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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Stannard (t/a Wyvern Tyres) v Gore  EWCA Civ 1248 (04 October 2012)
Cite as:  1 All ER 694,  3 WLR 623,  Env LR 10,  QB 1,  EWCA Civ 1248,  42 EG 133,  WLR(D) 266,  3 EGLR 129,  1 QB 1
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ON APPEAL FROM WORCESTER COUNTY COURT
MR RECORDER POTTS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE LEWISON
| Mark Stannard (t/a Wyvern Tyres)
|- and -
|Robert Raymond Harvey Gore
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Jonathan Waite QC and Michele de Gregorio (instructed by DAC Beachcroft LLP) for the appellant
Philip Rainey QC and Nicholas Isaac (instructed by Beaumonts Solicitors) for the respondent
Hearing date: 26th April 2012
Crown Copyright ©
Lord Justice Ward:
"We think that the true rule of law is, that the person who for his own purposes brings onto his lands 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. He can excuse himself by shewing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major or the act of God; but as nothing of this sort is here, it is unnecessary to enquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is beaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisesome vapours of his neighbour's alkali works, is damnified without any default of his own; but it seems reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, water or filth, or stench," see Fletcher v Rylands (1866) LR 1 Ex 265, 279/280.
Whilst entirely concurring with that opinion, Lord Cairns, the Lord Chancellor, added the gloss that the land should not be used "for any purpose which I may term non-natural use" see Rylands v Fletcher (1868) LR 3H.L. 330, 339.
"Few cases in the law of tort or perhaps any other field are more familiar, or have attracted more academic and judicial discussion, than Rylands v Fletcher", see Transco v Stockport MDC  2 AC 1 at .
It was subjected to even more withering criticism by Mason C.J. and the majority of the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at  (though it is fair to say that the criticisms were not entirely accepted by the House of Lords in Transco):
"Notwithstanding the many accolades which have been, and continue to be, lavished on Blackburn J's judgment ((see, e.g., Wigmore, (1894) 7 Harvard Law Review 315, 383, 441 at 454: "the master-mind of Mr Justice Blackburn"; Newark, "The Boundaries of Nuisance", (1949) 65 LQR 480 at 487: "his great judgment"; Salmond and Heuston on the Law of Torts, 20th ed. (1992) at 314: "always been recognised as one of the masterpieces of the Law Reports"), that brief exposition
of "the true rule of law" is largely bereft of current authority or
validity if it be viewed, as it ordinarily is, as a statement of a
comprehensive rule (see, e.g., Jones v. Festiniog Railway Co.
(1868) LR 3 QB at 736 per Blackburn J: "the general rule of common law".) Indeed, it has been all but obliterated by subsequent judicial explanations and qualifications. "
In Transco itself Lord Hoffmann did say at :
"It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse."
The facts in a little more detail
"(a) They are not in themselves flammable, and in their normal state will not ignite unless there is sufficient flame or heat from another source.
(b) Once however a primary fire has developed, and intensified it can produce sufficient heat or flame to ignite rubber composite tyres.
(c) If tyres catch fire then combustion develops rapidly depending on the quantity of tyres present and how they are stored.
(d) Once fire takes hold of tyres they are difficult to put out."
"4. I am satisfied on the balance of probabilities that the fire originated in Wyvern's premises, and probably towards the front of the workshop area. From there it spread back into the workshop and tyre storage area, and to the side into the office and reception, and thence to the unit next door occupied by the double glazing business, and to the rear into Mr Gore's (the claimant's) premises which adjoined directly onto Wyvern's premises, the two being separated by what appears from Mr Gore's plan to be simply a single skin of brick."
The Recorder accepted the evidence of the fire officer who attended the fire that the cause of the fire was "something occurring in the wiring and appliances within Wyvern's premises". Thus he accepted that the primary source was "electrical".
"15. In my judgment on the balance of probabilities they did. Something that stands out in this case in the descriptions of the fire by the witnesses, including fire officers, is its intensity and severity. This was a fire which spread with great rapidity and intensity. Indeed it was so aggressive that the Fire Service plainly had difficulty in bringing it under control, and could only do so some hours after they had first been called out and attended and after they had been reinforced with further equipment and personnel.
16. While it is clear that tyres per se are not readily combustible and will not constitute a primary source of combustion, it is plain that they can catch fire from some other source as I have found to have existed in this case. Once the tyres were alight there was a huge problem for all concerned, including adjoining and neighbouring occupiers, because in the words of Mr Denton [the fire officer], "Once a fire takes hold of tyres they are difficult to put out". That is what, on the balance of probabilities, I find happened in the instant case with consequences that are of course only too apparent."
The judgment under appeal
" subject to the question of any Rylands v Fletcher liability, the failure of Mr Gore to establish to the satisfaction of the court any negligence on the part of Mr Stannard means that, apart from any Rylands v. Fletcher liability, he has the benefit of a defence under section 86 of the Fires Prevention (Metropolis) Act 1774 on the basis that the fire was accidental."
Strict liability under Rylands v Fletcher
"Even then of course where a fire arose from something dangerous that the defendant had brought onto his land there could be nothing accidental about any fire that arose as a result, and what became the rule in Rylands v Fletcher continued to apply with full force, although of course it is the fire itself that is the dangerous thing that escapes the defendant's land, rather than whatever caused the fire to arise in the first place."
"The following well-known requirements to the rule in order that liability may be established:
(i) the defendant must bring onto his land something that is dangerous;
(ii) the danger must escape from the defendant's land to the claimant's land; and
(iii) the use to which the defendant had put his land must be "non-natural"."
He concluded that "there was plainly an escape within the meaning of the Rylands v. Fletcher rule" and "liability therefore turns on whether or not Mr Stannard's activities on Wyvern's premises were dangerous and a non-natural use of his land." The only relevant activity was the storage of tyres. They were not in themselves flammable and would not ignite unless there was a sufficient flame or heat source. It is, however, not impossible for tyres to catch fire as obviously happened here and if they do ignite they have a special fire risk quality. This is that once alight they may burn rapidly and intensively such that they are difficult to put out. Given the haphazard way a large number of tyres were stored there was an exceptionally high risk of damage to the claimant's premises if fire broke out. That was a foreseeable risk with the result that the defendant's activities in storing tyres in the numbers and ways that he did were dangerous within the meaning of the rule. As for non-natural use, the Recorder asked himself whether what the defendant did in storing and enlarging the tyre storage area for that purpose was out of the ordinary. Here the state of affairs created by the defendant was out of the ordinary. It was not normal and not routine, the standard of normality and routine being that of a tyre business storing tyres in an orderly fashion and in such numbers that are well within the capacity of its dedicated storage facilities. This was non-natural use. Consequently the requirements of the rule in Rylands v. Fletcher were established and judgment was entered for the claimant accordingly.
Discussion: the only question in this appeal
Classic Rylands v. Fletcher
"But there is another ground upon which their Lordships are of opinion that the present case does not come within the principle laid down in Fletcher v. Rylands. 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 the land or such a use as is proper for the general benefit of the community."
The Privy Council were of the opinion that the provision of a proper supply of water to the various parts of a house is not only reasonable, but has become, in accordance with prevailing sanitary views, an almost central feature of town life and it would be wholly unreasonable to hold an occupier responsible for the consequences of acts which he is powerless to prevent.
"Now, the foundation of the action was a claim based upon the familiar doctrine established by the case of Fletcher v. Rylands, which depends upon this - that even apart from negligence the use of land by one person in an exceptional manner that causes damage to another, and not necessarily an adjacent owner, is actionable: In the present case the use complained of was that for the purpose of making munitions, which was certainly not the common and ordinary use of the land, two substances, namely, nitrate of soda and dinitrophenol, were stored in close proximity, with the result that on a fire breaking out they exploded with terrific violence. It may be accepted that it was not known to either of the defendants that this danger existed, but that in itself affords no excuse, and the result is that the plaintiffs' cause of action is well founded and the only matter for determination is against whom the action should be brought."
