Fire Damage to Property and the Non-negligent Defendant
September 28, 2016
by Anthony Elleray QC
Where C’s property is damaged by the spread of fire from D’s property D may once have had customary strict liability for C’s loss but for the intervention of statute. This paper discusses whether a non-negligent D may retain strict liability under the rule in Rylands v. Fletcher.
The Ignis Suus Rule and Early Leglisation
1. As Ward LJ observed in Gore v. Stannard (t/a Wyvern Tyres) [2014] QB 1 “the custom of the realm [was] that a person is liable for damage caused by the escape of his fire – the ignis suus rule” and by custom the appropriate remedy was an action on the case “pur negligen garder son few” in which the negligence was a breach of duty to contain D’s fire rather than negligence as it is now understood. The rule developed in the days before fire insurance was common and was directed against fires “deliberately kindled” and which had subsequently run out of control, excusing liability when fire spread by the act of a stranger or “misadventure”.
2) It was against that background that Section 86 of the Fires Prevention (Metropolis) Act 1786 (re-enacting provisions of the Fire Prevention (Metropolis) Act 1707) provided that:
“…no action, suit, or process whatsoever shall be had, maintained, or prosecuted, against any person in whose house, chambers, stable, barn or other building, or on whose estate any fire… shall accidentally begin, nor shall any recompense be made by such a person for any damages suffered thereby, any law, usage or custom to the contrary notwithstanding…”
3) As Ward LJ observed in Gore, one can surmise that the purpose of the statute was to remove the presumption of negligence on D’s part and cast the burden of proving negligence on C.
Rylands v. Fletcher and After
4) In Rylands v. Fletcher [1866] LR 1Ex 265, 279-280 Blackburn J gave what Ward LJ describes in Gore as the “iconic” ruling:
“We think that the true rule of law 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, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
5) This opinion was upheld by the House of Lords though Cairns LC added the gloss that the land should not be used “for any purpose which I may term non-natural use”.
6) Blackburn J gave various examples of “things” falling within the scope of the rule but fire was not amongst them. However Ward LJ noted in Gore at 36 that the omission should not be taken as implying that there is no liability for fire damage under the rule since “the very man who established the rule said there was” in Jones v. Festiniog Railway Co [1868] LR 3 QB 733 in a case concerned with a haystack that had been fired by sparks from a railway engine. Blackburn J held at LR 3 QB 733, 736:
‘The general rule of common law is correctly given in Fletcher v. Rylands, that when a man brings or uses a thing of a dangerous nature on his own land, he must keep it in at his own peril; for he is liable for the consequence if it escapes and does injury to his neighbour. Here the defendants were using a locomotive engine with no express Parliamentary powers making lawful that use, and they are therefore at common law bound to keep the engine from doing injury, and if sparks escape and cause damage, the defendants are liable for the consequences, though no actual negligence be shown on their part.’
7) Within its parameters Rylands v. Fletcher has always been considered to impose a strict liability on D, subject to the defences of act of God or a stranger. This “strict” rule rather than a fault-based principle has long been controversial and was subjected to withering criticism by Mason CJ and the majority of the High Court of Australia in Burnie Port Authority v. General Jones Pty Ltd [1994] 179 CLR 520, 536:
“Notwithstanding the many accolades which have been, and continue to be, lavished on Blackburn J’s judgment…that brief exposition of ‘the true rule of law’ is largely bereft of current authority or validity if it is to be viewed, as it ordinarily is, as a statement of a comprehensive rule… Indeed, it has been all but obliterated by subsequent judicial explanations and qualifications.”
8) The litigation in Burnie Port Authority concerned a fire spread when welding caused sparks to fall on highly inflammable material. The majority view of the Court was that the Port Authority was negligent in allowing a contractor to weld in an area in which it was storing a dangerous substance and the Authority’s appeal against a finding of liability for damages failed. Two minority judgments were against the abolition of the rule in Rylands v. Fletcher but they found that relevant welding was not a non-unnatural user and, on negligence principles, that the Authority should not be liable for the acts of its contractor.
