Fire
Accidental Fires Act, 1943
Restriction on legal proceedings in respect of accidental fires.
1.—(1) Where any person (in this section referred to as the injured person) has suffered damage by reason of fire accidentally occurring (whether before or after the passing of this Act) in or on the building or land of another person, then, notwithstanding any rule of law, the following provisions shall have effect, that is to say:—
(a) no legal proceedings shall, after the passing of this Act, be instituted in any court by the injured person or any person claiming through or under him or as his insurer against such other person on account of such damage;
(b) if, in case the fire occurred before the passing of this Act, any such legal proceedings were instituted after the 16th day of November, 1942, and before the passing of this Act, and are pending at such passing, such legal proceedings shall be discharged and made void, subject to such order as to costs as the court in which such legal proceedings are pending or a judge thereof thinks fit to make.
(2) Nothing contained in sub-section (1) of this section shall be construed as affecting legal proceedings for the enforcement of any covenant or agreement contained in any lease or letting of a building or land.
(3) In this section the word “building” includes any structure of whatsoever material or for whatever purpose used.
Repeal.
2.—The pre-Union Irish statute passed in the year 1715 and entitled “An Act for preventing Mischief that may happen by fire” (2 Geo. 1, c. 5) is hereby repealed.
Short title.
3.—This Act may be cited as the Accidental Fires Act, 1943.
Cases
Ruttledge v. Land.
[1930] I.R 537
O’Byrne J.
This is an action brought to recover damages for injury to the plaintiff’s property and interference with the plaintiff’s business caused by a fire which took place in the premises, 126 St. Stephen’s Green, in the City of Dublin, on the 15th November, 1929.
On and prior to the said date the plaintiff was possessed of and occupied the two rooms on the first floor of the said premises under an indenture of lease of the 26th April, 1928, and he carried on therein the business of a solicitor. The defendant was, in and prior to the month of November, 1929, the owner of the entire of the said premises, subject to the said lease and also subject to another letting affecting the ground-floor of the premises.
The defendant, during the month of November, 1929, was engaged in converting the upper floors of the said premises into a residential flat for himself. For this purpose he had various alterations and improvements effected in the said premises. The front room on the second floor was intended for a sitting-room, and the defendant caused the old grate and fireplace to be removed from the said room, and he had them replaced by a modern fireplace.
On the morning of the 15th November, 1929, the defendant lighted a fire in the said fireplace, and that fire was kept lighting during the day. The defendant says that shortly after 5 o’clock in the afternoon he extinguished the said fire, and he left the premises shortly afterwards. M’Garry, a carpenter, left the premises about 6.30 p.m., and Hannah Walsh and her mother (the occupiers of the ground-floor of the premises) left at 7.20 p.m. Miss Walsh and her mother returned about 8.50 p.m. and stayed about 10 minutes and then left. They did not go upstairs, and they noticed no smell of smoke or appearance of fire. The entire premises were unoccupied from 7.30 p.m., save for the short visit of Miss Walsh and her mother.
About 10.39 p.m. the same evening the Fire Brigade were called upon, and the Chief Officer states that he arrived at the premises within 3 minutes of receiving the call. When he arrived he saw signs of fire on the second floor of the said premises, and he noticed flames shooting out through the windows. The fire was then substantially confined to the front room on the second floor; but, shortly after the arrival of the Fire Brigade, portion of the floor of that room collapsed into the room underneath, and furniture and documents belonging to the plaintiff were destroyed or damaged.
The plaintiff finally left the premises in February, 1930, his tenancy having been determined by notice to quit. He carried on business in the premises in the meantime; but he says that he was incommoded in the carrying on of the business by the destruction of the front room and of the noise consequent upon the rebuilding of the premises.
The plaintiff’s claim in this action is based (1) upon negligence, and (2) upon a certain principle of the common law to which I shall presently refer.
The negligence alleged against the defendant falls under two heads:(a) negligence in and about the installation of the new fireplace, and (b) want of proper care and attention in the lighting and care of the fire lighted by the defendant in the said fireplace on the 15th November.
I was very much impressed by the evidence of Luke Toole, and I accept his evidence and that of Richard M’Garry. Acting upon that evidence, I am satisfied beyond doubt that a proper foundation was laid for the new fireplace, that that fireplacewas properly constructed and installed, and that when finished the fireplace was perfectly safe and proper. I therefore hold that there was no negligence on the part of the defendant in connection with the installation of the fireplace.
In the course of his evidence the defendant says: “I came back again after 5 o’clock. I went upstairs to see if the fire was right. There were the remains of a firesome red embers in the fireplaceand I got the poker and stirred the ashes, distributing them so that they became black. I satisfied myself that the fire was really out. There was no paper or wood in the vicinity.” This is the only evidence that could be produced as to what the defendant did before leaving the premises on the day of the burning. I entirely disregard the evidence of John M’Carthy, as it appeared from documentary evidence produced before me that his evidence related to the previous Tuesday, the fire having occurred on a Friday. I accept the evidence of the defendant, and hold that the defendant took all reasonable and proper care in lighting the fire and in seeing that it was safe before he left the premises. In my opinion the defendant could not reasonably have apprehended any danger from the said fireplace or the fire that had been lighting therein at the time he left the premises. Accordingly, in my opinion, the plaintiff’s cause of action, in so far as it is based on negligence, wholly fails.
I have, however, come to the conclusion and find as a fact that the fire, which caused the damage, originated in the front room on the second floor. How it originated is, and must remain, a matter of conjecture and speculation. I am satisfied that the defendant was the last person in that room before the outbreak of fire occurred. That the outbreak was, in some unexplained manner, due to the fire which had been burning during the day in the fireplace in that room seems probable; but I am of opinion that, whatever its origin may have been, the fire which caused the damage occurred accidentally, and was not due to any negligence or want of care on the part of the defendant or of any person in his employment or for whose actions he was responsible.
The plaintiff, nevertheless, contends that, according to the common law, every person is responsible for damage caused by fire originating on his property, and Mr. Geoghegan submitted that this doctrine was subject to only one exception: namely, where the fire was caused by the act of some third party. I am satisfied that this contention is well founded, but the hardships, which might be occasioned by such a rule of law, are obvious, and the Legislatures, both of this country and of Great Britain, passed statutes for the purpose of providing against such hardships.
By an Act of the Parliament of Ireland, passed in the year 1715 (2 Geo. 1, c. 5, sect. 1), it is provided:”Whereas by the common law of this kingdom every person or persons, in whose house, chamber, or out-house, any fire should accidentally happen,was compellable to make recompense and satisfaction for all damages suffered or occasioned thereby, to the impoverishment and utter ruin frequently of such persons: for remedy whereof be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons in this present Parliament assembled, That no action, suit, or process whatsoever, shall be had, maintained, or prosecuted against any person or persons, in whose house or chamber any fire shall from and after the twenty-fifth day of March in the year one thousand seven hundred and sixteen accidentally begin, or any recompense or satisfaction be made by such person or persons for any damage suffered or occasioned thereby: any law, usage, or custom, to the contrary notwithstanding.”
