Key points
• It will be difficult to bring claims for fire damage under the rule in Rylands v Fletcher following a recent Court of Appeal judgment.
• Therefore, landowners would be well-advised to insure against losses caused by fire on their premises.
The Great Fire of London in 1666 was one of a series of devastating fires in English towns and cities. Fire was a serious hazard, especially where people lived cheek-by-jowl and, in the days before insurance, the loss had to fall somewhere.
A common law rule, which can be traced back to Beaulieu v Finglam (1401), laid the loss at the door of the person on whose property the fire started. Liability did not depend on proving that landowners had been negligent or that they were engaged in some dangerous activity. They were liable for the actions of anyone on the land with their permission, but not for fires caused by an act of God or by strangers.
In due course, parliament decided to mitigate the severity of these rules and enacted provisions, now enshrined in section 86 of the Fires Prevention (Metropolis) Act 1774 (the 1774 Act), exonerating landowners from liability for fires that begin accidentally. Subsequent decisions have established that a fire is not “accidental” if it was started negligently.
However, the courts developed another strand of the common law in 19th century England, which became known as the rule in Rylands v Fletcher [1868] LR 3 HL 330. It applies where landowners make any non-natural use of their land and renders them strictly liable for any mischief caused by any dangerous thing which they bring onto, or keep, on their land that escapes and causes damage. How, if at all, does the rule apply where property is damaged as a result of a fire that escapes from neighbouring land?
Gore v Stannard (t/a Wyvern Tyres) [2012] EWCA Civ 1248 is an important decision that limits the application of the rule in such circumstances. Wyvern carried on business supplying, fitting and balancing tyres on an industrial estate. Tyres are not, in themselves, flammable. However, they do burn ferociously when they catch fire and Wyvern kept a large stock inside and outside its unit.
Mr Gore occupied adjoining premises, which were destroyed as a result of an electrical fire that spread from the tyre shop. He sought damages in negligence and also under Rylands. The county court decided that Wyvern was entitled to invoke section 86 of the 1774 Act because it had not been negligent, but held it strictly liable for the damage because “there was plainly an escape within the meaning of the Rylands v Fletcher rule”.
Classic Rylands v Fletcher
The rule has been criticised and restricted in subsequent decisions. However, in Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, the House of Lords refused to follow the trail blazed by the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 and declined to hold that the doctrine had been absorbed into the ordinary rules of negligence.
Transco confirms that the rule is a sub-species of the law of nuisance, which is itself a tort based on the interference by one occupier of land with the rights in, or enjoyment of, land by another. This means that there must be an escape from one parcel of land to another. In addition, claims for death or personal injury are beyond the scope of the rule because they do not relate to any right in, or enjoyment of, land.
A claim will be unsuccessful unless the following conditions are satisfied:
? The defendant must be the owner or occupier of land and must bring or keep an exceptionally dangerous or mischievous thing on his land.
? He must also have recognised, or ought reasonably to have recognised, judged by the standards at the time, that there was an exceptionally high risk of mischief if it were to escape, however unlikely that may have been thought to be.
? The defendant’s use of his land must, having regard to all the circumstances of time and place, also have been extraordinary and unusual and the escape must have caused damage of a relevant kind to the claimant’s rights in, and enjoyment of, land.
? Finally, it is not necessary to establish that the defendant has been negligent. However, an act of God or of a stranger will provide a defence to a claim.
Liability for fire damage
How did this affect the proceedings in Gore v Stannard? Mr Gore suggested that the requirements in cases involving fire damage are slightly different. He claimed that Wyvern was liable because it had brought things onto its land that were likely to cause or facilitate a fire that escaped. He relied on a line of authority dating back to Musgrove v Pandelis [1919] 2 KB 43, which also confirmed that section 86 does not provide any defence to claims brought under the Rylands v Fletcher rule.
Ward LJ reviewed decisions dating back to cases concerning fires caused by sparks from engines after the advent of the railways and accepted that, in appropriate cases, damage caused by fire emanating from an adjoining property does fall within the scope of the rule. Nonetheless, fire cases, and this appeal, must now be judged in accordance with the tests derived from Transco.
This led to the following conclusions. The “thing” brought onto Wyvern’s premises was a large stock of tyres, which are not in themselves dangerous, and keeping a stock of tyres in a tyre shop is not an extraordinary or unusual use of land. In addition, the tyres did not escape; the fire did. The rule applies where the “thing” escapes; the test is not whether the fire was started or fuelled by the “thing”.
Consequently, the county court had wrongly concluded that there was an escape within the meaning of the rule. The other members of the court agreed, but Lewison LJ would have gone further by linking liability to negligence, at least as regards fires that have not been started deliberately.
The decision suggests that it will be difficult to bring future cases within the rule, especially if, as was suggested, starting a fire were to be regarded as an ordinary use of the land on which a fire begins. However, the court was careful to state that it was considering one aspect of a larger, confused picture. Consequently, the courts may have to consider other strands of the law in future proceedings.
Allyson Colby is a senior associate and professional support lawyer at Pinsent Masons
