Insurance between neighbours: Stannard v Gore and common law liability for fire
Jenny Steele and Rob Merkin
Introduction
Writing in the Law Quarterly Review in 1886, Frederick Pollock flatly described the rule in Rylands v
Fletcher1 as a ‘duty of insuring safety’.2 In applying such a rule, he explained, ‘[t]he law takes notice
that certain things are a source of extraordinary risk, and a man who exposes his neighbour to such a
risk is held, although his act is not in itself wrongful, to insure his neighbour against any consequent
harm not due to some cause beyond human foresight and control’. Pollock did not mean, of course,
that the defendant who is held to such a duty must purchase insurance to cover the risk, but that the
creator of the risk would, through liability, himself be an insurer, where that risk was ‘extraordinary’.
In 1886, liability insurance was in its infancy and largely confined to the marine and employment
contexts. Public liability insurance, which is today stand-alone cover for enterprises and almost
universally provided under householders policies, was unknown when Rylands v Fletcher was
decided. Rather, just as the employer would, soon, be regarded as ‘insuring’ liability towards his
employees in the very nature of the Workmen’s Compensation Acts,3 so also Pollock presented
Rylands v Fletcher as a form of insurance between neighbours.
Strict liability is not all alike, and Rylands is different from Workmen’s Compensation. The latter
required no breach of duty on the employer’s part. Rylands by contrast was conceptualised in terms
of a duty on a user of land who accumulated things dangerous should they escape – that duty being
a strict one, to ‘keep them in’. Neverthless, it was at its inception justified by ideas of risk creation
and loss-bearing in cases where both parties were ‘free from all blame’.4 It is this which makes the
‘insurance’ description an appropriate one, and it is also this which has kept Rylands v Fletcher in the
pages not only of textbooks but also of the law journals long after its promise in English law has
faded away.5 In its contrast with liability based on fault, Rylands has even been described as the
‘conscience’ of the law.6 Here, we are concerned with the nature, and limited existence, of Rylands
1
(1868) LR 3 HL 330 (House of Lords). The more iconic of the judgments is that of the Court of Exchequer
Chamber below: (1866) 1 LR Exch 265. The House of Lords made the crucial addition of a ‘non-natural user’
requirement (339).
2
F Pollock, ‘Duties of Insuring Safety: the Rule in Rylands v Fletcher’ (1886) 2 LQR 52. For judicial use of the
same description see for example Scrutton LJ in Musgrove v Pandelis (1919) 2 KB 43: ‘This would base the
liability on negligence, and not on the duty of insuring damage from a dangerous thing under Rylands v
Fletcher’. Scrutton LJ was dissenting, but given the treatment of Musgrove in the Court of Appeal decision
considered here, that only bolsters the authority of his remarks.
3
The first UK Workmen’s Compensation Act was passed in 1897. Insurance of the liabilities became
widespread, but was not compulsory, except in the coal industry from 1934.
4
The Court of Exchequer Chamber (1866) LR 1 Ex 265 at 278, referred in consecutive paragraphs to the
defendants, and the plaintiff, as ‘free from all blame’.
5
For recent examples among a large literature see G Keating, ‘Recovering Rylands: An Essay for Bob Rabin’
(2012) 61 De Paul L Rev 543; D Nolan, ‘The Distinctiveness of Rylands v Fletcher’ (2005) 121 LQR 421; J
Murphy, ‘The Merits of Rylands v Fletcher’ (2004) 24 OJLS 643. In Australia, the rule has been assimilated to
the law of negligence: Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42; E Fisher, ‘Risk, Justice
and Independent Contractors: The Demise of the Rule in Rylands v Fletcher in Australia’ (1995) 7 JEL 199.
6
K Abraham, ‘Rylands v Fletcher: Tort Law’s Conscience’, in R Rabin and S Sugarman (eds), Torts Stories (2003).
1
liability for damage done by fire at common law, in light of the Court of Appeal’s decision in
Stannard v Gore.7 Highly pertinent to this discussion is the long-standing description of such liability
in terms of ‘insurance’. It is relevant to contemplate whether there are downsides to ‘insurance’
through liability, when compared to the well-recognised and widespread practice in relation to fire,
of insuring oneself.