In my opinion the present case falls within the express words and clear intendment of the said Act, and accordingly I am of opinion that the Act constitutes a complete answer to the plaintiff’s claim.
In the event of an appeal, I think it is desirable to fix the amount of damages to which the plaintiff would be entitled in this case. The figures proved by Mr. M’Ginley and Mr. White amount to about £63. There was no controversy with reference to these figures save as regards one item. In addition, I have to take into consideration the interference with the plaintiff’s business. I am satisfied that there was interference, but the plaintiff very fairly said that he could not put any figure on the loss. In the circumstances, I am unable to give any substantial sum under this heading. I fix the sum of £80 as representing the plaintiff’s entire loss.
Richardson and Webster v. Athlone Woollen Mills
Lead to 1943 Act
. [1942] IR 581
Supreme Court O’Sullivan CJ.
On the 11th November, 1938, premises in the town of Athlone, known as Roslevan School, were destroyed by a fire which had spread to them from the adjoining premises, the Athlone Woollen Mills, in which it had originated.
Roslevan School was then in the occupation of the appellants, as tenants to the respondents, under an Agreement, dated the 7th September, 1938, and the Athlone Woollen Mills were owned and occupied by the respondents.
The appellants brought this action claiming:(1), damages for the loss they had sustained by the destruction of the school, and (2), damages for breach by the defendants of the covenant contained in the said Agreement to keep the school premises in repair.
The action came for trial before the President of the High Court with a jury. At the trial it was admitted that the fire which destroyed the school had originated in the Woollen Mills, andapart from the question of damages the only matters in controversy were:(1), was it by reason of any negligence on the part of the respondents’ servants that the fire originated, or spread to the school; (2), if not, did the fact that the fire had started in the premises of the respondents render them liable for the damage done by it to the school; and (3), had the respondents failed to perform the covenant to keep the exterior of the school premises in repair.
It appears from the Registrar’s certificate that the questions submitted by the learned President to the jury, and their answers, were as follows:[Reads the questions and answers printed ante p. 583.]
The Registrar’s certificate further states that, by agreement, the jury’s answer to the third question was disregarded in view of the Judge’s charge and the answers given by the jury to the first question; and by a like agreement the jury were discharged, and the third cause of action (breach of covenant)in which the Judge by agreement had allowed one question of fact to go to the jury on the second question on the issue paperwas continued before the Judge without a jury.
At the conclusion of the ease the learned President delivered judgment. He held that the claim for damages in respect of the burning of the school failed, as the jury had found that the respondents had not negligently allowed the fire to spread to the appellants’ premises, and in the absence of negligence the respondents were exonerated from liability by the Act, 2 Geo. 1, c. 5 (Ir.), s. 1. On the Claim based on breach of covenant he assessed damages at £100, and he gave judgment for the appellants for that amount with costs. On the claims in respect of the burning of the school he gave judgment for the respondents with costs. From this latter judgment the appellants have brought this appeal on the ground that the learned President erred in law in holding that the Act, 2 Geo. 1, c. 5 (Ir.), exempted the respondents from liability to the appellants.
The Act, 2 Geo. 1, c. 5 (Ir.), is entitled “An Act for preventing mischiefs that may happen by fire.” Sect. 1 provides:
“Whereas by the common law of this kingdom every person or persons, in whose house, chamber, or out-house, any fire should accidentally happen, was compellable to make recompense and satisfaction for all damages suffered or occasioned thereby, to the impoverishment and utter ruin frequently of such persons: for remedy whereof, be it enacted. . . . that no action, suit, or process whatsoever, shall be had, maintained, or prosecuted against any person or persons, in whose house or chamber any fire shall from and after the twenty-fifth day of March in the year one thousand seven hundred and sixteen accidentally begin, or any recompense or satisfaction be made by such person or persons for any damage suffered or occasioned thereby: any law, usage, or custom, to the contrary notwithstanding.”
Sect. 2 provides:
“Provided always, that nothing herein contained shall extend or be construed to extend to any action, covenant, or agreement between landlord and tenant.”
Sect. 4 provides:
“But forasmuch as fires often happen by the negligence and carelessness of servants, be it enacted by the authority aforesaid, that if any menial or other servant or servants through negligence or carelessness shall fire, or occasion the burning of, any dwelling-house, or out-house, or houses, such servant or servants, being thereof lawfully convicted by the oath of one or more credible witness or witnesses, made before two or more of His Majesty’s Justices of the Peace, shall forfeit and pay the sum of £50 . . . and in case of default or refusal to pay the same immediately after such conviction, . . . that then and in such case such servant or servants shall by warrant under the hand of two or more of His Majesty’s Justices of the Peace be committed to some workhouse, or the house of correction, as the said Justices shall think fit, for the space of eighteen months . . .”
It is contended on behalf of the appellants that the Woollen Mills were not a “house” within the meaning of s. 1, and, in the alternative, that, if they were, the provisions of that section did not, by reason of s. 2, extend to the present case.
The first question in this case therefore is, whether the word “house” in the enacting part of s. 1 should be given such a meaning as would include the Mills. These, as described by the learned President in his report, “consisted of an extensive range of buildings lying on the eastern bank of the river Shannon in the town of Athlone. They house all the machinery and the necessary power plant used for the manufacture of woollen cloth. . . . During working hours about 500 operatives were engaged on the premises. Throughout the night a caretaker remained on the premises. His duties were to attend to the furnaces, act as watchman, and give alarm in case of fire or other emergency. No other person resided on the premises.” It would appear from the map annexed to the report that the premises occupy a site, exceeding 100 yards in length, and varying in width from 40 to 70 yards, practically the entire of which is covered by buildings, some of which are two storeys high, others three, in each of which is carried on some part of, or process in, the respondents’ business. The Report does not state in which of these buildings the fire originated, and the appeal has proceeded on the basis that this is immaterial. The explanation of this may be that as the contention on behalf of the appellants is that the word “house” in the section in question means “dwelling-house,” and as the respondents do not contend that any one of their buildings could be described as such, it was considered unnecessary to distinguish the particular building in which the fire started.
As the statute does not define the word “house,” the Court, in determining the meaning of that word, must have regard to its ordinary and legal meaning, to the context in which it occurs, and to the object of the statute. In the Oxford Dictionary the first definition of the word house is:”A building for human habitation; especially a building that is the ordinary dwelling place of a family.” The subsequent definitions, however, show that the word may have any one of several different meanings.
It is contended on behalf of the appellants that the word”house” prima facie means a house used, or capable of being used, for a dwelling-house, and that proposition was accepted by Barons Pollock, Alderson and Rolfe in Surmanv. Darley (1). But I think that it is now regarded as settled that “the word ‘house’ is an ambiguous word”and that it “has no common or ordinary meaning so fixed and definite that by the mere use of the word you can determine in what sense the Legislature has used it,” perLord Halsbury in Grant v. Langston (2).