The disputed question was whether responsibility lay at the door of the defendant company or the personal defendants who had a licence from the inventor to manufacture the required picric acid. Whilst, therefore, that case bears some similarly to the case before us (large quantities of materials which when once alight will cause damage to neighbouring property), there is little help on the principles to apply.
"We are not concerned in the present case with the problem of personal injuries, but we are concerned with the scope of liability in nuisance and in Rylands v. Fletcher. In my opinion it is right to take as our starting point the fact that, as Professor Newark considered [in his seminal article on "The boundaries of nuisance" (1949) 65 L.Q.R. 480], Rylands v. Fletcher was indeed not regarded by Blackburn J. as a revolutionary decision: see, e.g., his observations in Ross v. Fedden (1872) 26 L.T. 966, 968. He believed himself not to be creating new law, but to be stating existing law, on the basis of existing authority; and, as is apparent from his judgment, he was concerned in particular with the situation where the defendant collects things upon his land which are likely to do mischief if they escape, in which event the defendant will be strictly liable for damage resulting from any such escape. It follows that the essential basis of liability was the collection by the defendant of such things upon his land; and the consequence was a strict liability in the event of damage caused by their escape, even if the escape was an isolated event. Seen in its context, there is no reason to suppose that Blackburn J. intended to create a liability any more strict than that created by the law of nuisance; but even so he must have intended that, in the circumstances specified by him, there should be liability for damage resulting from an isolated escape."
" Blackburn J spoke of "anything likely to do mischief if it escapes", and later he spoke of something "which he knows to be mischievous if it gets on his neighbour's [property]," and the liability to "answer for the natural and anticipated consequences." Furthermore, time and time again he spoke of the strict liability imposed upon the defendant as being that he must keep the thing in at his peril; and, when referring to liability in actions for damage occasioned by animals, he referred, at p.282, to the established principle that "it is quite immaterial whether the escape is by negligence or not." The general tenor of his statement of principle is therefore that knowledge, or at least the foreseeability of the risk, is a prerequisite of the recovery of damages under the principle; but that the principle is one of strict liability in the sense that the defendant may be held liable notwithstanding that he has exercised all due care to prevent the escape occurring."
And at p. 306 he concluded:
" it appears to me to be appropriate now to take the view that foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in damages under the rule."
In the result, since the plaintiffs were unable to establish that the pollution of their water supply by the solvent was foreseeable, the claim failed.
"Blackburn J.'s statement of the law was limited to things which are brought by the defendant onto his land, and so did not apply to things that were naturally upon the land. Furthermore, it is doubtful whether in the House of Lords in the same case Lord Cairns, to whom we owe the expression "non-natural use" of the land, was intending to expand the concept of natural use beyond that envisaged by Blackburn J. Even so, the law has long since departed from any such simple idea, redolent of a different age; and, at least since the advice of the Privy Council delivered by Lord Moulton in Rickards v. Lothian , natural use has been extended to embrace the ordinary use of land.
Rickards v. Lothian itself was concerned with a use of a domestic kind, viz. the overflow of water from a basin whose runaway had become blocked. But over the years the concept of natural use, in the sense of ordinary use, has been extended to embrace a wide variety of uses, including not only domestic uses but also recreational uses and even some industrial uses.
It is obvious that the expression "ordinary use of land" in Lord Moulton's statement of the law is one which is lacking in precision A particular doubt is introduced by Lord Moulton's alternative criterion - "or such a use as is proper for the general benefit of the community." If these words are understood to refer to a local community, they can be given some content as intended to refer to such matters as, for example, the provision of services; indeed the same idea can, without too much difficulty, be extended to, for example, the provision of services to industrial premises, as in a business park or an industrial estate. But if the words are extended to embrace the wider interests of the local community or the general benefit of the community at large, it is difficult to see how the exception can be kept within reasonable bounds. I myself, however, do not feel able to accept that the creation of employment as such, even in a small industrial complex, is sufficient of itself to establish a particular use as constituting a natural or ordinary use of land."
He did not, however, think it necessary to attempt any redefinition of the concept of natural or ordinary use because the storage and use of chemicals by the defendant was "an almost classic case of non-natural use", explaining at p. 309 that:
"It may well be that, now that it is recognised that foreseeability of harm of the relevant type is a prerequisite of liability in damages under the rule, the courts may feel less pressure to extend the concept of natural use to circumstances such as those in the present case; and in due course it may become easier to control this exception, and to ensure that it has a more recognisable basis of principle."
"It seems likely, as persuasively contended by Professor Newark ("The Boundaries of Nuisance" (1949) 65 LQR 480, 487-488), that those who decided the case regarded it as one of nuisance, novel only to the extent that it sanctioned recovery where the interference by one occupier of land with the right or enjoyment of another was isolated and not persistent."
Lord Bingham favoured retaining the rule but restating it so as to achieve as much certainty and clarity as is attainable, recognising that new factual situations are bound to arise posing difficult questions on the boundary of the rule, wherever that is drawn. His restatement was set out in paragraphs - of his speech. I extract these important observations:
"9. The rule in Rylands v Fletcher is a sub-species of nuisance, which is itself a tort based on the interference by one occupier of land with the right in or enjoyment of land by another occupier of land as such. From this simple proposition two consequences at once flow. First, as very clearly decided by the House in Read v J Lyons & Co Ltd no claim in nuisance or under the rule can arise if the events complained of take place wholly on the land of a single occupier. There must, in other words, be an escape from one tenement to another. Second, the claim cannot include a claim for death or personal injury, since such a claim does not relate to any right in or enjoyment of land.
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 escape out of his land" (LR 1 Ex 265, 279 per Blackburn J), "something dangerous ...", "anything likely to do mischief if it escapes", "something ... harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's" (p 280), "anything which, if it should escape, may cause damage to his neighbour" (LR 3 HL 330, 340, per Lord Cranworth). 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 not ordinarily regarded as sources of mischief or danger may none the less 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 user condition to which I shall shortly turn, but I think the cases decided by the House give a valuable pointer. 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 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 exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be.
11. No ingredient of Rylands v Fletcher liability has provoked more discussion than the requirement of Blackburn J (LR 1 Ex 265, 280) that the thing brought on to the defendant's land should be something "not naturally there", an expression elaborated by Lord Cairns (LR 3 HL 330, 339) when he referred to the putting of land to a "non-natural use" Read literally, the expressions used by Blackburn J and Lord Cairns might be thought to exclude nothing which has reached the land otherwise than through operation of the laws of nature. But such an interpretation has been fairly described as "redolent of a different age" (Cambridge Water  2 AC 264, 308), and in Read v J Lyons & Co Ltd 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
" It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of land "
I think it clear that ordinary user is a preferable test to natural user, making it clear that the rule in Rylands v Fletcher is engaged only where the defendant's use is shown to be extraordinary and unusual. This is not a test to be inflexibly applied: a use may be extraordinary and unusual at one time or in one place but not so at another time or in 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 ) 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 was 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, as being quite out of the ordinary in the place and at the time when 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 his property interest by the escape of that thing, subject to defences of Act of God or of a stranger, without the need to prove negligence."
Lord Hoffmann agreed that the criterion of exceptional risk must be taken seriously and creates a high threshold for a claimant to surmount. Although giving reasons of their own, Lord Scott of Foscote and Lord Walker of Gestingthorpe agreed with Lord Bingham.