Background: the decline of Rylands
It is well known that the promise of Rylands has faded. The Court of Appeal’s judgment in Stannard
continues this trend. The technical limitations initially applying to the rule – particularly the need for
an accumulation, and an escape8 - have progressively taken priority over any underlying principle.
The House of Lords in recent times has further restricted the rule by emphasising the need for
foreseeability of harm;9 by emphasising the need for a ‘non-natural’10 or, now, extraordinary11 use of
the land; and by determining that Rylands, since it is merely a branch of the law of nuisance, does
not apply in cases of personal injury.12 In Transco v Stockport,13 Lord Hoffmann offered a measured
appraisal of the underlying issue:
‘so far as the rule does have a residuary role to play, it must be borne in mind that it is
concerned only with damage to property and that insurance against various forms of
damage to property is extremely common. A useful guide in deciding whether the risk has
been created by a "non-natural" user of land is therefore to ask whether the damage which
eventuated was something against which the occupier could reasonably be expected to have
insured himself. Property insurance is relatively cheap and accessible; in my opinion people
should be encouraged to insure their own property rather than seek to transfer the risk to
others by means of litigation, with the heavy transactional costs which that involves. The
present substantial litigation over £100,000 should be a warning to anyone seeking to rely
on an esoteric cause of action to shift a commonplace insured risk.’14
There is continued resistance to the idea that insurance issues might play a serious part in the
development of the common law,15 but it is suggested that the question identified here is a crucial
one. If the basis of Rylands liability is an intuitive response about risk and loss-bearing, then the
widespread existence of other mechanisms for dealing with that risk cannot be irrelevant. This is not
to argue that insurance questions exhaust the issues; but if Rylands offers an alternative to fault
liability we need to be clear about what sort of alternative it is, and how it relates to other, nonliability alternatives. A reference to Lord Hoffmann’s comments was pointedly included by Ward LJ in
Stannard v Gore not in general discussion but as one of his conclusions, where it was described as
7
[2012] EWCA Civ 1248; [2013] Env LR 10.
Read v Lyons [1947] AC 156.
9
Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264.
10
Added to Lord Blackburn’s criteria by Lord Cairns in the House of Lords, n 1.
11
Transco v Stockport MBC [2003] UKHL 61; [2004] 2 AC 1.
12
Transco ibid.
13
Transco ibid.
14
Transco ibid [46]
15
See for example (with reference to Stannard v Gore) S Tofaris, ‘Rylands v Fletcher Restricted Further’ (2013)
72 CLJ 11.
8
2
providing the ‘moral of the story’: ‘make sure you have insurance cover for losses occasioned by fire
on your premises’.16
We suggest that the underlying question is this: what is the relationship between a principle of
justice based on the duty to keep things in and to insure one’s neighbour against harm, and the
actual practice of insurance against the same risks? This question is particularly highlighted by the
case of fire for the simple reason that fire insurance is so familiar and widespread, and because it is
one of the longest established branches of insurance. It is not as old as liability for fire;17 but since
fire insurance business developed quickly during the eighteenth century18 it is old enough to have
run alongside the majority of the statutory and judicial developments which arise for consideration.
We would add that insurance against fire has had a huge influence on the history of fire prevention
(for example through creation of early fire brigades by insurers)19 and thus of public policy in respect
of the relevant risks.
In this article, we reflect on the Court of Appeal’s decision in Stannard v Gore, focusing particularly
on what it shows about the nature of common law development in relation to one of the earliest
and commonest of insured risks. The decision shows that an accretion of several centuries of extant
legal principle can create a thicket of confusion. The problems are exacerbated where little guidance
can be found in the materials, or in any contemporaneous accounts of the law, as to the social
purpose of legal rules and competing interpretations. In those circumstances, judicial and legislative
utterances fall to be interpreted with only the faintest sense of their connection either to principle
or social purpose. Extracting principles of law fit for today’s purposes from such dry and tangled
material is no easy matter.
