duty. 93

If it is correct to assume that the rule does not apply to ordinary household installations, a strong argument can be made that solar hot water systems designed for ordinary household use are not subject to an action under Rylands v. Fletcher.

85 [1921] 2 A.C. 465. See also Miles v. Forest Rock-Granite Co. (Leicestershire) Ltd (1918) 34 T.L.R.) 500.

86 See e.g., Batcheller v. Tunbridge Wells Gas Co. (1901) 84L.T. 765; National Telephone Co. v. Baker [1893]2 Ch. 186; Smith v. Great Western Railway Co. (1926) 135 L.T. 112; Firth v. Bowling Iron Co. (1878) 3 C.P.D. 254; Ponting v. Noakes [1894]2 Q.B. 281; Shiffman v. Order of St. John [1936]1 All E.R. 557; Hale v. Jennings Brothers (1938]1 All E.R. 579; A-G v. Cory Bros. and Co. Ltd [1921]1 A.C. 521; Hillier v. Air Ministry [1962] C.L.Y .. 2084. See also Stallybrass, 'Dangerous Things and the Non-Natural User of Land' (1929) 3 Cambridge Law Journal 382.

87 [1947] A.C. 156, 176. 88 Rickards v. Lothian [1913] A.C. 263; Blake v. Woolf[1898] 2 Q.B. 426. 89 Collingwoodv. Home and Colonial Stores Ltd [1936]3 All E.R. 200. 90 Charing Cross Electricity Supply Co. v. Hydraulic Power Co. [1914]3 K.B. 772. 91 Fullarton v. North Melbourne Electric Tramways and Lighting Co. Ltd(l916) 21 C.L.R. 181. 92 [1913] A.C. 263. 93 Ibid. 282.


Difficulties exist with this reasoning, however. Due to the low market penetration of solar energy appliances in Australia at the present time,94 it can be argued that the use of solar hot water systems is not an 'ordinary' household use. The reasoning of Lord Moulton in Rickards v. Lothian appears to be based on the fact that a modem household cannot be expected to operate without a lavatory and a water supply system. The same cannot be said in respect of a solar hot water system in light of the availability of conventional gas and electricity supplies. Another problem is that the application of this reasoning could lead to the result that the rule in Rylands v. Fletcher will apply to leaking chemicals and explosions from solar energy systems designed for industrial or commercial use but not for systems designed for household use. Such a distinction seems totally inappropriate in light of the similar nature of the escape in all cases.

These difficulties, however, relate solely to the question of whether household installations constitute a 'non-natural' use of land. Other cases strongly suggest by analogy that a solar energy system should be regarded as a 'natural' use of land. The two most relevant cases are Pett v. Sims Paving and Road Construction Co. Pty Ltd95 and Tolmer v. Darling,96 both of which were concerned with the application of the rule in Rylands v. Fletcher in the context of fire damage. In the fonner case, the escape fire was caused by a steam roller and bitumen melter brought onto the land by the defendant company. The company was held not liable under the rule in Ryland.s v. Fletcheron the basis that it was not an occupier of the land. The court added, however, that an alternative basis for its decision was that the company's operations had not been shown to be a non-natural use of the land. Irvine C. J. stated that the construction by ordinary methods of a paved driveway to a suburban house is a reasonable and natural use of the land, particularly where the grades are considerable.97 In Tolmer v. Darling it was similarly held that the rules had no application where the fire damage to neighbouring property was caused by the escape of burning charcoal from a motor car fitted with a gas producer which was damaged on the adjoining public roads when the car hit the hard bank of a drain. 98

If a bitumen melter and burning charcoal from a motor car can be regarded as a 'natural' use of land, a fortiori the same result should be reached in the case of

94 The most recent study on the market penetration of solar appliances shows that as at June 1981 in Australia as.a whole only 2.7 per cent of dwellings were fitted with a solar water heater. On a State by State analYSIS, the extremes were 17.1 percent in Western Australia and 0.4 per cent in Victoria and Tasmania (Andrews, Solar Jobs in Victoria: The Economic Impact of the Solar Industry, (1982) 11-3). These statistics are limited to solar water heatefS in residential premises and do not include solar space heating in the domestic sector or any type of solar application in the commercial sector. However, even if these applications were included it is unlikely that the 2.7 per cent market penetration mentioned above would be increased beyond 3 per cent as solar space heating is in its infancy and the present industrial use of solar energy is very restricted.