Counsel on each side submit that the interpretation of the word for which they respectively contend derives support from the context. Counsel for the appellants rely on the collocation of the words “house” and “chamber,” as they contend that the word “chamber” means an apartment or private room in a dwelling-house. On the other hand, counsel for the respondents rely on the words”dwelling-house, or outhouse, or houses” in s. 4, as indicating that the Legislature had present to its mind a distinction between the meanings of the words “dwelling-house”and “house,” and, presumably, would not have used the word house in s. 1 if it had meant dwelling-house.
These are quite legitimate considerations, but I do not think that either of them outweighs the other to such an extent as to be decisive. But when I look, as I am entitled to do, at the object of the Act, I think that the scale is turned in favour of the respondents.
I do not find it necessary to discuss the common law of England as to liability for damage caused by accidental fire, illustrated by the cases cited in the course of the argument, or the statutes of the English Parliament that altered the law:6 Anne, c. 31, and 14 Geo. 3, c. 78. I think it is sufficient to say that the Irish statute recites that by the common law of this kingdom the person in whose “house” a fire accidentally happened was liable to pay compensation for the damage caused thereby, and that the statute is a remedial one, enacted with the object as it declaresof preventing the impoverishment and utter ruin that frequently resulted from the enforcement of such liability. As the appellants claim that the respondents are liable to them at common law for the damage done by the fire which originated in respondents’ Mills they must necessarily admit that if the word”house” in s. 1 were given a meaning that would include premises such as the Mills, the accuracy of the recital would not be affected. It can, in my opinion, legitimately bear such a meaning. It is admittedly an ambiguous word, and it would, in my opinion, be more reasonable to give to it the widest meaning that it can legitimately bear, so as to mitigate as far as possible the hardship of the common law, that being the professed object of the statute.
I am therefore of opinion that the learned President was right in holding that the respondents’ premises were a “house” within the meaning of the statute.
I am further of opinion that the present action, in so far as the appellants claim damages for the burning of their school, is not an “action . . . between landlord and tenant” within the meaning of s. 2, and accordingly that the respondents are entitled to rely on the provisions of s. 1 as a defence to the appellants’ claim.
I am, therefore, of opinion that the appeal should be dismissed.
MEREDITH J. :
On the 11th November, 1940, a fire started on the premises of defendants and spread to those of the plaintiffs, who are the tenants of the defendants. The fire destroyed the plaintiffs’ boarding school and they brought this action, relying first, on the common law liability, which is independent of the character of the buildings or inflammable material which caught fire; secondly, on negligence on the part of the defendants, and, thirdly, on a covenant to repair in the plaintiffs’ lease.
The learned President, who tried the action with a jury, dismissed the claim on foot of the common law liability, holding that the fire accidentally originated in a house on the defendants’ premises, and was therefore within the exception provided for by 2 Geo, 1, c. 5, and also, owing to the finding of the jury, he dismissed the claim on foot of negligence, and, on the claim on the covenant to repair, he gave the plaintiffs £100 damages, and refused to make any specific order as to the general costs of the action.
The plaintiffs have appealed against the dismissal of their claim on the first count on the ground that the Act, 2 Geo. 1, c. 5, does not exempt the defendants from their common law liability, and, on the third count, on the ground that they were entitled to the general costs of the action.
The first ground involves two questions, viz.Whether the portion of the defendants’ factory in which the fire began was a “house” within the meaning of the Act, and whether the provision in s. 2 of the Act, which prevents anything in the Act extending to “any action, covenant, or agreement between landlord and tenant” applies in the present case.
It is clearly established that the word “house” is an ambiguous word, without any fixed meaning whatever, and it is therefore necessary to look at once to the context to discover the particular sense in which the word is being used: Attorney-General v. Tontine Westminster Chambers Association (1); B. Aerodrome, Ltd., v. Dell (2).This means that the question of the particular meaning must be approached directly from the context without any presumption as to the particular sense. Indeed, so different are the senses in which the word is used, that it is impossible to discover the slightest thread of connection between them. In the present case the particular sense has to be gathered from the short Act of which only ss. 1 and 4 give any assistance. Sect. 1 refers to the particular application of the common law with which the Act concerns itself, namely, to cases of fire accidentally happening in any “house, chamber, or out-house.” This section itself does not deal with accidental fires in an outhouse, but the collocation of the words “house” and”chamber” is significant, for “chamber” clearly refers to a part of a house, and is only appropriate to dwelling-houses. Further, the section makes it clear that “out-houses,”which are erections associated with “dwelling-houses” are not within the purview of “houses.” Therefore what is in no way connected with a dwelling-house is presumably also excluded. Sect. 4 inflicts a penalty on servants who carelessly fire or occasion “the burning of any dwelling-house or out-house or houses.” Here the word “houses”is used as the plural of dwelling-house, and this in itself would justify the inference that in s. 1 “house” is the precise equivalent of “dwelling-house,” for it is not to be supposed that the word is used in a different sense in the singular and in the plural.
In my opinion, therefore, the Act only limits the common law liability in the case of the accidental burning of a dwelling-house or dwelling-houses and is of no assistance to the defendants.
As to the contention that s. 2 exempts the defendants from liability, it is obvious that if “action . . . between landlord and tenant” extends to any action whatever between a landlord and tenant the introduction of the words “covenant or agreement” was quite meaningless, unless the sense of the section is understood to be: any covenant or agreement, and, therefore, any action on any covenant or agreement, between a landlord and a tenant is to remain unaffected by any provision of the Act. I, therefore, adopt this interpretation. The count on foot of the covenant in this case is a typical example of such an action as is contemplated.
O’BYRNE J. :
The point involved in this case turns upon the construction of the statute, 2 Geo. 1, c. 5 (Ir.), intituled:”An Act for preventing mischiefs that may happen by fire.”
The first section of that Act enacts as follows:
“Whereas by the common law of this kingdom every person or persons, in whose house, chamber, or out-house, any fire should accidentally happen, was compellable to make recompense and satisfaction for all damages suffered or occasioned thereby, to the impoverishment and utter ruin frequently of such persons: for remedy whereof, be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the lords spiritual and temporal and Commons in this present Parliament assembled, that no action, suit, or process whatsoever, shall be had, maintained, or prosecuted against any person or persons, in whose house or chamber any fire shall from and after the twenty-fifth day of March in the year one thousand seven hundred and sixteen accidentally begin, or any recompense or satisfaction be made by such person or persons for any damage suffered or occasioned thereby: any law, usage, or custom, to the contrary notwithstanding.”
In the present case a fire originated accidentally in a factory, the property of the defendant Company, and caused damage to the plaintiffs’ property, and the question for decision is whether the defendants are protected by the foregoing section. This involves and depends upon the question whether the factory, in which the fire originated, is a “house” within the meaning of the section. It is admitted that it is not a “chamber”within the meaning of that section.