Stannard v Gore
A fire started on premises occupied by the defendant on a Trading Estate in Hereford. The defendant
was in the business of supplying, fitting and balancing car and van tyres and, not surprisingly, kept
supplies of tyres on the premises. The fire became intense and spread to neighbouring premises,
where it caused damage to the claimant’s property. The claimant sought damages from the
defendant in respect of the blaze. It has been reported that the claimant was uninsured.20 This
resonates with Ward LJ’s analysis of the ‘moral of the story’;21 and with the near universal theme of
early comments on the case;22 but the advice can hardly be said to be newly relevant. Common law
16
Stannard (n 7) [50].
Pollock refers to the position in the fifteenth century, citing YB 2 Hen IV 18 pl 5: n 2, 61.
18
F Haines, Chapters of Insurance History: the Origin and Development of Insurance in England (Post Magazine,
1926), dedicates ten chapters to fire insurance and identifies the late seventeenth century, after the Great Fire
of London of 1666, as the time when ‘fire insurance as we now practise it leapt into existence’ (47). See
generally R Pearson, Insuring the Industrial Revolution: Fire Insurance in Great Britain, 1700-1850 (Ashgate,
2004).
19
See the discussion in n 34.
20
T Watkinson and S Emerson, ‘The End of Strict Liability in Fire Cases?’, The Journal December 2012/ January
2013, 42. It is not clear whether this means ‘inadequately insured’, or uninsured altogether. The authors are
both at DAC Beachcroft, who represented the appellant (identified as Stannard’s liability insurers).
21
n 16.
22
Such as the one at ‘Property Investor Today’, 4 December 2012: referring to modern litigiousness, the writer
goes on to say that ‘we are all more used to risk assessment obligations too and it’s important that commercial
owners and tenants realise they are unlikely to be successful blaming someone else in this sort of situation. It’s
17
3
liabilities, no matter what their basis, could not operate as a substitute for adequate fire insurance.
A duty to insure your neighbour, almost inevitably, creates “double” insurance in the sense that
both parties are well-advised to insure.23
Initially the claim was brought in negligence and under the rule in Rylands v Fletcher. The negligence
claim failed. The Recorder found no evidence of negligence in maintaining the electrical system or
appliances, which were the probable source of the fire. He found, however, that liability under the
principle in Rylands v Fletcher was established. He considered that fire had ‘escaped’ from the
premises, and that the accumulated tyres though not themselves flammable posed a special fire risk
if ignited. The numbers of tyres and haphazard means of storage created a use that was out of the
ordinary, and thus qualified as ‘non-natural’. The relevant criteria – accumulation of a dangerous
thing; escape; and non-natural or extraordinary use – were thus held to be fulfilled.
The appeal was solely concerned with Rylands liability. The Court of Appeal concluded that the
elements of the action were not established, and thus allowed the appeal. In finding their way
through years of competing authority, some of it binding, the Court chose to be guided by the most
recent decisions of the House of Lords in relation to Rylands liability, which did not directly concern
fire.24 It thus snuffed out a lingering sense that fire may be different, and stricter, than other cases
dealt with under the rule. The Court held that there was no basis on which to apply different
principles to cases of fire when approached as giving rise to liability under Rylands v Fletcher, except
to the extent that in the opinion of Lewison LJ, an additional defence restricts such cases as a result
of the venerable s 86 Fires Prevention (Metropolis) Act 1774 (‘Section 86’). The content of section 86
and its nature are outlined below, and it offers a useful, if inconclusive focus in contemplating the
role of insurance in relation to liability for fire.
Because the general principles set out in Transco were applied to the case of fire, members of the
Court of Appeal thought it plain that as currently interpreted, the thing that escapes (here, the fire)
must also be the thing that is accumulated. Nineteenth century cases of sparks flying from railway
engines were capable of being rationalised, because the fire itself was created by the defendant
railway companies and at the same time what escaped was ‘sparks’.25 There was no scope to hold, as
the Recorder had done, that an accumulation of flammable things (tyres), combined with an escape
of something else (fire) could form the basis of a claim under the rule in Rylands. A number of
authorities will as a consequence need reappraisal.26 The tidy-minded will be somewhat relieved by
up to them to ensure that their insurance is robust and meets all their obligations for property, plant and
machinery right through to business interruption’: propertyinvestortoday.co.uk/news.
