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Gore v Stannard (trading as Wyvern Tyres) (CA)
Court of Appeal
Gore v Stannard (trading as Wyvern Tyres)

[2012] EWCA Civ 1248
B
2012 April 26;

Oct 4
Ward, Etherton, Lewison LJJ
Rylands v Fletcher Fire damage Liability Fire breaking out on defendants

premises as result of electrical fault Tyres stored on premises by defendant
feeding re Fire spreading and causing damage to claimants premises
Whether escape of dangerous thing from defendants land Whether strict
liability rule applying
C
A re broke out at the defendants business premises as a result of an electrical

fault, igniting a large number of tyres which the defendant had brought onto the
premises. The tyres, once alight, fed the ferocity of the re, which spread and
destroyed the claimants adjoining premises. The claimant brought an action for
damages on the alternative bases of negligence and the strict liability rule in Rylands
v Fletcher. The judge rejected the claim in negligence but allowed the claim based on
the strict liability rule, holding that (i), although the tyres were not per se readily
combustible, they could catch re from another source of ame or heat, and the
defendants activities in storing tyres in the numbers and the ways he had were
dangerous, (ii) there had been an escape from the defendants land for the purposes
of the rule and (iii) the defendants storage of the tyres amounted to non-natural use
of the land.
On the defendants appeal
Held, allowing the appeal, that the rule in Rylands v Fletcher did not apply where
the defendant had brought onto his land a thing which had started or increased a re
and the re, but not the thing, had escaped from his land; and that, accordingly, since
the tyres, while having been brought onto the defendants land, had not escaped, and
the re, while having escaped, had not been brought onto the defendants land, the
rule did not apply (post, paras 22, 36, 4751, 5253, 55, 59, 6566, 73, 109, 162,
164, 166167).
Rylands v Fletcher (1868) LR 3 HL 330, HL(E), Cambridge Water Co v Eastern
Counties Leather plc [1994] 2 AC 264, HL(E) and Transco plc v Stockport
Metropolitan Borough Council [2004] 2 AC 1, HL(E) applied.
Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530 considered.
Musgrove v Pandelis [1919] 2 KB 43, CA not followed.
Per Lewison LJ. Section 86 of the Fires Prevention (Metropolis) Act 1774
abolished liability for res which start and spread without anyones negligence (post,
paras 73, 107, 126, 129, 170).
The following cases are referred to in the judgments:
Aldridge v Great Western Railway Co (1841) 3 Man & G 515
Anon (Case 5) (1582) Cro Eliz 10
Balfour v Barty-King [1957] 1 QB 496; [1957] 2 WLR 84; [1957] 1 All ER 156, CA
Beaulieu v Finglam (1401) YB 2 Hen 4, fo 18, pl 6
Becquet v MacCarthy (1831) 2 B & Ad 951
Black v Christchurch Finance Co Ltd [1894] AC 48, PC
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520
Bybrook Barn Garden Centre Ltd v Kent County Council [2001] LGR 239, CA
Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; [1994]
2 WLR 53; [1994] 1 All ER 53, HL(E)
Canterbury (Viscount) v Attorney General (1843) 1 Ph 306
' 2013 The Incorporated Council of Law Reporting for England and Wales
624
[2013] 3 WLR
Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER 200, CA

Crogate v Morris (1617) 1 Br & Gold 197
Donoghue v Stevenson [1932] AC 562, HL(Sc)
Emanuel (H & N) Ltd v Greater London Council [1971] 2 All ER 835; [1971]
2 Lloyds Rep 36, CA
Filliter v Phippard (1847) 11 QB 347
Goldman v Hargrave (1963) 110 CLR 40; [1967] 1 AC 645; [1966] 3 WLR 513;
[1966] 2 All ER 989, PC
Harooni v Rustins Ltd [2011] EWHC 1632 (TCC)
Heaven v Pender (trading as West India Graving Dock Co) (1883) 11 QBD 503, CA
Hobbs (E) (Farms) Ltd v Baxenden (Chemical Co) Ltd [1992] 1 Lloyds Rep 54
Job Edwards Ltd v Birmingham Navigations Proprietors [1924] 1 KB 341, CA
Johnson (trading as Johnson Butchers) v BJW Property Developments Ltd [2002]
EWHC 1131 (TCC); [2002] 3 All ER 574
Jones v Festiniog Railway Co (1868) LR 3 QB 733
LMS International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC 2065
(TCC)
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980]
QB 485; [1980] 2 WLR 65; [1980] 1 All ER 17, CA
Leong Bee & Co v Ling Nam Rubber Works [1970] 2 Lloyds Rep 247, PC
McKillen v Maybourne Finance Ltd [2012] EWCA Civ 864, CA
Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530; [1967] 2 WLR 1384;
[1967] 2 All ER 62
Musgrove v Pandelis [1919] 1 KB 314; [1919] 2 KB 43, CA
Piggot v Eastern Counties Railway Co (1846) 3 CB 229
Powell v Fall (1880) 5 QBD 597, CA
Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1920] 2 KB 487, CA;
[1921] 2 AC 465, HL(E)
Read v J Lyons & Co Ltd [1947] AC 156; [1946] 2 All ER 471, HL(E)
Richards v Easto (1846) 15 M & W 244
Rickards v Lothian [1913] AC 263, PC
Rylands v Fletcher (1865) 3 H & C 774; (1866) LR 1 Ex 265; (1868) LR 3 HL 330,
HL(E)
Sedleigh-Deneld v OCallaghan [1940] AC 880; [1940] 3 All ER 349, HL(E)
Smith v London and South Western Railway Co (1870) LR 5 CP 98; (1870) LR
6 CP 14
Sochacki v Sas [1947] 1 All ER 344
Solomons v R Gertzenstein Ltd [1954] 1 QB 565; [1954] 2 WLR 823; [1954] 1 All
ER 1008; [1954] 2 QB 243; [1954] 3 WLR 317; [1954] 2 All ER 625, CA
Spicer v Smee [1946] 1 All ER 489
Starmark Enterprises Ltd v CPL Distribution Ltd [2001] EWCA Civ 1252; [2002]
Ch 306; [2002] 2 WLR 1009; [2002] 4 All ER 264, CA
Transco plc v Stockport Metropolitan Borough Council [2001] EWCA Civ 212;
[2001] Env LR 779, CA; [2003] UKHL 61; [2004] 2 AC 1; [2003] 3 WLR 1467;
[2004] 1 All ER 589, HL(E)
Turberville v Stamp (1702) 12 Mod 152; 1 Com 32; 1 Salk 13
Vaughan v Menlove (1837) 3 Bing NC 468
Vaughan v Ta Vale Railway Co (1858) 3 H & N 743; (1860) 5 H & N 679
Williams v Owen [1955] 1 WLR 1293; [1956] 1 All ER 104
Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1944] 2 All ER 293, CA
No additional cases were cited in argument or referred to in the skeleton arguments.
APPEAL from Mr Recorder Potts sitting in the Worcester County Court

By a claim form issued on 15 March 2010 the claimant, Robert Raymond
Harvey Gore, brought proceedings in negligence and, alternatively, in
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reliance on the rule in Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR

3 HL 330 against the defendant, Mark Stannard (trading as Wyvern Tyres),
founded on the outbreak of re on land occupied by the defendant which
had escaped onto the claimants land. By a decision dated 22 August 2011,
Mr Recorder Potts, sitting in the Worcester County Court, rejected the claim
in negligence but held that all the requirements of the rule in Rylands v
Fletcher were satised and entered judgment for the claimant with damages
to be assessed.
By an appellants notice dated 9 September 2011, and pursuant to the
permission of the Court of Appeal (Rix LJ) dated 7 November 2011, the
defendant appealed on the grounds, inter alia, that (1) the recorder had
failed to apply the correct test for liability under the rule in Rylands v
Fletcher, in particular in failing to have any or sucient regard to the
requirement that the defendant should have brought onto his land a thing
which was likely to cause and/or catch re, and kept that thing in such a
condition that, if ignited, it would be likely to spread to the claimants land,
and (2) if the recorder had applied the correct test he would have been bound
to dismiss the claim.
The facts are stated in the judgment of Ward LJ.
Jonathan Waite QC and Michele de Gregorio (instructed by DAC
Beachcroft LLP) for the defendant.
Philip Rainey QC and Nicholas Isaac (instructed by Beaumonts
Solicitors LLP, Hereford) for the claimant.
The court took time for consideration.
4 October 2012. The following judgments were handed down.

WARD LJ
1 Every law student is likely to remember how Mrs Donoghue suered
when a snail in a state of decomposition oated into her glass from
the bottle of ginger beer manufactured by Mr Stevenson. Almost as
memorable must be the case of Mr Rylandss reservoir bursting and
ooding Mr Fletchers colliery which gave rise to the rule we now know as
Rylands v Fletcher. Lest we cannot recall the iconic ruling by Blackburn J
on behalf of the Exchequer Chamber, here it is (1866) LR 1 Ex 265,
279280:
We think that the true rule of law is, that the person who for his own
purposes brings on his lands and collects and keeps there anything likely
to do mischief if it escapes, must keep it in at his peril, and, if he does not
do so, is prima facie answerable for all the damage which is the natural
consequence of its escape. He can excuse himself by shewing that the
escape was owing to the plaintis default; or perhaps that the escape was
the consequence of vis major, or the act of God; but as nothing of this sort
exists here, it is unnecessary to inquire what excuse would be sucient.
The general rule, as above stated, seems on principle just. The person
whose grass or corn is beaten down by the escaping cattle of his
neighbour, or whose mine is ooded by the water from his neighbours
reservoir, or whose cellar is invaded by the lth of his neighbours privy,
or whose habitation is made unhealthy by the fumes and noisome
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vapours of his neighbours alkali works, is damnied without any fault of

his own; it seems but reasonable and just that the neighbour, who has
brought something on his own property which was not naturally there,
harmless to others so long as it is conned to his own property, but which
he knows to be mischievous if it gets on his neighbours, should be
obliged to make good the damage which ensues if he does not succeed in
conning it to his own property. But for his act in bringing it there no
mischief could have accrued, and it seems but just that he should at his
peril keep it there so that no mischief may accrue, or answer for the
natural and anticipated consequences. And upon authority, this we think
is established to be the law whether the things so brought be beasts, or
water, or lth, or stenches.
Whilst entirely concurring with that opinion, Lord Cairns LC added the
gloss that the land should not be used for any purpose which I may term
non-natural use: see Rylands v Fletcher (1868) LR 3 HL 330, 339.
2 Although Donoghue v Stevenson [1932] AC 562 has withstood the
test of time, Lord Bingham of Cornhill was to say: Few cases in the law of
tort or perhaps any other eld are more familiar, or have attracted more
academic and judicial discussion, than Rylands v Fletcher: see Transco plc
v Stockport Metropolitan District Council [2004] 2 AC 1, para 3. It was
subjected to even more withering criticism by Mason CJ and the majority
of the High Court of Australia in Burnie Port Authority v General Jones
Pty Ltd (1994) 179 CLR 520, 536 (though it is fair to say that the
criticisms were not entirely accepted by the House of Lords in the Transco
case):
Notwithstanding the many accolades which have been, and continue

to be, lavished on Blackburn Js judgment (see, e g, Wigmore, (1894)
7 Harvard Law Review 315, 383, 441, 454: the master-mind of
Mr Justice Blackburn; Newark, The Boundaries of Nuisance (1949)
65 LQR 480, 487: his great judgment; Salmond & Heuston on the Law
of Torts, 20th ed (1992), p 314: always been recognised as one of the
masterpieces of the Law Reports), that brief exposition of the true rule
of law is largely bereft of current authority or validity if it be viewed, as it
ordinarily is, as a statement of a comprehensive rule (see, e g, Jones v
Festiniog Railway Co (1868) LR 3 QB 733, 736, per Blackburn J: the
general rule of common law). Indeed, it has been all but obliterated by
subsequent judicial explanations and qualications.
In the Transco case itself Lord Homann did say at para 39: It is hard to
escape the conclusion that the intellectual eort devoted to the rule by judges
and writers over many years has brought forth a mouse.
3 Now we have another occasion to labour. How, if at all, does the rule
apply where the damage to the claimants land is caused by the escape of a
re which raged through the defendants premises, its ferocity fed by the
eventual ignition of the large stack of tyres which he had brought onto his
land on which he carried out the business of a motor vehicle tyre supplier
and tter. On 22 August 2011 Mr Recorder Potts, sitting in the Worcester
County Court, held that all the requirements of Rylands v Fletcher were
satised and accordingly judgment for the claimant was entered with
damages to be assessed. The defendant now appeals.
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The facts in a little more detail

4 The defendant, Mark Stannard, carried on business as Wyvern Tyres
supplying, tting and balancing car and van tyres. The business was
conducted at Units 111 and 107a on the Holmer Trading Estate in Hereford.
In the front part of the premises was the ramp and other pieces of equipment
necessary for changing and tting the tyres, vulcanising them and balancing
them. To the side were two small oces. Along the length of the building to
the rear were some six specially constructed racks for the storage of tyres.
The recorder found that the defendant squeezed stock into the room, some
tyres being haphazardly and untidily above the racks as well as on the racks
themselves and others were piled high in chimneys . The premises of the
claimant, Robert Raymond Harvey Gore, were behind the defendants.
Between them was a space used as a further area for the storage of new and
part-worn tyres. There were no racks in this area and the tyres were simply
piled high vertically in these chimneys, some of them being located along
the wall which divided the claimants premises from the defendants. It was
dicult to know how many tyres were held by the defendant but the
recorder was satised that at the material time about 3,000 tyres were stored
in and outside the building.
5 Having heard the evidence of experienced former re ocers, the
recorder concluded that tyres have recognised particular characteristics so
far as concerns res and re ghting as follows:
(a) They are not in themselves ammable, and in their normal state
will not ignite unless there is sucient ame or heat from another source.
(b) Once however a primary re has developed, and intensied it can
produce sucient heat or ame to ignite rubber composite tyres. (c) If
tyres catch re then combustion develops rapidly depending on the
quantity of tyres present and how they are stored. (d) Once re takes hold
of tyres they are dicult to put out.
6 A re did break out at about 6.15 p m on 4 February 2008 some time
after the defendant had secured the premises, set the alarms at 4.50 p m and
left the site. It seems that the re had started in the front workshop
section and had quickly intensied. Such was its severity that ten pumping
re appliances attended at the scene with three other special vehicles, a
command unit, Ariel ladder platform and water carrier. Once the re took
hold its intensity grew rapidly. By 7.55 p m, just over an hour after the
original attendance, the entire Wyvern Tyres unit was fully ablaze; it was
already unlikely that the claimants premises could be saved and priority was
given, in vain it seems, to saving the adjoining units. Alas, they were also
totally destroyed and for safety reasons were reduced to rubble the following
day. The recorder made these ndings:
I am . . . satised on the balance of probabilities that the re
originated in Wyverns premises, and probably towards the front of the
workshop area. From there it spread back into the workshop and tyre
storage area, and to the side into the oce and reception, and thence to
the unit next door occupied by the double glazing business, and to the
rear into [the claimants] premises which adjoined directly onto Wyverns
premises, the two being separated by what appears from [the claimants]
plan to be simply a single skin of brick.
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The recorder accepted the evidence of the re ocer who attended the re
that the cause of the re was something occurring in the wiring and
appliances within Wyverns premises. Thus he accepted that the primary
source was electrical.
7 The recorder asked whether the tyres made a dierence. He held:
15. In my judgment on the balance of probabilities they did.
Something that stands out in this case in the descriptions of the re by the
witnesses, including re ocers, is its intensity and severity . . . This was
a re which spread with great rapidity and intensity. Indeed it was so
aggressive that the re service plainly had diculty in bringing it under
control, and could only do so some hours after they had rst been called
out and attended and after they had been reinforced with further
equipment and personnel.
16. While it is clear that tyres per se are not readily combustible and
will not constitute a primary source of combustion, it is plain that they
can catch re from some other source as I have found to have existed in
this case. Once the tyres were alight there was a huge problem for all
concerned, including adjoining and neighbouring occupiers, because, in
the words of [the re ocer], once a re takes hold of tyres they are
dicult to put out. That is what, on the balance of probabilities, I nd
happened in the instant case with consequences that are of course only
too apparent.
The judgment under appeal
8 The claim was brought both in negligence and in strict liability. The
claim in negligence was rejected. The recorder found, rst, that the primary
cause of the re lay in the wiring or electrical appliances in Wyverns
premises but there was nothing to show that such a state of aairs was the
result of a failure to maintain or keep in good order the electrical system
itself or all those electrical appliances that were located within the premises,
as opposed to something that might have arisen entirely by accident. He was
satised that the machinery was regularly checked and that the electrical
work had been competently carried out and checked a reasonable time
before this re started. Secondly he found that it was not reasonable to
expect the defendant to invest in an automatic alarm system or sprinkler
system and in any event, even if he should have done so, there was no
evidence to suggest that such systems would have been likely to have
prevented the re from spreading to the claimants premises. The third
allegation of storing the tyres without any adequate measures in place to
prevent them catching re or to minimise the chances of them catching re
was so vague and so lacking in specicity as to make it in practice impossible
even to respond to it by way of defence other than by bare denial. There was
no allegation and no evidence at all of what the defendant should or could
have done to prevent the spread of re that had undeniably broken out from
reaching the tyres and thereby involving them in the conagration. The
claimant failed to prove that the defendant could have done something in
terms of the storage of the tyres that would have prevented their igniting at
all or would have reduced the chances of them doing so. Any complaint of a
breach of the Regulatory Reform (Fire Safety) Order 2005 (SI 1541/2005)
for the failure to take such general re precautions as would ensure so far as
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was reasonably practicable the safety of any of the defendants employees

could not take the claimants case further because there were no employees
and in any event nothing in that statutory duty conferred any right of action
in civil proceedings. The recorder accordingly held that:
subject to the question of any Rylands v Fletcher liability, the failure
of [the claimant] to establish to the satisfaction of the court any
negligence on the part of [the defendant] means that, apart from any
Rylands v Fletcher liability, he has the benet of a defence under
section 86 of the Fires Prevention (Metropolis) Act 1774 on the basis that
the re was accidental.
Strict liability under Rylands v Fletcher
9 In a careful judgment, the recorder analysed the authorities presented
to him. Dealing specically with res in connection with the rule in Rylands
v Fletcher he observed how the Fires Prevention (Metropolis) Act 1774
limited a defendants liability to non-accidental res but he added:
Even then of course where a re arose from something dangerous that
the defendant had brought onto his land there could be nothing
accidental about any re that arose as a result, and what became the rule
in Rylands v Fletcher continued to apply with full force, although of
course it is the re itself that is the dangerous thing that escapes the
defendants land, rather than whatever caused the re to arise in the rst
place.
10

