Why is the Law of Fire like a student fridge?

6 October 2012 by David Hart KC

Stannard (t/a Wyvern Tyres) v. Gore, Court of Appeal, 4 October 2012 read judgment

The best part of a thousand years of law has been distilled into this scholarly resolution by the CA of an age old problem. Who pays for the consequences of an accidentally caused fire – the landowner where the fire started or the neighbour who suffered the loss?  

The case is a good illustration of the dangers of the incremental development of our judge-made common law – under scrutiny from time to time from Strasbourg for its lack of precision or unjustness in its wilder reaches, but which has generally passed muster from the European Court of Human Rights: see here or the famous Sunday Times thalidomide case on the then common law of contempt.

Much of the law of civil wrongs (lawyers call it tort) is decided by judges on a case by case basis. When this has gone for too long, the law gets all thickety, dominated by a lot of one-off decisions driven by their specific facts, and where the judge don’t necessarily have their eyes on the wider picture. And these decisions can get way out of date anyway. It is a bit like a student fridge – people rarely clean it out and start again. Changing the metaphor, the law is then in need of a bit of slash-and-burn, and the Law of Fire got that pretty effectively from the CA last week.

The facts, as often with legally tricky cases, were simple. Mr Stannard was a tyre fitter on an industrial estate in Hereford. He kept 3,000 or tyres on his premises. A fault developed in electrical wiring, through no fault of his own, which caused a fire which spread to the tyres. Tyres do not get alight easily, but then burn well and are difficult to put out. The fire caused the total loss of Mr Gore’s premises.

The court below allowed Mr Gore’s claim; the CA disagreed.

Cue the key legal principles and questions which have to get sorted out before the conundrum can be answered.

(A) Old customary law said that a man needed to keep “his fire” in and if he didn’t, he ought to pay for it. In an age of wooden towns, and fire constantly being used for heat, light and cooking, this made sense. But does this rule apply to an accidentally caused fire?

(B) An eighteenth century statute (s.86 of the Fires Prevention Metropolis Act 1774) made it a defence to an action for “his fire” that the fire shall “accidentally begin.” But did this defence apply if the fire accidentally but negligently began?

(C) A major 1860s decision, the Rylands v. Fletcher beloved of or accursed by all law students, says that “if a person for his own purposes brings on to his lands and collects and keeps there anything likely to do mischief if escape, he must keep it in at its peril”  – in the famous ruling of Blackburn J in the court below. On the face of it, a wide principle of strict liability for civil wrongs – in that case, a leaking reservoir. Does this rule apply to fire at all, generally or only when the fire is deliberately lit?

(D) Since Rylands, the law of tort has been overwhelmed by principles of the law of negligence, and strict liability has been pushed into little corners by this upstart principle not much more than a century old. Hence, the various criteria in the italics above have been more and more difficult to satisfy – indeed Ward LJ in the CA  [22] summarised them as follows:

(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.

from which you will see that the words “exceptionally” “extraordinary” and “unusual” have been inserted into Blackburn J’s formulation. That all said, this little pocket of strict liability survives. The Australians have been franker – the rule had become “all but obliterated by subsequent judicial explanations and qualifications”, and hence the High Court of Australia gave it the coup de grace in Burnie Port.  The Scots never liked it as part of their common law – in one case, it was said to be a heresy which ought to be extirpated.

Back to the Hereford tyre fitter. The judge at first instance decided that (i) there was an escape of fire within Rylands v. Fletcher; (ii) there was an exceptionally high risk of damage if fire broke out given the way in which the tyres were stored; (iii) damage was foreseeable; (iv) the haphazard nature of tyre storage was an out of the ordinary use of land. So Mr Gore won on the strict liability claim even though the judge dismissed his claim that Mr Stannard had been negligent.

The tyre fitter went to the Court of Appeal – and the judgment was reversed. The judge had made a number of errors. The rule of strict liability applies to the escape of things you collect on your land. But the tyres did not escape – it was only the fire that escaped, and Mr Stannard did not bring fire onto to his land. And, “tyres, as such are not exceptionally dangerous or mischievous”” [50].

That is the short version. But he judgments run to 55 pages over 170 paragraphs.  At the end of reading them, we learn that

(A) the medieval rule about a man having to keep “his fire” in (the “suus ignis” rule for those with the Latin) only ever applied to fires deliberately lit – which as we have seen, happened all day every day in medieval life.

(B) The defence conferred by the 1774 Act to a “his fire” claim only applies when the fire occurred non-negligently.

(C) Rylands v. Fletcher does apply to fire, but only when deliberately lit – hence it is no more than the “his fire” rule – according to Lewison LJ, though Etherton LJ may disagree: [67]

(D) the 1919 decision of the CA in Musgrove v. Pandelis – all about an incompetent chauffeur and a petrol explosion from the car which he was trying to start – is very, very wrong when it goes beyond the law of negligence – for those who like a bit of legal trashing, how about this from Lewison LJ?

In my judgment Musgrove v Pandelis is wrong in so far as it describes the basis of the common law before the earliest of the fire statutes. It invents an unhistorical justification for the basis of the rule. That justification has been criticised by judges, by scholars and by the Law Commission. It is inconsistent with a subsequent decision of this court in Emanuel. For good measure, Bankes LJ himself said that it was decided on special facts; and, on the face of it, it is inconsistent with his own subsequent decision in Job Edwards Ltd v Birmingham Navigation Proprietors. ….. It misinterprets both Vaughan v Menlove and Filliter v Phippard, and wrongly distinguishes them. Moreover it misstates the principle in Rylands v Fletcher, unless it is confined to fires deliberately kindled (or deliberately brought on to land)…… Musgrove v Pandelis is clearly an extension of the principle in Rylands v Fletcher because the occupier did not bring the fire onto his land…….. Lastly, having regard to the findings of fact made by Lush J at trial, the principle that Bankes LJ formulated was unnecessary to the decision, and wider than the facts of the case warranted.

Ward LJ was not quite as rude. The decision in Musgrove was “fact sensitive”  and of its time – cars are not now commonly regarded as exceptionally dangerous or mischievous when they sit in your garage. The case should “simply be relegated to a footnote in the history of Rylands v. Fletcher” [50]. Etherton LJ, though agreeing firmly that the judge was wrong to allow the claim, thought it still had some life in it – the statutory defence to the 1774 Act does not apply to a claim in Rylands v. Fletcher.

The moral of all of this according to Ward LJ at [50]: make sure you have insurance cover for losses occasioned by fire on your premises.

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