23
This is not double insurance in the technical sense, which arises where the same assured has two policies
covering the same loss, in which case the equitable principle of contribution will ensure that any paying insurer
can recoup from other insurers their share of the claim. In the situation posited in the text, the victim’s fire
insurers, if called upon to pay, would have a subrogation claim against the torfeasor, so the loss would lie
entirely with the tortfeasor (or, more likely, the tortfeasor’s public liability insurers). Ratherm the inherent
limits and uncertainty of liability incentivise both parties to insure.
24
For example Ward LJ [21], [50]; Etherton LJ [65].
25
Ward LJ [36]: ‘the sparks, which were an essential part of the machine, escaped and the danger posed by
such an escape was high and it was foreseeable’. See also the special provisions of the Railway Fires Act 1905
and Railway Fires Act 1905 (Amendment) Act 1923, applying to damage caused by sparks.
26
Musgrove v Pandelis [1919] 2 KB 43 was confined to its facts and its reasoning treated as incompatible with
the decision in Transco by the various judges, but note also LMS International v Styrene Packaging and
Insulation Limited [2005] EWHC 2065 (TCC), where the thing accumulated appears to have been polystyrene
4
this holding because, if the elements of Rylands liability are to be applied literally rather than
purposively, the alternative is logically difficult, to say the least. Variations in the rule from one
context to another need justification, and that is precisely what the law is struggling to provide in its
present state. The implication however is broad: Rylands liability cannot apply in the case of fires
which are started without intent or, at least, negligence.27 Ward LJ wondered if this was a remnant
of the old law of ignis suus;28 but this opens up the difficult question of different streams of strict
liability and their interpretation, and especially the relevance of Section 86. The Court of Appeal
further held that in light of the approach in Transco, the storage of tyres in the context of the
particular time and place was not ‘non-natural’; and cautioned that even if a fire is deliberately
started on one’s land, this is of course capable of amounting to a ‘natural’ user of land. It seems the
spread of fire from a natural use will now need to be dealt with in terms of negligence.
History and legislation
As already pointed out, the difficulties faced by the Court of Appeal involved history in a particularly
dry legal form. Generations of courts had produced conflicting interpretations of the law and
competing verbal formulae. Further, these decisions seemed to express overlapping causes of action
whose relationship and interaction has never been wholly resolved.29 The difficulties were much
exacerbated by the fact that the material to be interpreted has tended not to be underpinned by
much information, or even judicial argument, about its social and policy context. Where the source
material gives little guidance to the context and its influence, all that is left is the surface detail.
These difficulties are encapsulated in the question of how Rylands liability should be affected by s 86
Fires Prevention (Metropolis) Act 1774. The task of interpreting this section today demonstrates in
an extreme form the problem of the disembodied legislative pronouncement, authoritative yet
lacking in information about surrounding context or other guidance as to its function or basis.30
However, its interpretation by the various judges in Stannard v Gore also sheds light on our enquiry
as to the nature of strict liability at common law for the spread of fire.
Before the intervention of statute, the ‘custom of the realm’ was (and, therefore, is)31 that a person
is liable for the damage caused by the escape of ‘his’ fire.32 This is the ignis suus rule. The applicable
declaration, and some discussion of its uncertain meaning,33 was provided by Ward LJ at [26]:
but the consequences was fire; and Miles v Forest Rock Granite Co (1918) 62 SJ 634 (explosions caused the
escape of debris). It is plain that emphasis will be placed on negligence in such cases.
27
It is not quite clear how negligently started fires can fall within the rule, if it is supposed to be limited to fires
‘accumulated’ by the defendant for his own purposes, but Ward LJ treated deliberately and negligently started
fires as ‘brought onto the land’ ([48]).
28
Stannard (n 7) [48].
