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Stannard (trading as Wyvern New Tyres) v Gore, Court of Appeal, 4 October 2012

1 November 2012
The issues

Ruling in Rylands v Fletcher – Transco plc v Stockport Metropolitan Borough Council – liability for fire spreading to adjoining premises

The facts

Wyvern Tyres supplied and fitted car tyres. The business was situated on the Holner Trading Estate in Hereford. Along the length of two small offices to the side of the premises and to the rear were six specially constructed racks for the storage of tyres. When the matter came before the recorder, the recorder found that the defendant “squeezed” into that space some tyres being haphazardly and untidily above the racks as well as on the racks themselves and others “piled high in chimneys”.

The claimants’ premises were behind the defendants’. Between them was a space also used for the storage of new and part worn tyres. These rack tyres were simply piled vertically high.

The recorder took the view that approximately 3,000 tyres were stored in and outside the building. The evidence was that though tyres were not in themselves flammable, once a primary fire had developed and intensified, it could produce sufficient heat to ignite rubber tyres; but if tyres caught fire, combustion developed rapidly depending on the quantity and how they were stored; and that once fire took hold of tyres they were difficult to put out.

On 4 February 2008 at about 6.15 p.m a fire broke out. It started in the front workshop section and quickly intensified. Ten pumps attended the scene with three other special vehicles, a command unit, an aerial ladder platform and a water carrier. By 7.55 p.m, an hour after the original attendance, the entire unit was fully ablaze. The blaze spread into Mr Gore’s premises as well. They were totally destroyed. The recorder rejected the claim in negligence. He rejected any claim on the basis of the Regulatory Reform (Fire Safety) Order 2005 on the basis that there was nothing in the statutory duty that conferred any right of action in civil proceedings and that therefore, subject to any liability under Rylands v Fletcher, the defendant had the benefit of a defence under Section 86 of the Fires Prevention (Metropolis) Act 1774 on the basis that the fire was accidental. In respect of Rylands v Fletcher, the recorder concluded that there was plainly an escape within the meaning of the rule and that liability turned on whether or not Mr Stannard’s activities were dangerous and a non-natural use of his land. He found, given the way the tyres were stored, that there was an exceptionally high risk of damage to the claimant’s premises if fire broke out and that once alight fires might burn rapidly and intensively and that therefore there was a foreseeable risk with the result that the defendant’s activities in storing tyres in the numbers and ways that he did was dangerous within the meaning of the rule. He found that it was a non-natural use of the land in that the state of affairs created by the defendant was out of the ordinary. It would have been routine for a tyre business to store tyres in an orderly fashion and in numbers well within the capacity of its storage facilities. This was not the case here and it was consequently non-natural use. Therefore the ingredients of the rule in Rylands v Fletcher were established and judgment was entered for the claimant.

The defendant appealed.

The decision

In Transco plc v Stockport it had been noted that the rule had been subject to significant criticism. The High Court of Australia had decided that it had been absorbed into the law of negligence. Scottish courts had refused to accept it as part of the law of Scotland. The House of Lords had taken the view that it was inconsistent with its judicial function to abolish the rule but that in any event the rule ought to be retained because it continued to have a valuable application. Lord Bingham had said in Transco the rule needed to be re-stated so as to achieve as much certainty and clarity as was possible. Bearing in mind the effect of the rule was to impose liability in the absence of negligence from isolated occurrence, the mischief or danger test ought not to be easily satisfied. It had to be shown that the defendant had done something, which he recognised or judged, by standards appropriate at the relevant place and time, giving rise to an exceptionally high risk of danger or mischief if there should be an escape. With regard to the test natural user, Lord Bingham had said that it was preferable to use the test of ordinary user, making it clear that the rule applied only where the defendants’ use was shown to be extraordinary and unusual. The test was flexible in that a use might be extraordinary and usual at one time or in one place but not so at another time or in another place. The Court of Appeal noted that Transco was now the seminal authority and deduced from Transco and other authorities the following propositions:

  1. The defendant had to be the owner or occupier of land.
  2. He had to bring or keep or collect an exceptionally dangerous or mischievous thing on his land.
  3. He must recognise or ought reasonably to have recognised, judged by the standards appropriate at the relevant place and time, that there was an exceptionally high risk of danger or mischief if that thing should escape, however unlikely an escape might have been thought to be.
  4. His use of the land must, having regard to all the circumstances, be extraordinary and unusual.
  5. The thing must escape from his property 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 were not recoverable.
  8. It was not necessary to establish the defendant’s negligence was an act of God or the act of a stranger would provide a defence.

When the House of Lords laid down its guidance for the application of Rylands v Fletcher, there was nothing to support the view that they were excluding cases of the escape of fire. The principles put forward in Transco should be applied in fire cases as well as in other more classic examples of escaping dangerous things. Cases of fire damage being brought within the rule would be rare because whilst fire might be a dangerous thing, the occasions when fire as such was brought on would be rare because it is the thing that brought onto the land which had to escape not the fire which was started or increased by the thing. Whilst fire might be a dangerous thing, the occasions when fire as such was brought onto the land might be limited to cases where the fire had been deliberately or negligently started by the occupier or one for whom he was responsible.

Applying the principles set out in Transco:

  1. The thing brought onto the defendants’ premises was a large stock of tyres.
  2. Tyres as such are not exceptionally dangerous or mischievous.
  3. There was no evidence that the defendant recognised, nor that he ought to have recognised, that there was an exceptionally high risk of danger from mischievous tyres as such should have escaped.
  4. The tyres did not escape. The fire escaped. The recorder had been wrong to conclude that it was the escape of fire that brought the case within Rylands v Fletcher.
  5. Keeping a stock of tyres, even a very large stock on the premises of tyre fitting business, was not for the time and place an extraordinary or unusual use of the land. Therefore the facts could not be drawn within Rylands v Fletcher liability and the claim had to fail.

Generally, following the decision in Goldman v Hargrave, an occupier will not be liable to his neighbour for a fire that begins accidentally unless he is negligent in failing to prevent its spread. If he were negligent in preventing the spread of the fire then the statutory defence under Section 86 would fail. If it was not negligent it would succeed.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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