I accept as good law the proposition laid down by the Earl of Halsbury L.C. in Grant v. Langston (1) that the word “house” has no common or ordinary meaning so fixed and definite that by the mere use of the word you can determine in what sense the Legislature has used it. Accordingly, regard must be had, in each case, to the subject-matter and the context, for the purpose of determining the meaning of the term.
If s. 1 stood alone I do not think there would be much difficulty in affixing a definite meaning to the term; but regard must be had to the remaining provisions of the Act, and, particularly, to s. 4, which provides that if any menial or other servant or servants, through negligence or carelessness, shall fire, or occasion the burning of, any dwelling-house, or out-house, or houses, such servant or servants, being thereof lawfully convicted, shall be liable to the penalties prescribed by the section. This section, occurring in the same statute, strongly suggests that the word “house” has a different, and probably wider, signification than the word “dwelling-house”; though, even in this section, I think its meaning is considerably restricted by two considerations arising on the section. First, the object of the section is to impose penalties on menial or other servants. If the term “other servants”is, as I think it should be, construed ejusdem generis with”menial servants,” it will be seen that the section is confined to the class of servants that would ordinarily be employed in, or in connection with, a dwelling-house. Secondly, the term is used in conjunction with the terms “dwelling-house”and “out-house,” and seems to me to be coloured and restricted by this collocation. The ordinary meaning of “out-house” (as appears from the Oxford Dictionary) is “a house or building, belonging to and adjoining a dwelling-house, and used for some subsidiary purpose;e.g., a stable, barn, wash-house, tool-house or the like.”Accordingly, it seems to me that, even in s. 4, the word”house” must be restricted to a building used in some way in connection with a dwelling-house.
I come now to the material section, viz., s. 1. In reciting the mischief aimed at and sought to be remedied, it refers to accidental fires happening in any hose, chamber orout-house; but the remedy is confined to fires which originate in a house or chamber. In this section the word”house” is used in conjunction with the word “outhouse”and in a sense which obviously does not include the latter. It, therefore, to my mind, cannot have been used in the extended sense (contended for by the respondents) as denoting a building; and I am of opinion that some more restricted meaning must be given to the term.
The primary meaning of the word “house” (I again refer to the Oxford Dictionary) is “a building for human habitation; especially a building that is the ordinary dwelling-place of a family.” That it was, in fact, used in this sense in the Act is strongly borne out by its use in conjunction with the terms “chamber” and “out-house.”I have already referred to the meaning of the term “out-house.”The same idea of connection with a dwelling-house is conveyed by the term “chamber,” which normally means a room or apartment in a house, usually appropriated to the use of one person, especially a sleeping apartment or bedroom. It is used in this sense by Swift in the year 1711 (four years before the Act in question was passed), and I take this to be a well recognised meaning of the term at the time when the Act was passed.
I am, therefore, of opinion that, having regard to the context and the subject-matter, the word “house,” as used in s. 1 of the Act, merely denotes a dwelling-house, or, at any rate, some building closely associated with, or used in connection with, a dwelling-house. Construing the term in this way, it clearly does not include, or refer to, the building in which the fire originated in this case. That building was a factoryconstructed and used as such, which was never used, or intended to be used, as a residencewhich was not suitable for such use, and which was not, in any way, used in connection with a dwelling-house.
It was strongly urged upon us, by counsel for the respondents, that this was a remedial statute, passed for the purpose of removing an anomaly theretofore existing in the common law, and that it should be so construed as to remedy, as far as possible, the mischief at which it was aimed. The principle of construction, so contended for, is well recognised, and, in cases of doubt or ambiguity, is a useful canon of construction. In the present case, however, it is clear that the statute was only intended to remove partly the anomaly. According to the common law, the doctrine for responsibility for damage caused by accidental fires was not confined to fires originating in buildings. If a fire originated accidentally in defendant’s close and spread to and damaged the plaintiff’s property, the defendant was responsible: Tuberville v. Stamp (1).Accordingly, as pointed out by the Lord Chancellor, Lord Lyndhurst, in Canterbury v. Attorney-General (2), with reference to the corresponding English statute (6 Anne, c. 31), if the statute was intended to put an end to the anomaly, it was obviously defective, inasmuch as it is clearly confined to fires originating in buildings. It seems to me impossible to contend that the statute was intended to effect a complete remedy.
It is difficult, at this stage, to say with any certainty upon what principle the common law doctrine was based. One theory is that it was based upon presumed negligence; but the mere statement of the doctrine would appear to negative the idea of negligence. A more reasonable theory would appear to be that it had its origin in some such principle as that recognised in the well-known case of Fletcher v. Rylands (1), viz., that if a person keeps upon his land anything which is likely to do mischief if it escape, he is answerable for all the damage which is the natural consequence of its escape. No doubt, these cases are sometimes treated as being founded upon negligence; but negligence, either in the keeping, or in connection with the escape, of the commodity, does not form any part of the gist of the action. If, as I am inclined to think, the doctrine was founded upon that principle, it may well have been considered unduly harsh and improper to continue it in connection with the keeping of domestic fires in dwelling-houses, where they were absolutely essential for the ordinary purposes of life.
I have arrived at the foregoing conclusion without any reference to the several statutes passed, in pari materia,by the English Parliament. A reference to these statutes, however, strengthens the conclusion at which I have arrived. The earlier statutes were, substantially, to the same effect as the Irish statute; but, in the year 1774, Parliament considered it necessary or desirable to enact that no action, suit, or process whatever, should be maintained or prosecuted against any person in whosehouse, chamber, stable, barn or other building or on whose estate any fire should, after the date therein mentioned, accidentally begin (14 Geo. 3, c. 78, s. 86). It may well be that the time has arrived when similar provision should be made in this country; but, in the meantime, the Courts must administer the law as they find it.
Cullinane v Waterford County Council
[1997] 13 August 1997 Circuit Court
Sby fire on May 7, 1993. It was claimed by the plaintiff that the defendant as a fire authority had neglected or was unable to take any adequate or sufficiently prompt steps to deal with the fire at his farm. The principal ground of negligence was that the fire brigade. had arrived to fight the fire either without water or with faulty equipment, including a faulty gauge which gave them the impression that they did not have water. This resulted in a delay of approximately 20 minutes, until an alternative water supply could be found.
The purpose of the application was to determine whether any action lay at the behest of the plaintiff against the defendant. Judge Sheridan noted that, in determining this issue, he was bound to take the plaintiff’s case at its optimum value. He further noted that he was bound to construe the relevant legislation strictly as against the defendant and to give effect to any matter which might distinguish the statute or any case law relating to the claim.
In assessing the merits of the plaintiff’s claim, judge Sheridan had regard to two English decisions concerning the liability of fire authorities: Capitals and Counties piev Hampshire County Council [1996] 4 All ER 336 and John Munroe (Acrylics) Ltdv London Fire and Civil Defence Authority [1996] 4 All ER 318. These cases concerned the English legislation equivalent to section 36 of the 1981 Act but only conferred immunity ona fire service to the extent necessary to give effect to the powers conferred on the relevant authority.