95 (1928] V.L.R. 247. 96 (1943] S.A.S.R. 81. 97 [1928] V.L.R. 247, 256-7. 98 Cf, Mason v. Levy Auto Parts of England Ltd [1967] 2 Q.B. 530, where the storage of

combustible materials was held to be non-natural. Note that even in the unlikely event that the solar user is held liable under the rule in Rvlands v. Fletcher for the escape of fire, he could still plead the defence of act of stranger or act of God. For a discussion of these defences, see infra ns 99-6 and accompanying text.


solar energy systems. In the absence of direct authorities, however, the issue as to whether a solar energy system is a natural use of land must be regarded as uncertain.

If solar energy systems are held to be a natural use of land, then further discussion of the rule in Rylands v. Fletcher is unnecessary as the rule will be inapplicable. In these circumstances the plaintiff must rely on his possible remedies in negligence and private nuisance. On the other hand, if such systems are held to be a non-natural use of land and thus within the scope of the rule, we must consider whether there is any defence available to the solar user.

A variety of defences to the rule in Rylands v. Fletcher have been devised by the courts. In the present context, only three are relevant: common benefit, the act of a stranger and an act of God.

The defence of common benefit excuses the defendant from liability for the escape of a dangerous object if it is kept and maintained for the common benefit of both the plaintiff and the defendent.99 Thus the defence will not apply in the typical situation where a householder or industry purchases a solar energy system exclusively for his or its own purposes. It will, however, presumably apply in cases where a system is established on public land for community use (as occurs in some areas of outback Australia) or where a group of neighbouring landowners pool their resources and buy a system which is shared among them.

The defence of the act of a stranger may apply in any situation. Under this defence, the rule in Rylands v. Fletcher has been held not to apply if the escape is caused by the malicious or reckless act of a stranger in circumstances in which the damage was unforeseeable by the defendant. I The defence may not be used where the damage is caused by the defendant's servant or by an independent contractor employed by the defendant.2 As in the case of all the defences, the onus of proof is on the defendant and is extremely heavy. 3 In the solar context, this defence will be available in any case where the leaking chemicals or explosion are caused by the interference by an unauthorised person with the solar energy system, except possibly where the damage was caused by a young child against whom the solar user should have taken precautions.

The final defence, an act of God, can be treated cursorily in light of the very limited circumstances in which it has been held to apply. According to Latham C.l. in Commissioner of Railways (W.A.) v. Stewart, for the defence to succeed it must be shown that the event is:

due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected.4

In the present context, the only conceivable circumstances in which the defence

99 See e.g., Gill v. Edouin (1895) 72 L.T. 579; Anderson v. Oppenheimer (1880) 5 Q.B.D. 602; Dunne v. North Western Gas Board [1964]2 Q.B. 806.

I See e.g., Rickards v. Lothian [1913] A.C. 263; Box v. Jubb (1879) 4 Ex.D. 76. . 2 Hale v. Jennings Brothers [1938]1 All E.R. 579, 583 per Slesser L.J.; Balfour v. Barty-Kmg

[1957]1 Q.B. 496, 504 per Lord Goddard C.J. 3 See Northwestern Utilities Ltd v. London Guarantee and Accident Co. Ltd [1936] A.C. !O8;

A. Prosser& Son Ltdv. Levy [1955]1 W.L.R. 1224. 4 (I936)56C.L.R. 520,528-9. SeealsoNugentv. Smith (1876) I C.P.D. 423, 444 per JamesL.J.


might apply would be where the chemicals leaked or an explosion occurred as a result of a lightning-strike or a severe hailstorm. Even in these circumstances the application of the defence is very doubtful in light of the fact that it has only ever been successful in one reported case. S According to Salmond and Heuston, the defence should be relegated to the pages of legal history. 6

In summary, it appears most unlikely that any of the defences will apply in the present context, and the issue of the solar user's liability under the rule in Rylands v. F letcher will depend on the contentious issue of whether a solar energy system is a 'non-natural' use ofland.