29
The Court clearly gained considerable assistance from A Ogus, ‘Vagaries in Liability for Escape of Fire’ (1969)
27 CLJ 104, to which we return below.
30
Trying to tackle this problem and weaken its hold is an ambition of the recent collection of essays, TT Arvind
and J Steele, Tort Law and the Legislature: Common Law, Statute, and the Dynamics of Legal Change (Hart
Publishing 2013).
31
Ward LJ, Stannard (n 7) [26]: ‘the custom of the realm is …’.
32
The idea of ‘his’ fire is broader than today’s concept of vicarious liability, and relates to fires originating on
land with relatively narrow exceptions.
33
Referring to Winfield (1926) 42 LQR 37, 49.
5
Whereas by the custom of England a man is bound to keep his fire ignem suum safe and
secure lest by default of custody of it loss should fall upon his neighbours in any way, the
defendant tam negligenter ac improvide apud custodivit, quod pro defectu debitae custodiae
the fire spread and did damage ….’.
Ward LJ reports, drawing on Winfield, that it is safe to assume that negligenter did not mean
negligence in the modern sense. Most likely, the expression was intended to exclude liability where
the fire spread or occurred through the act of a stranger, or by misadventure.
That represents the law which was affected by the eighteenth century legislation. Section 86 Fires
Prevention (Metropolis) Act 1774 re-enacts an earlier provision, section 6 of the Fires Prevention
(Metropolis) Act 1707,34 and provides:
‘No action, suit, or process whatsoever 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, nor shall any recompense be made by such person for any damage
suffered thereby, any law, usage or custom to the contrary notwithstanding’.
The section remains in force and is not restricted to London. What does it mean, and what was its
purpose? The answers, unfortunately, are obscure. The section is one of only two surviving
provisions from the 1774 statute. That statute was, as its name suggests, concerned with the
pressing issue of fire prevention. It was major legislation, including many regulatory interventions
into the nature of permitted building methods. Insurance was at the forefront of the legislation, and
insurers were at the forefront of fire prevention. Included in the earlier 1707 Act, for example, was a
provision entitling members of the fire brigades operated by insurance companies to avoid the
press-gang, up to a certain number (thirty).35 The only other surviving section of the 1774 Act, s 83, is
an insurance provision. S 83 requires insurers (on request of interested parties) or permits them
(upon the basis of suspicion of fraud), to cause insurance monies to go towards the rebuilding or
reinstatement of buildings. It is expressly aimed at deterring the practice of setting insured buildings
on fire and thus clearly at avoiding both fraud, and fire. Its operation has recently been the subject
of review by the Law Commission, on the basis that its current uses are rather different.36 The
section was originally desiged to prevent fraud by weekly tenants who had no continuing interest in
the building but had nevertheless insured it: the section thus permitted insurers to reinstate rather
than to hand over any insurance proceeds (assuming of course that they could not prove fraud, in
which case nothing would be payable anyway) and required insurers to reinstate if requested to do
so by the landlord, mortgagee or other interested person. By contrast, in the histories of fire
prevention and fire insurance of the period, the provision on civil liability does not appear to be
considered significant.37 This contrasts with evidence of enthusiastic printing and circulation of the
34
6 an c 31.
Pearson, Insuring the Industrial Revolution: Fire Insurance in Great Britain, 1700-1850 (Ashgate, 2004), 79,
noting that the insurance offices ‘devoted considerable energy and resources to preventing and fighting fires
in the capital’, and that each office maintained its own brigade.
36
Law Commission, ‘Reforming Insurance Contract Law. Introductory Paper: Section 83 of the Fires Prevention
(Metropolis) Act 1774: Should it be Reformed?’, March 2009.
37
See the comment by Ogus (n 29) to this effect. It is also not discussed in more recent histories such as
Pearson (n 35).
35
6
1707 Act in order to emphasise criminal penalties attaching to servants who started fires.38 We can
only dimly glean the purpose of the provision.