Ward LJ
As for Rylands v Fletcher, he noted:
the following well known requirements to the rule in order that

liability may be established: (i) the defendant must bring onto his land
something that is dangerous; (ii) the danger must escape from the
defendants land to the claimants land; and (iii) the use to which the
defendant had put his land must be non-natural.
He concluded that there was plainly an escape within the meaning of
the Rylands v Fletcher rule and liability therefore turns on whether or
not the defendants activities on Wyverns premises were dangerous and a
non-natural use of his land. The only relevant activity was the storage of
tyres. They were not in themselves ammable and would not ignite unless
there was a sucient ame or heat source. It is, however, not impossible for
tyres to catch re as obviously happened here and if they do ignite they have
a special re risk quality. This is that once alight they may burn rapidly and
intensively such that they are dicult to put out. Given the haphazard way a
large number of tyres were stored there was an exceptionally high risk of
damage to the claimants premises if re broke out. That was a foreseeable
risk with the result that the defendants activities in storing tyres in the
numbers and ways that he did were dangerous within the meaning of
the rule. As for non-natural use, the recorder asked himself whether what
the defendant did in storing and enlarging the tyre storage area for that
purpose was out of the ordinary. Here the state of aairs created by the
defendant was out of the ordinary. It was not normal and not routine, the
standard of normality and routine being that of a tyre business storing tyres
in an orderly fashion and in such numbers that are well within the capacity
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of its dedicated storage facilities. This was non-natural use. Consequently

the requirements of the rule in Rylands v Fletcher were established and
judgment was entered for the claimant accordingly.
Discussion: the only question in this appeal
11 The defendant does not seek to challenge the ndings of fact nor
the dismissal of the claim in negligence. It is, however, submitted on the
defendants behalf that the recorder erred in his application of the test for
strict liability under the rule in Rylands v Fletcher as applied to re cases.
I propose to deal rst with what seems to me to be the established
formulation of the rule in classic Rylands v Fletcher cases, leaving for later
consideration the question of whether there is a special or dierent rule of a
Rylands v Fletcher kind to deal with damage caused by re.
Classic Rylands v Fletcher
12 I need not repeat Blackburn Js formulation and the gloss added to it
by Lord Cairns LC as set out at the beginning of this judgment. The rst
signicant clarication was made nearly 40 years later in Rickards v Lothian
[1913] AC 263, 280. There the Privy Council was concerned with property
on the second oor of the premises which were damaged by the continuous
overow of water from a lavatory basin on the top oor caused by the water
tank having been turned on full and the waste-pipe plugged through the
malicious act of some person. The Privy Council were of the opinion that the
case did not come within the principle of Rylands v Fletcher because
the matters complained of took place through no fault or breach of duty on
the defendants part but were caused by a stranger over whom, and at a spot
where, they had no control. Lord Moulton added at pp 279280:
But there is another ground upon which their Lordships are of
opinion that the present case does not come within the principle laid
down in Fletcher v Rylands. It is not every use to which land is put that
brings into play that principle. It must be some special use bringing with
it increased danger to others, and must not merely be the ordinary use of
the land or such a use as is proper for the general benet of the
community.
The Privy Council were of the opinion that the provision of a proper supply
of water to the various parts of a house is not only reasonable, but has
become, in accordance with prevailing sanitary views, an almost central
feature of town life and it would be wholly unreasonable to hold an occupier
responsible for the consequences of acts which he is powerless to prevent.
13 Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd
[1921] 2 AC 465 is often cited but I confess that I nd the jurisprudence on
Rylands v Fletcher is hardly advanced by this case. At a time of war a
process was invented whereby picric acid could be manufactured from
dinitrophenol (DNP) and nitrate of soda. DNP had been used mainly for
the manufacture of dyes, and it was a stable compound which did not
explode easily. It was not in itself dangerous. Nitrate of soda was not an
explosive but wood or bags impregnated with moist nitrate of soda will,
when dry, burn ercely if ignited. A hot ame is needed to ignite it and
when ignited, large quantities of DNP become a dangerous explosive.
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While neither DNP nor nitrate of soda was, in itself, dangerous, they became
a source of danger if stored in quantities and in close proximity to one
another. It was proved that it was due to that cause that a massive explosion
took place which caused damage to neighbouring property. On the evidence
the manufacture of picric acid from DNP and nitrate of soda might or might
not be dangerous in its character, but in that case it was being manufactured
under dangerous conditions, and those dangerous conditions caused the
accident. Accordingly the principle of Rylands v Fletcher became
applicable. It was not, per Lord Carson at p 491, seriously argued that the
defendant company was not liable for the damages caused by the explosion.
Indeed it seems that before Scrutton LJ, the trial judge, it was admitted that
the person in possession of the DNP was liable under the rule in Rylands v
Fletcher for the consequences of the explosion. Thus the real issue in the
case was stated by Lord Buckmaster in these terms, at pp 471472:
Now, the foundation of the action was a claim based upon the
familiar doctrine established by the case of Fletcher v Rylands, which
depends upon thisthat even apart from negligence the use of land by
one person in an exceptional manner that causes damage to another, and
not necessarily an adjacent owner, is actionable . . . In the present case
the use complained of was that for the purpose of making munitions,
which was certainly not the common and ordinary use of the land, two
substances, namely, nitrate of soda and dinitrophenol, were stored in
close proximity, with the result that on a re breaking out they exploded
with terric violence. It may be accepted that it was not known to either
of the defendants that this danger existed, but that in itself aords no
excuse, and the result is that the plaintis cause of action is well founded
and the only matter for determination is against whom the action should
be brought.
The disputed question was whether responsibility lay at the door of the
defendant company or the personal defendants who had a licence from the
inventor to manufacture the required picric acid. Whilst, therefore, that case
bears some similarity to the case before us (large quantities of materials
which when once alight will cause damage to neighbouring property), there
is little help on the principles to apply.
14 Another explosion at a time of war gave rise to Read v J Lyons & Co
Ltd [1947] AC 156. This was a claim by an inspector of munitions who was
injured in the course of her duties while in a munitions factory operated by
the defendant company by the explosion of a high explosive shell during the
process of manufacture. She failed because an essential condition of the
application of the rule in Rylands v Fletcher was the escape from the land
of something likely to do mischief if it escaped. Here the injuries were
caused on the premises of the defendant. Doubts were expressed, obiter, as
to whether the action lay where the claim was for damages for personal
injury as distinguished from damage to property. Once again, this case gives
us little help.
15 Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC
264 is a much more important authority. There a chlorinated solvent used
by the leather manufacturer seeped into the water companys borehole
resulting in the water becoming unt for human consumption. Although the
water company had abandoned its claim in nuisance and could only succeed
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on the basis of the rule in Rylands v Fletcher, Lord Go of Chieveley none

the less considered it desirable to look at the nature of liability in both
nuisance and Rylands v Fletcher.
16 Comparing nuisance and the rule in Rylands v Fletcher he said
at p 299:
We are not concerned in the present case with the problem of personal
injuries, but we are concerned with the scope of liability in nuisance and
in Rylands v Fletcher. In my opinion it is right to take as our starting
point the fact that, as Professor Newark considered [in his seminal article
on The Boundaries of Nuisance (1949) 65 LQR 480], Rylands v
Fletcher was indeed not regarded by Blackburn J as a revolutionary
decision: see, e g, his observations in Ross v Fedden (1872) 26 LT 966,
968. He believed himself not to be creating new law, but to be stating
existing law, on the basis of existing authority; and, as is apparent from
his judgment, he was concerned in particular with the situation where the
defendant collects things upon his land which are likely to do mischief if
they escape, in which event the defendant will be strictly liable for
damage resulting from any such escape. It follows that the essential basis
of liability was the collection by the defendant of such things upon his
land; and the consequence was a strict liability in the event of damage
caused by their escape, even if the escape was an isolated event. Seen in its
context, there is no reason to suppose that Blackburn J intended to create
a liability any more strict than that created by the law of nuisance; but
even so he must have intended that, in the circumstances specied by him,
there should be liability for damage resulting from an isolated escape.
17 He questioned whether foreseeability of damage was a prerequisite
for recovery of damages and said at p 302:
. . . Blackburn J spoke of anything likely to do mischief if it escapes,
and later he spoke of something which he knows to be mischievous if it
gets on his neighbours [property], and the liability to answer for the
natural and anticipated consequences. Furthermore, time and time again
he spoke of the strict liability imposed upon the defendant as being that he
must keep the thing in at his peril; and, when referring to liability in
actions for damage occasioned by animals, he referred LR 1 Ex 265, 282,
to the established principle that it is quite immaterial whether the escape
is by negligence or not. The general tenor of his statement of principle is
therefore that knowledge, or at least the foreseeability of the risk, is a
prerequisite of the recovery of damages under the principle; but that the
principle is one of strict liability in the sense that the defendant may be
held liable notwithstanding that he has exercised all due care to prevent
the escape occurring.
And at p 306 he concluded: it appears to me to be appropriate now to take
the view that foreseeability of damage of the relevant type should be
regarded as a prerequisite of liability in damages under the rule. In the
result, since the plaintis were unable to establish that the pollution of their
water supply by the solvent was foreseeable, the claim failed.
18 He considered that there was a striking similarity of function
between the principle of reasonable user in nuisance (the principle of give
and take as between neighbouring occupiers of land) and the principle of
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natural use in Rylands v Fletcher. As for the latter, he pointed out Lord
Moultons gloss in Rickards v Lothian [1913] AC 263, 279 and added
[1994] 2 AC 264, 308309:
Blackburn Js statement of the law was limited to things which are
brought by the defendant onto his land, and so did not apply to things
that were naturally upon the land. Furthermore, it is doubtful whether in
the House of Lords in the same case Lord Cairns LC, to whom we owe the
expression non-natural use of the land, was intending to expand the
concept of natural use beyond that envisaged by Blackburn J. Even so,
the law has long since departed from any such simple idea, redolent of a
dierent age; and, at least since the advice of the Privy Council delivered
by Lord Moulton in Rickards v Lothian . . . natural use has been
extended to embrace the ordinary use of land . . . Rickards v Lothian
itself was concerned with a use of a domestic kind, viz the overow of
water from a basin whose runaway had become blocked. But over the
years the concept of natural use, in the sense of ordinary use, has been
extended to embrace a wide variety of uses, including not only domestic
uses but also recreational uses and even some industrial uses. It is obvious
that the expression ordinary use of land in Lord Moultons statement of
the law is one which is lacking in precision . . . A particular doubt is
introduced by Lord Moultons alternative criterionor such a use as
is proper for the general benet of the community. If these words are
understood to refer to a local community, they can be given some content
as intended to refer to such matters as, for example, the provision of
services; indeed the same idea can, without too much diculty, be
extended to, for example, the provision of services to industrial premises,
as in a business park or an industrial estate. But if the words are extended
to embrace the wider interests of the local community or the general
benet of the community at large, it is dicult to see how the exception
can be kept within reasonable bounds . . . I myself, however, do not feel
able to accept that the creation of employment as such, even in a small
industrial complex, is sucient of itself to establish a particular use as
constituting a natural or ordinary use of land.
He did not, however, think it necessary to attempt any redenition of the
concept of natural or ordinary use because the storage and use of chemicals
by the defendant was an almost classic case of non-natural use, explaining
at p 309 that:
It may well be that, now that it is recognised that foreseeability of

harm of the relevant type is a prerequisite of liability in damages under the
rule, the courts may feel less pressure to extend the concept of natural use
to circumstances such as those in the present case; and in due course it
may become easier to control this exception, and to ensure that it has a
more recognisable basis of principle.
19 Of even greater importance for the understanding of the current
state of the law is Transco plc v Stockport Metropolitan Borough Council
[2004] 2 AC 1. Here water pipes laid by the council from their tower block
of ats to the water main fractured and the resulting ood caused the
collapse of an embankment on part of their land through which the claimant
had the right to run its gas main. The collapse of the embankment caused
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damage to the gas main. Transcos main claim was that the council was
liable without proof of negligence under the rule in Rylands v Fletcher.
It succeeded before the judge but was reversed by the Court of Appeal
[2001] Env LR 779. Their Lordships were being asked to review and, if they
thought it right to do so, to hold the rule in Rylands v Fletcher no longer to
be good law. They were being invited [2004] 2 AC 1, para 4: to follow the
trail blazed by a majority of the High Court of Australia in the case of Burnie
Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 by treating
the rule in Rylands v Fletcher as absorbed by the principles of ordinary
negligence. Although Lord Bingham saw that there was a theoretical
attraction in bringing this somewhat anomalous ground of liability within
the broad and familiar rules governing liability in negligence he was
unwilling to suppress an instinctive resistance to treating a nuisance-based
tort as if it were governed by the law of negligence: paras 5, 6. So the rule
remains the law of the land. But the speech of Lord Bingham is the latest and
last word on the subject and bears close study.
20 Like Lord Go he recognised that Blackburn J did not conceive
himself to be laying down any new principle of law and at para 3 he said:
It seems likely, as persuasively contended by Professor Newark (The
Boundaries of Nuisance (1949) 65 LQR 480, 487488), that those who
decided the case regarded it as one of nuisance, novel only to the extent
that it sanctioned recovery where the interference by one occupier of land
with the right or enjoyment of another was isolated and not persistent.
Lord Bingham favoured retaining the rule but restating it so as to achieve as
much certainty and clarity as is attainable, recognising that new factual
situations are bound to arise posing dicult questions on the boundary of
the rule, wherever that is drawn. His restatement was set out in his speech
[2004] 2 AC 1, paras 911. I extract these important observations:
9. The rule in Rylands v Fletcher is a sub-species of nuisance, which is
itself a tort based on the interference by one occupier of land with the
right in or enjoyment of land by another occupier of land as such. From
this simple proposition two consequences at once ow. First, as very
clearly decided by the House in Read v J Lyons & Co Ltd . . . no claim in
nuisance or under the rule can arise if the events complained of take place
wholly on the land of a single occupier. There must, in other words, be an
escape from one tenement to another. Second, the claim cannot include a
claim for death or personal injury, since such a claim does not relate to
any right in or enjoyment of land . . .
10. It has from the beginning been a necessary condition of liability
under the rule in Rylands v Fletcher that the thing which the defendant
has brought on his land should be something which . . . will naturally do
mischief if it escape out of his land (LR 1 Ex 265, 279, per Blackburn J),
something dangerous . . ., anything likely to do mischief if it escapes,
something . . . harmless to others so long as it is conned to his own
property, but which he knows to be mischievous if it gets on his
neighbours (p 280), anything which, if it should escape, may cause
damage to his neighbour (LR 3 HL 330, 340, per Lord Cranworth). The
practical problem is of course to decide whether in any given case the
thing which has escaped satises this mischief or danger test, a problem
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exacerbated by the fact that many things not ordinarily regarded as