9) The qualification of the majority in Burnie was that there might remain cases in which it was preferable to see D’s liability in a Rylands v. Fletcher situation as lying in nuisance rather than negligence. In context, Mason CJ cited Cambridge Water Company v. Eastern Counties [1994] 2 AC 264 which had been decided a little more than three months before. In that case the House of Lords allowed an appeal by D (a leather manufacturer) against a decision of CA that it should be strictly liable in nuisance for introducing chlorine into the aquifer used by C, a water company which had to discontinue use of the relevant aquifer because of the level of the chlorinate substance found in the water made it unwholesome for the purposes of the relevant drinking water regulations. C sued D for damages in negligence, nuisance and under Rylands v. Fletcher.
10) Kennedy J at the first instance dismissed the claim in nuisance and negligence because of the lack of reasonable foreseeability of damage of the relevant type and dismissed the claim under Rylands v. Fletcher on the basis that the storage of the relevant chlorines as an adjunct to the manufacturing process was not a non-natural user of land. The dismissal of the claims in nuisance and negligence was not appealed. The dismissal of the Rylands v. Fletcher claim was successfully appealed to the Court of Appeal but on the basis that Ballard v. Tomlinson (29 Ch D 115) was binding authority for the liability by D for contaminating an aquifer with sewage and refuse from D’s printing house, being an aquifer which C also used.
11) D’s appeal to the House of Lords succeeded. The speech was that of Lord Goff. His opinion was that the rule in Rylands v. Fletcher, as with the law in nuisance, did involve the need to show that the relevant damage was reasonably foreseeable, accepting the view of Professor Newark (in his seminal article ‘The Boundaries of Nuisance’) that Rylands v. Fletcher was essentially concerned with an extension of the law of nuisance to cases of isolated escape so that to extend the same nuisance requirement for foreseeability of harm to liability under the rule in Rylands v. Fletcher was logical. In doing so he rejected the view that Rylands v Fletcher should be regarded as a developing principle of strict liability from which a general rule of strict liability for damage caused by ultra-hazardous operations is to be derived arising from the extraordinary risk to others involved in such operations (304F-G). Lord Goff was inclined to the opinion that as a general rule it is more appropriate for strict liability in respect of such operations to be imposed by Parliament. He concluded at 306A that it was appropriate “now to take the view that foreseeability of damage of the relevant type should be regarded as a pre-requisite of liability in damages under the rule.” Dealing with D’s further point that its user of the land constituted a natural use as held by the Judge at first instance, he concluded at 309B:
“Fortunately, I do not think it necessary for the purposes of the present case to attempt any re-definition of the concept of natural ordinary use. This is because I am satisfied that the storage of chemicals in substantial quantities, and their use in the manner employed at ECL’s premises, cannot fall within the exception.”
He considered that D would have been liable under the rule in Rylands v. Fletcher if it had been reasonably foreseeable that its use of the relevant chemicals would contaminate the water in question.
12) In Transco Co plc v. Stockport MBC [2004] 2 AC 1 C’s gas main became exposed and unsupported when D’s embankment through which it ran, collapsed. C sought to recover its costs of remedial ground works. The cause of the collapse was the escape underground of accumulated quantities of water fed through a fracture of C’s water pipeline to a block of flats. C’s claim was principally under the rule in Rylands v. Fletcher. Negligence was not alleged. C succeeded at first instance but the decision was reversed by the CA which found that the pipeline was not a non-natural user of land. The appeal to the House of Lords failed: all five judgments rejected the case that D’s use of its land was non-natural and Lord Scott also took the point that there had been no “escape” because the embankment was D’s own land.