The final relevant issue is whether the occupier of neighbouring land or any other person on the neighbouring land can claim damages under the rule in Rylands v. Fletcher for personal injury caused by the leaking chemicals or explosion. 7 This matter is also contentious, although the better view appears to be that damages for personal injury are recoverable. According to Lord MacMillan in Read v. 1. Lyons & Co. Ltd,8 damages for personal injury cannot be allowed as the rule inRylandsv. Fletcher is based on the mutual duties of neighbouring landowners and was never intended to include personal injuries. While this reasoning is valid in terms oflegal theory, such a limitation has been ignored in many decisions handed down both before and after Lord MacMilIan's dictum was made. The most recent High Court case in which this matter has been considered is Benning v. Wong. 9 There are persuasive dicta of Barwick C.J. and Windeyer J. rejecting the application of such a limitation. Barwick c.J. justified his approach by adopting the language of an article in the Modern Law Review:

The suggestion that I can recover for an explosion wrecking my conservatory or a horse trespassing on my rose bed, but not for an explosion blowing me out of my deck chair in my own garden. or a horse treading on my face as I sleep on my lawn, has little to commend it. 10

It is submitted that the balance of authorities at present strongly suggests that damages for personal injury may be awarded under the rule in Rylands v. F letcher. 11

3. Fire damage

Liability for personal injury or physical damage to neighbouring land may arise under negligence, private nuisance or under the rule in Rylands v. Fletcher. 12

5 Nichols v. Marsland (1875) L.R. 10 Exch. 255; affirmed (1876) 2 Ex. D. I. Ct. Cottrell v. Alien (1882) 16 S.A.L.R. 122; Lucas v. Commissioners of Railways (1890) 24 S.A.L.R. 24; Lamb v. Phillips (1911) 11 S.R. (N.S.W.) 109; A-G. v. Cory Bros. & Co. Ltd [1921]1 A.C. 521.

6 Salmond and Heuston. op. cit. 310. 7 See Winfield and 1010wicz. op. cit. 403-4. 8 [1947] A.C. 156. 173. The other four Law Lords did not express an opinion on this issue. 9 (1969) 122 C.L.R. 249. See also Hale v. Jennings Brothers [1938] I All E.R. 579; Perry v.

Kendricks Transport Ltd [1956]1 W.L.R. 85. Ct. Weller & Co. v. Foot and Mouth Disease Research Institute [1966]1 Q.B. 569.

10 (1969) 122 C.L.R. 249. 274-5. 11 Note that the scope of the rule in Rylands v. Fletcher is wider than that of private nuisance in that

the rule in Rylands v. F letcher. unlike the tort of private nuisance. would be available to non-occupiers on neighbouring land injured by an explosion.

12 (1868) L.R. 3 H.L. 330.


If an action based on negligence or private nuisance is brought against a solar user in New South Wales for damage caused by fire in a solar energy system which escapes onto neighbouring property, the case will be resolved on a straightforward application of the general common law principles of negligence and private nuisance discussed earlier. 13 However, if a similar action is brought elsewhere in Australia the application of the common law principles must be reconsidered in light of the terms of Imperial legislation re-enacted by some States and received as part of the common law in others. The relevant U.K. legislation is the Fire Prevention (Metropolis) Act 1774, section 86,14 which states in part:

No action. suit. or process whatever shall be had. maintained. or prosecuted against any person in whose house. chamber. stable. bam. or other bUildings. or on whose estate any fire shall ... accidentally begin. nor shall any recompense be made by such person for any damage suffered thereby. any law. usage or custom to the contrary notwithstanding.

In a number of important decisions the courts have construed the legislation in such a way as to make it irrelevant in the present situation. In these circumstances the liability of a solar user for damage caused by fire originating in a malfunctioning solar energy system will continue to be determined by common law principles. The Privy Council in Goldman v. Hargrave l5 construed the phrase 'shall ... accidentally begin' to mean that the statute only applies to fires caused by chance or without traceable cause and the fires due to negligence will still render the occupier of the land on which the fire started liable under that tort. Other cases have also exempted from the scope of the statute fires due to a nuisance. 16 Another major limitation to the scope of the Act was created in Musgrove v. Pandelis,17 where the English Court of Appeal held that the statute is inapplicable even if the fire begins by chance or without traceable cause if the spread of it to neighbouring property is due to negligence. In the present context, the effect of these decisions is that the statute will have no application if the solar user is sued in negligence or private nuisance for the escape of fire. Thus, despite the non-application of the Imperial legislation, the law in the present context will be the same in New South Wales as in other States and Territories.

A more detailed discussion of the rule in Rylands v. Fletcher is warranted in light of certain modifications in the application of the rule in its relation to the escape of fires. Any doubts as to the application of the rule to fires was laid to rest in Musgrove v. Pandelis, IS where the Court of Appeal held that a landowner cannot escape liability under the rule by relying on the terms of the 1774 Imperial Statute. The Court justified its decision on its interpretation of the phrase 'accidentally begin'.