sources of mischief or danger may none the less be capable of proving to
be such if they escape. I do not think this condition can be viewed in
complete isolation from the non-natural user condition to which I shall
shortly turn, but I think the cases decided by the House give a valuable
pointer . . . Bearing in mind the historical origin of the rule, and also that
its eect is to impose liability in the absence of negligence for an isolated
occurrence, I do not think the mischief or danger test should be at all
easily satised. It must be shown that the defendant has done something
which he recognised, or judged by the standards appropriate at the
relevant place and time, he ought reasonably to have recognised, as giving
rise to an exceptionally high risk of danger or mischief if there should be
an escape, however unlikely an escape may have been thought to be.
11. No ingredient of Rylands v Fletcher liability has provoked more
discussion than the requirement of Blackburn J (LR 1 Ex 265, 280) that
the thing brought onto the defendants land should be something not
naturally there, an expression elaborated by Lord Cairns LC (LR 3 HL
330, 339) when he referred to the putting of land to a non-natural
use . . . Read literally, the expressions used by Blackburn J and Lord
Cairns LC might be thought to exclude nothing which has reached the
land otherwise than through operation of the laws of nature. But such an
interpretation has been fairly described as redolent of a dierent age
(Cambridge Water [1994] 2 AC 264, 308), and in Read v J Lyons & Co
Ltd . . . and Cambridge Water, at p 308, the House gave its imprimatur
to Lord Moultons statement, giving the advice of the Privy Council
in Rickards v Lothian . . . It must be some special use bringing with it
increased danger to others, and must not merely be the ordinary use of
land . . . I think it clear that ordinary user is a preferable test to natural
user, making it clear that the rule in Rylands v Fletcher is engaged only
where the defendants use is shown to be extraordinary and unusual. This
is not a test to be inexibly applied: a use may be extraordinary and
unusual at one time or in one place but not so at another time or in
another place (although I would question whether, even in wartime, the
manufacture of explosives could ever be regarded as an ordinary user of
land, as contemplated . . . in Read v J Lyons & Co Ltd . . .) I also doubt
whether a test of reasonable user is helpful, since a user may well be quite
out of the ordinary but not unreasonable, as was that of Rylands,
Rainham Chemical Works or the tannery in Cambridge Water. Again, as
it seems to me, the question is whether the defendant has done something
which he recognises, or ought to recognise, as being quite out of the
ordinary in the place and at the time when he does it. In answering that
question, I respectfully think that little help is gained (and unnecessary
confusion perhaps caused) by considering whether the use is proper for
the general benet of the community . . . An occupier of land who can
show that another occupier of land has brought or kept on his land
an exceptionally dangerous or mischievous thing in extraordinary or
unusual circumstances is in my opinion entitled to recover compensation
from that occupier for any damage caused to his property interest by the
escape of that thing, subject to defences of Act of God or of a stranger,
without the need to prove negligence.
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Lord Homann agreed that the criterion of exceptional risk must be taken
seriously and creates a high threshold for a claimant to surmount. Although
giving reasons of their own, Lord Scott of Foscote and Lord Walker of
Gestingthorpe agreed with Lord Bingham.
21 This is, therefore, the seminal authority for the test to be applied in a
classic case of Rylands v Fletcher.
22 The proper approach I extract from those compelling authorities is
this: (1) the defendant must be the owner or occupier of land; (2) he must
bring or keep or collect an exceptionally dangerous or mischievous thing on
his land; (3) he must have recognised or ought reasonably to have
recognised, judged by the standards appropriate at the relevant place and
time, that there is an exceptionally high risk of danger or mischief if that
thing should escape, however unlikely an escape may have been thought to
be; (4) his use of his land must, having regard to all the circumstances of time
and place, be extraordinary and unusual; (5) the thing must escape from his
property into or onto the property of another; (6) the escape must cause
damage of a relevant kind to the rights and enjoyment of the claimants land;
(7) damages for death or personal injury are not recoverable; and (8) it is not
necessary to establish the defendants negligence but an Act of God or the act
of a stranger will provide a defence.
23 If that is how the rule is to operate in any classic Rylands v Fletcher
case, the next question is whether there is any other or some special rule for
cases involving damage caused by the spread of re.
Liability for damage caused by the spread of re
24 Writing in the Cambridge Law Journal in 1931 that great master of
the law of tort, Professor Percy Wineld, was driven to observe that there
was a somewhat confusing medley of remedies for the same wrong, which
is traceable in the historical development of liability for the escape of
re: see P H Wineld: Nuisance as a Tort (1931) 4 CLJ 189, 203.
He concluded at p 206:
The result seems to be that, at the present day, damage resulting from
the unintentional escape of re may be redressed by any of the following
remedies: (i) the old action of trespass on the case; (ii) an action of the
Rylands v Fletcher type: query whether this has totally absorbed (i)?;
(iii) an action for nuisance; (iv) an action for negligence.
25 This appeal concerns head (ii) only and although any views I may
express about the others will be treated as obiter, it is necessary to have some
overview of the whole confusing picture. I propose, however, to do no more
than take a quick canter over what is undoubtedly tricky terrain. The
bye-line to A I Oguss article Vagaries in Liability for the Escape of Fire
(1969) CLJ 104 says it all: How great a matter a little re kindleth [General
Epistle of James, iii, 5].
The old action of trespass on the case
26 The custom of the realm is that a person is liable for the damage
caused by the escape of his rethe ignis suus rule. By general custom of the
realm the remedy for damage caused by the spread of re was an action on
the case pur negligent garder son few. The declaration was in the form
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whereas by the custom of England a man is bound to keep his re 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 re spread and did
damage . . .
27 The essential features are that: (1) re spreading from a persons land
is his re; (2) that person is under a duty to contain the re; (3) if it escapes,
he is liable for the damage that results; and (4) negligenter was a pleaders
adverb: it did not mean negligently in the sense we now use the word.
To quote Wineld again: The Myth of Absolute Liability (1926) 42 LQR
37, 49:
Exactly what it did mean must remain a matter of conjecture but it
excluded liability when the re spread or occurred: (i) by the act of a
strangera man was not liable for that, though he was for the act of his
servant, his wife, his guest, or one entering his house with his leave or
knowledge; (ii) by misadventure which, to anticipate a modern term,
seems to be equivalent to inevitable accident, or something which by no
care reasonable in the circumstances could have been avoided.
28 The earliest case on the subject is Beaulieu v Finglam (1401)
YB 2 Hen 4, fo 18, pl 6, where, as reported by Fifoot, History and Sources
of the Common Law, Tort and Contract (1949), Markham J said, at
pp 166167:
A man is held to answer for the act of his servant or of his guest in
such a case; for if my servant or my guest puts a candle by a wall and the
candle falls into the straw and burns all my house and the house of my
neighbour also, in this case I shall answer to my neighbour for his
damage . . . I shall answer to my neighbour for each person who enters
my house by my leave or my knowledge, or is my guest through me or
through my servant, if he does any act, as with a candle or aught else,
whereby my neighbours house is burnt. But if a man from outside my
house and against my will starts a re in the thatch of my house or
elsewhere, whereby my house is burned and my neighbours houses are
burned as well, for this I shall not be held bound to them; for this cannot
be said to be done by wrong on my part, but is against my will.
29 Moving forward nearly three centuries to Turberville v Stamp
(1702) 12 Mod 152, a re started by the defendant in his eld was held to be
as much ignis suus as one lit in the house. Sir John Holt CJ said, at p 152:
Every man must so use his own as not to injure another. The law is
general; the re which a man makes in the elds is as much his re as his
re in his house; it is made on the ground, with his materials, and by
his order; and he must at his peril take care that it does not, through his
neglect, injure his neighbour: if he kindle it at a proper time and place,
and the violence of the wind carry it into his neighbours ground, and
prejudice him, this is t to be given in evidence. But now here it is found
to have been by his negligence; and it is the same as if it had been in his
house.
30 These were times when res were a scourge. The Great Fire of
London in 1666 had had a devastating impact on crowded urban living.
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Something had to be done. In 1707 the Fires Prevention (Metropolis) Act

(6 Anne c 31) was passed for the better preventing the mischiefs that may
happen by re. Provision was made for improved safety, for the control of
res and for penal sanctions on servants carelessly setting re to houses.
The Act was repealed but re-enacted, eventually as the Fires Prevention
(Metropolis) Act 1774, section 86 providing:
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 re shall accidentally
begin, nor shall any recompense be made by such person for any
damage suered thereby, any law, usage or custom to the contrary
notwithstanding.
It may be that, as Sir William Holdsworth in his A History of English

Law vol XI, p 607 speculates, by this time lawyers were beginning to
think it anomalous that a man should be liable for re damage not
caused by his negligence. It may have been that Parliament was simply
resolving any doubt there was as to whether re spreading from a
persons house was ignis suus. Another explanation is implicit in
Lord Tenterden CJs judgment in Becquet v MacCarthy (1831) 2 B & Ad
951, 958:
by the law of this country before it was altered by the statute of 6 Ann
c 31, section 6, if a re began on a mans own premises, by which those of
his neighbour were injured, the latter, in an action brought for such an
injury would not be bound in the rst instance to show how the re began
but the presumption would be (unless it were shown to have originated
from some external cause) that it arose from the neglect of some person in
the house.
Thus one can surmise that the purpose of this statute was to remove the
presumption of negligence on the defendants part and cast the burden of
proving negligence on the plainti.
31 Curiously there seems to be little contemporaneous authority on
what was meant by accidentally. Lord Lyndhurst irted with the idea that
accidentally was used as the antithesis of wilfully: see his obiter remarks
in Viscount Canterbury v Attorney General (1843) 1 Ph 306. The more
informed view is expressed by Lord Denman CJ in Filliter v Phippard (1847)
11 QB 347, 357:
It is true that, in strictness, the word accidental may be employed in
contradistinction to wilful, and so the same re might both begin
accidentally and be the result of negligence. But it may equally mean that
a re produced by mere chance or incapable of being traced to any cause,
and so would stand opposed to negligence of either servant or masters.
And, when we nd it used in statutes which do not speak of wilful res
but make important provision with respect to such as are accidental, and
consider how great a change in the law would be eected, and how great
encouragement would be given to that carelessness of which masters may
be guilty as well as servants, we must say that we think the plaintis
construction [accidental as opposed to negligent] much the most
reasonable of the two.
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An action for negligence

32 By the 19th century a prototype of our modern claim in negligence
was emerging. In Vaughan v Menlove (1837) 3 Bing NC 468 the defendants
haystack spontaneously combusted and it was alleged that he had
wrongfully negligently and improperly kept his haystack so that it became
liable to ignite and so be a danger to the plaintis property. The jury were
left to consider the question of negligence and that direction was upheld.
Tindal CJ said, at p 474:
But there is a rule of law which says you must so enjoy your own
property as not to injure that of another; and according to that rule the
defendant is liable for the consequences of its own neglect; and though
the defendant did not himself light the re, yet mediately, he is as much
the cause of it as if he had himself put a candle to the rick; for it is well
known that hay will ferment and take re if it be not carefully stacked.
33 This was the age of the railways and much litigation followed.
In Aldridge v Great Western Railway Co (1841) 3 Man & G 515, Tindal CJ
held that Mr Aldridge had to show some carelessness on the railway
companys part for the emission of the sparks from their engine which set re
to his crop. Piggot v Eastern Counties Railway Co (1846) 3 CB 229 was
another case of sparks setting re to the plaintis property. Tindal CJ held,
at p 240, that:
The defendants are a company entrusted by the legislature with an
agent of an extremely dangerous and unruly character for their own
private and particular advantage: and the law requires of them that they
shall, in the exercise of the rights and powers so conferred upon them,
adopt such precautions as may reasonably prevent damage to the
property of third persons through or near which their railway passes. The
evidence in this case was abundantly sucient to show that the injury of
which the plainti complains was caused by the emission of sparks, or
particles of ignited coke, coming from one of the defendants engines: and
there was no proof of any precaution adopted by the company to avoid
such a mischance. I therefore think the jury came to a right conclusion, in
nding that the company was guilty of negligence, and that the injury
complained of was the result of such negligence.
We are seeing the emergence of a claim for negligence, the culmination of
which in the 19th century was the well known case in 1883 of Heaven v
Pender (trading as West India Graving Dock Co) (1883) 11 QBD 503 which
had nothing to do with re, but which is often thought to be the progenitor
of the modern law.
34 Turning to more modern times, an example of the claim in
negligence for re damage is Balfour v Barty-King [1957] 1 QB 496 where
an independent contractor negligently used his blow lamp to thaw frozen
pipes and set re to the combustible materials nearby. The re spread
to the plaintis property and destroyed it. The Court of Appeal held
that the defendant was responsible for the negligence of the independent
contractor. In H & N Emanuel Ltd v Greater London Council [1971]
2 All ER 835, the Court of Appeal held that an occupier was liable for the
escape of re caused by the negligence not only of his servant but also of
his independent contractor and anyone else who was on his land with his
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leave and licence. The only occasion when the occupier would not be
liable for negligence was when the negligence is the negligence of a
stranger.
An action in nuisance
35 The modern example of this is Spicer v Smee [1946] 1 All ER 489
where the plaintis bungalow was completely destroyed by a re which
originated in the defendants bungalow owing to a defect in the electrical
wiring. The wiring had been negligently installed by an independent
contractor. Atkinson J held that the state of wiring in the defendants
bungalow constituted a nuisance on her property for which she was liable.
The Fire Prevention (Metropolis) Act 1774 did not aord her a defence since
the re was due to the negligence or nuisance created by the defendant or
those for whom he was responsible.
An action of a Rylands v Fletcher type
36 One simply cannot say that there is no liability for re damage under
the Rylands v Fletcher rule because the very man who established the rule
said there was: see Jones v Festiniog Railway Co (1868) LR 3 QB 733.
Lush J who was also a member of the Exchequer Chamber in Rylands v
Fletcher (1866) LR 1 Ex 265 agreed with him. This was another case where
the plaintis haystack had been red by sparks from a railway engine.
Blackburn J held LR 3 QB 733, 736:
The general rule of common law is correctly given in Fletcher v
Rylands, that when a man brings or uses a thing of a dangerous nature on
his own land, he must keep it in at his own peril; for he is liable for the
consequences if it escapes and does injury to his neighbour. Here the
defendants were using a locomotive engine with no express Parliamentary
powers making lawful that use, and they are therefore at common law
bound to keep the engine from doing injury, and if sparks escape and
cause damage, the defendants are liable for the consequences, though no
actual negligence be shown on their part.
I can readily understand this decision as an example of Rylands v Fletcher.
The dangerous thing which the defendant railway company brought onto
their land was a steam engine which depended for its locomotion on the
burning of coal, particles of which would be belched forth from its maw
onto the haystack adjoining the railway line. Although the engine itself
remained on the defendants land 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.
37 It is not as easy to rationalise the decision in Musgrove v Pandelis
[1919] 2 KB 43 which remains for me, as for others, a troubling case. The
defendant kept a car in a garage below the rooms occupied by the plainti.
The defendants servant, one Coumis, set about moving the car which
necessitated applying the pressure pump to the carburettor to start the
engine. For some unexplained reason there was an explosion in the
carburettor and the petrol in the carburettor took re. Instead of
immediately turning the tap o which, if done, would have led to the re
burning itself out harmlessly, Coumis delayed and the continued supply of
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petrol extended the re until it enveloped the car and ultimately the
plaintis premises and furniture.
38 It is far from clear how the claim was brought. From the report of
the proceedings at rst instance [1919] 1 KB 314 it would seem that the
claim was brought to recover damages as a result of negligence. At pp 4445
of the report of the Court of Appeal hearing we are told:
The action was tried before Lush J, who held that this enactment had
no application to a case which fell, as in his view this case fell, within the
principle of Rylands v Fletcher. Further he held that the re which caused
the damage did not begin accidentally, but as a result of the negligence of
Coumis. He therefore gave judgment for the plainti.
Bankes LJ, after stating the facts, proceeded as follows at p 46:

The plainti brought this action alleging that the re was the result of
Coumiss negligence. The negligence nally relied on was that he did not
instantly turn o the petrol tap and so stop the further ow of petrol into
the carburettor . . . The defendants main defence, apart from disputing
the negligence, was founded on section 86 of the Fires Prevention
(Metropolis) Act 1774, and the argument has been chiey directed to the
construction of that enactment. Lush J took the view that the statute did
not apply at all; and I agree. He also held that if that view was not
correct, the re which caused the accident did not accidentally begin
within the meaning of the Act. And there also I agree.
39 If the claim was indeed a claim in negligence, then the nding that
the defendant was vicariously liable for the negligence of his servant would
be the end of the matter. The defence under section 86 could not prevail in
the light of that nding. There would be no need to consider Rylands v
Fletcher and references to the rule could be treated as obiter. That would be
one view of this case. Bankes LJ went on however to consider whether
section 86 provided a defence where the case fell within Rylands v Fletcher.
He said at p 47:
Rylands v Fletcher is merely an illustration of that old principle [that
a man must so use his own property as not to injure that of others], and in
my opinion Lush J was right in saying that this case, if it falls within that
principle, is not within the protection of the statute.
40
So Bankes LJ continued, at pp 4748:
The question then, is whether this motor car, with its petrol tank full
or partially lled with petrol, was a dangerous thing to bring into the
garage within the principle of Rylands v Fletcher . . . I agree with Lush J
that this motor car was dangerous within that principle. The defendant
brought it or caused it to be brought upon his premises and he is
responsible for the re which resulted, and is not within the protection of
the statute.
41
Warrington LJ was of the same opinion. He held, at p 49:
If this motor car with the petrol in its tank was potentially dangerous,
such as a mans own re, then it was the defendants duty to see that the
potential danger did not become an actual danger causing damage to his
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neighbour. The Act of Geo 3 [the Fires Prevention (Metropolis) Act

