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Vagaries in Liability for the Escape of Fire
Published online by Cambridge University Press: 16 January 2009
Extract
The vexed question of liability for the escape of fire, described by Winfield as a “confusing medley of remedies for the same wrong,” has re-emerged recently with all its customary vigour. The reason for the bewildering complexity of this branch of the law is clear: whereas other fields of tortious liability were allowed to advance within the expanding nineteenth-century doctrine of negligence, the development of liability for the escape of fire was hindered by section 86 of the Fires Prevention (Metropolis) Act 1774, a provision which was relevant only to a form of liability which had become outmoded in the nineteenth century. The initial confusion resulting from the conflicting and unhistorical approaches of the courts was aggravated by an irrational flirtation with the doctrine of Rylands v. Fletcher. The object of this study is to place the statutory provision in its true historical context, to extract and explain the various threads of development which have been indiscriminately intermingled by the judges and finally to propose that section 86 be repealed, leaving negligence or nuisance as the basis of liability.
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References
1 4 C.L.J. 203.
2 Mason v. Levy Auto Parts of England [1967] 2Google Scholar Q.B. 530.
3 Re-enacting (1707) 6 Anne, c. 31, s. 6.
4 Rastell's Entries, p. 8.
5 Winfield, 42 L.Q.R. 46–50; Beven on Negligence (4th ed.), 618–622.
6 Kiralfy, The Action on the Case, p. 99. The Analogy is drawn in the important case of Turbeville v. Stamp (1697) 1 Ld.Raym. 264, per Gould arguendo.
7 Anon. (1582) Cro.Eliz. 10.
8 (1697) Salk. 647; 12 Mod. 152; 1 Ld.Raym. 264; Skin. 681; Holt 9; Carth. 425; Comb. 459; 1 Comy.Rep. 32.
9 (1401) Y.B. 2 Hen. IV, f. 18; Fifoot, History of Sources of the Common Law, p. 166. In Sturge v. Hackett [1962] 1Google Scholar W.L.R. 1257, 1262, Diplock L.J. expressed the view that liability in Beaulieu v. Finglam was based on occupation rather than control. But, with respect, it is submitted that this fails to take into account the defences of act of stranger and act of God which were available to the occupier. Both occupation and control were essential.
10 Comyns Digest I, 284.
11 e.g., Balfour v. Barty-King [1957] 1Google Scholar Q.B. 496 at 503–504; McAuliffe v. Hubbell [1931] 1Google Scholar D.L.R. 835 at 839–840; Whinfield v. Lands Purchase (1914) 18Google Scholar C.L.R. 606 at 614–615.
12 Brunner, 7 Harv.L.R. 448–449; Winfield, 42 L.Q.R. 46–50; Newark, 6 N.I.L.Q. 134.
13 Loc. cit. at 49.
14 12 Mod. 152.
15 Newark, 6 N.I.L.Q. 134.
16 Turbeville v. Stamp (1697) 1 Comy.Rep. 32.
17 (1401) Y.B. 2 Hen. IV, f. 18.
18 Bacon, Abridgment (5th ed. 1798), I. 85.
19 1 Ld.Raym. 264, per Gould arguendo.
20 Turton J., 12 Mod. 152.
21 Ibid.
22 Skin. 681.
23 See Bell, The Great Fire of London.
24 Relton, Account of the Fire Insurance Companies during the 17th and 18th Centuries.
25 Blackstone, History of the British Fire Service, Chap. 6. Bunyon, Law of Fire Insurance (1st ed. 1866), Chap. 12.
26 The clause concluded with a proviso that s. 6 was to yield to any contrary agreement between landlord and tenant. Although many of the earlier cases on fire had been concerned with disputes between landlord and tenant (see, e.g., Countess of Shrewsbury's Case (1600) 5 Co.Rep. 13 b; Pantam v. Ishman (1693) 1 Salk. 19), the matter does not fall within the scope of the present study, which examines the nature of liability to third parties.