13 See supra ns 23-91, 157.1f. and accompanying text. 14 The equivalent State legislation in Australia is Supreme Court Act 1958 (Vie.), s. 68; Local

Government (Consequential Amendments) Act 1962 (Tas.), s. 37; Careless Use of Fire Ordinance 1936 (A.C.T.). The Imperial legislation is still in force in Queensland, South Australia and Western Australia where it was received as part of the common law.

15 [1967]1 A.C. 645. See also Filliterv. Phippard(l847) II Q.B. 347; 116E.R. 506. 16 Spicerv. Smee [1946]1 All E.R. 489; Williamsv. Owen [1955]1 W.L.R. 1293. 17 [1919]2 K.B. 43. ISlbid. 43. See also MacKenzie v. Sloss [1959] N.Z.L.R. 533.


The modifications referred to in the preceding paragraph relate to the decision of MacKenna J. in Mason v. Levy Auto Parts of England Ltd,19 in which damages were awarded under the rule in Rylands v. Fletcher to a landowner whose attractive garden was destroyed by a fire which started 011 neighbouring land and spread rapidly due to the storage on that property of combustible materials. In this case, his Lordship applied the decision in Musgrove v. Pandelis, in which the defendant was held liable under the rule in Rylands v. Fletcher when the petrol tank of his car caught fire in a garage and burnt out the plaintiff's rooms situated above. His Lordship stated: 20

A defendant is not held liable under Rvlands v. Fletcher unless two conditions are satisfied: (i) that he has brought something on to his land likely to do mischief if it escapes. which has in fact escaped, and (ii) that those things happened in the course of some non-natural user of the land. But in Musgrove's case the car had not escaped from the land, neither had the petrol in its tank. The principle must be ... the wider one on which Rylands v. Fletcher itself was based ... sic utere tuo ...

If, for the rule in Musgrove's case to apply, there need be no escape of anything brought on to the defendant's land, what must be proved against him? There is, it seems to me, a choice of alternatives. The first would require the plaintiff to prove (1) that the defendant had brought something on to his land likely to do mischief if it escaped; (2) that he had done so in the course of a non-natural use of the land; and (3) that the thing had ignited and that the fire had spread. The second would be to hold the defendant liable if (1) he brought on to his land things likely to catch fire, and kept them there in such conditions that if they did ignite the fire would be likely to spread to the plaintiff's land; (2) he did so in the course of some non-natural use; and (3) the things ignited and the fire spread. The second test is, I think, the more reasonable one. To make the likelihood of damage if the thing escapes a criterion of liability, when the thing had not in fact escaped but has caught fire, would not be very sensible.

As his Lordship went on to say, in future liability for fire damage to neighbouring property will be assessed in each situation on the basis of the answers to two questions: (i) did the defendants bring to their land things likely to catch fire, and keep them there in such conditions that if they did ignite the fire would be likely to spread to the plaintiff's land? If so, (ii) did the defendants do these things in the course of some non-natural user of the land?21 Liability for damages will arise if both questions are answered in the affirmative.

Based on this recent authority, it is submitted that the solar user whose solar energy system catches fire and causes damage to neighbours is most unlikely to be liable under the rule in Rylands v. Fletcher, although as mentioned earlier he may incur liability in negligence or private nuisance. In view of the low incidence of fire caused by a solar energy system it is most unlikely that a court would consider it to be 'likely' to catch fire. Even if a solar energy system were to catch fire, the fire would most likely be contained within the solar user's property and would thus fail to satisfy the second element of the first question, namely that the defendants keep flammable objects 'in such conditions that if they did ignite the fire would be likely to spread to the plaintiff's land'.

A negative answer to the first question is sufficient to absolve the solar user from liability under its rule in respect of fire damage. The non-application of the rule in Rylands v. Fletcher is reinforced by a consideration of the second question

19 [1967]2 Q.B. 530. 20 Ibid. 541-2. 21 Ibid. 542.


propounded by MacKenna J., as it is submitted that the use of a solar energy system is not a 'non-natural user' of the land. This conclusion is based on the earlier discussion of the meaning of this phrase where damage is caused by leaking chemicals or an explosion. 22 There is nothing in the judgment of MacKenna J. in Mason v. Levy Auto Parts of England Ltd or in any other case to suggest that 'non-natural user' should be given a different meaning where the damage is caused by the escape of fire.

