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Case No: CCRTF 00/0264/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
(HIS HONOUR JUDGE CRACKNELL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 2nd November 2000
B e f o r e :
LORD JUSTICE WARD
and
MR JUSTICE EVANS-LOMBE
- - - - - - - - - - - - - - - - - - - - -
|
MARGARET
KATHLEEN RIBEE
|
Appellant
|
|
-
and -
|
|
|
MICHAEL
W. NORRIE
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J.M. Collins (instructed by Graham and Rosen for the Appellant)
Mr T. Hartley (instructed by Frank Allen Pennington for the
Defendant)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE WARD:
1. On 5th January 2000, His Hon. Judge Cracknell sitting in the
Kingston-upon-Hull County Court dismissed a claim brought by Miss Margaret
Ribee for the damage and personal injury she suffered after a fire broke out in
the adjoining property owned by the defendant, Mr Michael Norrie. She appeals
with the permission of Robert Walker L.J.
2. Miss Ribee is a sprightly 70 year old lady who has lived in a terraced
house at No. 4 Cholmley Street in Hull for nigh on 70 years. No. 6 Cholmley
Street next door is part of the terrace. They are houses, which, as the judge
picturesquely quotes Philip Larkin, "arise like a sigh from the last century",
or perhaps more accurately the century before last. The last century saw a
different feature of urban housing - the conversion of a single home "fit for
artisans" into a hostel comprising a number of individual bed sits each let to
a tenant who shared some communal parts. In this case, No. 6 had been
converted some years ago to provide three bedrooms on the first floor, two on
the ground floor where there was also a kitchen and a sitting room/dining room
for communal use. The occupants tended to be peripatetic. Mrs Ribee appears
not to always have found them utterly agreeable and she had occasion to
complain about "used drug needles and contraceptives thrown over the garden
wall." It is not the escape of those dangerous things which found her action
under Rylands v Fletcher but the fire which broke out at No. 6 at or
about midnight on the night of 18th/19th 1996.
3. Poor Mrs Ribee was asleep upstairs in her home when she was woken by her
spaniel jumping on her bed and whimpering at her. When she awoke her throat
was dry and she could not swallow. She noticed a strong burning smell. As she
opened her bedroom door she was enveloped in thick smoke and could not even see
the banister. She misjudged where she was and fell. She fell again as she
stumbled down the stairs. Then to her consternation she realised she had left
her keys to the front door upstairs in her bedroom. Fortunately, however, the
fire brigade had arrived and firemen broke down her front door and rescued her
and her heroic pet.
4. She was not without injury. She suffered breathlessness, tightness in the
chest and wheezing which was worse at night. The lower left lobe of her lung
had collapsed, but after the mucoid secretions were extracted, she began to
recover and was back to reasonable good health within a year. She has,
however, suffered sleeplessness and occasionally has nightmares. She still
suffers panic attacks when she smells smoke.
5. At the material time there were two occupants living at No. 6. One was a
Mr Frank Medley who lived in bedroom No. 4 on the first floor of the hostel
holding over after the expiry of his six month assured shorthold tenancy
granted to him in July 1995 on terms which included among others these:-
"4. The tenant will -
(c) Not damage or injure the property ...
(d) Preserve the fixtures, furniture and effects from being destroyed or
damaged ...
(k) Not to do or suffer to be done on the property anything which may be or
become a nuisance or annoyance to the landlord or the tenants or occupiers of
any adjoining premises ...
6. The landlord agrees with the tenant as follows -
(ii) That the tenant paying the rent and performing the agreements on the part
of the tenant may quietly possess and enjoy the property during the tenancy
without any lawful interruption from the landlord or any person claiming under
or in trust for the landlord."
The "property" for this purpose was Room 4 of the hostel.
6. Miss Ribee described Mr Medley as "a conscientious and polite man who
looks after the house ... keeping it clean and tidy". He had to escape the
blaze by jumping from his first floor bedroom window.
7. The other occupant was a Mr Ian Blackstock. It is not at all clear
whether he was, strictly speaking, a tenant, but it may not much matter for it
is agreed that he was there with Mr Norrie's consent, possibly as a contractual
licensee. He occupied the front ground floor bedroom. It would seem he was
still asleep in his bedroom when the fire fighters arrived and they had to pull
him to safety. In her witness statement Miss Ribee said (and it is at once
apparent that this is not evidence of any great weight):-
"There was also another man inside and the Red Cross asked me who he was. I
did not know but they said he was drunk or drugged when they carried him
out."
8. The judge made these findings relating to the fire:-
"How this fire started is not known. There was a report, or an extract of a
report, from the Fire Service to which Mr Hartley on behalf of the defendant
objected, but nonetheless I had read it, and having read it formed the view, as
I said in argument, that it is not possible to draw many conclusions from it.