13) Their Lordships rejected a submission that it might be preferable for the rule in Rylands v. Fletcher to be absorbed into the law of negligence (as had happened in Australia in Burnie). Lord Bingham did so for four reasons. The first was that there is a category of case “however small it may be” when it seems just to impose liability even in the absence of fault owing to catastrophes such as the burst reservoir in Rylands v. Fletcher. Second, he was concerned that statute imposing strict liability for example on water undertakers may have assumed that for acts such as those in Rylands v. Fletcher strict liability would attach. Third, he noted that a possibility of departure from Rylands v. Fletcher had been raised in argument in the Cambridge Water case and that the Court had not taken occasion to depart from it. Fourth, he observed that whilst replacement of strict Rylands v. Fletcher liability by a fault-based rule might bring the law more into line with that of Scotland, it would depart from, for example, French and German law.
14) Lord Hoffmann emphasised the limited circumstances to which the rule had been confined but concluded that despite the strength of arguments for a departure from the rule, it had been part of English law for nearly 150 years, and had withstood a searching examination in the Cambridge Water case. Lord Hoffman described abolition as ‘too radical a step to take.’
15) Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Walker whilst acknowledging the Burnie criticisms did not find them sufficient to abrogate the rule.
16) Ward LJ in Gore has described the Lord Bingham’s speech as “the latest and last word on the subject”. Two paragraphs in particular repay close study:
“10. It has from the beginning been a necessary condition of liability under the rule in Rylands v. Fletcher that the thing which the defendant has brought on his land should be ‘something which … will naturally do mischief if it escapes out of his land’ … The practical problem is of course to decide whether in any given case the thing which has escaped satisfies this mischief or danger test, a problem exacerbated by the fact that many things nor ordinarily regarded as sources of mischief or danger may nonetheless be capable of proving to be such if they escape. I do not think this condition can be viewed in complete isolation from the non-natural use condition to which I shall shortly turn, but I think the cases decided by the House give a valuable pointer [Lord Bingham distinguished in context cases such as Rylands v Fetcher, Rainham Chemicals and Cambridge Water from those involving for example the escape from a domestic water supply]. Bearing in mind the historical origin of the rule, and also that its effect is to impose liability in the absence of negligence for an isolated occurrence, I do not think that the mischief or danger test should be at all easily satisfied. It must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised as giving rise to an exceptional high risk of danger or mischief should there be an escape, however unlikely and escape may have been thought to be.
“11. No ingredient of Rylands v. Fletcher liability has provoked more discussion than the requirement … that the thing brought onto the defendant’s land shall be something ‘not naturally there’, an expression elaborated by Lord Cairns LC (LR 3 HL 330, 339) when he referred to the putting of land to a ‘non-natural use’ … Read literally the expressions … might be thought to exclude nothing which has reached the land otherwise than through the operations of the laws of nature, but such an interpretation has been fairly described as ‘redolent of a different age’ (Cambridge Water [1994] 2 AC 265, 308) and in Read v. J Lyons & Co Ltd [1947] 156,169,176,187 and Cambridge Water at p.308 the House gave its imprimatur to Lord Moulton’s statement, giving the advice of the Privy Council in Rickards v. Lothian [1913] AC 263,280: “It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of land or such as is proper for the general benefit of the community”. I think it clear that ordinary user is a preferable to natural user, making it clear that the rule in Rylands v. Fletcher is engaged only where the defendant’s user is shown to be extraordinary or unusual. This is not to be a test to be inflexibly applied: a use may be extraordinary or unusual at one time or in one place but not so at another time or another place (although I would question whether, even in wartime, the manufacture of explosives could ever be regarded as an ordinary user of land, as contemplated … in Read v J Lyons & Co Ltd [1947] AC 156,169-170,174,176-177,186-187). I also doubt whether a test of reasonable user is helpful, since a user may well be quite out of the ordinary but not unreasonable, as with that of Rylands, Rainham Chemical Works or the tannery in Cambridge Water. Again, as it seems to me, the question is whether the defendant has done something which he recognises, or ought to recognise, has been quite out of the ordinary in the place and at the time he does it. In answering that question, I respectfully think that little help is gained (and unnecessary confusion perhaps caused) by considering whether the use is proper for the general benefit of the community … An occupier of land who can show that another occupier of land has brought or kept on his land an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances is in my opinion entitled to recover compensation from that occupier for any damage caused to its property interest by the escape of that thing, subject to defences of act of God or a stranger, without the need to prove negligence.”