1774] is no protection against that liability.
42
Duke LJ also agreed. He held, at pp 5051:
I do not see how this case can be taken out of the principle of Rylands
v Fletcher . . . In the present case there was petrol which was easily
convertible into an inammable vapour; there was the apparatus for
producing a spark, and added to those there was a person supposed to
control the combustion but inexperienced and unequal to the task. Taken
together the presence of the petrol, and the production of the inammable
gas, or those combustibles together with the inexperience of the person
placed in charge of them, it is impossible to say that this is not an instance
of the principle laid down by Blackburn J.
He agreed that the case was outside any possible protection of the Act of
Geo 3.
43 The Musgrove case has not escaped judicial criticism.
In
Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER 200, 205
Lord Wright MR said:
It was sucient ground for the particular decision that the re, that is
to say the substantial re, which actually caused the damage, was not
caused without negligence. The re which caused the damage was that
which owed from the original innocuous re spreading, through the
fault of the chaueur, to the petrol in the tank, and that was clearly due to
an act of negligence, and therefore, the protection of the statute did not
apply. That was enough for the decision of the case . . . That having been
laid down, the Court of Appeal proceeded to hold that the principle of
Rylands v Fletcher would apply here . . . Well, I certainly have no desire
to criticise in any way the actual decision in that case so far as it is based
on the view that the real and substantial and destructive re was the result
of negligence. I confess, however, I nd some diculty about the other
ground on which the decision was based, though, if it were necessary,
I should follow the ruling of the Court of Appeal and apply it here if the
case came within the scope of that ruling. But I do not think it does.
Romer LJ said, at p 208:

I think at some time it will be desirable if the House of Lords would
consider the case of Musgrove v Pandelis, so far as the decision in the case
was based upon Rylands v Fletcher. Of course the rule in Rylands v
Fletcher, as it is well known, is a rule which relates to the escape from
somebodys premises of a dangerous animal or thing brought by the
owner upon those premises, and does not relate to a case like the present,
or a case like the Court of Appeal had to deal with in Musgrove v Pandelis
where there had been an escape of nothing from the defendants
premises . . . But what will have to be considered is whether Musgrove v
Pandelis . . . can be supported seeing that the decision involves these two
propositions, (i) that a motor car isI am quoting from the judgment of
Bankes LJ, a dangerous thing to bring into a garage and (ii) that the use of
ones land for the purpose of erecting a garage and keeping a motor car
there, is not an ordinary and proper use of the landtwo propositions
which, but for that authority, I should myself respectfully have doubted.
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And I respectfully agree with them.

44 In Balfour v Barty-King [1957] 1 QB 496, the Court of Appeal did
not think it necessary to consider the doctrine of Rylands v Fletcher as a
separate head of liability though Lord Goddard CJ, giving the judgment of
the court, did add at p 505: No doubt the doctrine of that case applies to
re, and is subject to the exception of the damage being caused by a
stranger.
45 MacKenna J was clearly perplexed by Musgroves case pointing out
in Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530, 542 that the
car had not escaped from the land and neither had the petrol in it, but he felt
it his duty to follow the case unless it had been overruled or unless the
principle did not apply to the facts of his case.
46 So we come back to the Transco case [2004] 2 AC 1. This was not a
re case and the crucial question is whether, when their Lordships were
restating the Rylands v Fletcher rule, they were leaving aside re damage as
some special category outside the general rule they were propounding. I do
not see how that can be inferred. The House was being invited to follow the
High Court of Australia in the Burnie Port Authority case 179 CLR 520 and
treat the rule in Rylands v Fletcher as absorbed by the principle of ordinary
negligence. The Burnie Port Authority case was a re case. The High Court
of Australia necessarily had to consider the escape of re as a case within
Rylands v Fletcher. In the course of work being carried out to the Port
Authoritys premises by independent contractors employed by them, their
welding activity resulted in sparks or molten metal falling on cartons
containing highly inammable polystyrene which caught re. The ensuing
conagration damaged the plaintis premises and the adjoining premises.
Their conclusion, as expressed by Mason CJ giving the majority judgment
at p 556:
In these circumstances and subject only to the above-mentioned
possible qualication in relation to liability in nuisance, the rule in
Rylands v Fletcher with all its diculties, uncertainties, qualications and
exceptions, should now be seen, for the purposes of the common law of
this country, as absorbed by the principles of ordinary negligence.
The House of Lords must have been aware that re damage could be thought
to be within the scope of Rylands v Fletcher. Moreover, the Musgrove case
was cited to their Lordships though only Lord Walker referred to it in his
speech saying [2004] 2 AC 1, para 107:
The majority in Burnie Port Authority v General Jones Pty Ltd (1994)
179 CLR 520 . . . commented that the scope of the Rylands v Fletcher
principle has been progressively restricted from within and without. Both
those observations are correct up to a point, but the process has not been
entirely one-way trac. Since the middle of the 19th century many
activities which were once regarded as unusually dangerous (such as
running railways, which no longer use steam locomotives fuelled by coal
manually shovelled into the rebox) have become commonplace. Other
activities unknown in the 19th century (including all those connected
with the internal combustion engine) have come on the scene, being
regarded rst as dangerous innovations (see Musgrove v Pandelis . . .) but
now as basic necessities.
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I am bound to conclude, therefore, that when their Lordships laid down

their guidance for the application of Rylands v Fletcher, they did not exclude
cases of the escape of re and the principles they espoused should be applied
in re cases as well as in other more classic examples of escaping dangerous
things.
My conclusions on re and the rule in Rylands v Fletcher
47 I feel bound for the reasons I have given to hold that in an
appropriate case damage caused by re emanating from an adjoining
property can fall within the Rylands v Fletcher rule. The appropriate case is
likely to be very rare, as Lord Bingham said in the Transco case, at para 5:
Consideration of the reported English case law over the past 60 years
suggests that few if any claimants have succeeded in reliance on the rule in
Rylands v Fletcher alone. Lord Homann said, at para 39:
It is perhaps not surprising that counsel could not nd a reported case
since the second world war in which anyone had succeeded in a claim
under the rule. It is hard to escape the conclusion that the intellectual
eort devoted to the rule by judges and writers over many years has
brought forth a mouse.
48 Cases of re damage are likely to be very dicult to bring within the
rule because: (1) it is the thing which had been brought onto the land
which must escape, not the re which was started or increased by the
thing; (2) while re may be a dangerous thing, the occasions when re as
such is brought onto the land may be limited to cases where the re has been
deliberately or negligently started by the occupier or one for whom he is
responsible. Is this not a relic of the ignis suus rule? (3) In any event starting
a re on ones land may well be an ordinary use of the land.
49 As for the Musgrove case, I reluctantly cannot conclude that it was
decided per incuriam. I might be prepared to say, if forced to do so, that
since the core nding was of negligence, then the ndings based on Rylands v
Fletcher were obiter. I prefer, however, simply to treat the Musgrove case as
a fact-sensitive case. Liability must, as Lord Bingham has explained to us,
always be judged in the light of prevailing conditions of time and place and
the Musgrove case would most denitely not be decided today as it was
nearly a century ago. Musgrove should, in my judgment, therefore simply be
relegated to a footnote in the history of Rylands v Fletcher.
50 Fire cases and this appeal must be judged in accordance with the test
to be derived from the Transco case which I have set out at para 22 above.
Applying those principles I reach the following conclusions. (1) The thing
brought onto Wyverns premises was a large stock of tyres. (2) Tyres, as
such, are not exceptionally dangerous or mischievous. (3) There is no
evidence that the defendant recognised nor ought he reasonably to have
recognised that there was an exceptionally high risk of danger or mischief if
the tyres, as such, should escape. (4) The tyres did not escape. What escaped
was the re, the ferocity of which was stoked by the tyres which were
burning on, and remained burning on, Wyverns premises. The recorder was
wrong to conclude it was the escape of re that brought the case within
Rylands v Fletcher principles. (5) In any event, keeping a stock of tyres
on the premises of a tyre-tting business, even a very large stock, was not for
the time and place an extraordinary or unusual use of the land. Here again
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the recorder erred. (6) Therefore Rylands v Fletcher liability is not

established and, no negligence having been proved, the claim must fail.
(7) The moral of the story is taken from the speech of Lord Homan:
make sure you have insurance cover for losses occasioned by re on your
premises.
51 I would therefore allow the appeal and dismiss the claimants claim.
ETHERTON LJ
52 I pay tribute to the careful and comprehensive judgment of the
recorder. I nevertheless agree that this appeal should be allowed. It raises
important points, but I can express my views quite briey.
53 Firstly, in the light of the comprehensive review of the Rylands v
Fletcher principle in Transco plc v Stockport Metropolitan Borough Council
[2004] 2 AC 1, I do not consider that the facts of the present case satisfy the
basic requirement of the Rylands v Fletcher principle that there must have
been an escape of something which the defendant has brought onto his or
her land. Secondly, if there is a dierent requirement for so-called re
cases, where what has escaped from the defendants land is re generated
from something that the defendant has brought onto his or her land, the
principle still does not apply in the present case because tyres are not easily
set alight and so do not pose any inherent danger of catching or causing re.
Thirdly, in any event, the defendants use of his property was not a
non-natural use of his land for the purposes of the Rylands v Fletcher
principle.
54 The classic statement of the strict liability principle by the Court of
Exchequer Chamber in Rylands v Fletcher itself (at (1866) LR 1 Ex 265,
279) (approved by the House on Lords on appeal at (1868) LR 3 HL 330
with the addition of the requirement of non-natural user) requires an escape
from the defendants land of something which he or she has brought there
and which is likely to cause harm to the plainti if it escapes:
do so, is prima facie answerable for all the damage which is the natural
consequence of its escape.
55 It is obvious that the principle of strict liability, as stated there,
requires modication if it is to apply where the escape is not of something
which the defendant has brought onto his or her land, but is re which has
spread from things which were brought onto the land, and the re was not
deliberately or negligently started by the defendant.
56 As the cases show, it is necessary to modify the classic statement of
the Rylands v Fletcher principle in a radical way in order to encompass such
a situation, but there is no clear consensus as to how the principle should be
restated. In some of the re cases it was regarded as sucient that the
defendant brought onto his land something which was (at the time)
considered inherently dangerous, such as a train (Jones v Festiniog Railway
Co (1868) LR QB 733) or a car: Musgrove v Pandelis [1919] 2 KB 43. In
other cases, such as Mason v Levy Auto Parts of England Ltd [1967] 2 QB
530, it was the particular danger presented by the ammable nature of the
materials brought onto the land by the defendant which was regarded as
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critical. The point was addressed by MacKenna J in the Mason case at p 542
as follows:
If, for the rule in Musgroves case to apply, there need be no escape of
anything brought onto the defendants land, what must be proved against
him? There is, it seems to me, a choice of alternatives. The rst would
require the plainti to prove: (1) that the defendant had brought
something onto his land likely to do mischief if it escaped; (2) that he had
done so in the course of a non-natural user of the land; and (3) that the
thing had ignited and that the re had spread. The second would be to
hold the defendant liable if: (1) he brought onto his land things likely to
catch re, and kept them there in such conditions that if they did ignite the
re would be likely to spread to the plaintis land; (2) he did so in the
course of some non-natural use; and (3) the things ignited and the re
spread. The second test is, I think, the more reasonable one. To make the
likelihood of damage if the thing escapes a criterion of liability, when
the thing has not in fact escaped but has caught re, would not be very
sensible.
57 That was the approach taken by Judge Coulson QC, sitting as a High
Court judge, in LMS International Ltd v Styrene Packaging and Insulation
Ltd [2005] EWHC 2065 (TCC), in which he undertook an extensive analysis
of the Rylands v Fletcher principle, with particular regard to the review by
the House of Lords in Transco plc v Stockport Metropolitan Borough
Council [2004] 2 AC 1 and the re cases. He said [2005] EWHC 2065
at [33]:
In cases concerned with re, the rule in Rylands v Fletcher requires
two things. First, the defendant must have brought onto his land things
which were likely to cause and/or catch re, and kept them in such a
condition that, if they ignited, the re would be likely to spread to the
claimants land. To put it another way, those things must represent a
recognisable risk to the owners of the adjoining land. Secondly, the
actions on the part of the defendant must arise from a non-natural user of
the defendants land . . .
58 A dierent formulation is put forward by Mr Philip Rainey QC and
Mr Nicholas Isaac on behalf of the claimant, namely that the relevant danger
which must be established is that the things collected on the defendants land
are likely to cause or facilitate the escape of the re. They approve the
formulation of Judge Coulson QC in the LMS International Ltd case if his
expression cause re is understood as meaning cause the re which
escapes and damages the neighbouring land. In other words, they say the
emphasis should not be on the danger posed by the ammability of the
materials brought onto the defendants land but on the danger posed by
the role of the material in the escape of the re from the defendants land.
59 The lack of clarity and consensus as to the proper formulation of the
Rylands v Fletcher principle in re cases does not merely reect poorly on a
legal principle of strict liability 146 years after its rst published judicial
articulation. It calls into question whether the principle applies at all to re
cases. The Rylands v Fletcher principle was comprehensively reviewed by
the House of Lords in the Transco case. That was not a re case, but
I consider that the reasoning and analysis of the House of Lords leave no
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scope for the application of the principle on the facts of the present case
where there has been no escape of anything brought onto the defendants
land, but the escape is of re, which was not created by the defendant.
60 The House of Lords in the Transco case [2004] 2 AC 1 had all the
national, international and academic tools for a thorough review of the
Rylands v Fletcher principle. They decided as a matter of policy to retain
the principle, while restating it to achieve as much certainty and clarity as
possible. As Lord Bingham of Cornhill said, at para 8:
There remains a third option, which I would myself favour: to retain
the rule, while insisting upon its essential nature and purpose; and to
restate it so as to achieve as much certainty and clarity as is attainable,
recognising that new factual situations are bound to arise posing dicult
questions on the boundary of the rule, wherever that is drawn.
61 Lord Bingham, with whom Lord Scott of Foscote and Lord Walker
of Gestingthorpe agreed, described the core aspects of the principle in
paras 10 and 11. The latter paragraph addressed the issue of non-natural
user. The former identied, at the heart of the principle, the exceptional
danger or mischief if there is an escape from the defendants land. In
describing that aspect, Lord Bingham said, at para 10:
It has from the beginning been a necessary condition of liability
under the rule in Rylands v Fletcher that the thing which the defendant
has brought on his land should be something which . . . will naturally do
mischief if it escape out of his land (LR 1 Ex 265, 279 per Blackburn J),
something dangerous . . ., anything likely to do mischief if it escapes,
something . . . harmless to others so long as it is conned to his own
property, but which he knows to be mischievous if it gets on his
neighbours (p 280), anything which, if it should escape, may cause
damage to his neighbour (LR 3 HL 330, 340, per Lord Cranworth). The
practical problem is of course to decide whether in any given case the
thing which has escaped satises this mischief or danger test, a problem
exacerbated by the fact that many things not ordinarily regarded as
sources of mischief or danger may none the less be capable of proving to
be such if they escape. I do not think this condition can be viewed in
complete isolation from the non-natural user condition to which I shall
shortly turn, but I think the cases decided by the House give a valuable
pointer. In Rylands v Fletcher itself the courts were dealing with what
Lord Cranworth (LR 3 HL 330, 342) called a large accumulated mass of
water stored up in a reservoir, and I have touched on the historical
context of the decision in para 3(3) above. Rainham Chemical Works
[1921] 2 AC 465, 471, involved the storage of chemicals, for the purpose
of making munitions, which exploded with terric violence. In
Attorney General v Cory Bros & Co Ltd [1921] 1 AC 521, 525, 530,
534, 536 the landslide in question was of what counsel described as an
enormous mass of rubbish, some 500,000 tons of mineral waste tipped
on a steep hillside. In Cambridge Water [1994] 2 AC 264 the industrial
solvents being used by the tannery were bound to cause mischief in the
event, unforeseen on the facts, that they percolated down to the water
table. These cases are in sharp contrast with those arising out of
escape from a domestic water supply (such as . . . Ross v Fedden (1872)
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26 LT 966 or Anderson v Oppenheimer (1880) 5 QBD 602) which,

although decided on other grounds, would seem to me to fail the mischief
or danger test. Bearing in mind the historical origin of the rule, and also
that its eect is to impose liability in the absence of negligence for an
isolated occurrence, I do not think the mischief or danger test should be
at all easily satised. It must be shown that the defendant has done
something which he recognised, or judged by the standards appropriate
at the relevant place and time, he ought reasonably to have recognised, as
giving rise to an exceptionally high risk of danger or mischief if there
should be an escape, however unlikely an escape may have been thought
to be.
62 Lord Bingham summarised the Rylands v Fletcher principle most
succinctly as follows, at para 11:
An occupier of land who can show that another occupier of land has
brought or kept on his land an exceptionally dangerous or mischievous
thing in extraordinary or unusual circumstances is in my opinion entitled
to recover compensation from that occupier for any damage caused to his
property interest by the escape of that thing, subject to defences of Act of
God or of a stranger, without the need to prove negligence.
63 Lord Hobhouse of Woodborough stated, in para 66, that The
content of the rule has been clearly spelled out by Blackburn J [in Rylands v
Fletcher]. Lord Scott similarly said, in para 75, that the classical exposition
of the rule was to be found in Blackburn Js judgment.
64 The various analyses in the Transco case all endorse the original
formulation of the principle in the Court of Exchequer Chamber (1866) LR
1 Ex 265 and in the House of Lords (1868) LR 3 HL 330 in Rylands v
Fletcher. They make clear that the relevant mischief or danger is not
something inherent in what is brought onto the defendants land, for the
principle may apply where what is brought onto the land is in itself harmless
(such as water). The speeches in the Transco case make clear that the
relevant mischief or danger lies in what will happen if there is an escape from
the defendants land of what has been brought onto the land. Accordingly,
they leave no scope for the formulations in the previous re cases, which
required, as a condition of liability, that there was some inherent danger
(irrespective of escape) in what the defendant has brought onto his or her
land, whether by virtue of ammability (e g Masons case [1967] 2 QB 530)
or otherwise (e g Jones v Festiniog Railway Co (1868) LR 3 QB 733 and
Musgrove v Pandelis [1919] 2 KB 43).
65 I do not consider that the Transco case [2004] 2 AC 1 can properly
be regarded as leaving entirely open the possibility of a radically dierent
formulation of the principle in re cases. While it is true that not all the re
cases were cited in the speeches or, apparently, in submissions in the House
of Lords in the Transco case, at least one of the leading re cases, that of
Musgrove, was cited (and indeed mentioned by Lord Walker at para 107).
In any event, it is clear that the House of Lords in the Transco case was
undertaking a comprehensive and denitive review of the Rylands v Fletcher
principle in order to provide legal certainty. Leaving out of account a
signicant area of activity, without even mentioning that it was the intention
to do so, would have been entirely inconsistent with that objective.
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66 In those circumstances, and in the light of the emphasis in the