The Fire Brigade supposed that a cigarette or a discarded cigarette had been
the cause of the fire, but the reality is from the evidence that nobody really
knows. It seems that the fire may have started in a ground floor living or
sitting room and it spread to next door and there was considerable and
extensive damage but anything may have caused this fire. On the balance of
probabilities it probably was the carelessness of someone in the house and the
probability is that that was a tenant or somebody lawfully on the premises
(inaudible) to the tenant."
9. Although these are not the clearest findings, Mr Hartley has very sensibly
accepted that, rather than remit the matter for rehearing, we should proceed
upon the basis, for which there was ample justification in the documents before
us, that the fire was probably started by a smouldering cigarette negligently
left on the settee in the common parts of the property by Mr Medley or, (and
this seems to me to be more likely) by Mr Blackstock, or perhaps even by a
visitor of theirs.
10. The fire caused quite extensive damage to No. 6 but it was brought under
control before it could actually spread to Miss Ribee's property. Her property
suffered smoke damage which it cost £1,313.02 to repair.
11. Miss Ribee brought her claim firstly in nuisance, alternatively in
negligence alleging that the defendant, his servants or agents or licensees or
other persons for whom the defendant was responsible caused or permitted the
furniture to be ignited, failed to extinguish the cigarette and failed to take
any proper steps to control the fire. There is a further allegation against Mr
Norrie personally that he failed to install the automatic fire alarm system
which the local authority had required him to fit to his premises, being
premises in multiple occupation. Finally the claimant pleaded under Rylands
v Fletcher that the fire and severe smoke which it produced and which the
defendant allowed to escape was the result of a non-natural use of the
defendant's land.
12. It is convenient to deal first with the allegation of personal negligence
in relation to the failure to install the automatic fire detection system. The
judge held:-
"... there is no evidence before me that had this automatic fire detection
system been installed that it would have prevented the injuries which were
ultimately caused. It is a matter of speculation. I must draw it as a
conclusion which is inevitable, but I think it is far from being an inevitable
or an unavoidable conclusion on the evidence that I have heard. As I say there
were smoke detectors and if they were alarmed they would have done the job.
And so I think it is quite impossible to say - attractively though the argument
is put - to say that because of any negligence or failure on the part of Mr
Norrie to install an automatic fire detection system as required, to leap from
there to say that these injuries were caused by his negligence."
13. Mr Collins, on Miss Ribee's behalf urges upon us that the judge was wrong
in law in failing to hold "that the inference should be drawn on balance of
probability that the spread of the fire and the extent of the damage (and
consequently the amount of the smoke produced) were all enhanced as a result of
negligence on the part of defendants". I do not accept that submission. In my
judgment the judge was fully entitled on the facts he found to conclude that a
breach of his duty to comply with local authority regulations was not causative
of the damage and personal injury suffered by Miss Ribee next door. There is
no evidence to establish that, if the system had been in operation, then the
fire would have been brought under control earlier with the result that no
smoke would have penetrated Miss Ribee's home. All of this was, as the judge
rightly held, a matter of speculation.
14. Turning now to the main way in which the case was put both to the court
below and to us, the judge was referred, as we were, to H & N Emanuel
Ltd. v G.L.C. [1971] 2 All E.R. 835, 839 where Lord Denning M.R. said:-
"There has been much discussion about the exact legal basis of liability for
fire. The liability of the occupier can be said to be a strict liability in
this sense that he is liable for the negligence not only of his servants but
also of independent contractors and, indeed, of anyone except a "stranger". By
the same token it can be said to be a "vicarious liability", because he is
liable for the defaults of others as well as his own. It can also be said to
be a liability under the principle of Rylands v Fletcher because fire is
undoubtedly a dangerous thing which is likely to do damage if it escapes. But
I do not think it necessary to put it into any one of these three categories.
It goes back to the time when no such categories were thought of. Suffice it
to say that the extent of the liability is now well defined as I have stated
it. The occupier is liable for the escape of fire which is due to the
negligence of anyone other than a stranger."
15. His Honour Judge Cracknell held:-
"The question that arises then is the tenant whoever it was and assuming that,
was he a stranger? Well, in my judgment he is, frankly. The position was that
he was a tenant. He had a perfectly proper tenancy agreement and there was a
limit to what the landlord could do about it. He was clearly not in a position
to stop him doing anything lawful such as lighting a cigarette and so forth,
and it seems to me that in the context of this case - much though I would have
loved to have given the claimant some recompense - that he is a stranger and
within the liability for the escape of fire and indeed smoke set out in
Emanuel it seems to me that the claimant unhappily must fail.
... As I say the question of who is a stranger is a difficult one, but in my
judgment bearing in mind the nature of the tenancy and agreements made between
Mr Norrie and his tenants, I think the tenants clearly fall into the category
of strangers."