In the Capital case it was alleged that a Chief Fire Officer had negligently turned off a sprinkler system, with the result that a fire caused considerable damage to the roof of the plaintiff’s premises. The court found that the decision to tum off the sprinkler amounted to negligence not protected by statutory immunity. The court emphasised the fact that the negligence on the part of the Fire Officer concerneda positive action.
In the Monroe case the facts were that there had been an explosion in an industrial premises adjoining the plaintiff’s property. The fire brigade arrived and satisfied themselves that the fire was out, but did not inspect the roof of the plaintiff’s premises, which had in fact been showered with smouldering debris resulting in the premises being seriously damaged by fire.
In the subsequent proceedings, it was held that no sufficient proximity or special relationship existed between the fire brigade and the owner of any property which might be on fire, so as to impose on a fire brigade a duty at common law to respond toa call for assistance. Further, in the absence of a general duty to respond to a call, a fire brigade did not merely by responding to a call assume an automatic responsibility towards those in foreseeable danger to trigger an automatic common law duty of care. It followed that the fire brigade did not have a clairn to answer in the Munroe case.
Judge Sheridan noted that the English decisions were not binding on him, but merely persuasive authority. He also noted that the decisions had been made without the presence in English law of the immunity provided by section 36 of the Act of 1981.
HELD Judge Sheridan stated that the entire case turned on whether, in the particular circumstances of the case, the fire brigade owed a duty to the plaintiff which took it outside the scope of section 36 and into the realm of common law duty.The principle ground of negligence relied upon by the plaintiff was that the fire brigade had arrived to fight the fire without water or with faulty equipment. Judge Sheridan took the view that this allegation, even in the absence of the statutory immunity
provided by section 36, was less convincing than the negligence alleged in the Monroe
case.Having regard to the principles laid down in the two English cases, he was satisfied that the fact that the fire brigade had arrived to fight the fire with a faulty gauge was not sufficient to take it out of the scope of section 36.
Judge Sheridan stated that he did not believe it would be a sound proposition that modern, effective and working equipment should be a sine qua non for a fire brigade hastening to the scene of a conflagration pursuant to its duties under the Act of 1981.
Nugent v Fogarty
[2015] IEHC 523JUDGMENT of Kearns P. delivered on the 30th day of July, 2015
These proceedings relate to liability for a fire which occurred on the defendant’s dwelling house premises on or about the 27th July, 2010. The plaintiff’s claim against the defendant is for damages for loss and damage suffered by the plaintiff to his adjoining dwelling house by reason of the negligence of the defendant.
BACKGROUND
The plaintiff is the owner of the premises at 125 Coolevin, Ballybrack, Co. Dublin. The defendant is the owner and occupier of the premises at 126 Coolevin, Ballybrack. The two properties adjoin one another in a row of terraced houses.
On or about the 27th July, 2010 a fire broke out in the attic of the defendant’s property and spread to the plaintiff’s property, causing considerable damage. Damages were agreed between the parties in the sum of €96,748.43. There was no dispute between the relevant experts who attended and examined the scene as to both the seat and proximate cause of the fire. The fire broke out in the attic at a point adjacent to downlighter fittings and was caused by plastic bags containing clothing being placed on the attic floor close to such a fitting. The lower part of the downlighters was in the bathroom ceiling. The heat generated by the appliance caused one of the bags of clothing to ignite.
By letter dated 10th September, 2010 Mr. Ian Doyle of OSG Chartered Loss Adjusters, on behalf of the defendant, wrote to Mr Declan Feely of Cunningham Lindsey Chartered Loss Adjusters, for the plaintiff, indicating that “we wish to advise that OSG are not going to pursue the manufacturer of the appliance for recovery of the Insurer’s outlay as the cause of damage has been confirmed as being accidental in nature…Under the Accidental Fires Act 1943 no recovery is possible in this instance due to the accidental nature of the damage as well as there being no negligence on the part of the policyholder or her family.”
The matter came before this Court on 23rd June 2015 and evidence was heard from the defendant and her daughter as well as the experts who visited the site and prepared reports. The Court ruled that the fire was caused due to the negligence of the defendant or her daughter. The bags contained the clothing of the defendant’s recently deceased husband and had undoubtedly been placed in the attic by either the defendant or her daughter. There was evidence from both that the deceased had warned both of the dangers of leaving anything flammable in the vicinity of the downlighter fittings in the attic floor.
Negligence having been established, the matter was then adjourned to allow the parties time to prepare legal submissions in relation to the interpretation and application of the Accidental Fires Act, 1943. It is this issue with which this decision is concerned.
THE ACCIDENTAL FIRES ACT, 1943
Section 1 of the 1943 Act deals with the restriction on legal proceedings in respect of accidental fires and provides as follows –
1.—(1) Where any person (in this section referred to as the injured person) has suffered damage by reason of fire accidentally occurring (whether before or after the passing of this Act) in or on the building or land of another person, then, notwithstanding any rule of law, the following provisions shall have effect, that is to say:—
(a) no legal proceedings shall, after the passing of this Act, be instituted in any court by the injured person or any person claiming through or under him or as his insurer against such other person on account of such damage;
(b) if, in case the fire occurred before the passing of this Act, any such legal proceedings were instituted after the 16th day of November, 1942, and before the passing of this Act, and are pending at such passing, such legal proceedings shall be discharged and made void, subject to such order as to costs as the court in which such legal proceedings are pending or a judge thereof thinks fit to make.
(2) Nothing contained in sub-section (1) of this section shall be construed as affecting legal proceedings for the enforcement of any covenant or agreement contained in any lease or letting of a building or land.
(3) In this section the word “building” includes any structure of whatsoever material or for whatever purpose used.
PLAINTIFF’S SUBMISSIONS
Counsel for the plaintiff submits that the crucial words in section 1 are “fire accidentally occurring”. It is submitted that it seems clear that the phrase ‘accidentally’ means without negligence and that this view was expressed in McMahon & Binchy’s Law of Torts as follows –
“It seems clear that the 1943 Act confers immunity (in the absence of negligence on the part of the Defendant) even where there has been no spread of fire from the Defendant’s premises to those of the victim…”
Counsel relies on the recent decision of Noonan J. in Feeney v Andreucetti & Ors. [2015] IEHC 63 where the cause of a fire was the omission of a building contractor carrying out works on an adjoining property. Noonan J. referred to the decision of the English Court of Appeal in Balfour v. Barty-King [1957] 1 All ER 156 where Lord Goggard CJ cited the following remarks from Beaulieu v Finglam (1)(1401), Y.B. 2 Hen. 4 –
“…[a man] shall answer to his neighbour for each person who enters his house by his leave or knowledge, or is a guest, if he does any act, with a candle or aught else, whereby his neighbour’s house is burnt.”