17) The Council in Transco in providing a domestic supply of water to its block of flats, was not thought by Lord Bingham to have brought onto its land something likely to cause danger or mischief if it escaped and its user of its land was ordinary and not in any way extraordinary or unusual.
Gore v. Stannard
18) This brings matters forward to Gore in which C’s double-glazing unit on an industrial estate was destroyed by a fire which escaped from D’s motor vehicle, tyre supplier and fitter unit. The fire originated in wiring in D’s premises and was greatly intensified when heat or fire ignited D’s store of tyres which were “difficult to put out”. C’s claim in negligence failed at first instance because there was nothing to show that the wiring or electrical appliances were not kept in good order: the Recorder nonetheless found liability under the Rylands v. Fletcher principle. D’s appeal succeeded. In simple terms, the relevant tyres had not escaped. It was held, allowing the appeal, that the rule in Rylands v. Fletcher did not apply where D had brought onto his land a thing which had started or increased a fire and the fire, but not the things, had escaped from his land; and that, accordingly since the tyres (while having been brought onto D’s land) had not escaped, and the fire, while having escaped, had not been brought onto D’s land, the rule did not apply. Each of Ward, Etherton and Lewison LJJ gave judgments. Although in a minority on the point, Lewison LJ held that s.86 of the 1774 Act abolished liability for fires which start and spread without anyone’s negligence.
19) Ward LJ, as already noted, considered that one could not say there was no liability for fire damage under the Rylands v. Fletcher rule in the light of Jones v. Festiniog Railway Co. He noted that in Jones the dangerous thing was the steam engine which depended for its locomotion on the burning of coal, particles of which would have belched forth onto the haystack adjoining the railway land:
“Although the engine itself remained on the defendant’s land, the sparks, which are an essential part of the machine, escaped and the danger posed by such an escape was high and it was foreseeable.”
20) Ward LJ referred to the decision in Musgrove v. Pandelis [1920] 2 KB 43 which he described as “a troubling case.” In that case D kept a car in a garage below the rooms occupied by C. D’s servant set about moving the car which necessitated applying the pressure pump to the carburettor to start up the engine. For some unexplained reason there was an explosion in the carburettor and the petrol in the carburettor took fire:
“Instead of immediately turning the tap off which, if done, would have led to the fire burning itself out harmlessly, [the servant] delayed and the continued supply of petrol extended the fire until it had enveloped the car and ultimately the plaintiff’s premises and furniture.” (para.37)
21) As Ward LJ observed, if the claim was simply in negligence then the finding that D was vicariously liable for the negligence of his servant would be an end of the matter (para.39):
“The defence under s.86 could not prevail in the light of that finding.”
22) However, Bankes LJ in Musgrove went on to consider whether s.86 provided a defence where the case fell within Rylands v. Fletcher and found that the Judge at first instance had been right to conclude that it did not do so. Ward LJ referred to Bankes LJ, Warrington LJ and Duke LJ considering that a car partially filled with petrol was a dangerous thing. He acknowledged some criticism of the Musgrove case in Collingwood v. Home & Colonial Stores Ltd [1936] 3 All ER 200, 205, 208 but to the Court of Appeal being bound by its decision. He then considered the decision of McKenna J in Mason v. Levy Autoparts of England Ltd [1967] 2 QB 530, 542. The car had not escaped from the land and neither had the petrol in it, but he felt that it was his duty to follow the case unless it had been overruled or unless the principle did not apply to the facts of the case. Ward LJ felt bound, for reasons he had given, to hold that in an appropriate case damage caused by fire emanating from adjoining property can fall within the Rylands v. Fletcher rule but that cases of fire damage are likely to be very difficult to bring within the rule because:
“(1) It is the “thing” which had been brought onto the land which must escape, not the fire which was started or increased by the “thing”;
(2) While fire may be a dangerous thing, the occasions when fire as such is brought onto the land may be limited to cases where the fire has been deliberately or negligent started by the occupier or one for whom he is responsible. Is this not a relic of the ignis suus rule?