27 In contrast to the clause punishing the carelessness of servants which was several times ordered to be reprinted and circulated by the City of London Court of Aldermen. See vol. 57, fo. 140, of the Court's Journal.
27a It is possible that the provision was based on a rule of local custom. Chap. 50 of the Scottish Leges Quatuor Burgorum (circa 1270) declared that “if a fire spreads from any man's house so that some neighbouring houses are burned, he (the owner of the house where it began) ought not to be grieved or troubled in addition, for he is burdened with sorrow and heaviness enough.” (Bateson, Borough Customs, Vol. 1, 18, Selden Society, p. 82.) But no evidence has been found of a similar custom existing in England, or, more particularly, London.
28 A right of subrogation was recognised in a case of marine insurance in 1748 (Randal v. Cockran, 1 Ves.Sen. 98). It was first applied to fire in Mason v. Sainsbury (1782) 2 Parke 969. But in practice it was rarely invoked. See Bunyon, Law of Fire Insurance (1st ed. 1866), pp. 166–167.
29 Information on this point was generously supplied by the Westminster Fire Office Ltd. and the Sun Insurance Office Ltd.
30 e.g., 7 Anne, c. 17; 11 Geo. 1, c. 28; 12 Geo. 3, c. 73.
31 The clause punishing the negligence of servants was re-enacted as s. 84.
32 Canterbury v. Att.-Gen. (1843) 1 Phil. 306. The discussion of the provision was obiter as the case was decided on the ground that the Crown was not liable in tort.
33 See, e.g., Winfield, 42 L.Q.R. 184; Fifoot, op. cit., Chap. 8.
34 Williams v. Holland (1833) 10 Bing. 112.
35 (1837) 3 Bing.N.C. 468.
36 e.g., Street, The Law of Torts (3rd ed.), p. 103.
37 (1837) 3 Bing.N.C. 468 at 475, per Tindal C.J.
38 Referred to in Canterbury v. Att.-Gen. (1843) 1 Phil. 306 at 319.
39 (1846) 3 C.B. 229, infra.
40 That the operation of the provision was general was clearly established in Richards v. Easto (1846) 15M. & W. 251.
41 Suggested by Lord, Lyndhurst L.C. in Canterbury v. Att.-Gen., supra.Google Scholar
42 Advanced by Lord Denman C.J. in Filliter v. Phippard (1847) 11 Q.B. 347, infra.
43 Vol. 1, p. 431.
44 (1843) 1 Phil. 306.
45 (1847) 11 Q.B. 347.
46 The passage, taken from a section on vicarious liability, is ambiguous. No statement on post-statutory liability is made. What he meant by “negligence” is uncertain.
47 (1847) 11 Q.B. 347 at 357.
48 (1846) 3 C.B. 229.
49 Ibid, at 240, per Tindal C.J.
50 Dixon v. Bell (1816) 5 M. & S. 198.
51 May v. Burdett (1846) 9 Q.B. 101.
52 (1860) 5 H. & N.679.
53 Ibid, at 685.
54 Smith v. L.S.W. Ry. (1870) L.R. 5 C.P. 98; Jones v. Festiniog Ry. (1868) L.R. 3 Q.B. 733, obiter per Blackburn J. at 737–738.
55 Powell v. Fall (1880) 5 Q.B.D. 597; Gunter v. James (1908) 24 T.L.R. 868.
56 (1866) L.R. 1 Ex. 265; (1868) 3 H.L. 330.
57 Supra n. 54.
58 Powell v. Fall, supra; Gunter v. James, supra.
59 [1919] 2 K.B. 43.
60 i.e., before the 1707 Act.
61 [1919] 2 K.B. at 46–47.
62 Supra at pp. 105–106.
63 Cottrell v. Allen (1882) 16 S.A.L.R. 122; Sheehan v. Park (1883) 8 V.L.R. 25.
64 e.g., Whinfield v. Lands Purchase Board (1914) 18 C.L.R. 606.
65 e.g., Hazelwood v. Webber (1934) 52Google Scholar C.L.R. 268. See generally Fleming, The Law of Torts (3rd ed.) at 316–317.