Counsel submits that this absolute duty of care which was placed on the occupier at common law was modified initially by the 1707 Statute, introduced in Ireland in 1715 as ‘An Act for preventing Mischief that may happen by fire”.
In Feeney, the court considered the meaning of the term ‘accidentally’ and noted the following views of Lord Goddard in Barty-King –
“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.”
Counsel submits that the position of the defendants in the Feeney case was much stronger as they had hired an independent contractor to carry out works. However, in the present case, only the defendant and her family had access to the attic where the fire originated. In addition, the danger posed by the downlighters was well known to the family and there does not appear to be any reason why the property which ignited could not have been stored safely. Unless there were exceptional reasons for doing so, it was submitted that the Court should not depart from the views so recently expressed by a colleague judge in the High Court.
It is submitted that it does not matter whether the bag of clothing was placed on top of the downlighter or nearby and that no sensible explanation has been offered as to how property stored at a different portion of the attic could have moved to the point where they came into contact with the down-lighters. The presence of the downlighters was a permanent hazard and as the risk was known to the family there was a requirement to ensure safety by making sure that there was a zone of separation between items such as flammable bags of clothing and the source of heat. It is submitted that in taking into account what is meant by ‘non-accidental’ or ‘negligent’ the Court is entitled to weigh in the balance the enormous risk which was caused by placing flammable material so close to a source of heat.
In the case of Ramblers Way v Mr. Middleton Garden Shop [2012] IEHC 473 an electric heater had been left switched on in the vicinity of flammable materials. The person concerned had not forgotten to switch off the heater but rather, had turned the thermostat to zero as opposed to plugging out the device altogether. The court held that the fire did not accidentally occur and that the defendant had been negligent by failing to plug out the heater in accordance with the instructions and by leaving it close to flammable materials. It is submitted that the facts of the present case are closely analogous and that the clear risk of danger was known to the defendant and her family. It is contended on behalf of the plaintiff that the fire could have been avoided by undertaking a simple and safe practice.
Counsel submits that there is an excessive reliance placed on whether or not the bag of clothing was ‘thrown’ on top of the downlighter. Ultimately, the proximity of the bag to the source of heat is what caused the fire in circumstances where the defendant knew of the danger and so it is submitted that the manner in which they came to be stored in this way is immaterial, particularly as the Court has already made a finding of negligence.
It is submitted therefore that the fire which occurred in the present case was not ‘accidental’ within the meaning of the 1943 Act.
DEFENDANT’S SUBMISSIONS
It is submitted that section 1 of the 1943 Act precludes a plaintiff from issuing proceedings against the owner/occupier of a premises from which a fire has escaped to cause damage to the plaintiff’s premises where the fire damage was caused by reason of “fire accidentally occurring.” While the 1943 Act does not define “fIre accidentally occurring”, the Oxford Dictionary defines ‘accident’ as –
“An unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury”
The advanced online Oxford Dictionary defines ‘accident’ as –
“An unpleasant event, especially in a vehicle, that happens unexpectedly and causes injury or damage”
It is submitted that the definition of an accident does not speak to the cause of the event or link it to an act or omission of some person. Rather, the emphasis is on the lack on intention or lack of expectation. Counsel submits that ‘intention’ is crucial, and that something may occur as a result of some negligent or careless act, but where there is no intention it may still be defined as an accident. It does not follow that gross negligence or recklessness will not be caught by the definition of an accident.
It is submitted that unless the impugned act of the defendant can be properly characterised as an intentional and deliberate act which causes the fire and unless it can be demonstrated that the fire which occurred is a direct result of the intentional and deliberate act of the defendant, with no intervening act occurring, it may be defined as a fire accidentally occurring.
In the present case, the defendant placed bags of clothing on the floor of the attic in the vicinity of the downlighters and they remained there for a number of weeks before the fire occurred. The defendant did not engage in any other act. The defendant’s assertion that the bags of clothing had somehow fallen on top of the downlighters was not challenged by the plaintiff and the defendant also maintains that the bags were not thrown on top of the lighting units, but rather, was placed nearby. Mr Joesph O’Neill, forensic engineer, gave evidence to the Court, which was effectively unchallenged, that plastic can ‘creep’ or move over time and it is possible that this occurred, causing the bags to fall into the area proximate to the downlighter.
It is submitted therefore that two additional and subsequent events had to occur following the placing of the bags in the attic by the defendant in order for the fire to take hold, namely, the falling of the bag of clothing and the switching on and leaving on of the light. Without these two acts, the fire could not have occurred.
It is submitted that as the fire was not a necessary and unavoidable consequence of an intentional, expected or deliberate act of the defendant, the fire which occurred does not fall outside the scope of the Act. While the defendant has been found to have been negligent, the fire which occurred some weeks later was nonetheless a chance event and would not have occurred but for the intervening acts of the movement of the bag of clothes and the leaving on of the light. Section 1 of the Act, it is submitted, does not distinguish between an accident which occurs without negligence and an accident which occurs because of negligence.
Counsel contends that at common law it is clear that because of the position at common law with regard to strict liability for the escape of fire and because of the tort of negligence developed at common law in the 19th century, it is clear that in order to successfully invoke the protection of the 1943 Act it is necessary for the defendant owner/occupier of the premises from which the fire escaped to establish that the fire was caused by “reason of fire accidentally occurring”, that is to say, it was not deliberately caused by the owner or occupier and did not result from any negligent act on the part of the owner/occupier or his servants or agents.
It is submitted that the decision on Feeney v Andreucetti [2015] IEHC 63 as relied upon by the plaintiff concerned a different issue, namely the liability of third party contractors in the event of a fire. Nevertheless, it is acknowledged that Noonan J. suggested that negligence would deprive a defendant from the immunity afforded by the 1943 Act. It is submitted that as a matter of logic this approach cannot be correct as it implies that in all cases where an explanation is forthcoming as to the cause of the fire, the Act will not apply.
In McMahon and Binchy Law of Torts (4th ed.) the authors observe –
“It seems clear that the 1943 Act confers immunity (in the absence of negligence on the part of the Defendant) even where there has been no spread of fire from the Defendant’s premises to those of the victim. Thus, if a fire on the Defendant’s premises inures or damages the person or property of another premises at the time – in a public building, such as a library or hospital, for example – the 1943 Act will apply…”
Counsel refers the Court to an article by Osborough entitled Liability in tort for Unintended Fire Damage (1971, 2 IJR 205) which states –
“Unintended fire damage may be the product of negligence or it may not and the question this arises as to whether the expression “accidental” means the same as “unintended”. Blackstone, writing of the English accidental fires legislation of 1774, thought that it did: on this view, the negligent author of fire damage would be completely exonerated from liability. Judicial opinion, however, unanimously rejects Blackstone’s approach. In England it has been made clear that the immunity conferred by the equivalent Act extends only to fires which are caused by mere chance or are incapable of being traced to any cause. In Ireland, too, it has been assumed that any immunity is lost once negligence is shown. This assumption is explicit in accidental fires immunity cases such as Rutteldge v. Land, Gaynor v. McGinn and Woods v. O’Connor…
It may be tilting at windmills to express doubts as to the soundness of an interpretation which is so generally applied and is, in addition, just in its results but there is one point worthy of note. The Northern Ireland accidental fires legislation of 1944, unlike its Southern counterpart of the preceding year, expressly reserves the right of the damage victim to sue, inter alia, in negligence, A plausible explanation for this legislative variation is that the Northern Ireland draftsman believed that, in the absence of such express reservation, his legislation might have been interpreted to confer an immunity in respect of damage attributable to all non-intentional fires. The implications for the legal position in the Republic should be obvious.”