(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 may have been thought to be.
(4) His use of his land must, having regard to all the circumstances of 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 to the rights and enjoyment of the claimant's land.
(7) Damages for death or personal injury are not recoverable.
(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.
Liability for damage caused by the spread of fire
"The result seems to be that, at the present day, damage resulting from the unintentional escape of fire may be redressed by any of the following remedies:
"(i) the old action of trespass on the case;
(ii) an action of the Rylands v Fletcher type: query whether this has totally absorbed (i);
(iii) an action for nuisance;
(iv) an action for negligence."
"How great a matter a little fire kindleth." (General epistle of James iii.5)"
The old action of trespass on the case
"Exactly what it did mean must remain a matter of conjecture but it excluded liability when the fire spread or occurred (i) by the act of a stranger a man was not liable for that, though he was for the act of his servant, his wife, his guest, or one entering his house with his leave or knowledge; (ii) by misadventure which, to anticipate a modern term, seems to be equivalent to inevitable accident, or something which by no care reasonable in the circumstances could have been avoided."
"A man is held to answer for the act of his servant or of his guest in such a case; for if my servant or my guest puts a candle by a wall and the candle falls into the straw and burns all my house and the house of my neighbour also, in this case I shall answer to my neighbour for his damage.
I shall answer to my neighbour for each person who enters my house by my leave or my knowledge, or is my guest through me or through my servant, if he does any act, as with a candle or aught else, whereby my neighbour's house is burnt. But if a man from outside my house and against my will starts a fire in the thatch of my house or elsewhere, whereby my house is burned and my neighbours' houses are burned as well, for this I shall not be held bound to them; for this cannot be said to be done by wrong on my part, but is against my will."
"Every man must so use his own as not to injure another. The law is general; the fire which a man makes in the fields is as much his fire as his fire in the house; if it is made on the ground, with his materials, and by his order; and he must at his peril take care that he does not, through his neglect, injure his neighbour: if he kindle it at a proper time and place, and the violence of the wind carry it into his neighbour's ground, and prejudice him, this is fit to be given in evidence. But now here it is found to have been by his negligence; and it is the same as if it had been his house."
"No action, suit, or process whatsoever shall be had, maintained, or prosecuted against any person in whose house, chamber, stable, barn or other building, 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."
It may be that, as Sir William Holdsworth in his History of England vol. XI p. 607 speculates, by this time lawyers were beginning to think it anomalous that a man should be liable for fire damage not caused by his negligence. It may have been that Parliament was simply resolving any doubt there was as to whether fire spreading from a person's house was ignis suus. Another explanation is implicit in Lord Tenterden's judgment in Becquet v MacCarthy  2 B. & A.D. 951, 958:
" By the law of this country before it was altered by the statute of 6 an. c.31, s.6, if a fire began on a man's own premises, by which those of his neighbour were injured, the latter, in an action brought for such an injury would not be bound in the first instance to show how the fire began but the presumption would be (unless it were shown to have originated from some external cause) that it arose from the neglect of some person in the house."
Thus one can surmise that the purpose of this statute was to remove the presumption of negligence on the defendant's part and cast the burden of proving negligence on the plaintiff.
"It is true that in strictness, the word accidental may be employed in contradistinction to wilful, and so the same fire might both begin accidentally and be the result of negligence. But it may equally mean that a fire produced by mere chance or incapable of being traced to any cause, and so would stand opposed to negligence of either servant or masters. And, when we find it used in statutes which do not speak of wilful fires but make important provision with respect to such as are accidental, and consider how great a change in the law would be effected, and how great encouragement would be given to that carelessness of which masters may be guilty as well as servants, we must say that we think the plaintiff's construction [accidental as opposed to negligent] much the most reasonable of the two."
An action for negligence
" But there is a rule of law which says you must so employ your own property as not to injure that of another; and according to that rule the defendant is liable for the consequences of its own neglect; and though the defendant did not himself light the fire yet mediately, he is as much the cause of it as if he had himself put a candle to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked."
"The defendants are a company entrusted by the legislature with an agent of an extremely dangerous and unruly character for their own private and particular advantage. And the law requires of them that they shall, in the exercise of the rights and powers so conferred upon them, that on such precautions as may reasonably prevent damage to the property of third persons through or near which their railway passes. The evidence in this case was abundantly sufficient to show that the injury of which the plaintiff complains was caused by the emission of sparks, or particles of ignited coke, coming from one of the defendants' engines: and there was no proof of any precaution adopted by the company to avoid such a mischief. I therefore think the jury came to a right conclusion, in finding that the company was guilty of negligence, and that the injury complained of was the result of such negligence."
We are seeing the emergence of a claim for negligence, the culmination of which in the nineteenth century was the well-known case in 1883 of Heaven v Pender (1882-1883) 11 Q.B.D. 503 which had nothing to do with fire, but which is often thought to be the progenitor of the modern law.
An action in nuisance
An action of a Rylands v Fletcher type
"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 consequences 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."
I can readily understand this decision as an example of Rylands v Fletcher. The dangerous thing which the defendant railway company brought onto their land was a steam engine which depended for its locomotion on the burning of coal, particles of which would be belched forth from its maw onto the haystack adjoining the railway line. Although the engine itself remained on the defendant's land the sparks, which were an essential part of the machine, escaped and the danger posed by such an escape was high and it was foreseeable.
"The action was tried before Lush J., who held that this enactment had no application to a case which fell, as in his view this case fell, within the principle of Rylands v Fletcher. Further he held that the fire which caused the damage did not begin accidentally, but as a result of the negligence of Coumis. He therefore gave judgment for the plaintiff."
Bankes L.J. after stating the facts, proceeded as follows at p. 46:
"The plaintiff brought this action alleging that the fire was the result of Coumis's negligence. The negligence finally relied on was that he did not instantly turn off the petrol tap and so stop the further flow of petrol into the carburettor The defendant's main defence, apart from disputing the negligence, was founded on s. 86 of the Fires Prevention (Metropolis) Act 1774, and the argument has been chiefly directed to the construction of that enactment. Lush J. took the view that the statute did not apply at all; and I agree. He also held that if that view was not correct, the fire which caused the accident did not accidentally begin within the meaning of the Act and there also I agree."
"Rylands v Fletcher is merely an illustration of that old principle [that a man must so use his own property as not to injure that of others], and in my opinion Lush J. was right in saying that this case, if it falls within that principle, is not within the protection of the statute."
"The question then, is whether this motor car, with its petrol tank full or partially filled with petrol, was a dangerous thing to bring into the garage within the principle of Rylands v Fletcher. I agree with Lush J. that this motor car was dangerous within that principle. The defendant brought it or caused it to be brought upon his premises and he is responsible for the fire which resulted, and is not within the protection of the statute."
"If this motor car with the petrol in its tank was potentially dangerous, such as a man's own fire, then it was the defendant's duty to see that the potential danger did not become an actual danger causing damage to his neighbour. The Act of Geo. III is no protection against that liability."
"I do not see how this case can be taken out of the principle of Rylands v Fletcher in the present case there is petrol which is easily convertible into an inflammable vapour; there was the apparatus for producing a spark, and added to those there was a person supposed to control the combustion but inexperienced and unequal to the task. Taken together the presence of the petrol, and the production of the inflammable gas, all those combustibles together with the inexperience of the person placed in charge of them, it is impossible to say that this is not an instance of the principle laid down by Blackburn J."
He agreed that the case was outside any possible protection of the Act of Geo. III.