16. In this appeal both sides rely on Emanuel to support his or her
case. There the G.L.C. owned land on which the Ministry of Housing had erected
two prefabricated buildings during the War. The Council wanted the site
cleared. The Ministry engaged an independent contractor, Mr King, to remove
the bungalows on terms that no rubbish was to be burnt on the site.
Nevertheless Mr King's men, in accordance with their usual practice which was
known to the Ministry, started a fire which spread to the plaintiff's adjoining
premises and he brought an action - it seems in negligence - against the
Council for the damage caused by the ensuing fire. Lord Denning stated the law
in these terms at p. 838:-
"After considering the cases, 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 contractors and of his guests, and
of anyone who is there with his leave or licence. The only circumstances when
the occupier is not liable for the negligence is when it is the negligence of a
stranger. It was so held in a case in the Year Books 570 years ago,
Beaulieu v Finglam (1401) Y.B. 2 Hen 4, fo. 18, pl. 6, which is well
translated by Mr Fifoot in his book on the History and Sources of the Common
Law. The occupier is, therefore, liable for the negligence of an independent
contractor, such as the man who comes in to repair the pipes and uses a blow
lamp: see Balfour v Barty-King [1957] 1 Q.B. 496; and of a guest who
negligently drops a lighted match: see Boulcott Golf Club v Engelbrecht
[1945] N.Z.L.R. 556. The occupier is liable because he is the occupier and
responsible in that capacity for those who come by his leave and licence: see
Sturges v Hackett [1962] 1 W.L.R. 1257.
But the occupier is not liable for the escape of fire which is not due to the
negligence of anyone ... All those cases are covered, if not by the common law,
at any rate by the Fire Prevention (Metropolis) Act 1774, which covers all
cases where a fire begins or spreads by accident without negligence. But that
Act does not cover a fire which begins or is spread by negligence ..."
17. On the judge's findings this fire was started and spread due to the
negligence of one of those living in or visiting the hostel. Thus the issues
are:-
a) Was Mr Norrie the occupier of the hostel, and
b) Was he who started the fire a stranger to Mr Norrie?
The Occupier
18. Lord Denning M.R. gave this test in Emanuel at p. 839:-
"The question of what is an "occupier" was much discussed in Fisher v C.H.T.
Ltd. [1966] 2 Q.B. 475 and Wheat v E. Lacon & Co. Ltd. [1966] AC 552. Those cases show that the word "occupier" has a different meaning
according to the subject matter in which it is employed. There it was the
Occupiers Liability Act 1957. Here it is liability for the escape of fire.
Adopting what I said in Wheat v E. Lacon & Co. Ltd., I would say
that, for the purposes of fire, whenever a person has a sufficient degree of
control over premises that he can say, with authority, to anyone who comes
there: "Do" or "Do not light a fire", or "Do" or "Do not put that fire out",
he as "occupier" must answer for any fire which escapes by negligence from the
premises."
19. Edmund Davies L.J. used this test taken from Wheat v E. Lacon &
Co. Ltd.:-
"Lord Pearson used the phrase "control associated with and arising from
presence in and use of activity in the premises".
20. I am in no doubt at all that Mr Norrie was the occupier of the sitting
room/dining room set aside for the communal use of the tenants or occupants of
the separate bedrooms within the hostel. He retained exclusive possession of
the common parts, and exercised his right to enter upon them. Even if their
use was permitted by some implied term of the lease of the bedroom, there can
be no question of the individual tenants having exclusive possession of the
common parts. It may be a different matter so far as the bedrooms themselves
are concerned but I need not trouble with that difficulty in view of the proper
concession that the fire started in the communal area. Mr Norrie had full
control over that area. He could have laid down rules and regulations
preventing smoking in that area; he could have displayed notices reminding the
occupiers to use the ashtrays if they did smoke; indeed he had full power to
regulate how that part of the hostel was to be used or not used as the case may
be. Applying Lord Denning's test he could have said, with authority, "Do this"
or "Do that." Under Edmund Davies L.J.'s test he controlled the use of or
activity in the dining area. Thus he was the occupier.
Was the tenant/licensee who started the fire a stranger?
21. Lord Denning's test for this purpose was expressed at p. 839:-
"I think a "stranger" is anyone who in lighting a fire or allowing it to escape
acts contrary to anything which the occupier could anticipate that he would do:
such as the person in Rickards v Lothian [1913] AC 263. Even if it is
a man whom you have allowed or invited into your house, nevertheless, if his
conduct in lighting a fire is so alien to your invitation that he should qua
the fire be regarded as a trespasser, he is a "stranger". Such as the man in
Scrutton L.J.'s well-known illustration:
When you invite a person into your house to use the staircase you do not invite
him to slide down the banisters ..."