Transco case and elsewhere that the Rylands v Fletcher principle should not
be expanded further, I can see no scope for the application of the principle in
the present case where there was no escape of the tyres which caught re and
the re itself was not created by the defendant.
67 If I am wrong about that, both principle and the weight of authority
support the conclusion that the Rylands v Fletcher principle only applies to
re cases, where the re has not been created by the defendant, if the re has
spread from materials brought onto the defendants land and those materials
pose a particularly high risk because they are likely to cause or catch re and,
if they do, such re will be likely to spread to the claimants property. If I am
wrong on my rst point about the Transco case, that was a correct summary
of the law by Judge Coulson QC in the LMS International case [2005]
EWHC 2065, following the approach of MacKenna J in the Mason case. I,
therefore, reject the gloss put on Judge Coulson QCs summary on behalf of
the claimant. In a standard non-re Rylands v Fletcher case the culpability
of the defendant is the act of bringing something onto his or her land which
it is foreseeable poses an exceptional risk of harm to the claimant if it
escapes. The foreseeable risk is causally related to (1) the defendants act in
bringing something onto his or her land, and (2) the likely consequences if
that same thing escapes. In a re case, where the re has not been created by
the defendant, the culpability must, by analogy, be the act of the defendant
in bringing onto his or her land something which poses a foreseeable risk to
the defendant involving the creation of re and its escape. There must be a
causal connection between the defendants act in bringing something onto
his or her land and the foreseeable risk of harm to the defendant in the event
of an escape of re. That causal connection can only be the inherent
likelihood that what the defendant has brought onto his or her land will
catch or cause re and the re will spread to the claimants property. In the
present case, the evidence was that tyres are not in themselves ammable and
they are not easily set alight. The necessary link between the deliberate act
of the defendant (in bringing tyres onto his land) and the foreseeability of
an exceptional risk of harm to the claimant in the event of an escape did
not exist.
68 If that too is wrong, then I do not consider that it was open to the
recorder, in the light of the evidence, to conclude that the defendants use of
his property was a non-natural use for the purposes of the Rylands v Fletcher
principle. A non-natural use, in this context, is a use which is extraordinary
and unusual and is a high threshold for a claimant to surmount: see the
Transco case, at para 11, per Lord Bingham, and at para 49, per Lord
Homann. It is a mixed question of fact and law. It would not be right to
interfere with the recorders view unless it exceeded the generous ambit
within which reasonable disagreement is possible. The recorder reached his
conclusion on non-natural use on the basis of the number of tyres relative to
the size of the defendants premises and also the manner in which they were
stored. That is, with respect, very far short of what would be required
for a nding of extraordinary use such as to engage the Rylands v Fletcher
principle. The commercial activity carried on by the defendant as a motor
vehicle tyre supplier was a perfectly ordinary and reasonable activity to be
carried on in a light industrial estate. There was no evidence that the number
of tyres and the method of their storage was out of the ordinary for similar
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premises carrying on that type of activity or that they posed a foreseeable

or recognised danger. Indeed, as has been pointed out on behalf of the
defendant, any other conclusion would be inconsistent with the recorders
rejection of the claimants case in negligence. In those circumstances, it was
not open to the recorder to reach the conclusion that he did on this aspect.
69 For the sake of completeness, if I were wrong on all those points,
I would uphold the recorders judgment in favour of the claimant. I would
reject, both as a matter of precedent and principle, the defendants argument
that section 86 of the Fires Prevention (Metropolis) Act 1774 excludes
liability under the Rylands v Fletcher principle. That point was directly
addressed and decided by the Court of Appeal in the Musgrove case and so is
binding on this court. The alternative basis for the decision in that case was
that the relevant re, for the purposes of section 86 of the 1774 Act, was
begun negligently and was outside the section for that reason. Nevertheless,
the point that liability under Rylands v Fletcher is not exonerated by
section 86 forms part of ratio of the Court of Appeal [1919] 2 KB 43.
70 That also seems to have been the view of the Court of Appeal in
Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER 200. In that
case Lord Wright MR and Romer LJ, with both of whom Macnaghten J
agreed, questioned the correctness of the decision in Musgrove in so far as it
held that there was liability under the Rylands v Fletcher principle on the
facts of that case, but neither of them said that they also doubted the
conclusion in the Musgrove case that Rylands v Fletcher liability falls
outside section 86 of the 1774 Act.
71 In any event, that conclusion seems to me to be right in principle.
It still remains a principle of statutory interpretation that, in cases of doubt,
there is a presumption against interference with the common law: see
generally Bennion on Statutory Interpretation, 5th ed, section 269; Craies
on Legislation, 9th ed (2008), paras 14.1.7 and 14.1.11. It is generally
accepted that the word accidentally in section 86 cannot be read without
some qualication and that it does not, for example, embrace a re begun or
continued negligently: Filliter v Phippard (1847) 11 QB 437, 457, Balfour v
Barty-King [1957] 1 QB 496, Goldman v Hargrave [1967] 1 AC 645. In this
limited context, in view of the classical declaratory theory of the common
law (viz judges merely expound and declare the existing law rather than
create it), I do not consider that a particular problem to this approach is
posed by the fact that Rylands v Fletcher was not decided until 1866, just as
it has not been regarded as a problem for excluding negligently caused res
from section 86 of the 1774 Act that it was not until the 19th century that
negligence began to emerge as the substantive allegation in an action on
the case. In any event, there are perfectly sound and rational grounds to
conclude that section 86 was enacted to clarify some limited areas of
uncertainty in the customary law of ignis suus.
72 The factual and legal background to the enactment of section 86
was examined by A I Ogus in the excellent and well known scholarly
article Vagaries in Liability for the Escape of Fire [1969] CLJ 104.
He there set out three hypothetical situations in relation to ignis suus:
pp 106107. He concludes that section 86 was enacted to resolve the
uncertainty in the second and third of those situations, namely: (II) where
the defendant has lit a candle in his house, and an exceptionally strong
wind, or the act of a stranger, knocks the candle over setting the house
651
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alight, and the re then spreads to the plaintis land; and (III) where the
defendant has lit a bonre in his eld, and, as a result of an exceptionally
high wind or the act of a stranger, sparks are blown onto a pile of leaves,
which ignite, the re spreading to the neighbours property. I see no reason
to disagree with Mr Oguss analysis that the only object of section 86 of
the 1774 Act (and the equivalent provisions in its statutory predecessor,
the Fires Prevention (Metropolis) Act 1707 (6 Anne c 31), section 6) was to
resolve the doubts as to whether the defendant would be liable in those
two particular situations.
LEWISON LJ
73 I agree with Ward LJ that the appeal must be allowed. However,
I would go further in limiting the scope of strict liability in relation to re.
Let me explain.
74 We have all heard of the Great Fire of London in 1666. But it was
one in a long series of devastating res which were common in mediaeval
and Tudor England. London was ravaged by re many times during the
12th and 13th centuries. Building codes dealing with re prevention were
promulgated in London as early as 1189. William Fitzstephen, writing in the
12th century, wrote that the only plagues of London are the immoderate
drinking of fools and the frequency of res.
75 Fire was an equally serious hazard in other towns. The loss had to
fall somewhere. These were the days before insurance. The custom of the
common law of England laid the loss at the door of the person on whose
property the re had started. In Beaulieu v Finglam (1401) YB 2 Hen 4, fo
18, pl 6 the custom was pleaded thus: quilibet de eodem regno ignem suum
salvo et secure custodiat et custodire teneatur ne per ignem suum dampnum
aliquod vicinis suis ullo modo eveniat. The plea went on to allege that the
defendant ignem suum improvide et negligenter custodivit. The custom is
translated in Baker & Milsom, Sources of English Legal History: Private
Law to 1750 2nd ed (2010), p 610, as follows: everyone in the same realm
should keep and is bound to keep his re safely and securely so that no
damage befall any of his neighbours in any wise through his re. The plea
was that the defendant kept his re so negligently that for the want of due
keeping of the aforesaid re the plaintis house was burned. Thirning CJ
said that a man should answer for his re which by misfortune burns
anothers goods. Markham J said:
A man is bound to answer for his servants act, as for his lodgers act,
in such a case. For if my servant or lodger puts a candle on a wall and the
candle falls into the straw and burns the whole house, and also my
neighbours house, in this case I shall answer to my neighbour for the
damage which he has suered.
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He added, at p 611:
I shall answer to my neighbour for anyone who enters my house by

my leave or with my knowledge, or is my guest or my servants guest, if he
does something with a candle (or whatever) by which my neighbours
house is burned. But if a man outside my house, against my will, sets re
to the thatch of my house or elsewhere, so that my house is burned and
my neighbours houses also, I shall not be bound to answer to them for it;
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since it cannot be said to be ill-doing on my part when it is against

my will.
77 In Crogate v Morris (1617) 1 Br & Gold 197 the principle was
pithily stated: if my friend come and lie in my house, and set my
neighbours house on re, the action lieth against me. Thus Rolles
Abridgment was able to state: If re (I know nothing of it) suddenly break
out in my house and burn my goods, and also the house of my neighbour he
shall have an action on the case against me.
78 It is noticeable that the custom is that a man should keep his re
(ignis suus) safe and secure; and that the judges discussion is all about res
deliberately kindled (even in the case of a candle which is deliberately lit).
The plea was that the re had been kept negligently. It is clear that
negligently was not used in the way in which that adverb is understood in
the modern law of tort. What it signied was that the defendant had failed
to observe his legal duty to prevent his re escaping and damaging others.
Some of the subsequent cases are concerned with what counted as a mans
re or ignis suus. That the custom was concerned with res that had been
deliberately kindled is borne out by the statement of the law in Comyns
Digest: Action on the Case for Negligence (A6): An action lies, upon the
general custom of the realm, against the master of a house if a re be kindled
there and consume the goods of another.
79 In a case of 1582 (Anon (1582) Cro Eliz 10, case 5) the defendant
red a gun at a fowl. In so doing he set re to his own and his neighbours
house. The action was brought by way of action on the case. The court was
of the view if the plainti had counted on the custom of the realm as in
[Beaulieu v Finglam] the action had not been well brought. Although the
court did not give reasons for this view, it was presumably because the re
was not deliberately kindled and was never within the defendants control
(i e it was not his re or ignis suus).
80 In Turberville v Stamp (1702) 12 Mod 152 the real question was
whether the defendant was liable for a re deliberately kindled in a eld; in
other words whether such a re counted as his own (ignis suus). Sir John
Holt CJ justied the principle as follows:
Every man must so use his own as not to injure another. The law is
general; the re which a man makes in the elds is as much his re as his
re in his house; it is made on his ground, with his materials, and by his
order; and he must at his peril take care that it does not, through
his neglect, injure his neighbour: if he kindle it at a proper time and place,
and the violence of the wind carry it into his neighbours ground, and
prejudice him, this is t to be given in evidence. But now here it is found
to have been by his negligence; and it is the same as if it had been in his
house.
81 In a dierent report of the case in 1 Com 32 the judgment is

summarised thus:
The case was afterwards adjudged in favour of the plainti by the
whole court; for the action is as well for a re kindled in the elds of the
defendant as in his house, for it is the defendants re and kindled in his
ground, and he ought to have the same care of a re which he kindles in
his eld as of that which is made in his house, for the duty to take care of
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both is founded upon this maxim, sic utere tuo ut non ldas alienum; but
if the re of the defendant by inevitable accident, by impetuous and
sudden winds, and without the negligence of the defendant or his
servants, (for whom he ought to be answerable) did set re to the clothes
of the plainti in his ground adjoining; the defendant shall have the
advantage of this in evidence, and ought to be found not guilty. But here
the verdict hath found negligence in the defendant. Therefore judgment
for the plainti.
82 The report in 1 Salk 13 is even more abbreviated. There are ve
important points to be made about this case. First, liability is based on the
general principle that a man must so use his own as not to injure another
(sic utere tuo ut alienum non laedas). Second, on the facts liability was
established because of the nding of negligence. Third, liability would have
been avoided if the re had been kindled at a proper time and place. Thus
fourth, it is at least possible that even the common law required a nding of
negligence. But if that is wrong, then it is clear that a defendant had a good
defence if the re was caused by inevitable accident or by act of a stranger.
Fifth, the custom was directed towards a re that a person had deliberately
kindled, but which had subsequently got out of control. This, in my
judgment, is implicit in the requirement to plead ignis suus.
83 Even where liability is based on the principle sic utere tuo ut alienum
non laedas a requirement of negligence is not necessarily excluded. In Black
v Christchurch Finance Co Ltd [1894] AC 48, 54, Lord Shand, delivering the
advice of the Privy Council said:
The lighting of a re on open bush land, where it may readily spread
to adjoining property and cause serious damage, is an operation
necessarily attended with great danger, and a proprietor who executes
such an operation is bound to use all reasonable precautions to prevent
the re extending to his neighbours property (sic utere tuo at alienum
non laedas).
84 In other words even where liability was founded on (or at least
justied by) the maxim, liability was not absolute, but required the taking of
all reasonable precautions.
85 In H & N Emanuel Ltd v Greater London Council [1971] 2 All ER
835 (another case of a deliberately kindled re) Lord Denning MR
considered the scope of liability at common law. He said, 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 re 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, which is well translated by Mr Fifoot
in his book on the History and Sources of the Common Law (1949),
p 166. 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 blowlamp: see Balfour v Barty-King [1957] 1 QB 496; and of a
guest who negligently drops a lighted match: see Boulcott Golf Club Inc v
Engelbrecht [1945] NZLR 556. The occupier is liable because he is the
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occupier and responsible in that capacity for those who come by his leave
and licence: see Sturges v Hackett [1962] 1 WLR 1257. But the occupier
is not liable for the escape of re which is not due to the negligence of
anyone. Sir John Holt himself said in Turberville v Stamp that if a man is
properly burning up weeds or stubble and, owing to an unforeseen
wind-storm, without negligence, the re is carried into his neighbours
ground, he is not liable. Again, if a haystack is properly built at a safe
distance, and yet bursts into ames by spontaneous combustion, without
negligence, the occupier is not liable. That is to be inferred from Vaughan
v Menlove 3 Bing NC 468. So also if a re starts without negligence
owing to an unknown defect in the electric wiring: Collingwood v Home
and Colonial Stores Ltd [1936] 3 All ER 200; or a spark leaps out of
the replace without negligence: Sochacki v Sas [1947] 1 All ER 344.
(Emphasis added.)
86 Whatever the precise basis for liability analysed in modern terms,