4. Scalding in showers

The liability (if any) of a solar user for physical injury caused by showers from a solar hot water service will be determined under the law with respect to occupiers' liability for negligence. The distinction drawn at common law between the liability of an occupier of land for negligence in respect of contractual entrants, invitees, licensees, trespassers and children has already been discussed. 23 In this situation it is only necessary to consider his liability to contractual entrants, invitees and licensees, as it is inconceivable that trespassers would take a shower. In the case of a householder's solar hot water service, the person injured will almost inevitably be a member of the tenant's family or his guest, all of whom would be classified at common law as licensees. In other situations, however, damage may occur to invitees or contractual entrants, as where a solar hot water service is installed in a hotel or motel and scalds a paying guest.

On the present authorities it is unclear whether an owner of a hotel or motel would be liable under these circumstances. A strict application of the test of McCardie J. in Maclenan v. Segar,24 would suggest that the owner should be liable. As the problem of scalding is exacerbated by the lack of a thermostat in a solar hot water heater, the guest would argue that the failure to provide a thermostat is sufficient to constitute a breach of the owner's implied warranty that the premises are as safe for the purpose as reasonable care and skill on the part of anyone can make them. On this reasoning the court could disregard the fact that the installation of thermostatic controls would significantly impair the efficiency of the solar energy system. On the other hand, the court may not necessarily regard the lack of a thermostat as a 'defect' within the meaning of the term given by McCardie J. On this reasoning a solar hot water heater would only be regarded as defective if it were significantly more dangerous than solar water heaters generally. The fact that a conventional hot water service with thermostatic controls might reduce the incidence of scalding could be regarded by the court as irrelevant.

It remains to be seen which approach the court will adopt. On balance it is submitted that the owner of the hotel or motel will be liable in these circumstances. If this conclusion is correct, the paying guest would undoubtedly be liable for contributory negligence for failing to test the temperature of the water prior to

22 See supra. ns 87-98, 186-7 and accompanying text. 23 See supra. ns 28-72, 1 76ff. and accompanying text. 24 See supra. n.31, 177 and accompanying text. [1917)2 K.S. 325, 332-3.


entering the shower. The Wrongs Act 1958 (Vic.) section 26 (1), and its equivalent in the other States and Territories,25 would be applied in this situation. The legislation states:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering"the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: ...

It is suggested that the amount of contributory negligence would be assessed highly in this context.

As discussed in detail earlier, based on the decision ofWilles J. inlndermaur v. Dames ,26 in respect of invitees the solar user would have to 'use reasonable care to prevent damage from unusual danger, which he knows, or ought to know. '

It is highly doubtful whether the requirement of 'unusual danger' is satisfied in this context. Possible scalding in showers is not an unusual occurrence and is not confined to solar hot water services but also arises in respect of conventional gas and electric services. Any prudent person would check the temperature of the water in the shower before stepping under it. As stated by Fleming ,27 the quality of unusualness depends inter alia on the range of experience with which the invitee may fairly be credited. Except possibly in the case of unsupervised young children, it is submitted that every person should be credited with the experience of excessively hot water in showers. The situation might be analysed differently if the nature of the problem was that the solar hot water service released surges of excessive~y hot water while the shower was in progress, but this is not the case. If the water is too hot, it would be apparent from the outset.

It is submitted that the most likely conclusion is that a solar user will not be liable to his invitees for scalding in showers. Even if this conclusion is held to be wrong, as in the case of contractual entrants the invitee would undoubtedly be held liable for contributory negligence.

If the conclusion that a solar user is not liable in negligence for the scalding in showers of his invitees is correct, a fortiori he should escape liability in respect of licensees. As discussed earlier, the liability of the solar user in respect of licensees would be to warn them of any concealed trap of which he is aware and which would not be obvious to a reasonably careful person. 28 By analogy with the existing authorities on the meaning of this requirement, it is almost inconceivable that the possibility of excessively hot water from a shower could be regarded as a 'concealed trap'. Even if it were, as in the case of invitees there would inevitably be held to be a high degree of contributory negligence on the part of the licensee.

25 Law Reform (Miscellaneous Provisions) Act 1965 (N.S.W.); Law Refonn (Tortfeasors' Contribution, Contributory Negligence, and Division of Chattels) Act 1952 (Qld), Part Ill; Wrongs Act 1936-1975 (S.A.), ss 27a, 27b; TortfeasorsandContributory Negligence Act 1954(Tas.); Law Refonn (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (W.A.); Law Reform (Miscellaneous Provisions) Ordinance 1955 (A.C.T.), ss 15-20.