... It seems to me that the New Zealand case of Erikson v Clifton [1963]
N.Z.L.R. 705 falls within this category. The schoolmistress could not possibly
have any idea that the man who came to look at the garden would light a fire.
It was alien to anything which she permitted him to do. He was in that respect
"a stranger"."
22. The Master of the Rolls was quite clear that the contractor's men in
Emanuel were not strangers. He held at p.840:-
"They were present on the site with the leave and with the knowledge of the
L.C.C. True it is that they were prohibited from burning rubbish but,
nevertheless, it was their regular practice to burn it. The L.C.C. ought to
have taken better steps to prevent them. Not having done so, they cannot
disclaim responsibility for the fire. The L.C.C. could reasonably have
anticipated that these men might start a fire: and that is enough, just as in
the case in 1401 the householder might reasonably have anticipated that his
guest might light a candle."
23. Likewise, in my judgment, Mr Norrie could reasonably have anticipated
that his tenants or his licensees or their guests in the hostel would smoke in
the common parts. He could reasonably have anticipated that the cigarettes
would not always be extinguished as they should be and that they could be left
to smoulder and cause a fire. He could reasonably have anticipated that those
who sat on the settee might through drink, drugs or simply through tiredness or
inadvertence drop the cigarette and leave it to smoulder. He could reasonably
have anticipated that the coverings and materials in the structure of the
settee were flammable, perhaps even highly flammable.
24. Mr Hartley refers to that passage in the judgment of Edmund Davies L.J.
at p. 840 where, when he addressed the question whether the contractor was a
stranger, he referred to the judgment of Jenkins L.J. in Perry v Kendricks
Transport Ltd. [1956] 1 W.L.R. 83, 90 that:-
"...the stranger is regarded as a person over whose acts the occupier of the
land has no control."
Mr Hartley submits that Mr Norrie had no control over the smoking habits of
those who used his property. He could not reasonably be expected to stand
guard 24 hours per day officiously saying, "Do not smoke here", or, "Stub out
your cigarette in the ashtray". To impose that level of control would, he
submits, be to impose too much on an absentee landlord. That may be so, but,
in my judgment, the proper question is not what actual control the
landlord did or did not exercise, but what power of control he had.
Quite clearly the landlord had the power to exercise some control. He
could by terms of the licence or by prominent notices in the premises regulate
the smoking as he thought fit to ensure that the premises were safely used. If
a fire broke out notwithstanding that warning, then it may be open to him to
contend (and the burden of proof would be on him to show) that the fire
lighting activity was alien to his invitation.
25. It may be useful to refer to the judgment of Singleton L.J. in Perry v
Kendricks Transport Ltd. at p. 89 where he expressed the test for deciding
whether or not the owner of the coach park was responsible for two young boys
throwing a lighted match into a coach parked on the land to be this:-
"I am prepared to accept this position. If the person who interferes with
something of the defendants is a person whom they might expect to be on their
ground, and if the character of the interference is something which they ought
to anticipate, then they do owe some duty. The measure of that duty depends on
the circumstances, the nature of the object, and the age of the children. I do
not think that it can extend to that which happened in this case."
26. In my judgment it was reasonably to be anticipated that someone expected
to be in the communal area might inadvertently drop a smouldering cigarette
onto the settee eventually setting it on fire. The case is covered by the
judgment of Scott L.J. in Hale v Jennings Brothers [1938] 1 All E.R.
579, 585, where the owner of the fairground was responsible for a chair-o-plane
which became detached from the roundabout because the act of the man "fooling
about on this device" was:-
"just the kind of behaviour which ought to have been anticipated as being a
likely act with a percentage of users of the apparatus."
27. These conclusions are amply borne out by the New Zealand authorities. In
Boulcott Golf Club, Incorporated v Engelbrecht [1945] N.Z.L.R. 553, the
Golf Club were held responsible for a fire which was started on the links by
one of a party of four players then playing on the course, there being no
evidence to establish the identity of the person who was actually responsible
for negligently lighting the fire. Finlay J. held:-
"It seems to me that the greater weight of authority, and certainly the greater
weight of completely apposite authority, supports the view that an occupier is
liable for the consequences of fire negligently caused by his licensee. The
existence of the liability is more consistent with justice than its absence, or
so it seems to me. The occupier, knowing the nature of the license he grants,
and the characteristics and tendencies of the persons to whom he grants it, can
by the exercise of proper care, safeguard his property and his neighbour's from
the danger of fire. The neighbour is not in the same advantageous
position."