historically it was simply based on custom of the realm. As Lord
Denning MR put it in the H & N Emanuel case, at p 839:
There has been much discussion about the exact legal basis of liability
for re. 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
re 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. Suce it to say that the extent of the liability is now well dened as
I have stated it. The occupier is liable for the escape of re which is due to
the negligence of anyone other than a stranger. (Emphasis added.)
87 This is an important point. Liability in mediaeval law (at least when
it was concerned with liability by custom) did not depend on proving that
the defendant was negligent in the modern sense. Nor did it depend on
proving that he was engaged in any particularly dangerous activity. As Sir
William Holdsworth explains in A History of English Law, vol VIII, p 469:
The form which this stricter liability took was not the form taken by the
rule in Rylands v Fletcher, for that rule was then the general rule of civil
liability.
88 Apart from re cases, others were also subject to strict liability by
virtue of custom. One such category of people was the innkeeper who was
liable by custom of the realm for the safe custody of the goods of his guests.
This analogy was drawn on by counsel in Turberville v Stamp who is
recorded as having argued
that this action ought not to be grounded upon the common customs
of the realm; for this re in the eld cannot be called iguis suus, for a man
has no power over a re in the eld, as he has over a re in his house. And
therefore this resembles the case of an inn-keeper, who must answer for
any ill that happens to the goods of his guest, so long as they are in his
house; but he is not answerable, if a horse be stolen out of his close.
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89 It was against this background that the rst of the statutes restricting
liability for re damage was passed. This was section 6 of the 1707 Act,
which was originally temporary and applied to London only. According to
Lord Denman CJ in Filliter v Phippard (1847) 11 QB 347, a decision of the
Court of Kings Bench, at pp 354355:
The Act contemplates the probability of res in cities and towns
arising from three causes, the want of water, the imperfection of party
walls, and the negligence of servants. The Act provided some means for
supplying these material defects: but the third section was directed
against the moral one, the carelessness or negligence of servants, which (it
observes) often causes res: and it imposes on the servant by whose
negligence the re may have been occasioned a ne of 100l, to be
distributed among the suerers at the discretion of the churchwardens, or
imprisonment for 18 months in case of nonpayment . . . The most usual
cause of res was assumed to be the negligence of servants: and the
enactment might operate to induce habits of caution in that important
class. The same statute, in the sixth section, enacts that, after a day
named, no action shall be maintained against any person in whose house
or chamber any re shall accidentally begin, nor shall any recompence be
made by such person for any damage suered or occasioned thereby.
90 This was then re-enacted in 1772 and 1774, the last of the
enactments remaining in force as section 86 of the Fires Prevention
(Metropolis) Act 1774, which applies to the whole of England and Wales:
Richards v Easto (1846) 15 M & W 246, 251. Section 86 provides:
And . . . 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 re shall . . . accidentally begin,
nor shall any recompence be made by such person for any damage
suered thereby, any law, usage or custom to the contrary
notwithstanding . . . provided that no contract or agreement made
between landlord and tenant shall be hereby defeated or made void.
91 It is important to emphasise the scope of the change eected by
section 86. Not only does it apply notwithstanding any custom to the
contrary (which would include liability under the ignis suus principle),
it also applies notwithstanding any law to the contrary. This would, as a
matter of ordinary statutory construction, include any other route at
common law to liability (compare McKillen v Maybourne Finance Ltd
[2012] EWCA Civ 864).
92 Contemporaneous commentators (Blackstone, Commentaries on the
Laws of England, 10th ed (1787), p 431, and Bacon, A New Abridgment of
the Law, 5th ed (1789), p 85), thought that the Act had so altered the law
that even where a re had been caused or allowed to spread by negligence no
liability arose. This treated the word accidentally as having been used in
contrast to wilfully. In Viscount Canterbury v Attorney General (1843)
1 Ph 306 Lord Lyndhurst LC at least irted with this view, although it was
not necessary for him to reach a decision.
93 Vaughan v Menlove (1837) 3 Bing NC 468 was a case of a haystack
that spontaneously combusted. The allegation against the defendant was
that he had wrongfully, negligently and improperly kept his haystack
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so likely and liable to ignite and take re, and in a state and condition
dangerous to the plaintis cottages: p 469. It is important to note that this
was not a case of a re that had been deliberately kindled. At trial Patteson J
directed the jury to consider whether the re had been occasioned by gross
negligence on the part of the defendant: p 471. The argument for the
defendant on appeal was that the jury should have been asked to consider
whether the defendant had [acted] bona de to the best of his judgment:
p 472. The court rejected that argument and held that the case had been
rightly left to the jury on the question of negligence. Liability thus depended
on negligence.
94 Viscount Canterbury v Attorney General 1 Ph 306 was a petition of
right brought against the Crown by a former Speaker of the House of
Commons whose possessions had been destroyed in the re that swept
though the Houses of Parliament in 1834 (and to which we owe Barry and
Pugins building). The argument for the Speaker was that the statute did not
relieve against res caused by negligence, contrary to the opinion that
Blackstone had expressed in his Commentaries. The Attorney General does
not appear to have argued this point; because he succeeded on the ground
that a petition of right did not lie for negligence on the part of the Sovereign
or his servants.
95 In Filliter v Phippard 11 QB 347 Lord Denman CJ conrmed that
Blackstones view was wrong. The question was: what did the word
accidentally mean in the context of section 86? He said, at p 357:
It is true that in strictness, the word accidental may be employed in
contradistinction to wilful, and so the same re might both begin
accidentally and be the result of negligence. But it may equally mean a
re produced by mere chance, or incapable of being traced to any cause,
and so would stand opposed to the negligence of either servants or
masters. And, when we nd it used in statutes which do not speak of
wilful res but make an important provision with respect to such as are
accidental, and consider how great a change in the law would be
eected, and how great encouragement would be given to that
carelessness of which masters may be guilty as well as servants, we must
say that we think the plaintis construction much the most reasonable
of the two.
96 Thus the court held that a re that had begun by negligence did not
attract the protection of section 86. In Burnie Port Authority v General
Jones Pty Ltd (1994) 179 CLR 520, 529 Mason CJ writing for the majority
of the High Court of Australia described this decision as surprising. But it
is too late to change that.
97 The railway age brought a new spate of litigation. Early locomotives
were steam powered; and the steam was generated by means of res in the
re box of the locomotive, deliberately kindled. Sometimes, however, the
re in the locomotive could not be kept fully under control; or sparks from
the re were carried up the locomotives chimney together with the steam.
98 In Aldrige v Great Western Railway Co (1841) 3 Man & G 515 the
allegation was that sparks from the companys railway engine set light to the
plaintis beans because the company carelessly managed their engine.
Tindal CJ said, at p 523:
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It is contended on the part of the defendants, that the plainti should
be nonsuited; but I am not prepared to say that the fact of the engine
emitting sparks may not amount to negligence. On the other hand
I cannot say that a verdict ought to be entered for the plainti. I think
that the special case should be withdrawn, and that the parties should go
on to trial. To entitle the plainti to recover, he must either shew some
carelessness by the defendants, or lay facts before the jury from which it
may be inferred.
99 Clearly liability was not strict but depended on negligence. In Piggot
v Eastern Counties Railway Co (1846) 3 CB 229 sparks from the engine of a
passing mail train set re to the plaintis cart lodge. The claim against the
railway company was that they so carelessly, negligently, and unskilfully
managed and conducted their said steam-carriage and steam-engine that
the plaintis cart house was set on re: p 230. In other words the claim was
framed in negligence. The point in the case was the admissibility of
evidence; but Tindal CJ again described the legal principle as follows,
at p 240:
The defendants are a company intrusted by the legislature with an
agent of an extremely dangerous and unruly character, for their own
private and particular advantage: and the law requires of them that they
shall, in the exercise of the rights and powers so conferred upon them,
adopt such precautions as may reasonably prevent damage to the
property of third persons through or near which their railway passes. The
evidence in this case was abundantly sucient to shew that the injury of
which the plainti complains was caused by the emission of sparks, or
particles of ignited coke, coming from one of the defendants engines; and
there was no proof of any precaution adopted by the company to avoid
such a mischance. I therefore think the jury came to a right conclusion, in
nding that the company were guilty of negligence, and that the injury
complained of was the result of such negligence.
100 Thus although the locomotive was regarded as dangerous,
liability still turned on negligence. The underlying reason may be that the
use of steam engines was authorised by statute, and that therefore negligence
was the only route to liability, although this reason is not explicitly stated.
The ground began to shift in Vaughan v Ta Vale Railway Co (1858)
3 H & N 743. This was another case of re caused by sparks from the re of
a passing locomotive. Although the railway company had done everything
that was practicable to the locomotives to make them safe, the railway
embankment was covered with inammable grass. It is probable that it was
that which caught re and from there the re spread to the plaintis wood.
The argument for the railway company was that they should not be liable if
they had taken all reasonable care to prevent the re. It was also argued that
if the re had started on the embankment and had spread from there to the
plaintis wood, section 86 protected them in the absence of negligence.
As often happened in the 19th century the ultimate result turned on the
pleadings. There were two counts alleged against the railway company. The
rst count alleged that they had negligently managed their locomotive and
had failed to provide the proper means for retaining the re and igneous
matter in the said locomotive whilst the same was being propelled along the
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railway: p 743. The second count alleged that the railway company knew
that there was a danger that the combustible material on the bank would
ignite; and that they therefore had a duty to preserve and keep the bank in
such a state and condition that re should not be occasioned by reason of the
ashes, &c, falling and settling thereon from and out of the locomotives, and
to take all necessary precautions to prevent any re which might be
occasioned from extending to, and burning the wood of the plainti: p 744.
The trial judge directed the jury, at p 746, that:
if, to serve his own purposes, a man does a dangerous thing, whether
he takes precautions or not, and mischief ensues, he must bear the
consequences: that running engines which cast forth sparks is a thing
intrinsically dangerous, and that if a railway engine is used, which in spite
of the utmost care and skill on the part of the company and their servants
is dangerous, the owners must pay for any damage occasioned thereby.
101 He also pointed out to the jury that the railway company could
have kept the grass cut, or could have used gravel or sand to make a
non-inammable belt along the railway; and he asked them whether they
did not think that there was inevitable negligence in the use of a dangerous
thing calculated to do, and which did cause, mischief.
102 The jury found for the plainti; and the railway company appealed.
The judgment of the Court of Exchequer was given by Bramwell B (who had
also been the trial judge). He said (1858) 3 H & N 743, 751752:
The rst question then is: Was there evidence for the jury? And, as
they may have found on either count, was there evidence in support of
each? Next: Was the evidence such as to warrant the strong opinion of
the learned judge? We are of opinion, on both these questions, in favour
of the plainti. Here is confessedly the use of an instrument likely to
produce damage, and producing it. This, according to general rules,
would make the defendants liable. But two answers were suggested on
their behalf. The rst was, that if the re originated on their own land
they were protected by the 14 Geo 3, c 78, section 86. But we are of
opinion that the statute does not apply where the re originates in the use
of a dangerous instrument, knowingly used by the owner of the land in
which the re breaks out. It is impossible to suppose that the engine
driver is liable to 18 months imprisonment under section 84, and equally
impossible to suppose there is no remedy against either master or servant,
for what is a wrong by one or both. We are of opinion therefore that this
answer fails.
103 One diculty with this case is that the jury may have found that
there was negligence on the part of the railway company (which went to the
second count); in which case it would have been clear that section 86 would
not have given the railway company a defence. But the reason that Bramwell
B gave for the conclusion that the protection of the 1774 Act was excluded
was that the re was caused by the use of a dangerous instrument, knowingly
used by the owner of the land. The dangerous instrument was the
locomotive in which a re was deliberately kindled and was burning in order
to propel it. It is also noticeable that one of the ingredients of liability was
that the instrument was likely to produce damage. The judgment was
reversed by Court of Exchequer Chamber (1860) 5 H & N 679 on the
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ground that the use of the locomotive was authorised by Parliament and
therefore that so far as the rst count was concerned negligence had to be
established. Since it was not clear whether the jury had found for the
plainti on the rst count or the second count, there would have to be a new
trial. The point under section 86 did not arise for decision.
104 In Smith v London and South Western Railway Co (1870) LR 5 CP
98 workmen, employed by a railway company in cutting the grass and
trimming the hedges bordering the railway, placed the trimmings in heaps
near the line, and allowed them to remain there for 14 days, during very hot
weather in the month of August. Fire from a passing engine ignited one of
these heaps, and burned the hedge, and was carried by a high wind across a
stubbleeld and a public road, and burned the plaintis goods in a cottage
about 200 yards away. The question was whether there was evidence of
negligence to go before the jury. No one argued that the railway company
was strictly liable. Bovill CJ said, at pp 105106:
I agree that the mere circumstance of the re being caused by an
engine of the company, is not enough to give a cause of action against
them; but the plainti must shew some breach of duty on their part which
occasioned the injury he complains of.
105 This decision was upheld by the Court of Exchequer Chamber
(1870) LR 6 CP 14, among whom was Blackburn J. But as in Vaughan v Ta
Vale Railway Co the decision was based on the fact that the company had
been authorised by statute to use steam locomotives on the railway.
Blackburn J said, at pp 2122:
I take it that, since the case of Vaughan v Ta Vale Railway Co (1860)
5 H & N 679, which was expressly armed in Brand v Hammersmith
Railway Co (1869) LR 4 HL 171, it is clear that when a railway company
is authorised by their Act of Parliament to run engines on their line, and
that cannot be done without their emitting sparks, the company are not
responsible for injuries arising therefrom, unless there is some evidence of
negligence on their part.
106 So we come to the famous case Rylands v Fletcher (1866) LR 1 Ex
265. In the Court of Exchequer Chamber the judges were referred in
argument to section 86 of the 1774 Act and also to Filliter v Phippard 11 QB
347. Neither found a place in the judgment. The well known statement of
principle formulated by Blackburn J was as follows, at pp 279280:
do so, is prim facie answerable for all the damage which is the natural
consequence of its escape. He can excuse himself by shewing that the
escape was owing to the plaintis default; or perhaps that the escape was
the consequence of vis major, or the act of God; but as nothing of this sort
exists here, it is unnecessary to inquire what excuse would be sucient.
The general rule, as above stated, seems on principle just. The person
whose grass or corn is eaten down by the escaping cattle of his neighbour,
or whose mine is ooded by the water from his neighbours reservoir, or
whose cellar is invaded by the lth of his neighbours privy, or whose
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habitation is made unhealthy by the fumes and noisome vapours of his

neighbours alkali works, is damnied without any fault of his own; and it
seems but reasonable and just that the neighbour, who has brought
something on his own property which was not naturally there, harmless
to others so long as it is conned to his own property, but which he knows
to be mischievous if it gets on his neighbours, should be obliged to make
good the damage which ensues if he does not succeed in conning it to his
own property. But for his act in bringing it there no mischief could have
accrued, and it seems but just that he should at his peril keep it there so
that no mischief may accrue, or answer for the natural and anticipated
consequences. And upon authority, this we think is established to be
the law whether the things so brought be beasts, or water, or lth,
or stenches.
107 It is, to my mind, striking that despite all the examples that
Blackburn J gave re is not among them. He had already decided in Smith v
London and South Western Railway Co that strict liability at common law
could be displaced by statute. In the light of the fact that the court had been
referred in argument to section 86 of the 1774 Act and also to Filliter v
Phippard, he must have taken the view that section 86 had displaced strict
liability; and accepted counsels submission that the liability for re is
restricted to mischief arising from negligence.
108 Let it be supposed, however, that he thought that re was a
dangerous thing, and intended that the principle he formulated would apply
to it. We can then restate the principle thus:
a person who for his own purposes brings on his lands and collects
and keeps there [re] must keep it in at his peril, and, if he does not do so,
is prim facie answerable for all the damage which is the natural
consequence of its escape.
109 The principle thus formulated is consistent only with a re

deliberately kindled. A re that starts accidentally and which damages the
place where it begins can hardly be said to have brought onto the land by the
occupier for his own purposes. Nor in my judgment can he be said
without straining language to have brought the re onto the land at all.
In Read v J Lyons & Co Ltd [1947] AC 156, 168 Viscount Simon said of
Blackburn Js formulation:
Blackburn J several times refers to the defendants duty as being the

duty of keeping a thing in at the defendants peril and by keeping in he
does not mean preventing an explosive substance from exploding but
preventing a thing which may inict mischief from escaping from the area
which the defendant occupies or controls.
110 As is well known the case went to the House of Lords (1868)
LR 3 HL 330. Neither section 86 nor any re case was referred to in the
course of argument. Lord Cairns LC formulated the principle thus, at p 339:
On the other hand if the defendants, not stopping at the natural use of
their close, had desired to use it for any purpose which I may term a
non-natural use, for the purpose of introducing into the close that which
in its natural condition was not in or upon it, for the purpose of
introducing water either above or below ground in quantities and in a
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manner not the result of any work or operation on or under the

land,and if in consequence of their doing so, or in consequence of any
imperfection in the mode of their doing so, the water came to escape and
to pass o into the close of the plainti, then it appears to me that that
which the defendants were doing they were doing at their own peril; and,
if in the course of their doing it, the evil arose to which I have referred, the
evil, namely, of the escape of the water and its passing away to the close of
the plainti and injuring the plainti, then for the consequence of that, in
my opinion, the defendants would be liable.
111 He then approved the formulation of Blackburn J in the court
below. Lord Cranworth said, at p 340:
If a person brings, or accumulates, on his land anything which, if it

should escape, may cause damage to his neighbour, he does so at his peril.
If it does escape, and cause damage, he is responsible, however careful he
may have been, and whatever precautions he may have taken to prevent
the damage.
112 Neither of their Lordships referred to re. Nor does the way in
which the principle is framed readily apply to re unless the re itself has
deliberately been brought onto the defendants land. Lord Cairns LC
referred to the use of the land for the purpose of introducing something
dangerous. Likewise Lord Cranworth was clearly contemplating something
dangerous deliberately brought onto or accumulated on the land. No
consideration was given to how this principle might sit with section 86 of the
1774 Act.
113 Jones v Festiniog Railway Co (1868) LR 3 QB 733 was decided
after Fletcher v Rylands in the Court of Exchequer Chamber and only a week
or two before the appeal was heard in the House of Lords. The railway
company ran steam locomotives on its railway. Although it had taken all
reasonable precautions against the emission of sparks from the engine,
nevertheless sparks from the engine set the plaintis haystack alight and
burned down his barn. Blackburn and Lush JJ held that he was entitled to
succeed. Blackburn J said, at p 736:
The general rule of common law is correctly given in Fletcher v

