Fire

12KBW Spring Conference Issues facing insurers Thursday 6 April 2006 Bristol Speaker: Adam Chambers

CPD Ref: AVV/CHRW

12 Kings Bench Walk, Temple, London EC4Y 7EL, Tel: 020 7583 0811, Fax: 020 7583 7228, Video Conferencing: 020 7583 4190 E-mail: chambers@12kbw.co.uk, Website: www.12kbw.co.uk, DX 1037 Chancery Lane

FIRE
IGNUS SUUS 1. Liability for the escape of fire goes back a very long way and it was always a strict liability. The oldest case reporting this rule is Beaulieue-v-Finglam (1401) YB 2 Hen fo 18 pl6. I would not advise taking the trouble to find the relevant Year Book as the report requires translation. However the report is adequately summarised by Lord Goddard CJ in Balfour-v-Barty-King [1957] 1 QB 496. FIRES PREVENTION (METROPOLIS) ACT 1774 2. However as people moved out of agricultural communities and into towns and cities the harshness of the rule became clear; not least after the Great Fire of London. Lawyers made many attempts to find ways around the rule but in the end it was Parliament that changed the law. Firstly in 1707 then in 1774 with the Fires Prevention (Metropolis) Act. 3. As one might expect most of this act was concerned with the prevention of fires in the metropolis and sets out regulations for party walls and matters dealt with today by building regulations. Most of it applied only to big cities and now most of it has been repealed.

4. However s86 always applied to the whole country (Richards-vEasto (1846) 15 M&W 246) and remains in force today. The material part of the section reads as follows:

LXXXVI. And be it further enacted by the Authority aforesaid, That 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, after the said twenty-fourth Day of June, 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:

5. The usefulness of this section is not difficult to discern. It provides a defence to an action brought on the basis of the old law of strict liability (often referred to as ignus suus). ACCIDENTALLY 6. However to make out the defence one must show that the fire occurred accidentally and the word is not defined in the statute and what it means is tricky.

7. First of all it does not mean negligently; as it was put in Filliter-vPhippard (1847) 11 QB 347 : it may ..mean a fire produced by mere chance, or incapable of being traced to any cause, and so would opposed to the negligence of either servants of maters. This construction was clearly approved by the Court of Appeal in Balfour-v-Barty-King [1957] 1 QB 496. On the other hand it also appears to cover fires which to modern eyes look as if they are started deliberately. 8. In Job Edwards ltd-v-Birmingham Navigation [1924] 1 KB 341 Scrutton LJ says 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 can not be stopped that fire may be within the protections of the statute. 9. As if by magic, 23 years later that was what happened in the case of Sochacki v- Sas [1947] 1 All ER 344 and all though the statute was not expressly referred to the Defendant who had deliberately lit the fire in his grate escaped liability. 10. The explanation for this curious situation is that a fire does

not include the fire in the grate but refers only to the fire that was uncontrolled and caused damage. 11. This analysis is to be found in the case of Musgrove-v-

Pandelis [1919] 2 KB 43 where the accidental fire in the carburettor of an early motor car did not require the protection of the statute whereas the conflagration that ensured as a consequence of the negligence of the chauffeur was not protected because it was not accidental.

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What Banks LJ said was No more can be said as a matter

of law than that the fire contemplated by the Act is the fire which causes the damage and so it is necessary in each case to consenter what that fire was in view of the facts of that particular case. In this case it is impossible today that the spark which originally ignited the petrol though it was no doubt the original cause of the fire, was the fire which caused the damage.In this case the fire which caused the damage began when the flaming petrol acquired such a volume as to become a source of danger 13. Perhaps, despite the Dictum of Scrutton LJ and the various opinions to be found in text books that the act provides immunity for fires in domestic grates it would be better to say that a fire in a domestic grate or any other controlled and normal situation is not a fire that would give rise to a claim under the ignus suus principle and so not one that needs the protection of the statute. SUB-CONTRACTORS 14. That there is no sub-contractor defence to a claim for

damage caused by a fire started by the negligence of an independent contractor is quite clear . As Lord Denning put it in the case of H&N Emmanuel-v- The GLC [1971] 2 All ER 835: ...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 contractor and of his guests, and of any one who is there with his leave and licence. 15. Once the interplay of the common law and the relevant

statute are understood it becomes clear why it is that there is no competent sub-contractor defence to a fire claim.

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The common law (ignus suus) makes the owner to the land

from which the fire escapes liable regardless of the cause. The familiar issue of negligence is brought in by the statute. However the statute excludes liability by reference to the cause of the fire and not by reference to the land owner (or occupier). 17. It is worth noting however that the common law doctrine

does depend on the land owner or occupier having some control over the presence of the fire. It has always been a defence to say that the fire was caused by a stranger; which basically means a trespasser ( see once again the dicta of Lord Goddard CJ in Balfour-v-Barty-King [1957] 1 QB 496 at 504). RYLANDS-V-FLETCHER 18. It is tempting to assign the special rules on liability for fire to

category labels Rylands-v-Fletcher. Fire is after all a dangerous thing. However to do this would be wrong. 19. The special rules of fire grew up long before Mr Rylands built

his reservoir and more to the point concern uses of land which are perfectly normal and do not come within the first requirement that the dangerous thing is brought onto the land in the course of a nonnatural user. A fire in a hearth does not found liability just as a water tank in a block of flats does not come within the strict liability of Rylands-v-Fletcher because both are natural uses of land in that area.

20. This does not mean that such liability can not arise where a nonnatural use bringing a dangerous thing onto land escapes and causes a fire. 21. Thus an alternative finding in Musgrove v-Pandelis [1919] 2

KB 43 was that a motorcar was a dangerous thing within that principle. The Defendant brought it upon his premises and he is responsible for the fire which resulted and is not within the protection of the statute. Even in 1956 a tank of petrol was still considered to be a dangerous thing arising from non-natural user (See Perry-v-Kendricks Transport limited [1956] 1 WLR 85). 22. In both cases it is not the fire that is the dangerous thing but

the petrol. It is for this reason that section 86 of the Fires Prevention (Metropolis) Act 1774 does not apply.

Adam Chambers 12 Kings Bench Walk Temple London EC4Y 7EL Email: achambers@12kbw.co.uk April 2006