28. The other New Zealand case is Erikson & Anr v Clifton [1963]
N.Z.L.R. 705 where the independent contractor visited the property to inspect
the proposed work he was to carry out and then without the knowledge or consent
of the owner lit the fire which caused damage to the neighbour's property. The
occupier was not liable because, per McGregor J. at p. 710:-
"... it seems to me that it was neither contemplated by the respondent that the
second defendant would light a fire when he entered merely to inspect, nor
could such act reasonably be foreseen. Although the second defendant was the
invitee of the respondent, the act of lighting the match was in reality "a
frolic of his own", the fire thereby created was not the fire of the
respondent, and the situation was not one where a duty to control the conduct
of the second defendant had arisen ... In my opinion in the circumstances here
existing no danger was or ought to have been in contemplation, and there was
therefore no failure of control by the respondents."
29. So the short and the simple answer to this appeal as it has been argued
before us is that Mr Norrie was the occupier of the adjoining premises and
those upon it who started the fire were not strangers. It follows that he is
responsible for the fire and the damage the smoke from it caused the plaintiff
and her property. That is enough to lead me to allow the appeal.
30. I should add that we have not been invited to consider the effect of
recent developments in this field on Lord Denning's view that it does not
matter to which category one looks to fix liability in a case of this kind. I
am mindful of observations of Lord Wilberforce in Goldman v Hargrave
[1967] 1 AC 645, 657 that liability may rest upon negligence and nothing
else. It may be that cases of truly strict liability are to be confined since
foreseeability of harm of the relevant type seems to be becoming a prerequisite
for the recovery of damages both in nuisance and under the rule in Rylands v
Fletcher since Cambridge Water Co. v Eastern Counties Leather plc
[1994] 2 AC 264. That case and Hunter v Canary Wharf Ltd. [1987] A.C.
655 throw doubt on whether damages for personal injuries can be recovered in
nuisance or under Rylands v Fletcher. A glance at Tort Law 4th
Ed., by Markesinis and Deakin will show the scope for academic debate and my
failure in this judgment to enter the arena may provoke it. For my purposes it
is sufficient to repeat that the fire was negligently caused, the defendant is
responsible for it and Miss Ribee entitled to her damages in respect of both
her property and her health.
31. I would therefore allow the appeal and would remit the question of
damages to the County Court - though I very much hope that the parties will
have agreed how much Miss Ribee is to recover so that judgment may be entered
for her when this judgment is handed down.
MR JUSTICE EVANS-LOMBE:
1. Before the 19th June 1966 the Claimant, who is now 78 was living
at No. 4 Chomley Street Hull and had lived there since 1931. Number 4 and its
neighbour number 6 were two of a row of terraced houses in Chomley Street. At
the material time number 6 was owned by the defendant. He did not live there
but ran the house as a boarding house with "bed-sit" accommodation
capable of accommodating five individuals.
2. Early in the morning of the 19th June 1996 a fire broke out in
number 6. Before the fire brigade could arrive to put it out extensive damage
was done to number 6 and smoke penetrated to number 4 where the Claimant was
asleep. Fortunately she was woken by her dog and made her escape but not
before breathing in a lot of smoke. This has caused her illness from which she
now appears to have recovered but also damage to the furniture and decorations
of her house.
3. As I have said the Defendant ran number 6 as a boarding house. Before the
judge was a witness statement of the Claimant the facts in which were not
challenged in cross-examination. The Claimant describes how number 6 was used
as a boarding house prior to the fire at paragraphs 21 and 26 of that statement
as follows: -
"21 I had been concerned before the fire about some of the occupants in
the next door property. People would constantly come and go. I had occasion
to call the Environmental Health Department to come and deal with some of these
problems, or rather a friend of mine and his wife helped me with this. I had
used drug needles and contraceptives thrown over the wall and there was always
a terrible noise going on which upset my dogs.
26 The house, 6 Chomley Street, seems to be let to anybody who wanted to
live there. The numbers of people varied but there was generally a lot of
noise at night and I suspected that some people living there were drug users.
People would visit at odd times in the night. I believe that at one stage
there were seven people living in the house."
4. The claimant brought proceedings claiming damages for injury to her health
and property by reason of the invasion of smoke into number 4 in the Kingston
Upon Hull County Court. The case was the assigned to the fast track.
Liability for the damage suffered by the Claimant was claimed on two grounds.
The first ground was that the Defendant, as occupier of number 6 was liable for
the damage caused to the Claimant which resulted from the escape of smoke into
number 4 as a result of the fire in number 6. The second ground, was based on
of the Defendant's negligent failure to install appropriate fire warning
systems in number 6 which would have meant that people would have been alerted
to the fire at an earlier stage with consequent reduction in the damage that it
caused and which would, in all probability, have prevented any damage to the
Claimant at all.