Counsel refers the Court to a number of UK authorities including the decision of Judge Thornton QC in Johnson v BJW Property Developments Limited (2001) EWHCJ 1112 where the following is stated at paragraph 33 –
“An owner or occupier of land has always been vicariously liable for the damage caused by an escape of fire which has been negligently started by the acts of others lawfully in occupation of the land. The strictness of the common law ignis suus liability for an escape of fire was such that an occupier could only escape liability where the act of a stranger caused the escape of fire from his house or land…The restriction of strict liability by the Acts of 1707 and 1774 did not effect this vicarious liability save that the escape had to have occurred other than accidentally. It follows that this strict or vicarious liability for the escape of fire developed long before the tort of negligence had developed as a separate tort.
The tort of negligence developed in the nineteenth century and, with it, there also developed the corollary doctrine that a person was not to be held liable for damage caused by the negligence of his independent contractor. The inter-relationship of this general exemption from liability for damage caused negligently by an independent contractor with the contrary ancient vicarious liability in fire cases where the escape was caused non-accidentally by anyone other than a stranger was not directly addressed for nearly 150 years after the development of negligence liability in the early nineteenth century and, when it was, the Court of Appeal held in two important decisions in 1956 and 1971 that the ancient strict liability for the negligence of independent contractors survived in fire cases.”
Counsel also refers the Court to the passage in Balfour v Barty-King [1957] 1 QB 496 as relied upon by the plaintiff. It is submitted that in the recent English Court of Appeal decision of Stannard v Gore [2012] EWCA Civ 1248 Lewison LJ conducted a detailed review of the law and arrived at the same conclusions as these earlier cases.
In light of the foregoing, counsel contends that the immunity from suit conferred by the 1943 Act may be available in a case where negligence has been found and that the facts of each case will determine whether the fire occurred accidentally. Unless section 1 of the Act is interpreted to include an accident which occurs without negligence and an accident which occurs because of negligence, where there are intervening acts between the negligent act and the act which causes the fire, the entire purpose of the 1943 Act will have been frustrated.
It is submitted that if this interpretation is not adopted, it is difficult to conceive of any set of circumstances where the 1943 Act can be successfully applied as it is invariable the case that some previous act in a chain of acts can be viewed as negligent or as a result of negligence with the result that the application of the 1943 Act to an otherwise chance fire is precluded.
DISCUSSION AND DECISION
The Court has already found that the fire which caused damage to the plaintiff’s property occurred due to the negligence of the plaintiff. The only question which remains for this Court to consider therefore is whether or not such a fire, caused as it was by negligence, can come within the scope of a “fire accidentally occurring” as set out in section 1 of the 1943 Act.
Section 1 of the 1943 Act provides that where a person has suffered damage by reason of fire accidentally occurring in or on the land of another person, then no legal proceedings can be instituted by the injured person against such other person. Counsel on behalf of the plaintiff has submitted that this immunity from suit cannot include proceedings related to fires such as that in the present case, which was caused by the negligence of the defendant. The defendant, on the other hand, contends that, in certain circumstances, the Act includes fires which occur because of negligence.
I have carefully considered the submissions of both parties on this issue of statutory interpretation and am satisfied that the plaintiff’s interpretation of section 1 of the 1943 Act is the correct one. The defendant has urged the Court to adopt an interpretation of the term ‘fire accidentally occurring’ which encompasses some intentional or deliberate act. However, based on the existing case law and indeed the definitions of the word ‘accident’ relied upon by the defendant, the Court finds that this interpretation of the Act cannot be correct.
In Feeney v Andreucetti, Noonan J. carried out an extensive review of the development of the law relating to the escape of fire. While that case concerned the liability of a third party contractor, the Court held that –
“A fire occurring through negligence, on the part of anyone save a stranger, cannot in my view be said to be accidental. The fact that the negligence in question is that of an independent contractor is not germane.”
The facts in the case of Ramblers Way Ltd. v. Mr Middleton Garden Shop Ltd. are similar to those in the present case. There, the fire was also caused by heat generated from an electrical appliance which had been left on, namely an electric heater. Hedigan J. found that this conduct on the part of the defendant to have been negligent and, consequently, outside the scope of the 1943 Act.
While this Court is not strictly bound to follow decisions of other judges of the High Court, it is well established that there must be strong and compelling reasons to warrant any contradiction or departure. The jurisprudence in this area was recently considered by this Court in Wicklow County Council v Kinsella & Anor. [2015] IEHC 229. In Re Worldport Ireland Ltd. [2005] 2 JIC 1604 Clarke J. considered the circumstances where it might be appropriate for a court to depart from a decision of a court of equal jurisdiction –
“Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is clear error in the judgment, or where the judgment sought to be revisited was delivered [at a] sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all the relevant authorities and which was, as was noted by Kearns J. (in Re Industrial Services Co. (Section 218 application) [2001] 2 IR 118), based on forming a judgment between evenly balanced argument. If each time such a point were to arise again, a judge were free to form his or her own view, without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered. In the absence of a definitive ruling from the Supreme Court on this matter I do not, therefore, consider that it is appropriate for me to consider again the issue so recently decided by Kearns J. and I intend, therefore, that I should follow the ratio in Industrial Services and decline to take the view as urged by counsel for the Bank that the case was wrongly decided.”
The decision in Feeney included an extensive review of the legal authorities and the development of the law relating to the escape of fire, and I am satisfied that there is no clear error which warrants this Court departing from it. Similarly, there is no persuasive reason why the decision of Hedigan J. in Ramblers Way Ltd. should not be followed.
The notion that a finding of negligence causes a fire to fall outside the scope of the legislation is well established and, indeed, is referred to in the passage of Osborough as relied upon by the defendant which states –
“In England it has been made clear that the immunity conferred by the equivalent Act extends only to fires which are caused by mere chance or are incapable of being traced to any cause. In Ireland, too, it has been assumed that any immunity is lost once negligence is shown.”