"It was sufficient ground for the particular decision that the fire, that is to say the substantial fire, which actually caused the damage, was not caused without negligence. The fire which caused the damage was that which flowed from the original innocuous fire spreading through the fault of the chauffeur to the petrol in the tank, and that was clearly due to an act of negligence, and therefore, the protection of the statute did not apply. That was enough for the decision of the case. That having been laid down, the Court of Appeal proceeded to hold that the principle of Rylands v Fletcher would apply here. Well, I certainly have no desire to criticise in any way the actual decision in that case so far as it is based on the view that the real and substantial and destructive fire was the result of negligence. I confess, however, I find some difficulty about the other ground on which the decision was based, though, if it were necessary, I should follow the ruling of the Court of Appeal and apply it here if the case came within the scope of that ruling. But I do not think it does."
Romer L.J. said at p. 208:
"I think at sometime it will be desirable if the House of Lords would consider the case of Musgrove v Pandelis, so far as the decision in the case was based upon Rylands v Fletcher. Of course the rule in Rylands v Fletcher, as it is well known, is a rule which relates to the escape from somebody's premises of a dangerous animal or thing brought by the owner upon those premises, and does not relate to a case like the present, or a case like the Court of Appeal had to deal with in Musgrove v Pandelis where there had been an escape of nothing from the defendant's premises But what will have to be considered is whether Musgrove v Pandelis can be supported seeing that the decision involves these two propositions, (i) that a motor car is I am quoting from the judgment of Bankes L.J., a dangerous thing to bring into a garage and (ii) that the use of one's land for the purpose of erecting a garage and keeping a motor car there is not an ordinary and proper use of the land two propositions which, but for that authority, I should myself respectfully have doubted."
And I respectfully agree with them.
"No doubt the doctrine of that case applies to fire, and is subject to the exception of the damage being caused by a stranger."
"In these circumstances and subject only to the above-mentioned possible qualification in relation to liability in nuisance, the rule in Rylands v Fletcher with all its difficulties, uncertainties, qualifications and exceptions, should now be seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence."
The House of Lords must have been aware that fire damage could be thought to be within the scope of Rylands v Fletcher. Moreover, Musgrove was cited to their Lordships though only Lord Walker of Gestingthorpe referred to it in his speech saying:
"107. The majority in Burnie Port Authority v General Jones Pty Ltd 120 ALR 42 commented that the scope of the Rylands v Fletcher principle has been progressively restricted from within and without. Both those observations are correct up to a point, but the process has not been entirely one-way traffic. Since the middle of the 19th century many activities which were once regarded as unusually dangerous (such as running railways, which no longer use steam locomotives fuelled by coal manually shovelled into the firebox) have become commonplace. Other activities unknown in the 19th century (including all those connected with the internal combustion engine) have come on the scene, being regarded first as dangerous innovations (see Musgrove v Pandelis ) but now as basic necessities."
I am bound to conclude, therefore, that when their Lordships laid down their guidance for the application of Rylands v Fletcher, they did not exclude cases of the escape of fire and the principles they espoused should be applied in fire cases as well as in other more classic examples of escaping dangerous things.
My conclusions on fire and the rule in Rylands v Fletcher
" Consideration of the reported English case law over the past 60 years suggests that few if any claimants have succeeded in reliance on the rule in Rylands v Fletcher alone."
Lord Hoffmann said:
" It is perhaps not surprising that counsel could not find a reported case since the second world war in which anyone had succeeded in a claim under the rule. It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse."
(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 Mr Stannard recognised nor ought he reasonably to have recognised that there was an exceptionally high risk of danger or mischief if the tyres, as such, should 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 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 must fail.
(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.
Lord Justice Etherton:
"We think that the true rule of law is, that the person who for his own purposes brings on his lands 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."
"If, for the rule in Musgrove's case to apply, there need be no escape of anything brought onto 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 onto his land likely to do mischief if it escaped; (2) that he had done so in the course of a non-natural user 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 onto 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 has not in fact escaped but has caught fire, would not be very sensible."
"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 a 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 the adjoining land. Secondly, the actions on the part of the defendant must arise from a non-natural user of the defendant's land "
"8 There remains a third option, which I would myself favour: to retain the rule, while insisting upon its essential nature and purpose; and to restate it so as to achieve as much certainty and clarity as is attainable, recognising that new factual situations are bound to arise posing difficult questions on the boundary of the rule, wherever that is drawn."
"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 escape out of his land" (LR 1 Ex 265, 279 per Blackburn J), "something dangerous ...", "anything likely to do mischief if it escapes", "something ... harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's" (p 280), "anything which, if it should escape, may cause damage to his neighbour" (LR 3 HL 330, 340, per Lord Cranworth). 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 not ordinarily regarded as sources of mischief or danger may none the less 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 user condition to which I shall shortly turn, but I think the cases decided by the House give a valuable pointer. In Rylands v Fletcher itself the courts were dealing with what Lord Cranworth (LR 3 HL 330, 342) called "a large accumulated mass of water" stored up in a reservoir, and I have touched on the historical context of the decision in paragraph 3(3) above. Rainham Chemical Works  2 AC 465, 471, involved the storage of chemicals, for the purpose of making munitions, which "exploded with terrific violence". In Attorney General v Cory Bros & Co Ltd  1 AC 521, 525, 530, 534, 536, the landslide in question was of what counsel described as an "enormous mass of rubbish", some 500,000 tons of mineral waste tipped on a steep hillside. In Cambridge Water  2 AC 264 the industrial solvents being used by the tannery were bound to cause mischief in the event, unforeseen on the facts, that they percolated down to the water table. These cases are in sharp contrast with those arising out of escape from a domestic water supply (such as Carstairs v Taylor (1871) LR 6 Ex 217, Ross v Fedden (1872) 26 LT 966 or Anderson v Oppenheimer (1880) 5 QBD 602) which, although decided on other grounds, would seem to me to fail the mischief or danger test. 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 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 exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be. "
"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 his property interest by the escape of that thing, subject to defences of Act of God or of a stranger, without the need to prove negligence."
Lord Justice Lewison:
"A man is bound to answer for his servant's act, as for his lodger's act, in such a case. For if my servant or lodger puts a candle on a wall and the candle falls into the straw and burns the whole house and also my neighbour's house, in this case I shall answer to my neighbour for the damage which he has suffered."
"I shall answer to my neighbour for anyone who enters my house by my leave or with my knowledge, or is my guest or my servant's guest, if he does something with a candle (or whatever) by which my neighbour's house is burned. But if a man outside my house, against my will, sets fire to the thatch of my house or elsewhere, so that my house is burned and my neighbours' houses are burned as well, I shall not be held bound to answer to them for it; since it cannot be said to be ill-doing on my part when it is against my will."
"If fire (I know nothing of it) suddenly break out in my house and burn my goods, and also the house of my neighbour he shall have an action on the case against me."
"An action lies, upon the general custom of the realm, against the master of a house if a fire be kindled there and consume the goods of another."
"Every man must so use his own as not to injure another. The law is general; the fire which a man makes in the fields is as much his fire as his fire in his house; it is made on his ground, with his materials, and by his order; and he must at his peril take care that it does not, through his neglect, injure his neighbour: if he kindle it at a proper time and place, and the violence of the wind carry it into his neighbour's ground, and prejudice him, this is fit to be given in evidence. But now here it is found to have been by his negligence; and it is the same as if it had been in his house."
"The case was afterwards adjudged in favour of the plaintiff by the whole Court; for the action is as well for a fire kindled in the fields of the defendant as in his house, for it is the defendant's fire and kindled in his ground, and he ought to have the same care of a fire which he kindles in his field as of that which is made in his house, for the duty to take care of both is founded upon this maxim, sic utere tuo ut non lζdas alienum; but if the fire of the defendant by inevitable accident, by impetuous and sudden winds, and without the negligence of the defendant or his servants, (for whom he ought to be answerable) did set fire to the clothes of the plaintiff in his ground adjoining; the defendant shall have the advantage of this in evidence, and ought to be found not guilty. But here the verdict hath found negligence in the defendant. Therefore judgment for the plaintiff."
