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Friday 8th February 2013
Matthew Stanton reports on a case of liability for damage caused to a neighbour's land.
8 February 2013
The issue
For a person to be liable for damage caused to a neighbour's land, there normally has to be negligence on their part that caused the damage.
However, the rule in Rylands v Fletcher (1868) provides that a defendant is liable for damage done to neighbouring land if: (i) the defendant brought on to his land something that is dangerous; (ii) the danger escaped from the defendant's land to the claimant's land; and (iii) the use to which the defendant had put his land was 'non-natural'.
As no negligence is required on the part of the defendant, liability is strict.
"Non-natural" has been interpreted by the courts to mean something that is an extraordinary use of the land.
In the case of Stannard v Gore the court looked at the question of 'non-natural use' and whether Rylands v Fletcher applies where the dangerous 'thing' that escaped the land was fire.
Decision
Gore's claim for negligence failed at first instance as the court found that Stannard had a defence under the Fires Prevention (Metropolis) Act 1774 because the fire was accidental and spread through no fault of Stannard's.
However, the court found that the haphazard way in which the tyres were stored amounted to a non-natural use of the land.
According to expert evidence, while tyres in their normal state are not flammable, once a primary fire has developed, it can produce sufficient heat to ignite tyres, which can spread to neighbouring tyres rapidly and is difficult to put out.
The court concluded that tyres are "dangerous" and as their storage meant the use of the land was non-natural and the fire escaped, all of the requirements of Rylands v Fletcher had been satisfied. As liability under Rylands v Fletcher is strict, this meant that Stannard was liable notwithstanding the absence of negligence.
Response
Stannard successfully argued that the County Court had erred in its application of Rylands v Fletcher to fire cases.
The Court of Appeal found that: (i) tyres, as such, are not exceptionally dangerous; (ii) the tyres did not escape, what escaped was the fire; and (iii) keeping a stock of tyres on the premises of a tyre-fitting business was not an extraordinary, unusual or non-natural use of the land. Strict liability under Rylands v Fletcher was therefore not established.
The court noted that fire damage cases are likely to be very difficult to bring within Rylands v Fletcher because it is the 'thing' brought on to the land that must escape, not the fire that was started or increased by the 'thing'.
Liability for fire damage under the rule may be limited to cases where the fire has been deliberately or negligently started and, in any event, starting a fire on one's land may be an ordinary use of the land.
Conclusion
Matthew Stanton is an associate in Allen & Overy LLP's real estate litigation team
The issue
For a person to be liable for damage caused to a neighbour's land, there normally has to be negligence on their part that caused the damage.
However, the rule in Rylands v Fletcher (1868) provides that a defendant is liable for damage done to neighbouring land if: (i) the defendant brought on to his land something that is dangerous; (ii) the danger escaped from the defendant's land to the claimant's land; and (iii) the use to which the defendant had put his land was 'non-natural'.
As no negligence is required on the part of the defendant, liability is strict.
"Non-natural" has been interpreted by the courts to mean something that is an extraordinary use of the land.
In the case of Stannard v Gore the court looked at the question of 'non-natural use' and whether Rylands v Fletcher applies where the dangerous 'thing' that escaped the land was fire.
Decision
Gore's claim for negligence failed at first instance as the court found that Stannard had a defence under the Fires Prevention (Metropolis) Act 1774 because the fire was accidental and spread through no fault of Stannard's.
However, the court found that the haphazard way in which the tyres were stored amounted to a non-natural use of the land.
According to expert evidence, while tyres in their normal state are not flammable, once a primary fire has developed, it can produce sufficient heat to ignite tyres, which can spread to neighbouring tyres rapidly and is difficult to put out.
The court concluded that tyres are "dangerous" and as their storage meant the use of the land was non-natural and the fire escaped, all of the requirements of Rylands v Fletcher had been satisfied. As liability under Rylands v Fletcher is strict, this meant that Stannard was liable notwithstanding the absence of negligence.
Response
Stannard successfully argued that the County Court had erred in its application of Rylands v Fletcher to fire cases.
The Court of Appeal found that: (i) tyres, as such, are not exceptionally dangerous; (ii) the tyres did not escape, what escaped was the fire; and (iii) keeping a stock of tyres on the premises of a tyre-fitting business was not an extraordinary, unusual or non-natural use of the land. Strict liability under Rylands v Fletcher was therefore not established.
The court noted that fire damage cases are likely to be very difficult to bring within Rylands v Fletcher because it is the 'thing' brought on to the land that must escape, not the fire that was started or increased by the 'thing'.
Liability for fire damage under the rule may be limited to cases where the fire has been deliberately or negligently started and, in any event, starting a fire on one's land may be an ordinary use of the land.
Conclusion
- The courts' increasingly restrictive approach to the rule in Rylands v Fletcher, limiting it to the rare instances of isolated escapes, led to Lord Hoffman saying in Transco v Stockport MDC [2004]: "It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse."
- It is improbable now that someone can ever be liable under Rylands v Fletcher for damage caused by fire originating on their premises, unless the fire was started deliberately, such as where fire or sparks are an essential part of the dangerous thing kept on the defendant's land.
- Even though liability for fire damage is unlikely to be established under Rylands v Fletcher, a landowner could still be liable for damage to neighbouring property caused by fire escaping their land if negligence on their part can be established.
- However, despite its limited use, the rule still exists so landowners should be cautious that their activities and things stored on their land are not likely to do damage to neighbouring property. A note of caution from the Court of Appeal: "Make sure you have insurance cover for losses occasioned by fire on your premises."
Matthew Stanton is an associate in Allen & Overy LLP's real estate litigation team