5. The case came to be heard before Judge Cracknell on the 5th
January of this year. The Judge dismissed the claim. He found that the fire
was probably caused by the carelessness of a Tenant or other persons lawfully
in number 6 for whose actions the Defendant could not be held responsible. We
were invited to assume that the Judge found that the seat of the fire was a
settee in the sitting room part of the common parts of Number 6 available for
use by Tenants and was caused by a discarded cigarette. There was evidence
before the Judge to support such a finding which was not challenged. He dealt
with the Claimant's second ground by finding that it had not been proved that
the damage to the Claimant had been caused by the Defendants failure to install
appropriate fire prevention and warning systems. We did not call on the
Defendant's counsel to answer the Claimant's submissions as to why the
conclusion of the Judge was wrong on the second ground. The Judge's conclusion
was on the facts and one to which he was entitled to come to on the evidence
before him. Accordingly this appeal falls to be dealt with on whether the
Judge's conclusions on the first ground were correct.
6. In Philiter v Phippard, 1847, 116 ER page 506, Lord Denman CJ,
citing the 17th century case of Turberville v Stamp,
said this: -
"the ancient law, or rather custom of England, appears to have been that a
person in whose house a fire originated, which afterwards spread to his
neighbours property and destroyed it, must make good the loss; and it is
well-established that where the fire was occasioned by a servants negligence,
the owner, the Master of the house where it began, is answerable for the
consequences to the sufferer."
7. The issue in that case was whether a defendant on whose land a fire had
started and who had permitted the fire to spread to his neighbour's land, was
protected from a claim for damages under the common law principle enunciated by
Lord Denman by reason of the provisions of section 86 of the Fires Prevention
(Metropolis) Act 1774. The provisions of that section re-enact earlier
statutory permissions and are still in force today. So far as material section
86 provides: -
"... 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... accidentally begin..."
8. Liability for the escape of fire is often treated as an example of the
application of the rule in Rylands v Fletcher 1868 LR8 HL p330.
Whether this is correct or whether liability arises under a parallel principle
of the common law is controversial, see the judgments of the Court of Appeal in
Musgrove v Pandellis 1919 2 KB p43 and the contrasting approaches
of Banks LJ and Warrington LJ. In H & N Emmanuel Limited v GLC 1971
2 AER p835 Lord Denning MR said this at page 839 of the report in a
passage cited by the learned Judge below: -
"There has been much discussion about the exact legal basis of liability
for fire. The liability of the occupier can be said to be a strict liability
in this sense that he is liable for the negligence not only of his servants but
also of independent contractors and, indeed, of anyone except a "stranger". By
the same token it can be said to be a "vicarious liability", because he is
liable for the defaults of others as well as his own. It can also be said to
be a liability under the principle of Rylands v Fletcher,
because fire is undoubtedly a dangerous thing which is likely to do damage if
it escapes. But I do not think it necessary to put it into any one of these
three categories. It goes back to the time when no such categories were
thought of. Suffice it to say that the extent of the liability is now well
defined as I have stated it. The occupier is liable for the escape of fire
which is due to the negligence of anyone other than a stranger."
9. It follows that for liability to attach to a Defendant for damage to a
Claimant caused by the escape of fire, other than by reason of his negligence,
it must first be shown that the fire originated on land of which the Defendant
was the occupier. The Judge below made no specific finding on this point but
his judgment proceeds on the assumption that the Defendant was such an
occupier.
10. It was argued on behalf of the Defendant that he could not have constituted
himself the occupier of that part of the premises where the fire started
because the evidence showed that he was not at the material time, exercising a
sufficient degree of control over it. He did not live in the property and he
had no manager living there to exercise authority over it on his behalf. The
two occupants of the property, at the material time, one of whom must have
caused the fire, were either tenants or holding over after the expiry of a
tenancy, of parts of the property who had contractual access to the common
parts of the property where it must be assumed the fire started. Although the
defendant had a key to the property he did not visit it frequently and does not
appear to have attempted to take any measures to restrain the occupants from
smoking or to require them to dispose of cigarette ends in a manner which would
not cause fire.
11. I cannot accept this submission. Whether or not a person is constituted an
occupier of premises for the purpose under consideration, does not fall to be
decided as a result of a judgment as to the extent of control which he actually
exercised over those premises. It arises from a judgment as to whether he was
in a position to exercise such control should he wish to do so. The form of
Tenancy Agreement used by the Defendant for the property was in evidence. It
only expressly gave to a Tenant rights to occupy a separate bed, sitting room
and the shared use of a bathroom. The Tenants right to use the common parts
and, in particular, the downstairs sitting room must have arisen from a
separate licence to do so of which there was no evidence before the Judge
documentary or otherwise. However any contractual licence extended to tenants
by the Defendant to use the common parts of the property must have been subject
to, at least, an implied term that they would not do anything in those common
parts to endanger the fabric of the building. The Defendant plainly had the
right to take all steps open to him to minimise the risk to the building
arising from the conduct of his tenants. His position was analogous to that of
the building owner in the Emmanuel case which knew of the
propensity of its contractors to light fires notwithstanding an express
prohibition. In his judgment in that case at page 838 of the report, Lord
Denning said : -
"After considering the cases, 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 contractors and of his
guests, and anyone who is there with his leave or licence. The only
circumstances when the occupier is not liable for the negligence is when it is
the negligence of a stranger. ... the occupier is, therefore, liable for the
negligence of an independent contractor, such as the man who comes in to repair
the pipes and uses a blow-lamp: see Balfour v Barty-King;
and of a guest who negligently drops a lighted match: see Boulcott
Golf Club Inc v Englebrecht. The occupier is liable because he is
the occupier and responsible in that capacity for those who come by his leave
and license..."