(3) In any event, starting a fire on one’s land may well be an ordinary use of the land”.
23) He commented that Musgrove would definitely not be decided today as it has been a century earlier and derived in particular from Transco this approach:
“22. The proper approach I extract from those compelling authorities is this; (1) the defendant must be the owner or occupier of land; (2) he must bring or keep or collect an exceptionally dangerous or mischievous thing on his land; (3) he must have recognised or ought reasonably to have recognised, judged by the standards appropriate at the relevant place and time, that there is an exceptionally high risk of danger or mischief if that thing should escape, however unlikely an escape might be thought to be; (4) his use of his land must, having regard to all the circumstances of the time and place, be extraordinary and unusual; (5) the thing must escape from his property into or onto the property of another; (6) the escape must cause damage of a relevant kind that to the rights and enjoyment of the claimant’s land; (7) damages for death or personal injury are not recoverable; and (8) it is not necessary to establish the defendant’s negligence but an act of God or the act of a stranger will provide a defence.”
24) He concluded that:
“50. Fire cases and this appeal must be judged in accordance with the test to be derived from the Transco case which I have set out at para.22 above. Applying those principles I reach the following conclusions:
(1) The ‘thing’ brought onto Wyvern’s premises was a large stock of tyres.
(2) Tyres, as such, are not exceptionally dangerous or mischievous.
(3) There is no evidence that the defendant recognised nor ought he reasonably to have recognised that there was an excessively high risk of danger or mischief if the tyres, as such, to escape.
(4) The tyres did not escape. What escaped was the fire, the ferocity of which was stoked by the tyres which were burning on, and remained burning on, Wyvern’s premises. The Recorder was wrong to conclude that it was the escape of fire that brought the case within Rylands v. Fletcher principles.
(5) In any event, keeping a stock of tyres on the premises of a tyre-fitting business, even a very large stock, was not for the time and place an extraordinary or unusual use of the land. Here again the Recorder erred.
(6) Therefore Rylands v. Fletcher liability is not established and, no negligence having been proved, the claim fails.
(7) The moral of the story is taken from the speech of Lord Hoffman: Make sure you have insurance cover for losses occasioned by fire on your premises.”
25) Etherton LJ expressed his conclusions quite briefly. They were summarised:
“53. Firstly, in the light of the comprehensive view of the Rylands v. Fletcher principle in Transco …, I do not consider that the facts of the present case satisfy the basic requirement of the Rylands v. Fletcher principle that there must have been an escape of something which the defendant has brought onto his or her land. Secondly, if there is a different requirement for so-called ‘fire cases’, where what has escaped from the defendant’s land is fire generated from something which the defendant has brought onto his or her land, the principle still does not apply in the present case because tyres are not easily set alight and so do not pose any inherent danger of catching or causing fire. Thirdly, in any event the defendant’s use of his property was not a non-natural use of his land for the purposes of the Rylands v. Fletcher principle.”
26) As to the first point, he observed:
“The various analyses in the Transco case all endorse the original formulation of the principle … in Rylands v. Fletcher. They make clear that the relevant mischief or danger is not something inherent in what is brought onto the defendant’s land, for the principle may apply where what is brought onto the land is in itself harmless (such as water). The speeches in the Transco case make clear that the relevant mischief or danger lies in what will happen if there is an escape from the defendant’s land of what has been brought onto the land. Accordingly they leave no scope for the formulations in the previous fire cases which required, as a condition of liability, that there was some inherent danger (irrespective of escape) in what the defendant had brought onto his or her land whether by virtue of flammability … or otherwise (see eg Jones v. Festiniog Railway and Musgrove v. Pandelis …).”