From today’s perspective, it may appear counter-intuitive that a statute providing for enhanced fire
prevention should contain a provision to reduce the prospects of recovery against those on whose
premises fires begin. As explained, the legislation took a close interest in insurance. The key is that
‘insurance’ at this stage was synonymous with first party insurance. There is reason to doubt
whether the provision would have been thought by insurers to increase their burden or remove any
avenue for redress on their part.39 Ogus points out that an insurer’s right of subrogation (the right to
bring an action against a party who is liable for the harm for which the insurer has indemnified its
assured to recover sums paid) was recognised in the case of marine insurance in 1748,40 and though
it was first applied to a case of fire insurance in 1782,41 that was an unusual case where there was an
alternative indemnifier (the local community). Once recognised, he suggests, the right was rarely
invoked in this period.42 Where insurance means first party insurance, the result of cutting down
liability is to enhance insurance coverage of losses, not to undermine it.
For the Court of Appeal in Stannard v Gore, two questions about s 86 were of relevance: what is the
meaning of the provision, and what is its applicability to Rylands liability? The first of these questions
was treated as answered by Denman CJ in Filliter v Phippard.43 Though the word ‘accidentally’ in
some contexts falls to be interpreted as contrasting with ‘wilful’,44 in this context it was more
‘reasonable’ to assume that a distinction between accidental and negligent was intended. The
reason offered by Lord Denman CJ was that this would avoid ‘encouragement’ to carelessness,
which might otherwise be created by the section. Plainly, Lord Denman saw the section as effecting
significant change in the law, sufficient for him to see the need to limit its effects.45 This frankly
retrospective and purposive application of presumed legislative intent has become the accepted
38
Ogus (n 29) 108, n 27, referring to reprinting and circulation by the City of London Court of Aldermen; see
also Pearson (n 35) 315: the Act ‘was reprinted many times during the eighteenth century and was circulated
as handbills by several insurance offices’ (referring to distribution by the Sun a century later, in 1807)..
39
Even today it is the case that the possibility of subrogation recoveries form only a limited part of premium
assessment in property insurance, so the fact that the assured has no subrogation rights is rarely a material
fact requiring disclosure to the insurers: Tate & Sons v Hislop (1884-85) LR 15 QBD 368
40
Randal v Cockran, 1 Ves. Sen. 98.
41
Mason v Sainsbury (1782) 3 Doug 61.
42
At 108, n 28, citing Bunyon, Law of Fire Insurance (1st ed 1866), 166-7. But this is in seeming contrast with
Lord Mansfield’s assertion in Mason v Sainsbury that “every day the insurer is put in place of the assured”. It
may be that Lord Mansfield was referring to marine cases, although it is not obvious why marine and property
insurers should adopt a different approach. A possible explanation is the greater likelihood of a shipowner
being good for the money.
43
116 ER 506; (1847) 11 QB 347.
44
That is, indeed, the way it is generally interpreted in insurance law. See, eg, Marine Insurance Act 1906, s
55(2)(a), which uses the phrase “wilful misconduct” in contradistinction to “neglect”
45
Similarly, as Lewison LJ pointed out in Stannard, contemporaneous commentators such as Blackstone and
Bacon ‘thought the Act had so altered the law that even where a fire had been caused or allowed to spread by
negligence no liability arose’: Stannard (n 7) [92]. This interpretation was rejected; but it seems to support the
view that the section did indeed change the law.
7
interpretation, and s 86 therefore bars actions, where it applies, in relation to fires which are not
deliberately or negligently started.46
The second question is whether Rylands liability is thought to be free of the defence, and if so why.