Rylands, that when a man brings or uses a thing of a dangerous nature on
his own land, he must keep it in at his own peril; and is liable for the
consequences if it escapes and does injury to his neighbour. Here the
defendants were using a locomotive engine with no express parliamentary
powers making lawful that use, and they are therefore at common law
bound to keep the engines from doing injury, and if the sparks escape and
cause damage, the defendants are liable for the consequences, though no
actual negligence be shewn on their part.
114 The thing of the dangerous nature that the railway company had
brought onto its land was the locomotive engine with the deliberately
kindled re. Lush J said, at p 738:
I can see nothing in this statute to licence the company to use
locomotive engines. In the absence of this licence the company are left to
their liabilities at common law: that is, if they use a highly dangerous
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machine, they must do so at the peril of the consequences if it cause injury

to others.
115 Again it is clear that the highly dangerous machine was the
locomotive, and it was that dangerous thing that the railway company had
deliberately brought onto its land. No argument was addressed to the court
about the possible eect of section 86. Jones v Festiniog Railway was
followed and applied in Powell v Fall (1880) 5 QBD 597, a case of a steam
powered traction engine on the highway. Sparks from the engine set re to
the plaintis haystack. Since the re started on the highway, section 86
could not have applied. The question for the court was, at p 598:
whether the owner of a locomotive engine propelled by steam along a
public highway using a re for the purpose of generating the steam
required to propel such engine . . . and was managed and conducted with
all reasonable care and without negligence, was liable to the plaintis for
injury occasioning damage to a rick of hay standing on land adjoining the
highway by sparks proceeding from such engine and ring the hay.
(Emphasis added.)
116 Mellor J answered that question in the armative and his decision
was upheld by the Court of Appeal. In the Court of Appeal it appears to
have been conceded that an action lay at common law, and the only question
was whether there was a statutory exemption. As Bramwell LJ put it (1880)
5 QBD 597, 601: The plaintis are protected by the common law, and
nothing adverse to their right to sue can be drawn from the statutes: the
statutes do not make it lawful to damage property without paying for
the injury.
117 Modern formulations of the principle in Rylands v Fletcher also
emphasise the voluntary act of the defendant in bringing the dangerous thing
onto his land. They also emphasise that it is that dangerous thing that must
escape before strict liability is engaged. In Transco plc v Stockport
Metropolitan Borough Council [2004] 2 AC 1, para 11 Lord Bingham of
Cornhill ended his discussion by saying:
An occupier of land who can show that another occupier of land has
brought or kept on his land an exceptionally dangerous or mischievous
thing in extraordinary or unusual circumstances is in my opinion entitled
to recover compensation from that occupier for any damage caused to his
property interest by the escape of that thing, subject to defences of Act of
God or of a stranger, without the need to prove negligence.
118 Mr Rainey relied on the decision of the House of Lords in Rainham
Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465. The
case concerned an explosion in a munitions factory. The facts are by no
means clear, but what seems to have happened is that a re broke out in the
factory and ignited sodium nitrate stored there. The sodium nitrate in turn
produced a hot ame which caused dinitrophenol to explode. The claim was
tried by Scrutton LJ who held that liability under the principle in Rylands v
Fletcher had been established. His decision was upheld by both the Court
of Appeal [1920] 2 KB 487 and the House of Lords. However, what
was argued on appeal was not, in substance, the question of liability, but
whether liability attached to the directors of the company personally.
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In Read v J Lyons & Co Ltd [1947] AC 156, Viscount Simon, at p 169, Lord
Macmillan, at p 174, and Lord Uthwatt, at p 187, all pointed this out; and
Viscount Simon also said that liability had been conceded before Scrutton LJ
sitting at rst instance as the trial judge. In Cambridge Water Co v Eastern
Counties Leather plc [1994] 2 AC 264, 303304 for much the same reasons
Lord Go of Chieveley also regarded the Rainham Chemical Works case as
fragile authority on the scope of the principle. On the other hand in the
Transco case, the Rainham Chemical Works case was regarded by the Law
Lords as being a case that demonstrated the utility of retaining the principle
in Rylands v Fletcher, although the implications of that case were not
discussed. Since there was no discussion of the principle either in the Court
of Appeal [1920] 2 KB 487 or in the House of Lords in the Rainham
Chemical Works case [1921] 2 AC 465 I do not consider that it lays down
any binding principle of law about the scope of the principle in Rylands v
Fletcher, even though it may be regarded as a case which justies retention of
the principle. The manufacture of explosives may well be considered to be
an inherently dangerous activity (even in wartime) sucient to bring the
principle into play. Thus the ingredients themselves are the dangerous things
which have been deliberately brought onto the land. Section 86 cannot
apply, because it applies only to res; not to explosions.
119 I come now to Musgrove v Pandelis [1919] 2 KB 43. The plainti
rented rooms above a domestic garage, in which the defendant kept a car.
The plainti sent his chaueur, Mr Coumis, to clean the car. Mr Coumis
had to move the car within the garage. For that purpose he went to the
bonnet and turned on the petrol tap to allow the ow of petrol from the tank
to the carburettor, and started the engine, when suddenly there was an
explosion, and ames were seen to be coming from the carburettor. There
was no woodwork within 18 inches of the carburettor, and if Mr Coumis
had immediately turned o the tap of the pipe leading from the petrol tank
the petrol in the carburettor would have soon burnt out, and the re would
have been prevented from spreading. But instead of doing so Mr Coumis
wasted his time in looking for a cloth which he failed to nd. He then went
to the bonnet to turn o the tap, but was too late, for owing to the continued
ow of the petrol into the carburettor the re had spread to the body of the
car. The garage itself then caught re and the whole building was burnt,
including the plaintis rooms overhead, together with a quantity of
furniture belonging to him. The defendant relied, among other defences, on
section 86. At rst instance Lush J said [1919] 1 KB 314, 317:
But, nevertheless, I am of opinion that the statute aords the
defendant no protection; for though the re in the carburettor was
accidental in a popular sense, I do not think it was accidental in the sense
in which that term is used in the statute. If a man brings onto his premises
a dangerous thing which is liable to cause re, such as a motor car with
petrol in it, the carburettor of which is not unlikely to get on re when the
engine is started, and a re results, though without any negligence on his
part, he must be held liable, the statute notwithstanding, for the rule is
that he must keep such a thing under control at his peril.
120 The key point for him, therefore, was that the petrol was liable to
cause a re and not unlikely to get on re. He also held that Mr Coumis
was negligent in not immediately turning o the petrol tap. Lush J was
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upheld on appeal to this court [1919] 2 KB 43. Each of the three Lords
Justices gave judgments. Bankes LJ began by considering the state of the
common law before liability for re was restricted by statute. He said,
at p 46:
A man was liable at common law for damage done by re originating
on his own property: (1) for the mere escape of the re; (2) if the re was
caused by the negligence of himself or his servants, or by his own wilful
act; (3) upon the principle of Rylands v Fletcher. This principle was not
then known by that name, because Rylands v Fletcher was not then
decided; but it was an existing principle of the common law as I shall
show presently.
121 Bankes LJ then referred to Filliter v Phippard (1847) 11 QB 347.
He said (correctly) that that case decided that a re negligently begun was
not protected by the statute; and posed the question [1919] 2 KB 43, 47:
Why, if that is the law as to the second head of liability, should it be
otherwise as to the third head, the liability on the principle of Rylands v
Fletcher? If that liability existed, there is no reason why the statute
should alter it and yet leave untouched the liability for re caused by
negligence or design. That the principle of Rylands v Fletcher existed
long before that case was decided is plain. In Vaughan v Menlove (1837)
3 Bing NC 468, Tindal CJ says: There is a rule of law which says you
must so enjoy your own property as not to injure that of another. Park J
says: Although the facts in this case are new in specie, they fall within a
principle long established, that a man must so use his own property as
not to injure that of others. Rylands v Fletcher is merely an illustration
of that old principle, and in my opinion Lush J was right in saying that
this case, if it falls within that principle, is not within the protection of
the statute.
122 In my judgment this reasoning is historically unsound. As
MacKenna J pointed out in Mason v Levy Auto Parts of England Ltd [1967]
2 QB 530 at common law there were not three separate routes to liability:
there was only one. A householder was liable for the escape of his re (ignis
suus): no additional danger was needed to be proved. The liability was
based on a custom of the realm and on no other principle. If the case was
brought otherwise than on the custom of the realm (i e by action on the case)
then negligence had to be proved. This view was shared by Holdsworth
(whom I have already quoted) and by Lord Denning MR in the H & N
Emanuel case [1971] 2 All ER 835 (whom I have also quoted). MacKenna J
said [1967] 2 QB 530, 540541:
There were not three heads of liability at common law but only one.
A person from whose land a re escaped was held liable to his neighbour
unless he could prove that it had started or spread by the act of a stranger
or of God. Filliters case had given a special meaning to the words
accidental re used in the statute, holding that they did not include res
due to negligence, but covered only cases of a re produced by mere
chance, or incapable of being traced to any cause. But it does not follow,
because that meaning may be given to accidental, that the statute does
not cover cases of the Rylands v Fletcher kind where the occupier is held
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liable for the escape though no fault is proved against him. In such cases
the re may be produced by mere chance or may be incapable of being
traced to any cause. Bankes LJ was making a distinction unknown to the
common law, between the mere escape of re (which was his rst head)
and its escape under Rylands v Fletcher conditions (which was his third),
and was imputing an intention to the legislature of exempting from
liability in the former case and not in the latter.
123 Likewise in his article on Vagaries in Liability for the Escape of
Fire (1969) CLJ 104, 113114, A I Ogus says of Bankes LJs analysis:
This is, without doubt, a distortion of the position at common law.
It has already been seen that the modern concept of negligence did not
exist before the 19th century. The argument on Rylands v Fletcher fares
no better. Its origins are not to be found in the action on the case pur
negligent garder son few. Though similar in result, their bases are
substantially dierent. The old form of action took as its starting point
the escape of re from the defendants land. The plainti need then only
show that it was ignis suus which caused damage to his property.
Rylands v Fletcher, on the other hand, requires the accumulation on the
defendants land of something likely to do mischief if it escapes.
The former is an example of tortious liability based on causal
responsibility. The latter is an example of strict liability attaching to
the use of dangerous things. Nor is the quotation from Vaughan v
Menlove of assistance. It was simply part of a discourse on the emerging
concept of negligence, and in any case could apply equally well to the
tort of nuisance.
124 The Law Commission has also pointed out the fallacy in the
reasoning. In their report on Civil Liability for Dangerous Things and
Activities (1970) (Law Com No 32), in the Appendix, at para 18:
Indeed, it is dicult to escape a dilemma: if a liability of the Rylands v
Fletcher type existed before its classic enunciation in the case from which
it takes its name (as the Court of Appeal in fact argued in Musgrove v
Pandelis) then the broad language of the statute, to which MacKenna J
drew attention, can hardy be ignored; if on the other hand it were
suggested that the doctrine of Rylands v Fletcher grew up after the
1774 Act then its development was necessarily limited by the mandate of
Parliament.
125 Nor does the reference to the maxim that a man must so use his
own property as not to injure that of others make good the reasoning. First,
as shown by Black v Christchurch Finance Co Ltd [1894] AC 48 (and as
Ogus says) even where the maxim does apply it may require proof of
negligence. Indeed that was the case in Vaughan v Menlove itself; where the
debate was between an objective test of negligence on the one hand, and a
more subjective test of acting in good faith. No question of strict liability
arose in that case, despite reliance on the maxim. Thus in my judgment
Bankes LJ misinterpreted what the court had decided in Vaughan v Menlove.
Second, in so far as the custom was based on that maxim it was overridden
by the statute. Even if it was not part of the ignis suus custom it was a law
which the statute expressly disapplied. Third, later authority is inconsistent
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with Bankes LJs proposition based on the maxim. Thus in the H & N
Emanuel case [1971] 2 All ER 835, 842 Phillimore LJ said:
The LCC were undoubtedly occupiers of this land. They were sued in
that capacity and they did not call any evidence to suggest otherwise. As
such they owed a duty to their neighbours which is best described in the
old Latin maxim: sic utere tuo ut alienum non laedas. As Markham J put
it in Beaulieu v Finglam (1401) YB 2 Hen 4, fo 18, pl 6: I shall answer to
my neighbour for him who enters my house by my leave or knowledge
whether he is guest to me or my servant, if either of them acts in such a
way with a candle or other things that my neighbours house is burned.
Since the Fire Prevention (Metropolis) Act 1774 it is I think necessary to
insert the word negligently after the word acts.
126 In my judgment what Filliter v Phippard 11 QB 347 decided was

that accidentally meant without negligence. The legislation must have
been intended to change the common law, whether or not it was based on
custom, otherwise Parliament would not have used the wide words that it
did. On the footing that res started by negligence did not attract the
protection of section 86, what change must Parliament have intended? The
answer, in my judgment, must be that Parliament intended to abolish
liability based simply on the proposition that a man must so use his own as
not to injure another, without proof of negligence. Whether liability arose
because of custom or because of some other principle of common law does
not matter. Both were overridden by section 86. This is conrmed by the
H & N Emanuel case.
127 It follows from this that I disagree with the view expressed by Judge
Thornton QC in Johnson (trading as Johnson Butchers) v BJW Property
Developments Ltd [2002] 3 All ER 574 and by Judge Coulson QC in LMS
International Ltd v Styrene Packaging and Insulation Ltd [2005] EWHC
2065 (TCC) that MacKenna J was wrong in his appreciation of the common
law, or in the eect of the 1774 Act.
128 As I have said, liability for re was not the only form of strict
liability imposed by custom of the realm. The liability of innkeepers was
another such liability. In Williams v Owen [1955] 1 WLR 1293 the plainti
left his car overnight in the hotel garage. A re broke out and destroyed his
car. Finnemore J held that the strict liability of an innkeeper was limited to
loss of his guests goods rather than to their destruction. But he went on to
deal with section 86. He said, at pp 12971298:
I think that this liability of the innkeeper was a custom of the realm.
It is true it is embodied in common law rules, but then common law is the
legal expression of custom, and it seems to me that that also would be an
answer in this particular case. I suppose that by 1774 the legislature had
appreciated what Lord Goddard CJ laid down in Sochacki v Sas [1947]
1 All ER 344, 345: Everybody knows res occur through accidents which
happen without negligence on anybodys part. Parliament in 1774
apparently thought it right that they should make it plain that whatever
customs or usages there were to the contrary, in this country a man
should not be held to be responsible for a re which occurred
accidentallywhich I take to mean without negligence on his part.
Those are two points which I think would be enough to decide that there
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is in this case no absolute liability on the part of the innkeeper, rst,