66 e.g., traction engine, Gunter v. James (1908) 24Google Scholar T.L.R. 868; paraffin, Mulholland & Tedd v. Baker [1939] 3Google Scholar All E.R. 253; petrol fumes in tank, Perry v. Kendricks Transport [1956] 1Google Scholar W.L.R. 85.
67 [1919] 2 K.B. 43.
68 [1936] 2 All E.R. 200 at 208–209.
69 [1967] 2 Q.B. 530.
70 Ibid. at 542.
71 See Stallybrass, 3 C.L.J. 278 et seq.
72 (1868) L.R. 3 Q.B. 733.
73 [1956] 1 W.L.R. 85.
74 (1860) 5 H. & N. 679 at 684.
75 [1919] 2 K.B. 43.
76 On the second ground see infra at p. 119.
77 See the passage from Bankes L.J.'s judgment quoted supra at p. 113.
78 [1919] 2 K.B. 43 at 46.
79 Supra at pp. 113–114.
80 Musgrove v. Pandelis criticised on this point by Mackenna, J. in Mason v. Levy Auto [1967] 2Google Scholar Q.B. 530 at 540–541.
81 [1947] A.C. 156.
82 See Fridman (1956) 34 Can.Bar. Rev. 810.
83 Winfield on Tort (8th ed.) at p. 353.
84 Job Edwards v. Birmingham Canal Navigations [1924] 1Google Scholar K.B. 341. See Winfield, 4 C.L.J. at 205.
85 [1946] 1 All E.R. 489.
86 P.M.G. v. Latter (1928) 166Google Scholar L.T. 152; Collingwood v. H. & C. Stores [1936] 3Google Scholar All E.R. 489.
87 [1967] 1 A.C. 645.
88 Giles v. Walker (1890) 24 Q.B.D. 656. See Goodhart, 4 C.L.J. at 78–82.
89 [1967] 1 A.C. 645 at 661–662.
90 Ibid. at 663.
91 (1401) Y.B. 2 Hen. IV, f. 18.
92 In Rylands v. Fletcher itself, the escape of water resulted from the negligence of independent contractors.
93 Semble the same rule would be applied to the principle of strict liability enunciated in Mason v. Levy Auto, supra.
94 [1894] A.C. 48.
95 “The case does not raise any general questions of law …,” per Lord Shand, ibid. at 53.
96 [1946] 1 All E.R. 489.
97 Atiyah, Vicarious Liability at 351.
98 [1957] 1 Q.B. 496.
99 “We do not think it necessary to consider the doctrine of Rylands v. Fletcher as a separate head of liability,” per Lord Goddard C.J., ibid. at 505.
1 (1847) 11 Q.B. 347 supra.
2 [1919] 2 K.B. 43.
3 [1967] 1 A.C. 645 at 665.
4 [1924] 1 K.B. 341.
5 Ibid. at 361.
6 [1946] 1 All E.R. 489.
7 [1967] 1 A.C. 645.
8 The Law of Torts (3rd ed.) at 317.
9 Ehrenzweig, Negligence Without Fault; Fleming, Introduction to the Law of Torts, pp. 95–96.
10 Weir, Casebook on Tort, p. 324.
11 The most likely case of insurance against liability arising through the escape of fire is where the “occupier” is an industrial enterprise engaged in “extra-hazardous activities.” In these circumstances, the defendants may be liable under the ordinary application of Rylands v. Fletcher, i.e., where the “dangerous thing” is the source of the fire and not the fire itself. See supra, p. 114.
12 Friedman, 63 Harv.L.R. 241–265; Calabresi, 70 Yale L.J. 499; Atiyah, 83 L.Q.R. 269–276.
13 It is true that policies will not generally cover personal injuries, but it may be doubted whether the risk is sufficiently great to take the case outside ordinary liability in negligence.
14 Except where a true case of Rylands v. Fletcher arises: see note 11, supra.
15 Question (i), supra.
16 Question (ii), supra.
17 Atiyah, Vicarious Liability, pp. 333–336.