While the fire which occurred in the present case was undoubtedly very unfortunate, it was nevertheless caused by the defendant’s negligence and cannot therefore be said to be a ‘fire accidentally occurring’. Counsel for the defendant submits that if this position is correct it is impossible to conceive of any set of circumstances where the 1943 Act can be successfully applied. However, the Court rejects this contention. Cases where the courts, applying well established principles of negligence, find that a fire was not caused by negligence are likely to come within the scope of the 1943 Act. A non-exhaustive list of examples might include where there is interference with electrics or wiring by weather or animals, where something enters a homeowner’s chimney and causes a fire, or the spontaneous explosion of an aerosol canister.
In the present case however, the defendant was aware of the propensity of the downlighters to overheat and nevertheless stored flammable material insufficient proximity to cause them to ignite. Whether or not the bags were thrown directly on top of the units is immaterial. To include such negligence in the definition of a ‘fire accidentally occurring’ would bring a whole range of negligent acts within the definition of the Act such that a person’s duty to exercise appropriate caution and duty to their neighbours would be significantly lessened. This could not have been the intention of the legislature.
In light of the foregoing I am satisfied that the plaintiff is entitled to succeed.
Mason v Levy Auto Parts (UK)
MucKenna J.: … I come now to the law, beginning with s.86 of the Fires Prevention (Metropolic) Act 1774, whose obscure provisions were foreseeably invoked by the defendants.
The section provides that: ” no action, suit, or process whatever shall be had, 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 ”
If under the statute the householder may no longer be presumed to have caused the fire, must he be presumed, even rebuttably, to have caused it negligently? I would have said not.
One case only is in the plaintiff’s favour, decided by Judge Malcolm Wright QC, in the county court, namely, Hyman (Sales) Ltd v Benedyke & Co Ltd ([1957] 2 Lloyd’s Rep. 601). But that case is,I think, to be explained as a decision on a bailee’s liability to his bailor, which may perhaps be an exception to the general rule prescribed by the Fires Prevention (Metropolis) Act
1774.
In my judgment the plaintiff’s first point fails. There is no burden on the defendants of disproving negligence.
Has the plaintiff proved that the defendants were negligent, which is his second point? Or has he brought the case within Rylands v Fletcher or any similar principle of liability, which is his
third point? In his particulars the plaintiff charges the defendants with providing no adequate means of
detecting or extinguishing fire. I do not think that either of these charges was proved. The defendants were under no duty to maintain a constant lookout for fire, and this fire was in any case detected at an early stage by the defendants’ workmen. The appliances recommended by the fire brigade had been provided, and if it proved impossible to control or extinguish the fire by these means that is not the fault of the defendants for failing to provide more or better equipment. Such appliances are, anyhow, intended only as first-aid. That they were ineffective to control or extinguish this fire is not proof of any culpable failure to provide more adequate equipment. Then it is said that the crates were so closely stacked “that there was no reasonable access between them for fire-fighting purposes.” That was true of some parts of the yard, butI have no reason to suppose that If1t had been otherwise this fire would have been controlled.
AsI see it, the plaintiffs real case against the defendants is in the allegation that they “so used their land by cluttering it with combustible material closely packed that the plaintiff’s land was endangered.” That, like the plaintiff’s other allegations, is put against the defendants in alter native ways, including negligence, nuisance, allowing a dangerous thing, namely, fire, to escape from their land, and as a failure so to use their land as not to harm the plaintiff.
I shall consider it under the two last of these heads, beginning, as one must, with Musgrove
v Pandelis ([1919] 2 K.B. 43) [where petrol in the carburettor of the defendants’ garaged car ignited when his servant started it, but no harm would have been done to the plaintiff’s flat above if the servant had turned off the petrol flow from the tank as he should]. Bankes L.J. reasoned thus: (a) there were at common law three separate heads of liability for damage done by fire originating ona man’s property, “(i) for the mere escape of the fire; (ii) if the fire was caused by the negligence of himself or his servants, or by his own wilful act; (iii) on the principle of Rylandsv Fletcher.” (b) Fi/liter v Phippard decided that the statute did not cover the second case.
(c) “Why,” Bankes L.J. asked, “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?” The answer,
I would have said with respect, is obvious enough. There were not three heads of liability al 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. Fi/liter’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 lire 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 Rylandsv 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 “incapahle of being traced to any cause.” Bankes L.J. was making a distinction unknown to the common law, between “the mere escape of fire” (which was his first head) and its escape under Rylandsv 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. In holding that an exemption is given to accidental fires, “any law, usage, or custom to the contrary notwithstanding,” does not j include fires for which liability might be imposed upon the principle of Rylands v Fletcher, the
Court of Appeal went very far. But it is my duty to follow them unless Musgrove’s case has been overruled, or unless its principle does not apply to the facts proved here.
Musgrove’s case has not been overruled, that is certain….
What then, is the principle? As Romer L.J. in Collingwood’s case pointed out ([1936] 3 All
E.R. 200), it cannot be exactly that of Rylands v Fletcher. A defendant is not held liable under Rylands v Fletcher unless two conditions are satisfied: (i) that he has brought something on to his land likely to do mischief if it escapes, which has in fact escaped, and (ii) that those things happened in the course of some non-natural user of the land. But in Musgrove’s case the car had not escaped from the land, neither had the petrol in its tank. The principle must be, Romer L.J. said, the wider one on which Rylands v Fletcher itself was based, “sic utere tuo ”
If, for the rule in Musgrove’s case to apply, there need be no escape of anything brought on to the defendant’s land, what must be proved against him? There is, it seems to me, a choice of alternatives. The first would require the plaintiff to prove (1) that the defendant had brought something on to his land likely to do mischief if it escaped; (2) that he had done so in the course of a non-natural 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 on to his land things likely to catch fire, and kept them there in such conditions that if they did ignite the fire would be likely to spread to the plaintiff’s land; (2) he did so in the course of some non-natural use; and (3) the things ignited and the fire spread. The second test is, I think, the more reasonable one. To make the likelihood of damage if the thing escapes a criterion of liability, when the thing has not in fact escaped but has caught fire, would not be very sensible.
So I propose to apply the second test, asking myself the two questions: (i) did the defendants in this case bring to their land things likely to catch fire, and keep them there in such conditions that if they did ignite the fire would be likely to spread to the plaintiff’s land? If so, (ii) did the defendants do these things in the course of some non-natural user of the land?
I have no difficulty in answering “yes” to the first of those questions, but the second is more troublesome. I feel the difficulty which any judge must feel in deciding what is a non-natural user of the land, and have prepared myself for answering the question by reading what is said about it in Salmond on Torts (14th ed., 1965), pp.450-452, and in Winfield on Torts (7th ed., 1963), pp.449-452. Thus conditioned, I would say that the defendants’ use of their land in the way described earlier in this judgment was non-natural. In saying that, I have regard (i) to the quantities of combustible material which the defendants brought on their land: (ii) to the way in which they stored them: and (iii) to the character of the neighbourhood.
It may be that those conditions would also justify a finding of negligence. If that is so, the end would be the same as I have reached by a more laborious, and perhaps more questionable, route.