27) On his first point Etherton LJ could see no scope for the application of the Rylands v. Fletcher principle where there was no escape of tyres which caught fire and the fire itself was not created by D, but if wrong about that:
“… principle and weight of authorities support the conclusion that the Rylands v. Fletcher principle only applies to fire cases, where the fire has not been created by the defendant, if the fire has spread from materials brought onto the defendant’s land and those materials pose a particularly high risk because they are likely to cause or catch fire and, if they do, such fire will be likely to spread to the claimant’s property.”
28) In so doing he had referred to the decision of McKenna J in the Mason case and the proposition that the defendant could be liable if (i) he has brought onto his land things likely to catch fire, or kept them there in such conditions that if they did ignite the fire would be likely spread to the plaintiff’s land; (ii) he did so in the course of some non-natural use; and (iii) the thing ignited and the fire spread. That approach had been taken by Judge Coulson QC sitting as a High Court Judge in LMS International Ltd v. Styrene Packing & Insulation Ltd [2006] TCLRT 105 in which said at para.33:
“In cases concerned with fire, the rule in Rylands v. Fletcher requires two things. First, the defendant must have brought onto his land things which were likely to cause and/or catch fire, and kept them in such condition that if they ignited the fire would be likely to spread to the claimant’s land. To put it another way, those things must represent a recognisable risk to the owners of adjoining land. Secondly, the actions on the part of the defendant must arise from a non-natural user of the defendant’s land.”
29) Etherton LJ considered again that if he were wrong about his first point that Judge Coulson QC had given a correct summary of the law following the approach of McKenna J in the Mason case. He considered:
“In a fire case, where the fire has not been created by [D], the culpability must, by analogy, be the act of [D] in bringing onto his or her land something which was a foreseeable risk to [D] involving a creation of fire and its escape. There must be a causal connection between [D’s] act in bringing something onto his or her land and the foreseeable risk of harm to [C] in the event of an escape of fire. That causal connection can only be the inherent likelihood that what [D] has brought onto his land will catch or cause fire and the fire will spread to [C’s] property. In the present case, the evidence was that the tyres were not themselves flammable and they are not easily set alight. The necessary link between the deliberate act of [D] (in bringing tyres onto his land) and the foreseeability of the exceptional risk of harm to [C] in the event of an escape did not exist.”
30) Etherton LJ considered that if that second point was also wrong then he did not consider:
“that it was open in the light of evidence to conclude that [D’s] use of his property was a non-natural use for the purposes of the Rylands v. Fletcher principle……….The storage of tyres by a motor vehicle tyre supplier was a perfectly normal and reasonable activity to be carried on in a light industrial estate.”
31) Etherton LJ continued:
“For the sake of completeness, if I were wrong on all those points, I would uphold the Recorder’s judgment in favour of the claimant. I will reject, both as a matter of precedent and principle, the defendant’s arguments that s.86 of the Fire Prevention (Metropolis) Act 1774 excludes liability under the Rylands v. Fletcher principle. The point was directly addressed and decided by the Court of Appeal in the Musgrove case and so is binding on this court…in any event, that conclusion seems to be right in principle… [because]… there are perfectly sound and rational grounds to conclude that s.86 was enacted to clarify some limited areas of uncertainty in the customary law of ignis suus.”
32) Lewison LJ, whilst agreeing with the judgment of Ward LJ, went further in limiting the scope of a strict liability in relation to fire. His review of the ignis suus custom emphasised in relation to deliberately kindled fires cites H & N Emmanuel Ltd v. Greater London Council [1971] 2 All ER 835 (another case of an independent contractor deliberately kindling fire) and the opinion of Lord Denning MR’s that:
“..the occupier of a house or land is liable for the escape of fire which is due to the negligence not only of his servants, but also his independent contractors and of his guests, and of anyone who is there with his leave or licence. The only circumstance when the occupier is not liable for the negligence is when it is the negligence of a stranger.”