"The lighting of a fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending to his neighbour's property (sic utere tuo at alienum non laedas)."
"After considering the cases, it is my opinion 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 of his independent contractors and of his guests, and of anyone who is there with his leave or licence. The only circumstances when the occupier is not liable for the negligence is when it is the negligence of a stranger. It was so held in a case in the Year Books 570 years ago, Beaulieu v Finglam, which is well translated by Mr Fifoot in his book on the History and Sources of the Common Law. The occupier is, therefore, liable for the negligence of an independent contractor, such as the man who comes in to repair the pipes and uses a blowlamp: see Balfour v Barty-King; and of a guest who negligently drops a lighted match: see Boulcott Golf Club Inc v Engelbrecht. The occupier is liable because he is the occupier and responsible in that capacity for those who come by his leave and licence: see Sturges v Hackett. But the occupier is not liable for the escape of fire which is not due to the negligence of anyone. Sir John Holt himself said in Tuberville v Stampe that if a man is properly burning up weeds or stubble and, owing to an unforeseen wind-storm, without negligence, the fire is carried into his neighbour's ground, he is not liable. Again, if a haystack is properly built at a safe distance, and yet bursts into flames by spontaneous combustion, without negligence, the occupier is not liable. That is to be inferred from Vaughan v Menlove. So also if a fire starts without negligence owing to an unknown defect in the electric wiring: Collingwood v Home and Colonial Stores Ltd; or a spark leaps out of the fireplace without negligence: Sochacki v Sas." (Emphasis added)
"There has been much discussion about the exact legal basis of liability for fire. The liability of the occupier can be said to be a strict liability in this sense that he is liable for the negligence not only of his servants but also of independent contractors and, indeed, of anyone except a 'stranger'. By the same token it can be said to be a 'vicarious liability', because he is liable for the defaults of others as well as his own. It can also be said to be a liability under the principle of Rylands v Fletcher, because fire is undoubtedly a dangerous thing which is likely to do damage if it escapes. But I do not think it necessary to put it into any one of these three categories. It goes back to the time when no such categories were thought of. Suffice it to say that the extent of the liability is now well defined as I have stated it. The occupier is liable for the escape of fire which is due to the negligence of anyone other than a stranger." (Emphasis added)
"The form which this stricter liability took was not the form taken by the rule in Rylands v Fletcher, for that rule was then the general rule of civil liability."
"that this action ought not to be grounded upon the common customs of the realm; for this fire in the field cannot be called iguis suus, for a man has no power over a fire in the field, as he has over a fire in his house. And therefore this resembles the case of an inn-keeper, who must answer for any ill that happens to the goods of his guest, so long as they are in his house; but he is not answerable, if a horse be stolen out of his close."
"The Act contemplates the probability of fires in cities and towns arising from three causes, the want of water, the imperfection of party walls, and the negligence of servants. The Act provided some means for supplying these material defects: but the third section was directed against the moral one, the carelessness or negligence of servants, which (it observes) often causes fires: and it imposes on the servant by whose negligence the fire may have been occasioned a fine of 100l., to be distributed among the sufferers at the discretion of the churchwardens, or imprisonment for eighteen months in case of nonpayment. The most usual cause of fires was assumed to be the negligence of servants: and the enactment might operate to induce habits of caution in that important class. The same statute, in the sixth section, enacts that, after a day named, no action shall be maintained against any person in whose house or chamber any fire shall accidentally begin, nor shall any recompence be made by such person for any damage suffered or occasioned thereby."
"And . . . no action, suit or process whatever shall be had, maintained or prosecuted against any person in whose house, chamber, stable, barn or other building, or on whose estate any fire shall . . . accidentally begin, nor shall any recompence be made by such person for any damage suffered thereby, any law, usage or custom to the contrary notwithstanding: . . . provided that no contract or agreement made between landlord and tenant shall be hereby defeated or made void."
"It is true that in strictness, the word accidental may be employed in contradistinction to wilful, and so the same fire might both begin accidentally and be the result of negligence. But it may equally mean a fire produced by mere chance, or incapable of being traced to any cause, and so would stand opposed to the negligence of either servants or masters. And, when we find it used in statutes which do not speak of wilful fires but make an important provision with respect to such as are accidental, and consider how great a change in the law would be effected, and how great encouragement would be given to that carelessness of which masters may be guilty as well as servants, we must say that we think the plaintiff's construction much the most reasonable of the two."
"It is contended on the part of the defendants, that the plaintiff should be nonsuited; but I am not prepared to say that the fact of the engine emitting sparks may not amount to negligence. On the other hand I cannot say that a verdict ought to be entered for the plaintiff. I think that the special case should be withdrawn, and that the parties should go on to trial. To entitle the plaintiff to recover, he must either shew some carelessness by the defendants, or lay facts before the jury from which it may be inferred."
"The defendants are a company intrusted by the legislature with an agent of an extremely dangerous and unruly character, for their own private and particular advantage: and the law requires of them that they shall, in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons through or near which their railway passes. The evidence in this case was abundantly sufficient to shew that the injury of which the plaintiff complains was caused by the emission of sparks, or particles of ignited coke, coming from one of the defendants' engines; and there was no proof of any precaution adopted by the company to avoid such a mischance. I therefore think the jury came to a right conclusion, in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence."
" if, to serve his own purposes, a man does a dangerous thing, whether he takes precautions or not, and mischief ensues, he must bear the consequences: that running engines which cast forth sparks is a thing intrinsically dangerous, and that if a railway engine is used, which in spite of the utmost care and skill on the part of the Company and their servants is dangerous, the owners must pay for any damage occasioned thereby".
" whether they did not think that there was inevitable negligence in the use of a dangerous thing calculated to do, and which did cause, mischief."
"The first question then is: Was there evidence for the jury? And, as they may have found on either count, was there evidence in support of each? Next: Was the evidence such as to warrant the strong opinion of the learned Judge?
We are of opinion, on both these questions, in favour of the plaintiff. Here is confessedly the use of an instrument likely to produce damage, and producing it. This, according to general rules, would make the defendants liable. But two answers were suggested on their behalf. The first was, that if the fire originated on their own land they were protected by the 14 Geo. 3, c. 78, s. 86. But we are of opinion that the statute does not apply where the fire originates in the use of a dangerous instrument, knowingly used by the owner of the land in which the fire breaks out. It is impossible to suppose that the engine driver is liable to eighteen months imprisonment under section 84, and equally impossible to suppose there is no remedy against either master or servant, for what is a wrong by one or both. We are of opinion therefore that this answer fails."
"I agree that the mere circumstance of the fire being caused by an engine of the company, is not enough to give a cause of action against them; but the plaintiff must shew some breach of duty on their part which occasioned the injury he complains of."
"I take it that, since the case of Vaughan v Taff Vale Ry Co, which was expressly affirmed in Brand v Hammersmith Ry Co, it is clear that when a railway company is authorized by their Act of parliament to run engines on their line, and that cannot be done without their emitting sparks, the company are not responsible for injuries arising therefrom, unless there is some evidence of negligence on their part."
"We think that the true rule of law is, that the person who for his own purposes brings on his lands 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 primβ facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches."
" the liability for fire is restricted to mischief arising from negligence "
"a person who for his own purposes brings on his lands and collects and keeps there [fire] must keep it in at his peril, and, if he does not do so, is primβ facie answerable for all the damage which is the natural consequence of its escape."