26 (1866) L.R. I C.P. 274. See also Gautret v. Egerton (1867) L.R. 2 C.P. 371. 27 Fleming, op. cit. 450. 28 See supra ns 46-7, 179 and accompanying text.


Based on these conclusions, it appears that there is little likelihood of a solar user incurring tortious liability for damage caused by scalding in showers to anyone, regardless of the legal category of entrant into which the injured person falls.

5. Aesthetic injury

It is possible that a neighbour may seek an injunction to force a solar user to dismantle his solar energy system if it is installed in such a position as to be totally or partially visible from the adjoining land on the ground that the system is visually offensive. The allegation will be that the sight of the solar energy system interferes with the neighbour's enjoyment of his property and is 'productive of sensible personal discomfort' within the meaning of the phrase coined by Lord Westbury L.C. in St Helen's Smelting Co. v. Tipping. 29 It may also be alleged that the unsightly view is causing economic loss to the neighbour in that it reduces the market value of his property.

If there is to be any tortious liability for aesthetic injury caused by the ugly appearance of a solar energy appliance, it is submitted that it will lie in private nuisance. The tort of public nuisance would appear to be irrelevant here as although a neighbour may be able to prove that he has suffered 'special' damage in excess of that suffered by the general public, he would be most unlikely to satisfy the requirement that the defendant's solar energy system affected a class of Her Majesty's subjects who come within the sphere or neighbourhood of their operation. 30

The chances of a solar energy system being declared to be a private nuisance at common law on account of its unattractive appearance would appear to be extremely slim. There is only one Australian authority on tortious liability for aesthetic injury, the decision of the Supreme Court of the Australian Capital Territory in Kent v. Cavanagh,31 in which the plaintiffs brought an unsuccessful action for an injunction to prevent the building of a communications tower on Black Mountain in Canberra. One of the arguments was that the proposed tower would be visually offensive and would therefore constitute a public nuisance. On this point, Fox J. made a number of observations which are equally relevant when the claim is in private nuisance. His Honour stated that as matters of personal taste are involved in determining whether something is unsightly or aesthetically unpleasing, a court should not act on such considerations except in very clear cases. 32 He stated:

It is not suggested that an injunction has ever been granted on this basis and no authority was cited which would support the grant of such an injunction. Nevertheless I am not prepared to say that an injunction can never be granted on such a basis. Actionable nuisances include things which offend the sense of hearing and the sense of smell. and other senses, and there is no reason why the sense of sight should necessarily be excluded. The lawin this regard must remain flexible and ready to adjust to new situations. 33

29 (1865) II H.L. Cas. 642, 650; II E.R. 1483, 1486. 30 See supra ns 94-9, 1-8. 170jffor a discussion of the elements ofthe tort of public nuisance. 31 (1973) I A.C.T.R. 43. 32 Ibid. 53. 33 Ibid. 52-53.


In reaching this conclusion, Fox J. relied by analogy on a number of United States' authorities holding that visual pollution from the maintenance of a junk yard or the keeping of unsightly material on the defendant's land does not constitute a private nuisance. 34

If these various authorities are followed, despite the willingness of Fox J. to declare certain forms of visual pollution actionable in limited situations, it seems inconceivable that a neighbour would be successful in a claim that a solar energy system is a nuisance because of its offensive appearance. This is surely not one of the 'very clear cases' which Fox J. stated in his judgment would justify the award of damages and/or the granting of an injunction. In comparison with other common forms of visual pollution, such as gas tanks, electric grid pylons and large advertising boards, all of which appear to be regarded by the community as acceptable, a solar energy system is far less obtrusive and objectionable.

D. CONCLUSION

Even though the solar user will probably escape liability in tort for aesthetic injury or for scalding in showers, the above discussion shows that he may be liable for damages and/or an injunction in respect of both personal injury to others and physical injury to neighbouring land caused by glare or increased heat, leaking chemicals or explosions or by fire damage.

The possibility of tortious liability may arguably deter some people from investing in solar energy systems. If it is accepted that there is a public policy in favour of encouraging the use of solar energy technology in light of the impending fuel crisis, an argument can be made that the tortious liability should be reduced in scope or entirely abolished by legislation. While it is difficult to conceive of circumstances that would excuse liability for negligence, liability in nuisance and/or under the rule in Rylands v. Fletcher35 could be reduced or eliminated by legislation. In the solar context, the legislation could take a number of possible forms.