33) Lewison LJ considered that under s.86 of the 1774 Act Parliament intended to abolish liability simply on the proposition that a man “must so use his own house not to injure another” without proof of negligence. He noted textbook criticism of the decision in Musgrove v. Pandelis that the 1774 Act was no defence when the fire was a dangerous thing and stated:
“In my judgment Musgrove v. Pandelis is wrong insofar as it describes the basis of the common law before the earliest of the fire statutes. It invents an historical justification for the basis of the rule …[which]…has been criticised by Judges, by scholars and by the Law Commission. It is inconsistent with the subsequent decision of this Court in H & N Emmanuel … For good measure, Bankes LJ himself said it was decided on special facts; on the face of it, it is inconsistent with his own subsequent decision in Job Edwards … In Collingwood … Lord Wright MR said that whatever it decided Musgrove v. Pandelis did not apply to a case where a fire was caused by an unknown defect in electrical wiring. This was also the view of the Court of Appeal in Stockport Metropolitan Borough Council v. British Gas plc [2001] EMVLR 775 (whose decision was affirmed sub nom Transco …). It misinterprets both Vaughan v. Menlove 3 Bing NC 468 and Filliter … and wrongly distinguishes them. Moreover, it misstates the principle in Rylands v. Fletcher, unless it is confined to fires deliberately kindled (or deliberately brought onto land)… Musgrove v. Pandelis is clearly an extension of the principle in Rylands v. Fletcher because the occupier did not bring the fire onto his land. This was also the view of the High Court of Australia in Goldman v. Hargrave [1963] 110 CLR 40 (affirmed) [1967] 1 AC 645 … Lastly, having regard to the findings of fact made by Lush J at trial, the principle that Bankes LJ formulated was unnecessary to the decision, and wider than the facts of the case warranted.”
34) He continued:
“No extension of the principle in Rylands v. Fletcher can now be justified in the light of the decisions of the House of Lords and the Cambridge Water Co case and the Transco case. In my judgment Musgrove v. Pandelis cannot stand with the subsequent decisions of the House of Lords, and is in conflict with the subsequent decision of this court in the H & N Emmanuel case. It wrongly distinguishes two previous decisions of courts of co-ordinate jurisdiction. In these circumstances, in my judgment we are free to choose the correct path to follow … In my judgment Musgrove v. Pandelis is unsound authority and should no longer be followed.”
35) Lewison LJ then turned to the “important” case of Goldman v. Hargrave [1967] 1 AC 645 in which the occupier was held under a general duty of care, in relation to hazards, whether natural or man-made, occurring on his land to remove or reduce such hazards to his neighbours. That was a duty of care for the purposes of negligence. Having cited from the judgment of Lord Wilberforce in Goldman v. Hargrave, he noted that it was a case in which the occupier had no for the origin of the fire. There was a separate question as to liability for the spread of the fire. That was the same approach of Scrutton LJ in the Job Edwards Ltd case. He noted Lord Wilberforce’s approach to Musgrove v. Pandelis as having turned on negligence and as failing to endorse any wider basis for defeating the s.86 statutory defence. He considered that McKenna J in Mason v. Levy Autoparts of England as reluctantly extending the principle of Rylands v. Fletcher as an “unfortunate result” of Musgrove v. Pandelis, this formulation being followed in subsequent cases at first instance including, for example, LMS International Ltd v. Styrene Packing & Insulation. Lewison LJ said he would overrule Mason v. Levy Autoparts of England noting that one of McKenna J’s conditions in Mason v. Levy Autoparts of England was that the occupier brought onto his land things that were likely to catch fire (also the view of Judge Coulson QC in LMS International Ltd v. Styrene Packaging & Insulation and Akenhead J in Harooni v. Rustins Ltd [2011] EWHC 1632). But in Gore the finding of the Recorder at first instance had been that the tyres were not likely to catch fire: so Lewison LJ concluded:
“Thus although the scope of Rylands v. Fletcher has been narrowed each time the highest courts have considered it, the Recorder in fact extended it beyond any previous expression of the principle. He imposed strict liability that had not existed before. Accordingly, even if I am wrong in thinking that the extended principle in Rylands v. Fletcher does not defeat a defence under s.86 against liability for the consequences of a fire that starts and spreads without anyone’s negligence, in my judgment the Recorder was wrong to hold the defendant liable on the facts that he found.”