"Blackburn J several times refers to the defendant's duty as being the duty of "keeping a thing in" at the defendant's peril and by "keeping in" he does not mean preventing an explosive substance from exploding but preventing a thing which may inflict mischief from escaping from the area which the defendant occupies or controls."
"On the other hand if the Defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land,and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the Plaintiff, then it appears to me that that which the Defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the Plaintiff and injuring the Plaintiff, then for the consequence of that, in my opinion, the Defendants would be liable."
"If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage."
"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; and is liable for the consequences 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 engines from doing injury, and if the sparks escape and cause damage, the defendants are liable for the consequences, though no actual negligence be shewn on their part."
"I can see nothing in this statute to licence the company to use locomotive engines. In the absence of this licence the company are left to their liabilities at common law: that is, if they use a highly dangerous machine, they must do so at the peril of the consequences if it cause injury to others."
"whether the owner of a locomotive engine propelled by steam along a public highway using a fire for the purpose of generating the steam required to propel such engine, and was managed and conducted with all reasonable care and without negligence, was liable to the plaintiffs for injury occasioning damage to a rick of hay standing on land adjoining the highway by sparks proceeding from such engine and firing the hay." (Emphasis added)
"The plaintiffs are protected by the common law, and nothing adverse to their right to sue can be drawn from the statutes: the statutes do not make it lawful to damage property without paying for the injury."
"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 his property interest by the escape of that thing, subject to defences of Act of God or of a stranger, without the need to prove negligence."
"But, nevertheless, I am of opinion that the statute affords the defendant no protection; for though the fire in the carburettor was accidental in a popular sense, I do not think it was accidental in the sense in which that term is used in the statute. If a man brings on to his premises a dangerous thing which is liable to cause fire, such as a motor car with petrol in it, the carburettor of which is not unlikely to get on fire when the engine is started, and a fire results, though without any negligence on his part, he must be held liable, the statute notwithstanding, for the rule is that he must keep such a thing under control at his peril."
"A man was liable at common law for damage done by fire originating on his own property (1) for the mere escape of the fire; (2) if the fire was caused by the negligence of himself or his servants, or by his own wilful act; (3) upon the principle of Rylands v Fletcher. This principle was not then known by that name, because Rylands v Fletcher was not then decided; but it was an existing principle of the common law as I shall show presently."
"Why, if that is the law as to the second head of liability, should it be otherwise as to the third head, the liability on the principle of Rylands v Fletcher? If that liability existed, there is no reason why the statute should alter it and yet leave untouched the liability for fire caused by negligence or design. That the principle of Rylands v Fletcher existed long before that case was decided is plain. In Vaughan v Menlove Tindal CJ says: "There is a rule of law which says you must so enjoy your own property as not to injure that of another." Park J says: "Although the facts in this case are new in specie, they fall within a principle long established, that a man must so use his own property as not to injure that of others." Rylands v Fletcher is merely an illustration of that old principle, and in my opinion Lush J was right in saying that this case, if it falls within that principle, is not within the protection of the statute."
"There were not three heads of liability at common law but only one. A person from whose land a fire escaped was held liable to his neighbour unless he could prove that it had started or spread by the act of a stranger or of God. Filliter's case had given a special meaning to the words "accidental fire" used in the statute, holding that they did not include fires due to negligence, but covered only cases of "a fire produced by mere chance, or incapable of being traced to any cause." But it does not follow, because that meaning may be given to "accidental," that the statute does not cover cases of the Rylands v Fletcher kind where the occupier is held liable for the escape though no fault is proved against him. In such cases the fire may be "produced by mere chance" or may be "incapable of being traced to any cause." Bankes LJ was making a distinction unknown to the common law, between "the mere escape of fire" (which was his first head) and its escape under Rylands v Fletcher conditions (which was his third), and was imputing an intention to the legislature of exempting from liability in the former case and not in the latter."
"This is, without doubt, a distortion of the position at common law. It has already been seen that the modern concept of negligence did not exist before the nineteenth century. The argument on Rylands v Fletcher fares no better. Its origins are not to be found in the action on the case pur negligent garder son few. Though similar in result, their bases are substantially different. The old form of action took as its starting point the escape of fire from the defendant's land. The plaintiff need then only show that it was ignis suus which caused damage to his property. Rylands v Fletcher, on the other hand, requires the accumulation on the defendant's land of "something likely to do mischief if it escapes. The former is an example of tortious liability based on "causal responsibility". The latter is an example of strict liability attaching to the use of dangerous things. Nor is the quotation from Vaughan v Menlove of assistance. It was simply part of a discourse on the emerging concept of negligence, and in any case could apply equally well to the tort of nuisance."
"Indeed, it is difficult to escape a dilemma: if a liability of the Rylands v Fletcher type existed before its classic enunciation in the case from which it takes its name (as the Court of Appeal in fact argued in Musgrove v Pandelis) then the broad language of the statute, to which MacKenna, J, drew attention can hardy be ignored; if on the other hand it were suggested that the doctrine of Rylands v Fletcher grew up after the 1774 Act then its development was necessarily limited by the mandate of Parliament."
"The LCC were undoubtedly occupiers of this land. They were sued in that capacity and they did not call any evidence to suggest otherwise. As such they owed a duty to their neighbours which is best described in the old Latin maxim: sic utere tuo ut alienum non laedas. As Markham J put it in Beaulieu v Finglam:
'I shall answer to my neighbour for him who enters my house by my leave or knowledge whether he is guest to me or my servant, if either of them acts in such a way with a candle or other things that my neighbour's house is burned.'
Since the Fire Prevention (Metropolis) Act 1774 it is I think necessary to insert the word 'negligently' after the word 'acts'.
"I think that this liability of the innkeeper was a custom of the realm. It is true it is embodied in common law rules, but then common law is the legal expression of custom, and it seems to me that that also would be an answer in this particular case. I suppose that by 1774 the legislature had appreciated what Lord Goddard CJ laid down in Sochacki v Sas: "Everybody knows fires occur through accidents which happen without negligence on anybody's part." Parliament in 1774 apparently thought it right that they should make it plain that whatever customs or usages there were to the contrary, in this country a man should not be held to be responsible for a fire which occurred accidentally which I take to mean "without negligence on his part."
Those are two points which I think would be enough to decide that there is in this case no absolute liability on the part of the innkeeper, first, because there was injury to the car and not theft or loss; and, secondly, because, in any event, as it was a fire the Act of 1774 would limit the liability of the innkeeper, so far as a fire is concerned."
"The question then, is whether this motor car, with its petrol tank full or partially filled with petrol, was a dangerous thing to bring into the garage within the principle of Rylands v Fletcher? Mr. Hawke says a motor car is not a dangerous thing unless it is in such a condition that an accident is to be apprehended. But the expectation of danger is not the basis of the principle of Rylands v Fletcher. A thing may be dangerous although the danger is unexpected. I agree with Lush J that this motor car was dangerous within that principle. The defendant brought it, or caused it to be brought upon his premises, and he is responsible for the fire which resulted, and is not within the protection of the statute."
"If this motor car with the petrol in its tank was potentially dangerous, such as a man's own fire, then it was the defendant's duty to see that the potential danger did not become an actual danger causing damage to his neighbour. The Act of Geo. 3 is no protection against that liability."
"I do not see how this case can be taken out of the principle of Rylands v Fletcher, which was thus stated by Lord Cairns LC in the very words of Blackburn J: "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." He can excuse himself by showing that the escape was owing to the plaintiff's default or perhaps that it was the consequence of vis major or the act of God. In the present case there was petrol which was easily convertible into an inflammable vapour; there was the apparatus for producing a spark; and added to those there was a person supposed to control the combustion but inexperienced and unequal to the task. Taking together the presence of the petrol, and the production of the inflammable gas, or those combustibles together with the inexperience of the person placed in charge of them, it is impossible to say that this is not an instance of the principle laid down by Blackburn J."