One possibility is for the legislature to introduce a form of statutory licensing for the installation and use of solar energy systems. While this is unlikely to occur in respect of systems designed for individual household use, it could well be introduced in respect of larger systems designed for community use. 36 Under a

34 See 84 American Law Review (2d) 653. See also Livingston v. Davis (1951) 243 Iowa 21,50 N.W. 2d 592; Feldstein v. Kammauf(l956) 209 Md. 479. 121 A. 2d 716; Crabtree v. City Auto Salvage Co. (1960) 47 Tenn. App. 616, 340 S.W. 2d 940; Vermond Salvage Corp. v. Village of St. lohnsbury (1943) 113 Vt. 341,34 A. 2d 188. In the most recent decision, State Road Commission v. Oakes (1966) 150 W.Va. 709, 149 S.E. 2d 293,300 per Hamond J., who stated: The element of unsightliness, without more, does not produce or create an abatable nuisance. In Mathewson v. Primeau (1964) 64 Washington 2d, 929, 395 P. 2d 183, Hill 1. stated (at 189) that there is a trend towards the protection of aesthetic values, but that it is by legislation and not by injunction. See also Noel, 'Unaesthetic Sights as Nuisances' (1939) 25 Cornell Law Quarterlv I.

35 (1868) L.R. 3 H.L. 330. . 36 For a discussion of the possible introduction of a form of statutory licensing in the solar context,

see Hayes, Solar Access Law: Protecting Access to Sunlight for Solar Energy Systems (1979) 79ff; Spivak, Land-Use Barriers and Incentives to the Use of Solar Energy, (1979) 9-10,23; Eisenstadt, 'Access to Solar Energy: The Problem and its Current Status' (1982) 22 Natural Resources 10urnal21 , 31ff; Goble, 'Solar Access and Property Rights: Reply to a "Maverick" Analysis' (1980) 12 Connecticut Law Review 270, 290ff; Kerr, 'New Mexico's Solar Rights Act: The Meaning of the Statute' (1979) I Solar Law Reporter 737, 746ff.


system of statutory licensing certain rights would arise for the duration of the licence, which would be issued upon compliance with certain structural requirements and performance standards. One such right might be the exemption of the licence holder from the consequences of a nuisance action, provided that negligence is not attributable to him. Another possibility is for the legislature to introduce an Act declaring the action in nuisance and the rule in Rylands v. Fletcher to be inapplicable against the users of specified solar energy systems.

It is very questionable whether either of these possible legislative schemes should be introduced. Two strong objections may be made. First, if legislation interfering with the common law of nuisance is to be introduced, it would seem more appropriate for the legislature to attempt to codify the circumstances in which exemption from liability for nuisance will be granted rather than to make a specific . rule for the benefit of the solar user. As a political matter it is highly unlikely that solar users will be singled out by parliamentarians for privileged treatment of this nature when at the present time they constitute only a minority within the community. Secondly, If a neighbour of the solar user suffers financial damage as a result of the use of a solar energy system it is a matter of simple justice that he should be recompensed for his loss. The abolition of liability of a solar user will in many cases leave the neighbour without a remedy. Many people would argue that the proven infliction of damage on private individuals is entitled to greater consideration than vague considerations of public policy, especially when it is doubtful whether many people are in fact deterred from installing solar energy systems by the remote possibility of incurring tortious liability.

A third, and perhaps more reasonable alternative approach is for the legislature to authorise certain activities and to provide a compensation scheme within that legislation. Acts such as the Gas and Fuel Corporation Act 1958 (Vic.), the Melbourne and Metropolitan Board of Works Act 1958 (Vic.) and the Shell (Corio to Williamstown) Pipelines Act 1964 (Vic.) all authorise certain activities for the purposes of the Act and include a provision similar to the following:

In the exercise of the foregoing powers the company shall do as little damage as may be and shall if so required within two years from the exercise of such powers make full compensation to the owner of and all parties interested in any land for any damage sustained by them in consequence of the exercise of such powers and such compensation shall be a gross sum as may be agreed and in default of agreement shall be determined in manner proVided in the Lands Compensation Act 1958.37

Legislation of this nature in the past has imposed liability for compensation on the same company, statutory body or person who is authorised by the Act to exercise the specified powers under the Act. This would suggest that the solar user should be liable in these circumstances, in which case this suggestion would not