36) It follows that the “troubling” case of Musgrove v. Pandelis was dealt with differently by the Appeal Court Judges in Gore. Ward LJ treated the Musgrove case as a fact-sensitive case that would be decided differently today. Etherton LJ considered that it was binding on the Court of Appeal and gave a limited effect to s.86 of the 1774 Act that would prevent it from affording the occupier a defence in circumstances of Rylands v. Fletcher liability. Lewison LJ by contrast considered that Musgrove should not where relevant be followed as inconsistent with higher authority and indeed later Appeal Court authority. He considered therefore that the occupier has a statutory defence under s.86 of the 1774 Act to a claim for strict liability under Rylands v. Fletcher. The Supreme Court dismissed a subsequent application for permission to appeal.
Conclusion
37) It would thus appear that it remains arguable that strict liability under Rylands v. Fletcher can be established for the spread of fire without proof of negligence subject to the restrictions enumerated in Transco and in particular:
(i) It must be shown that D has done something which he recognised or, judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely the escape may be thought to be (a test that may not be easily satisfied); and
(ii) An occupier of land who can show that another occupier of land has brought or kept on his land an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances is entitled to recover compensation from that occupier for any damage caused to his property interest by the escape of that thing, subject to the defences of an act of God or of a stranger, without the need to prove negligence.
38) Returning to paragraph 16 above, the opinion of Lord Goff in the Cambridge Water case was that reasonable foreseeability of loss should be a prerequisite of liability as it was in negligence. However, he characterised that as a principle relating to remoteness, having cited from The Wagon Mound (No 2). He had said at 300 D-F:
“In the present case, we are not concerned with liability in damages in respect of a nuisance which has arisen through natural causes, or by the act of a person for whose actions the (D) is not responsible, in which cases the applicable principles in nuisance have become closely associated with those applicable in negligence (citing the Sedleigh-Denfield and Goldman cases. We are concerned with the liability of a person where nuisance has been created by one for whose actions he is responsible. Here as I have said, it is still the law that the fact that the (D) has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanise being reasonable user. But it by no means follows that the (D) should be held liable for damage of a kind he could not reasonably foresee….”
39) Clerk & Lindsell on Torts 21st ed. at 20-31 cites Lord Parker CJ in British Road Services v Slater [1964] 1 WLR 498 at 504, stating that the modern tendency was to move away from absolute liability and to assimilate nuisance and negligence. Clerk & Lindsell then in context cite Cambridge Water. But Lord Goff did not assimilate the two. Subject to foreseeability of damage to C, liability in nuisance may still be considered strict. In Gore, Ward LJ referred at 35 to Spicer v Smee [1946] 1 All ER 489, where C’s bungalow was destroyed by a fire caused by defects in the wiring of D’s bungalow, the defects resulting from the negligence of an independent contractor. A Section 86 defence failed because D was liable for the negligence of the contractor and the creation of a nuisance. Lewison LJ at 148, found the decision justified on the basis of negligent installation but found the finding of nuisance more questionable. But D was responsible for an act on his land which D could reasonably foresee might cause physical damage to C’s bungalow, though in that case the negligent installation was identified as the cause of the fire.
40) It does appear that a non-negligent D may be responsible for damage the result of the spread of fire but C would probably need to surmount the Cambridge Water and Transco, and now Gore,hurdles. There is a want of a reported case in modern times of such liability.