12. At page 839 of the report Lord Denning draws attention to his decision in
the case of Wheat v E Lacon & Co Ltd 1966 1 AC 552. That was
a case decided under the provisions of the Occupiers Liability Act 1957 in
which, at page 579 of the report, Lord Denning defines an occupier for the
purposes of that Act by a series of examples the second of which he describes
in this way: -
"Secondly, where an owner let floors or flats in a building to tenants, but
did not demise the common staircase or roof or some other parts, he was
regarded as having retained control of all parts not demised by him.
Accordingly he was held to be under a duty in respect of those retained parts
to all persons coming lawfully on to the premises... But the old cases still
apply so as to show that the Landlord is responsible for all parts not demised
by him, on the ground that he is regarded as being sufficiently in control of
them to impose on him a duty of care to all persons coming lawfully on to the
premises."
13. In my judgment the Judge was plainly right to proceed on the basis that the
Defendant was the occupier of the common parts of the property where the fire
must be taken to have started.
14. The Judges finding that the 1774 Act applied to the circumstances of this
case, is not challenged on appeal, and is plainly correct. The Judge made no
specific finding but his judgment proceeds on the basis that section 86 of that
Act applied but did not afford protection to the Defendant. Having found, as
is conceded, that the fire started in the common parts of the property as a
result of the negligence of one of the occupants, the Judge was plainly right
so to proceed. In Balfour v Barty - King 1957 1 AER p 156 the
Court of Appeal held that where fire is caused by negligence it is not to be
regarded as "accidental" within the meaning of that word when used in
section 86 see per Lord Goddard CJ at page 159.
15. However the Judge found that, notwithstanding that the two occupants of
the property were using the common parts with the permission of the Defendant
as his licensees, whichever of them was the cause of the fire is to be treated
as a "stranger" so that the Defendant is not to be held liable for the
result. The substantial question in this appeal is, therefore, whether the
Judge was right to come to this conclusion. In my judgment he was not right to
do so in the light of the authorities and in particular two cases in the New
Zealand High Court, Boulcott Golf Club Incorporated v Englebrecht 1945
NZLR p 556 and Ericson v Cliffton 1963 NZLR p 705, cited
with approval in the judgement of Lord Denning in Emmanuel, and
the decision of the Court of Appeal in Emmanuel itself.
16. In Boulcott Finlay J was considering a case where fire had
spread from the premises of a golf club to the premises of the claimant which
caused damage to him. The fire in question was caused by the negligence of one
of four persons playing golf on the defendant's links. It was not established
which of those four was the actual cause. The four players were members of the
club and its licensees when playing on the defendant's course. The court
affirmed the decision below that the defendants were liable for the damage to
the claimant's property caused by the escape of the fire. At page 559 of the
report the Judge is reported as saying this: -
"It seems to me that the greater weight of authority, and certainly the
greater weight of completely apposite authority, supports the view that an
occupier is liable for the consequences of fire negligently caused by his
licensee. The existence of the liability is more consistent with justice than
is its absence, or so it seems to me. The occupier knowing of the nature of
the license he grants, and the characteristics and tendencies of the persons to
whom he grants it, can, by the exercise of proper care, safeguard his property
and his neighbours from the danger of fire. The neighbour is not in the same
advantageous position."
17. That case is to be contrasted with the Ericson case. Here
the Court was considering an owner of property, the Defendant, who wished to
clear that property of some gorse by burning it. She obtained a permit from
the Fire Brigade and arranged with neighbours to do the burning off at the
weekend and for them to be present with hoses to control the fire. She
employed a contractor to do the actual burning, who, at her request, attended
at the property a day before to inspecte the proposed work. Without the
knowledge or consent of the Defendant he lit a fire which spread and caused
damage to the claimant's property. McGregor J upheld the decision of the Court
below dismissing the claimant's claim for damages. At page 710 of the report,
having cited the passage from the judgment of Finlay J in the
Boulcott case to which I have just drawn attention, he proceeds: -
"In the present case the second Defendant was invited to the premises by
the Respondent merely to inspect and decide whether he would accept a contract
to do the work. While in the light of the precautions which the respondent had
arranged to have the property and those of their neighbours safeguarded,
arrangements having been made that the latter should be equipped with hoses
when a day should have been arranged to burn the gorse, the inflammability of
the gorse and the incidental danger was clearly recognised by the respondent,
it seems to me that it was neither contemplated by the respondent that the
Second Defendant would light a fire when he entered merely to inspect, nor
could such an act reasonably be foreseen. Although the second Defendant was
the invitee of the Respondent, the act of lighting the match was in reality "a
frolic of his own", the fire thereby created was not the fire of the
respondent, and the situation was not one where a duty to control the conduct
of the Second Defendant had arisen. It does not seem to me to be an instance
of vicarious liability for the unauthorised and negligent act of the
invitee."