"That would dispose of this case but for the defendant's contention that he is excused by s. 86 of the Fires Prevention (Metropolis) Act, 1774. In my opinion the terms of that enactment fall far short of showing a definite intention to relieve a defendant in such a case as this. The actions against which the statute gives protection are in respect of fires which shall accidentally begin. I have the greatest doubt whether this fire began accidentally at any stage. If it was all one fire, it was begun not accidentally but intentionally. If progressive stages may be regarded it was not a fire which began accidentally without negligence at the stage when it became a conflagration involving goods and premises. The question may some day be discussed whether a fire, spreading from a domestic hearth, accidentally begins within the meaning of the Act, if such a fire should extend so as to involve the destruction of property or premises. I do not covet the task of the advocate who has to contend that it does. In the present case the fire, so far as it was a means of mischief, resulted from the negligent omission to turn off the petrol tap, an act which would have stopped the flow of petrol. All the witnesses who had any experience of such matters drew a distinction between fire in a carburettor, where the vapour can be instantly out off, and such a fire as occurred in this case. The learned judge has found that this fire was due to negligence. I cannot disagree with him. Whatever may be the effect of the Act of Geo. 3 upon the nice questions that have been discussed, this case is outside any possible protection of that statute."
" where a fire occurs through no fault of the landowner, without his knowledge, and, as in this case, on matter brought on his land without his knowledge and against his will, he is not responsible for the spreading of such a fire to the adjoining land, but the neighbour is entitled to go upon his land and prevent the fire from spreading."
"No doubt a person on whose estate any fire shall accidentally begin is exempted from liability by s. 86 of the Fires Prevention (Metropolis) Act, 1774, for damage caused by that fire; and it may be admitted that a fire accidentally began upon land belonging to the respondents. But the fire which caused or threatened to cause damage to the appellants' property was not the fire which accidentally began on the respondents' land, when it might have been extinguished quickly and easily, but the fire which was from May to October, 1920, allowed to increase and become formidable: Musgrove v. Pandelis."
"The case of fire has always been looked upon in our law as a somewhat exceptional case. It was no doubt the ancient law or custom of England that a person in whose house a fire originated which afterwards spread to his neighbour's property and destroyed it must make good the loss, but I do not consider that rule as opposed to the view I am putting forward in regard to liability for injury done by a private nuisance, as the ancient law no doubt considered a fire as a public nuisance owing to the danger of its spreading. The view of the law which I am taking does not touch a case where the private nuisance has been caused, or allowed to continue, by any act or default on the part of the occupier of the land on which it exists."
"Mr Vachell contended that whatever may have been the cause of the original fire it ceased to be an accidental fire within the meaning of the statute when the plaintiffs were informed of it, and that within the reasoning of the decision in Musgrove v Pandelis the fire as from that date must be treated as a second and independent fire. I cannot draw any such inference from the facts of the present case. In Musgrove v Pandelis Lush J drew from the facts the inference that there were in substance either two fires, the first an accidental one which did no damage, and the second which was due to negligence and did the damage; or alternatively that there was only one fire within the meaning of the statute, and that was the one due to negligence. This Court agreed with the view of the learned judge, but the facts of that case are very special, and have in my opinion no bearing upon the case we are now dealing with."
"There is a great deal to be said for the view that if a man finds a dangerous and artificial thing on his land, which he and those for whom he is responsible did not put there; if he knows that if left alone it will damage other persons; if by reasonable care he can render it harmless, as if by stamping on a fire just beginning from a trespasser's match he can extinguish it; that then if he does nothing, he has "permitted it to continue," and become responsible for it. This would base the liability on negligence, and not on the duty of insuring damage from a dangerous thing under Rylands v Fletcher. I appreciate that to get negligence you must have a duty to be careful, but I think on principle that a landowner has a duty to take reasonable care not to allow his land to remain a receptacle for a thing which may, if not rendered harmless, cause damage to his neighbours."
"That statute (14 Geo. 3, c. 78, s. 86) provides that no action shall lie against any person in whose house or on whose estate "any fire shall accidentally begin." This fire undoubtedly began accidentally so far as the landowner and his agents were concerned. It has been decided that the statutory restriction of the previous common law liability does not exclude liability for fires caused by negligence of the owner or persons for whom he is responsible, or by dangerous things for which the owner is responsible under the doctrine of Rylands v Fletcher. This leaves the difficult question - suppose the fire is caused by a trespasser, as if he throws down a match; and suppose the owner comes by immediately afterwards, sees the small fire, and could with no trouble extinguish it by stamping on it, but does not do so, so that the fire spreads and damages his neighbour, is he freed by the statute? He is then aware of a dangerous thing on his land which may damage his neighbour, and which by reasonable care he can prevent from damaging his neighbour, and he does nothing. I agree he is not an absolute insurer of that dangerous thing, for he did not himself create it, but I think on principle he is bound to take reasonable care of a dangerous thing which he knows to exist. Take the case of an ordinary house fire, where a coal leaps from the grate. If no one knows of the fire caused by the coal till it cannot be stopped, that fire may be within the protection of the statute, though Duke LJ doubted it in Musgrove v Pandelis. But suppose the owner sees it jump out, could extinguish it with a moment's trouble, and does not trouble to do so, could he plead the statute to protect him? In Musgrove v Pandelis, where the real danger arose from the fact that the defendant's servant negligently did not turn a tap to stop a supply of petrol to a fire, the Court treated the fire as two fires; I should respectfully have thought that it was safer to say that the fire was continued by negligence, and that the cause of action was not for a fire accidentally begun, but for negligence in increasing such a fire."
"An alternative ground for the decision in Musgrove v Pandelis was that the 1774 Act was no defence when the fire originated from a dangerous thing. This proposition has been criticised, but it was adopted and followed in Mulholland & Tedd Ltd v Baker. Since it is the fire which is the dangerous thing, whether it is caused by petrol, paraffin or anything else, and the object of the statute is to give protection against accidental fires, it is difficult to understand why the statute should not protect as much in one case as in the other. The presence of inflammable matter on premises is important when the question of negligence is being considered, so that if there is no negligence and it is found that the fire is accidental, it is submitted that the statute is a defence to the occupier of the land on which it begins, whatever may be the origin of the fire."
" cases where something or other, potentially dangerous, that the defendant has brought onto his land has escaped onto the plaintiff's land and there caused damage."
"That Act, as is well known, changed the law, because before that Act if a fire spread from a man's premises and did damage to adjoining premises, he was liable in damage on the broad ground that it was his duty at his own peril to keep any fire that originated on his premises from spreading to and damaging his neighbour's premises. The protection of the section is limited by the word "accidentally." The meaning of that is discussed in Filliter v Phippard, where it was held that the section did not apply to a fire due to the negligence of the defendant or his servants."
"All those cases are covered, if not by the common law, at any rate by the Fire Prevention (Metropolis) Act 1774, which covers all cases where a fire began or spreads by accident without negligence. But that Act does not cover a fire which begins or is spread by negligence: see Filliter v Phippard, Musgrove v Pandelis and Goldman v Hargrave."
"Since the Fire Prevention (Metropolis) Act 1774 it is I think necessary to insert the word 'negligently' after the word 'acts'." (Emphasis added)
"It is not the case of a fire starting on one owner's premises and spreading to the premises of an adjoining owner. If a fire is negligently or improperly started by a person on his land, as for instance, lighting a bonfire which spreads, he may be liable, not merely to an adjoining owner who suffers damage, but to any other person who suffers damage. If I happen to be on somebody else's land at a time when a fire spreads to that land and my motor car or property is destroyed, I have just as much right against the person who improperly allows the fire to escape from his land as the owner of the land on which I happen to be. I do not doubt that for a moment, but here the fire was being used by a man in a fireplace in his own room. There was an ordinary, natural, proper, everyday use of a fireplace in a room."