Ward LJ may have regarded this question as settled by the Court of Appeal in Musgrove v Pandelis,47
despite being otherwise deeply sceptical about the case, which he interpreted as being very much
confined to its facts – and indeed, to its time; although Ward LJ also stated on the basis of Lord
Tenterden’s judgment in Becquet v MacCarthy48 that ‘one can surmise’ that the purpose of the
section was to remove a presumption of negligence .49 On this basis, s 86 does not apply to liability
under Rylands v Fletcher, which is an independent source of strict liability, not a development of
ignis suus. Etherton LJ felt able to conclude that the formulation of Rylands liability in cases of fire in
Musgrove v Pandelis was wrong because it was inconsistent with Transco, which was intended to be
comprehensive and did not leave scope for a special rule relating to fire. However, he maintained
that its interpretation of the non-applicability of section 86 was binding, and added that as a matter
of statutory interpretation, there is in any case a presumption against interference with the common
law. He too was convinced by the argument that s 86 was enacted specifically in order to deal with
certain limited areas of uncertainty in relation to the customary law of ignis suus, which in his view
was conceptualised as different from Rylands liability. The provision was treated as designed to
resolve particular doubts about the reach of ignis suus. Both Etherton LJ, and Ward LJ, therefore
adopted the approach to section 86 proposed by Ogus: it merely clarified which fires would come
within the ignis suus principle.50 While Ward LJ ‘surmised’ that this was the case, Etherton LJ saw ‘no
reason to disagree’ with that analysis.
By contrast, Lewison LJ embarked on a substantial analysis of the point. He identified that the
statutory provision was widely stated and clearly expressed to apply notwithstanding law and
custom to the contrary. It was demonstrably intended to change the law, not just to clarify it, and
was expressed accordingly. Further, he argued that it was incorrect to argue that Rylands liability
was sharply different from the customary law encapsulated as ignis suus. There was no distinction
between a ‘mere escape of fire’ and an escape under Rylands v Fletcher conditions. Referring to the
Law Commission’s 1970 Report on Civil Liability for Dangerous Things and Activities,51 he pointed out
a dilemma: either Rylands was based on a generalisation of liabilities of a type which had previously
been recognised, including the law relating to fire, in which case the statutory defence should apply;
or it stated a new form of liability, in which case it ought to be seen as ‘limited by the mandate of
parliament’, and should not be allowed to evade the settled position. Lewison LJ produced
46
The Court did not pick up on Pollock’s assertion that the legislation only created a defence to domestic fires,
not those started for commercial purposes, by which he contrasted railway cases: n 2, 61. The wording of the
section is broad enough to encompass all buildings and purposes and, as already explained, the wording is
largely all we have. Pollock treated fire liability as an antecedent of Rylands.
47
n 26. The defendant kept a car on his premises; a fire broke out in the carburettor and it appears that the
defendant’s servants failed to deal properly with the fire; the elements of Rylands liability were held to be in
place. It is suggested that this is plainly inconsistent with the approach of the House of Lords in Transco v
Stockport in which non-natural user is interpreted as extraordinary user, and is also hard to square with the
requirement for an escape of an accumulated thing. See Ward LJ’s judgment in Stannard at [39].
48
[1831] 2 B & AD 951.
49
Stannard (n 7) [30].
50
This is the argument put by Ogus (n 29).
51
Law Com. 32, 1970.
8
persuasive authorities to support this rival interpretation.52 Short of finding new historical evidence
of the thinking behind the statutory provision, any contribution to the debate is only likely to
produce more of the same.53 What then are the implications?
Implications
It is plain that Rylands will only in a rare case present a route to redress in cases of fire. Applying the
criteria recognised by the House of Lords in Transco, and treating Musgrove v Pandelis as either
specific to its facts,54 or as turning on negligence,55 or as simply unsustainable after Transco,56 the
fire that escapes must be the thing that is also accumulated. Fires created without either intention
or negligence, even in relation to dangerous things, are as a consequence not within the rule. Doubt
is thereby cast, for example, on the statement in Clerk and Lindsell on Torts, that ‘a fire does not
begin accidentally when it is caused or produced by a dangerous thing for which the owner is
responsible under the doctrine of Rylands v Fletcher’ (the basis for an argument that s 86 does not
apply in Rylands cases).57 Rather, we must now reason in the other direction: the necessary
accumulation and escape are both of fire; and Rylands does not apply to a fire because it is ‘caused
or produced by’ a dangerous thing. This is a new understanding of Rylands in cases of fire, produced
by following the logic of Transco. But would it have been more satisfactory to use the statutory
route preferred by Lewison LJ? There are two routes to the same restriction, but while the
confinement of Rylands through the notions of escape and accumulation has come to turn on
technicalities, the statutory alternative raises the question of purpose and intent. The latter would
be the more satisfactory, if only these questions could be resolved.