18. In his judgment in Emmanuel, Lord Denning said this at page
840 of the report: -
"The question: who is a "stranger"? is more difficult. But I am quite
clear that the contractor's men were not strangers. They were present on the
site with the leave and with the knowledge of the LCC. True it is that they
were prohibited from burning rubbish, but, nevertheless, it was their regular
practice to burn it. The LCC ought to have taken better steps to prevent them.
Not having done so, they cannot disclaim responsibility for the fire. The LCC
could reasonably have anticipated that these men might start a fire; and that
is enough, just as in the case in 1401 the householder might reasonably have
anticipated that his guests might light a candle."
19. The Judge dealt with the point starting at page 6 of the transcript, in
this way: -
"It all boils down to this, that a stranger is, as Lord Justice Jenkins
said in Perry v Kendricks Transport, "a stranger is
regarded as a person over whose acts the occupier of the land has no control.
In the Emmanuel case some independent contractors were on
land owned I think by the LCC as it then was. The LCC clearly had some degree
of control over the way in which the independent contractors carried out their
work and the Court of Appeal had no difficulty in coming to the conclusion in
that case that the LCC were occupiers because they had a degree of control.
Here we have a situation where a Tenant lawfully on the premises, doing
something, to wit smoking, if smoking was the cause of this fire and who knows,
over which frankly he had no control. ...
Mr Collins put great reliance on the authority of Wheat v
Lacon but when one looks at Lord Denning's judgment in
Emmanuel v GLC he says this
"adapting what I said in Wheat v Lacon, I would say
that for the purposes of fire whenever a person has a sufficient degree of
control over the premises that he can say with authority to anyone who comes
there, do or do not light a fire or do or do not put that fire out, he as
occupier must answer for any fire which escapes by negligence from the
premises."
Applying that test he had no difficulty in coming to the conclusion that
the LCC were occupiers of the site. The foreman of the LCC could say to
anybody from the independent contractors "do or do not light a fire here or
light a fire somewhere else further away from the road" or whatever, and if
a fire had been lit in a position which was dangerous, they had the right and
authority and the duty to so put it out. That put the GLC as the successors to
the LCC clearly in a position of some control.
The question that arises then is the Tenant, whoever it was, and assuming
that, was he a stranger?. Well, in my judgment he is, frankly. The position
was that he was a Tenant. He had a perfectly proper tenancy agreement and
there was a limit to what the Landlord could do about it. He was clearly not
in a position to stop him doing anything lawful such as lighting a cigarette
and so forth, and it seems to me that in the context of this case... he is a
stranger and within the test for the liability for the escape of fire and
indeed smoke set out in Emmanuel. It seems to me that the
Claimant unhappily must fail."
20. For the reasons which I have set out above it seems to me that the
question is not whether the Defendant had actually put himself in a position to
stop either of the occupants of the property from smoking. As I have already
pointed out, the occupants licence to occupy the common parts must clearly have
been subject to an implied term that they would do nothing in their use of the
common parts to endanger the fabric of the property. Such an implied term
would have empowered the Defendant to take any steps open to him to prevent
that happening. The Judge had unchallenged evidence before him that the sort
of tenant to whom the Defendant was in the habit of letting parts of the
property was likely to do just that. It was within his power to take steps to
minimise the possibility of their doing so, ultimately, by appointing a living
in manager or coming to live in the property himself. The facts of this case
are similar to those being considered by Finlay J in the Boulcott
case.
21. I agree that this appeal should be allowed and with the order proposed by
My Lord.
Order:
1. Appeal allowed.
2. By consent judgment entered for the Appellant in the sum of £5063.02
with interest calculated at £1211.76.
3. Defendant pay to Claimant costs here and below on the standard basis up
to and including the 15th of November 99.
4. Defendant pay to Claimant costs incurred from the 16th of
November 99 to date on an indemnity basis with interest charged at 15%.
5. Claimant's costs assessed in accordance with Community Legal Services
(Costs) Regulation 2000.
6. Application to appeal to the House of Lords refused.
(Order not part of Approved Judgment)
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