37 Melbourne and Metropolitan Board of Works Act 1958 (Vie.) s. 283; Gas and Fuel Corporation Act 1958 (Vie.) s. 33; Shell Pipelines Act 1964 (Vic.) s. 11. Iflegislation of this nature is introduced in the solar context, it is important that it does not remain silent on the question of the liabilty for damage caused by the companies, statutory bodies and/or persons authorized by the Act to exercise the specified powers. If the legislation is silent on this question, the authorized bodies or persons may raise the defence of statutory authority if sued for nuisance. Under this defence, no liability will attach to a defendant if the court is satisfied that the nuisance caused by the making or the doing of those actions is the inevitable result of the carrying out of that statutory operation. On this subject, see Alien v. Gulf Oil Refinery Ltd [1981] A.C. 1001; Benning v. Wong (1969) 122 C.L.R. 249; Lester-Travers v. City of Frankston [1970] V.R. 2; and the discussion in Luntz, Hambly and Hayes, op. cit. 942ff.


remove the deterrent for people or companies to invest In solar energy systems. There is no compelling reason, however, why the compensation should be payable by the same person or body exercising the statutory powers. In the present context, it is suggested that the various State government departments or statutory authorities38 responsible for the development of solar energy technology should be the bodies designated in the legislation as liable to pay compensation in the event that damage (other than damage caused by negligence) is caused by the use of a solar energy system. This system would inevitably involve the need for increased State government funding to the designated statutory authorities, but in view of the rarity of incidents of damage caused by solar energy systems the increase in the funds required should be very small.

The only other viable alternative is for the legislature to take no action at all and to preserve the status quo. If the legislature is unwilling to provide the funds for the compensation scheme discussed in the preceding paragraph, it is difficult to see how any fair and equitable amendment to the common law liability of the solar user for nuisance or under the rule in Rylands v. Fletcher can be introduced. In this event the solar user may protect himself for tortious liability of this nature by a contract of third party and public liability household insurance. It is a moot point whether the installation of a solar energy system is a material fact which has to be disclosed to the insurance company)9 This will depend on whether a solar energy system could be said to affect materially the nature of the risk insured. 40 If it does not, then cover is already included in an existing household insurance contract and no specific acceptance of the risk is necessary. It is submitted that this is the most likely situation. Even if it is later held that the installation of a solar energy system must be disclosed, some insurance companies may accept the small added risk from a solar energy shtem without increasing the normal premiums under their third party and public liability household insurance contracts.41 In other instances the premium may be increased, but the extra cost would be not so large as to deter a potential solar user from installing a solar energy system.

38 The relevant departments and statutory authorities are the Victorian Solar Energy Council (established under the Victorian Solar Energy Council Act 1980 (Vie.», the Solar Energy Research Institute of Western Australia (established under the Solar Energy Research Act 1977 (W.A.»; the S.A. Department of Mines and Energy; The Energy Authority of N.S.W.; the Qld Department of Mines; the Department of National Development and Energy (A.C.T.); and the N.T. Energy Commission.

39 See Halsbury' s Laws a/England, (4th ed., 1978) xxv 'Insurance' para. 367. 40 The basic test is whether a prudent insurer, if he had knowledge of the installation of a solar

energy system, would wish to decline the risk or to alter the premium. See e.g., Glicksman v. Lancashire and General Assurance Co. Ltd [1927] A. C. \39, 143 per Viscount Dunedin; Lee v. British Law Insurance Co. Ltd [1972]2 L1oyd's Rep. 49; Berger and Light Diffusers Pty Ltd v. Pol/ock [1973] 2 L1oyd's Rep. 442, 463 per Kerr J.; Zurich General Accident and Liability Insurance Co. Ltd v. Morrison [1942] 2 K.B. 53; Dawsons Ltd v. Bonnin [1922]2 A.C. 4\3. The Privy Council held in Mutual Life Insurance Co. a/New York v. Ontario Metal Products Co. Ltd [1925] A.C. 344 that a fact need not be disclosed if it would only cause the insurers to make enquiries, the result of which would have no effect on a prudent insurer.

41 House insurance premiums have not risen in the United States where solar energy systems have been installed: see Note ( 1980) 2 Solar Law Reporter 695.


In the ultimate analysis the insurance option may be seen to be the most satisfactory solution to the problem under discussion. It satisfies the neighbours of the solar user by preserving their right to claim damages if a solar energy system causes personal injury or damage to land, and it takes into account the public policy requirement of advancing the application of solar energy technology. In particular it avoids the need for complex legislation of a novel kind with its inevitable attendant problems of statutory interpretation.

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