In both Stannard and Transco as we have seen, senior judges have been prepared to clarify the
effect of their decisions in terms of loss-bearing and insurance. The English courts are not alone in
drawing attention to the pattern of insurance in relation to fire. In countries where global warming is
leading to a hotter rather than a wetter climate, and bush fires are a real and growing threat,
litigation around fire damage has been more significant and on a larger scale. In a recent Tasmanian
decision dealing with much more recent legislative provisions, and in the different context of a
negligence action against state fire authorities for alleged failings in fighting a fire, the court made
plain the loss-bearing agenda:
“At least in relation to property damage, legislation in this State since 1920 had reflected a
policy that the financial burden of unfortunate operational decisions should be borne by
52
These include a passage from Charlesworth and Percy on Negligence; and the views of McKenna J in Mason v
Levy Autoparts [1967] 2 QB 530; Lord Wright in Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER
200; Lord Denning in H&N Emmanuel v Greater London Council [1971] 2 All ER 835; and Lord Goddard in
Solomons v R Gertzenstein Ltd [1954] 1 QB 565, applying s 86 to a case of Rylands (reversed on a different
point in the Court of Appeal).
53
There is circumstantial evidence that the provisions were thought to change the law in the account by
Haines (n 18), who suggests that ‘until comparatively recently the originator of a fire, or the owner of the
property on which the fire originated, was legally responsible to those persons whose property was damaged
by the spreading of the fire’ (38). Even in its context (a broad historical review encompassing the early days of
insurance) this reference to ‘comparative recently’ is an odd way to refer back two centuries.
54
Ward LJ [49].
55
The interpretation of Musgrove attributed to Lord Wilberforce in Goldman v Hargrave [1967] 1 AC 645
(Lewison LJ, [158]).
56
Etherton LJ [65] (no scope after Transco for the formulation in earlier fire cases including Musgrove).
57
Sweet and Maxwell, 20th ed 2010, 20-162.
9
insurers, or by the uninsured. That seems possibly to have been a quid pro quo for the State
providing fire-fighting services which, in times long past, were provided by insurance
companies, and not at the expense of the public.”58
Unfortunately the purpose of s 86 and its predecessor cannot be so confidently stated. But the effect
– that the financial burden of fires in the absence of fault falls on a category which can be captured
as ‘insurers or the uninsured’ - remains the same. The key points here are that first party insurance
against fire is the norm; and that no liability recipe could be concocted which would remove the
need for such first party insurance against a familiar risk. Whilst arguments that insurance is
irrelevant to tort reasoning or at least ‘fraught with difficulty’ are, as we have seen, still
encountered,59 where the principle in question is recognised to be one of insurance and loss-bearing
it is highly relevant to consider familiar insurance patterns against which that principle must operate.
This does not threaten to demolish the common law principles but calls attention to their purpose.
What is needed for Rylands liability to be appropriate is a sufficient reason for placing the loss with
the creator of a risk.
That was not the case in Stannard v Gore, nor will it now be the case in other circumstances where a
fire begins without intention or negligence. That insurance provides the context of such cases is
underlined not only by Ward LJ’s remarks and by the various commentaries published in response to
the decision, but also by the response of the defendant to the Court of Appeal’s decision.
Underlining the impact of insurance, and suggesting also some of its possible advantages over strict
liability between neighbours, Mr Stannard is reported as having said that he was unaware of the
Court of Appeal hearing. “I thought I was cleared some time ago so this makes no odds to me, but I
am pleased it has all come to an end. I hope everyone affected by the fire is alright because they are
all friends at the end of the day”.’60
58
Myer Stores Ltd v State Fire Commission [2012] TASSC 54, [15].
S Tofaris (n 15), identifying this as underlying the Court of Appeal’s decision and criticising it as problematic.
It can be agreed that the insurance issues bear discussion and cannot be assumed to be straightforward.
60
Herefordshirejournals.com, ‘Tyre trader in clear over £250,000 blaze’, posted October 12, 2012.
59
10