"In my opinion it was a short circuit that set fire to the wood in the neighbourhood of the ventilator and that in turn set fire to the stack of paper. Pausing here, it does not appear that this paper ever burnt freely; no doubt it caused a lot of smoke, and I accept the evidence that there was some flame seen, but it was not that stack apparently that caused the sudden sheet of flame which caused the real damage here. The cause of that is obscure; the only explanation was that offered by the fire officers, that the heating of the paint and varnish caused an accumulation of gas which suddenly ignited and rushed upwards. However, I do not propose to deal further with this because I cannot hold that placing packing paper and cardboard cartons in this recess behind the balustrade was negligent. Business of the sort carried on by the first defendants necessitates having a stack of packing and wrapping material at hand. This material is not highly inflammable like loose tissue paper or shavings would be. It is common knowledge that it takes a good deal to get closely packed thick paper well alight, though it will smoulder. But in any case I cannot see how it can be negligent to store this paper in what was a convenient recess any more than it would be to store it in one of the rooms occupied by the first defendants. They had no reason to suppose that there was likely to be a short circuit which would fire the panelling in the immediate neighbourhood of the stack, which I may mention was never burnt through. On the evidence before me I am not prepared to find that the fire was caused by the negligence of any of the defendants, and I hold that it was accidental and need only refer on this matter to Collingwood v Home and Colonial Stores Ltd."
"The precise meaning to be attached to "accidentally" has not been determined, but it is clear from these last two cited cases that where the fire is caused by negligence it is not to be regarded as accidental. Although there is a difference of opinion among eminent text writers whether at common law the liability was absolute or depended on negligence, at the present day it can safely be said that a person in whose house a fire is caused by negligence is liable if it spreads to that of his neighbour, and this is true whether the negligence is his own or that of his servant or his guest, but he is not liable if the fire is caused by a stranger.
Who, then, is a stranger? Clearly a trespasser would be in that category, but if a man is liable for the negligent act of his guest, it is, indeed, difficult to see why he is not liable for the act of a contractor whom he has invited to his house to do work on it, and who does the work in a negligent manner."
"Their Lordships would first observe, with regard to the suggested distinction, that it is well designed to introduce confusion into the law. As regards many hazardous conditions arising on land, it is impossible to determine how they arose - particularly is this the case as regards fires. If they are caused by human agency, the agent, unless detected in flagrante delicto, is hardly likely to confess his fault. And is the occupier, when faced with the initial stages of a fire, to ask himself whether the fire is accidental or man-made before he can decide upon his duty? Is the neighbour whose property is damaged bound to prove the human origin of the fire? The proposition involves that if he cannot do so, however irresponsibly the occupier has acted, he must fail. But the distinction is not only inconvenient, it lacks, in their Lordships' view, any logical foundation.
Within the class of situations in which the occupier is himself without responsibility for the origin of the fire, one may ask in vain what relevant difference there is between a fire caused by a human agency, such as a trespasser, and one caused by act of God or nature. A difference in degree - as to the potency of the agency - one can see but none that is in principle relevant to the occupier's duty to act. It was suggested as a logical basis for the distinction that in the case of a hazard originating in an act of man, an occupier who fails to deal with it can be said to be using his land in a manner detrimental to his neighbour and so to be within the classical field of responsibility in nuisance, whereas this cannot be said when the hazard originates without human action so long at least as the occupier merely abstains. The fallacy of this argument is that, as already explained, the basis of the occupier's liability lies not in the use of his land: in the absence of "adoption" there is no such use; but in the neglect of action in the face of something which may damage his neighbour. To this, the suggested distinction is irrelevant."
"The words "shall accidentally begin" are simple enough, but the simplicity is deceptive. Read literally they suggest that account need be taken of nothing except the origin of the fire and that given an accidental beginning, no supervening negligence or even deliberate act can deprive a defendant of the benefit of the statute. But further reflection suggests a doubt both because such a result seems capable of producing absurdity and injustice, and because of the inherent difficulty of saying what the expression "any fire" is intended to mean. A fire is an elusive entity; it is not a substance, but a changing state. The words "any fire" may refer to the whole continuous process of combustion from birth to death, in an Olympic sense, or reference may be to a particular stage in that process - when it passes from controlled combustion to uncontrolled conflagration. Fortunately, the Act has been considered judicially and, as one would expect, the process of interpretation has taken account of these considerations. In Filliter v Phippard Lord Denman explained the purpose of the earlier Act (6 Anne, c. 31, s. 6) as being to remove the supposed common liability of a person "in whose house a fire originated which afterwards spread to his neighbour's property" and held that it did not apply to a fire caused deliberately or negligently. This was carried further in Musgrove v Pandelis, where a fire started accidentally in the carburettor of a car, but spread because the chauffeur negligently failed to turn off the petrol tap. The Court of Appeal held that the Act did not apply. Bankes LJ put it that the Act relieved an owner for a mere escape of fire from his premises but did not relieve him against a claim for damages for negligence. The fire which caused the damage was, he thought, not the spark which caused the initial ignition, but the raging fire which arose from the act of negligence. Their Lordships accept this interpretation: it makes sense of the statute, it accords with its antecedents, and it makes possible a reasonable application of it to the facts of the present case, that is to say, that the fire which damaged the respondents' property was that which arose on March 1 as the result of the negligence of the appellant. The statutory defence therefore fails."
i) An occupier of land is not liable for the initial outbreak of fire, whether due to natural causes or human agency, unless he himself has brought the fire onto the land;
ii) He has a duty to do what is reasonable to prevent the spread of the fire. If he fails to do what is reasonable to prevent the spread of fire he is negligent;
iii) If he is negligent in preventing the spread of the fire the statutory defence under section 86 will fail. If not, it will succeed.
"It follows that the defendant in this case is to be held vicariously liable for the damage caused by the escape of fire into and onto the claimant's premises since the fire only escaped and caused damage because of the negligent workmanship of the defendant's independent contractor for whom the defendant is to be held separately liable."
"(1) he brought onto 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."
"Every activity in which man engages is fraught with some possible element of danger to others. Experience shows that even from acts apparently innocuous injury to others may result. The more dangerous the act the greater is the care that must be taken in performing it. This relates itself to the principle in the modern law of torts that liability exists only for consequences which a reasonable man would have foreseen. One who engages in obviously dangerous operations must be taken to know that if he does not take special precautions injury to others may very well result . The sound view, in my opinion, is that the law in all cases exacts a degree of care commensurate with the risk created."
" there is nothing to show that such a state of affairs was the result of failing to maintain or keep in good order the electrical system itself, of those electrical appliances that were located within Wyvern's premises, as opposed to something that may have arisen entirely by accident."
"The only relevant activity was the storage of tyres. Was this dangerous within the Rylands v Fletcher rule, i.e. did it constitute a foreseeable and exceptional high risk of damage to Mr Gore's Premises? Tyres are not in themselves flammable, and will not ignite unless there is a sufficient flame or heat source. It is, however, not impossible for tyres to catch fire (as obviously happened here), and if they do ignite, they have a special fire risk quality. This is that once alight they may burn rapidly and intensively, such that they are difficult to put out . If fire broke out there was an exceptionally high risk of damage to Mr Gore's Premises because of the rapidity and intensity of the fire that would be created by the tyres that Mr Stannard had stored on Wyvern's Premises."