Wee Chong Jin CJ:

This is an appeal from the judgment of Chua J in favour of the plaintiffs' claim for damage to property which belonged to them as partners in the business of nursery gardeners carried on by them at No. 10 Binjai Park, Singapore. The damage was caused by the escape of filled earth from the defendants' land.

The defendants are a limited liability company and are land developers and were at the material dates developing their land which was adjacent to the land occupied by the plaintiffs. The defendants' land was on a higher level than the plaintiffs' land and there was a natural slope of approximately 30'b0 down to the plaintiffs' land. The learned trial Judge found that this natural slope was a steep slope which the defendants had filled with earth and that this filling had taken place before the defendants had erected a retaining wall 80 feet long between their land and the land occupied by the plaintiffs. The learned trial Judge further found that this filled earth slipped during the heavy rains on the night of 28 August 1958 and as a result part of the retaining wall collapsed on to the plaintiffs' land and destroyed the plaintiffs' plants, fencing, bower, stands and other equipment. He held that the defendants were liable because in his view "to pile loose earth on a steep slope so that more flat land would be available for the house is `non-natural use' of the land and the defendants having placed an artificial mass in a dangerous position are responsible for the consequences". These findings of the learned trial Judge are not disputed by the defendants but they contend that on these facts the learned trial Judge was wrong in law in holding that the doctrine of Rylands v. Fletcher [1868] LR 3 HL 330 applied.

Another ground of appeal is that the doctrine of Rylands v. Fletcher is not available to the first plaintiff who was a mere occupier with no proved proprietary interest in land. This ground of appeal can in my view be briefly disposed of. The statement of claim avers that both plaintiffs are carrying on in partnership the business of nursery gardeners and are and were at all material times in occupation of the land and premises situate at and known as No. 10 Binjai Park, Singapore and this averment is expressly admitted in the defence. The point now raised was never raised in the Court below and in all the circumstances I am of the opinion that the defendants are now precluded by the pleadings from doing so.

As regards the applicability of the doctrine of Rylands v. Fletcher the defendants base their contention on two grounds. First it is contended that under the rule in Rylands v. Fletcher one condition which must be satisfied before liability attaches is that the use to which a defendant is putting his land is "a non-natural use". It is argued that it was a normal use and not a non-natural use of land to fill up sloping land with earth for the purpose of developing the land. Counsel for the defendants relies on the case of Ilford Urban Council v. Beal [1925] 1 KB 671 where Branson J said:

Farwell LJ draws the distinction between the absolute duty owed to others by one who is making an abnormal use of land: Nichols v. Marsland [1875] LR 10 Ex. 255 and Rylands v. Fletcher, and that owed by those whose use of land is merely normal. There can be no question that in the present case the use of the land by erecting a retaining wall upon it is merely normal use, and the principle illustrated by such cases as Nichols v. Marsland and Rylands v. Fletcher can have no application to it.

Another case relied on is St Anne's Well Brewery Co. v. Roberts & Ors. 44 TLR 703 where the views of Branson J that the erection of a retaining wall on land was a normal use of land were approved by Scrutton LJ (see p. 705). The next case relied on is Wilkins v. Leighton [1932] All ER Rep 55 where Luxmoore J applying St Anne's Well Brewery Co. v. Roberts held that where an owner in building a house on his land caus