because there was injury to the car and not theft or loss; and, secondly,
because, in any event, as it was a re the 1774 Act would limit the liability
of the innkeeper, so far as a re is concerned.
129 In other words section 86 overrode the custom. In my judgment
this is plainly right because the 1774 Act expressly exempts a person from
liability for accidental res any law, usage or custom to the contrary
notwithstanding. This would include the custom of the realm upon which
liability for ignem suum was based. The only question, then, is what
Parliament meant by the word accidentally; and that had been decided by
Filliter v Phippard.
130 In Musgrove v Pandelis [1919] 2 KB 43, 4748 Bankes LJ
continued:
The question then, is whether this motor car, with its petrol tank full
or partially lled with petrol, was a dangerous thing to bring into the
garage within the principle of Rylands v Fletcher? Mr Hawke says a
motor car is not a dangerous thing unless it is in such a condition that an
accident is to be apprehended. But the expectation of danger is not the
basis of the principle of Rylands v Fletcher. A thing may be dangerous
although the danger is unexpected. I agree with Lush J that this motor car
was dangerous within that principle. The defendant brought it, or caused
it to be brought upon his premises, and he is responsible for the re which
resulted, and is not within the protection of the statute.
131 It will be recalled that the reason that Lush J thought the car was
dangerous was that the petrol in its tank was liable to cause a re and not
unlikely to get on re. Warrington LJ agreed on that point; and said,
at p 49:
If this motor car with the petrol in its tank was potentially dangerous,
such as a mans own re, then it was the defendants duty to see that the
potential danger did not become an actual danger causing damage to his
neighbour. The Act of Geo 3 [the 1774 Act] is no protection against that
liability.
132 However, both Bankes LJ and Warrington LJ went on to consider
the question of negligence and both held that Lush J was right on that issue.
That, as has subsequently been pointed out, is sucient to support the
decision itself. Duke LJ seems to me to have adopted a dierent line of
reasoning. He said, at pp 5051:
I do not see how this case can be taken out of the principle of Rylands
v Fletcher, which was thus stated by Lord Cairns LC (1868) LR 3 HL 330,
in the very words of Blackburn J: The true rule of law is, that the person
who, for his own purposes, brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril. He
can excuse himself by showing that the escape was owing to the plaintis
default or perhaps that it was the consequence of vis major or the act of
God. In the present case there was petrol which was easily convertible
into an inammable vapour; there was the apparatus for producing a
spark; and added to those there was a person supposed to control the
combustion but inexperienced and unequal to the task. Taking together
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the presence of the petrol, and the production of the inammable gas, or
those combustibles together with the inexperience of the person placed in
charge of them, it is impossible to say that this is not an instance of the
principle laid down by Blackburn J.
133 However, although he held that the principle of Rylands v Fletcher
applied, he nevertheless went on to consider whether the re was accidental
for the purposes of section 86. If he had thought that the application of
Rylands v Fletcher was a complete answer that consideration would have
been unnecessary. On that question he said, at pp 5152:
That would dispose of this case but for the defendants contention
that he is excused by section 86 of the Fires Prevention (Metropolis)
Act 1774. In my opinion the terms of that enactment fall far short of
showing a denite intention to relieve a defendant in such a case as this.
The actions against which the statute gives protection are in respect of
res which shall accidentally begin. I have the greatest doubt whether
this re began accidentally at any stage. If it was all one re, it was
begun not accidentally but intentionally. If progressive stages may be
regarded it was not a re which began accidentally without negligence
at the stage when it became a conagration involving goods and
premises. The question may some day be discussed whether a re,
spreading from a domestic hearth, accidentally begins within the
meaning of the Act, if such a re should extend so as to involve
the destruction of property or premises. I do not covet the task of the
advocate who has to contend that it does. In the present case the re, so
far as it was a means of mischief, resulted from the negligent omission to
turn o the petrol tap, an act which would have stopped the ow of
petrol. All the witnesses who had any experience of such matters drew a
distinction between re in a carburettor, where the vapour can be
instantly out o, and such a re as occurred in this case. The learned
judge has found that this re was due to negligence. I cannot disagree
with him. Whatever may be the eect of the Act of Geo 3 [the
1774 Act] upon the nice questions that have been discussed, this case is
outside any possible protection of that statute.
134 This is, with all respect, a rather confused passage; but in my
judgment the key nding here is that the spread of the re was attributable
to negligence.
135 Musgrove v Pandelis has been subsequently considered on a
number of occasions. In Job Edwards Ltd v Birmingham Navigations
Proprietors [1924] 1 KB 341 rubbish was tipped on land belonging to a
canal company and on adjoining land belonging to mine owners. The
rubbish on the mine owners land was found to be on re, and the canal
company feared that the re might spread to their own land. Having called
on the mine owners to extinguish the re, the canal company entered the
mine owners land (by agreement) and put out the re. The question was
whether the mine owners were liable to contribute to the cost. Bailhache J
held that the mine owners had no duty to prevent the spread of the re. He
held, at p 344:
where a re occurs through no fault of the landowner, without his
knowledge, and, as in this case, on matter brought on his land without
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his knowledge and against his will, he is not responsible for the spreading
of such a re to the adjoining land, but the neighbour is entitled to go
upon his land and prevent the re from spreading.
136 Thus the mine owners were not liable to contribute to the cost. The
canal defendant company appealed. Mr Vachell KC, for the canal company,
argued as follows, at pp 344345:
No doubt a person on whose estate any re shall accidentally begin is
exempted from liability by section 86 of the Fires Prevention (Metropolis)
Act 1774 for damage caused by that re; and it may be admitted that a re
accidentally began upon land belonging to the respondents. But the re
which caused or threatened to cause damage to the defendants property
was not the re which accidentally began on the plaintis land, when it
might have been extinguished quickly and easily, but the re which was
from May to October 1920, allowed to increase and become formidable:
Musgrove v Pandelis.
137 Bankes LJ gave the leading judgment. He began by considering
the distinction between a public nuisance (which he said a land owner had a
duty to abate) and a private nuisance (which he said gave rise to no such
duty). He then turned to the custom relating to re, and explained it thus,
at p 352:
The case of re has always been looked upon in our law as a
somewhat exceptional case. It was no doubt the ancient law or custom of
England that a person in whose house a re originated which afterwards
spread to his neighbours property and destroyed it must make good the
loss, but I do not consider that rule as opposed to the view I am putting
forward in regard to liability for injury done by a private nuisance, as the
ancient law no doubt considered a re as a public nuisance owing to the
danger of its spreading. The view of the law which I am taking does not
touch a case where the private nuisance has been caused, or allowed to
continue, by any act or default on the part of the occupier of the land on
which it exists.
138 This is a quite dierent explanation of the custom to that which
he gave in Musgrove v Pandelis. The other point that he considered was
the defence under section 86. As to that he said, at pp 352353:
Mr Vachell contended that whatever may have been the cause of
the original re it ceased to be an accidental re within the meaning
of the statute when the plaintis were informed of it, and that within
the reasoning of the decision in Musgrove v Pandelis the re as from that
date must be treated as a second and independent re. I cannot draw any
such inference from the facts of the present case. In Musgrove v Pandelis
Lush J drew from the facts the inference that there were in substance
either two res, the rst an accidental one which did no damage, and the
second which was due to negligence and did the damage; or alternatively
that there was only one re within the meaning of the statute, and that
was the one due to negligence. This court agreed with the view of the
learned judge, but the facts of that case are very special, and have in my
opinion no bearing upon the case we are now dealing with.
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139 It seems clear from this passage that Bankes LJ himself did not
regard Musgrove v Pandelis as applying to what might be called an ordinary
case of spread of re. Bankes LJ (with whom Astbury J agreed) held that the
mine owners owed no duty to the canal company and hence dismissed the
appeal. Scrutton LJ dissented. On the question of common law duty he said,
at pp 357358:
There is a great deal to be said for the view that if a man nds a
dangerous and articial thing on his land, which he and those for whom
he is responsible did not put there; if he knows that if left alone it will
damage other persons; if by reasonable care he can render it harmless, as
if by stamping on a re just beginning from a trespassers match he can
extinguish it; that then if he does nothing, he has permitted it to
continue, and become responsible for it. This would base the liability on
negligence, and not on the duty of insuring damage from a dangerous
thing under Rylands v Fletcher. I appreciate that to get negligence you
must have a duty to be careful, but I think on principle that a landowner
has a duty to take reasonable care not to allow his land to remain a
receptacle for a thing which may, if not rendered harmless, cause damage
to his neighbours.
140 This is a critical passage because it was subsequently approved by

the House of Lords in Sedleigh-Deneld v OCallaghan [1940] AC 880 who
disapproved the reasoning of the majority. As far as section 86 was
concerned, Scrutton LJ said [1924] 1 KB 341, 360361:
That statute (14 Geo 3, c 78; section 86) provides that no action shall
lie against any person in whose house or on whose estate any re shall
accidentally begin. This re undoubtedly began accidentally so far as the
landowner and his agents were concerned. It has been decided that the
statutory restriction of the previous common law liability does not
exclude liability for res caused by negligence of the owner or persons for
whom he is responsible, or by dangerous things for which the owner is
responsible under the doctrine of Rylands v Fletcher. This leaves the
dicult questionsuppose the re is caused by a trespasser, as if he
throws down a match; and suppose the owner comes by immediately
afterwards, sees the small re, and could with no trouble extinguish it by
stamping on it, but does not do so, so that the re spreads and damages
his neighbour, is he freed by the statute? He is then aware of a dangerous
thing on his land which may damage his neighbour, and which by
reasonable care he can prevent from damaging his neighbour, and he does
nothing. I agree he is not an absolute insurer of that dangerous thing, for
he did not himself create it, but I think on principle he is bound to take
reasonable care of a dangerous thing which he knows to exist. Take the
case of an ordinary house re, where a coal leaps from the grate. If no one
knows of the re caused by the coal till it cannot be stopped, that re may
be within the protection of the statute, though Duke LJ doubted it in
Musgrove v Pandelis [1919] 2 KB 43, 51. But suppose the owner sees it
jump out, could extinguish it with a moments trouble, and does not
trouble to do so, could he plead the statute to protect him? In Musgrove v
Pandelis where the real danger arose from the fact that the defendants
servant negligently did not turn a tap to stop a supply of petrol to a re,
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the court treated the re as two res; I should respectfully have thought
that it was safer to say that the re was continued by negligence, and that
the cause of action was not for a re accidentally begun, but for
negligence in increasing such a re.
141 In Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER
200 Lord Wright MR also considered Musgrove v Pandelis. He said that the
ground for decision, in so far as it was not based on negligence was one
about which he had some diculty (p 206); and Romer LJ pointed out
that in that case there had not been an escape of anything such as to bring the
principle of Rylands v Fletcher into play. Although he said that Rylands v
Fletcher was based on a broader principle, he doubted the propositions on
which the alternative ground rested. Musgrove v Pandelis was doubted
again by Lord Porter in Read v J Lyons & Co Ltd [1947] AC 156, 176,
referring to Romer LJs observations in Collingwood v Home & Colonial
Stores Ltd. It was also regarded with scepticism by Lord Walker of
Gestingthorpe in the Transco case [2004] 2 AC 1, para 39.
142 In H & N Emanuel Ltd v Greater London Council [1971] 2 All ER
835 the re in question had been deliberately started by workmen in order to
burn rubbish on a demolition site. It spread to neighbouring land. The
Court of Appeal based its decision entirely on the question of negligence.
Bearing in mind that the re had been deliberately started, Rylands v
Fletcher would have provided a very short answer if the principle applied to
a re that spread accidentally. But instead the Court of Appeal discussed
negligence extensively in the context of the statutory defence under
section 86. That approach is in my judgment quite inconsistent with
Musgrove v Pandelis.
143 Charlesworth & Percy on Negligence 12th ed (2010) say, at
para 13-112:
An alternative ground for the decision in Musgrove v Pandelis was
that the 1774 Act was no defence when the re originated from a
dangerous thing. This proposition has been criticised, but it was adopted
and followed in Mulholland & Tedd Ltd v Baker [1939] 3 All ER 253.
Since it is the re which is the dangerous thing, whether it is caused by
petrol, paran or anything else, and the object of the statute is to give
protection against accidental res, it is dicult to understand why
the statute should not protect as much in one case as in the other. The
presence of inammable matter on premises is important when the
question of negligence is being considered, so that if there is no negligence
and it is found that the re is accidental, it is submitted that the statute is a
defence to the occupier of the land on which it begins, whatever may be
the origin of the re.
144 In my judgment Musgrove v Pandelis is wrong in so far as it
describes the basis of the common law before the earliest of the re statutes.
It invents an unhistorical justication for the basis of the rule. That
justication has been criticised by judges, by scholars and by the Law
Commission. It is inconsistent with a subsequent decision of this court in the
H & N Emanuel case [1971] 2 All ER 835. For good measure, Bankes LJ
himself said that it was decided on special facts; and, on the face of it, it is
inconsistent with his own subsequent decision in Job Edwards Ltd v
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Birmingham Navigations Proprietors [1924] 1 KB 341. In Collingwood v

Home & Colonial Stores Ltd Lord Wright MR said that whatever it decided
Musgrove v Pandelis did not apply to the case of a re caused by an
unknown defect in electrical wiring. This was also the view of the Court of
Appeal in Stockport Metropolitan Borough Council v British Gas plc [2001]
Env LR 779 (whose decision was armed sub nom Transco plc v Stockport
Metropolitan Borough Council [2004] 2 AC 1). It misinterprets both
Vaughan v Menlove 3 Bing NC 468 and Filliter v Phippard 11 QB 347, and
wrongly distinguishes them. Moreover it misstates the principle in Rylands
v Fletcher, unless it is conned to res deliberately kindled (or deliberately
brought onto land). That, too, was in eect decided by Collingwood v
Home and Colonial Stores Ltd [1936] 3 All ER 200 where Lord Wright MR
considered whether the electrical wiring (which had been brought onto the
land deliberately and where the re started) rather than the re fell within
the principle in Rylands v Fletcher. Musgrove v Pandelis is clearly an
extension of the principle in Rylands v Fletcher because the occupier did not
bring the re onto his land. This was also the view of the High Court of
Australia in Goldman v Hargrave (1963) 110 CLR 40 (armed [1967] 1 AC
645) in which Windeyer J said that the principle in Rylands v Fletcher did
not apply to the re that started on the plaintis land simply because the
[defendant] did not bring the re upon his land, nor did he keep it there for
any purpose of his own. It came there from the skies. And he did nothing to
make its presence there more dangerous to his neighbours: p 59. Lastly,
having regard to the ndings of fact made by Lush J at trial, the principle
that Bankes LJ formulated was unnecessary to the decision, and wider than
the facts of the case warranted.
145 In Cambridge Water Co v Eastern Counties Leather plc [1994]
2 AC 264 Lord Go warned against developing the principle in Rylands v
Fletcher into a rule of strict liability for damage cause by ultra-hazardous
operations; and that warning was repeated by Lord Bingham in the Transco
case [2004] 2 AC 1. In the Transco case the House of Lords were at pains to
conne the scope of the principle to its proper ambit. Lord Bingham pointed
out that it was a necessary condition of liability that the defendant had
brought onto his land something which would be a source of mischief or
danger if it escaped. That is not the case with a re that is not deliberately
kindled, because the defendant has not brought it onto his land. As I have
already said he summarised his discussion by referring to a case in which
an occupier of land has brought or kept on his land an exceptionally
dangerous or mischievous thing in extraordinary or unusual circumstances:
para 11. A re that accidentally ignites cannot be described as that; and
nothing else escapes. Lord Scott of Foscote also said that the principle
applied to cases where something or other, potentially dangerous, that the
defendant has brought onto his land has escaped onto the plaintis land and
there caused damage: para 75.
146 He described the element of escape as essential. Lord Bingham
also said that the use that the defendant made of his land would have to be
extraordinary and unusual by reference to the time and place at which it
was carried on before the principle would apply. This was plainly intended
as a narrowing of the principle expounded in Rylands v Fletcher. In my
judgment no extension of the principle in Rylands v Fletcher can now be
justied in the light of the decisions of the House of Lords in the Cambridge
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Water Co case and the Transco case. In my judgment Musgrove v Pandelis

cannot stand with the subsequent decisions of the House of Lords, and it is
in conict with the subsequent decision of this court in the H & N Emanuel
case. It wrongly distinguishes two previous decisions of courts of
co-ordinate jurisdiction. In those circumstances, in my judgment we are free
to choose the correct path to follow: Young v Bristol Aeroplane Co Ltd
[1944] KB 718, 729; Starmark Enterprises Ltd v CPL Distribution Ltd
[2002] Ch 306, paras 64, 97. In my judgment Musgrove v Pandelis is
unsound authority and should no longer be followed.
147 I turn then to the true scope of the defence under section 86 of the
Act. In Collingwood v Home & Colonial Stores Ltd [1936] 3 All ER 200,
203 Lord Wright MR said of the Act:
That Act, as is well known, changed the law, because before that Act
if a re spread from a mans premises and did damage to adjoining
premises, he was liable in damage on the broad ground that it was
his duty at his own peril to keep any re that originated on his
premises from spreading to and damaging his neighbours premises.
The protection of the section is limited by the word accidentally. The
meaning of that is discussed in Filliter v Phippard, where it was held that
the section did not apply to a re due to the negligence of the defendant
or his servants.
148 The re in that case was caused by an unknown defect in the
electrical wiring system. There was no negligence established in relation
either to the installation or the maintenance of the electrical system. The
initial ignition was thus accidental. Nor, it seems, was there any negligence
in controlling the re once it had started, with the result that the statutory
defence succeeded. Indeed the case was all the more striking because the
damage was caused by water which had been deliberately applied in an
attempt to extinguish the re. Spicer v Smee [1946] 1 All ER 489 was
another case of a re starting in the electrical system. However, Atkinson J
held that the wiring had been negligently installed; and that in that state the
wiring was a nuisance. It was for that reason that the statutory defence
failed. The decision itself can be justied on the basis that the wiring had
been negligently installed. The nding of nuisance is, in my judgment, more
questionable.
149 In the H & N Emanuel case [1971] 2 All ER 835, immediately after
the passage I have quoted from Lord Denning MRs judgment in which he
said that at common law a person was not liable for re which escaped
without negligence, he added, at p 838:
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
re begins or spreads by accident without negligence. But that Act does
not cover a re which begins or is spread by negligence: see Filliter v
Phippard, Musgrove v Pandelis and Goldman v Hargrave.
150 In the same case Phillimore LJ said, at p 842: Since the Fire
Prevention (Metropolis) Act 1774 it is I think necessary to insert the word
negligently after the word acts. (Emphasis added.)
151 In Sochacki v Sas [1947] 1 All ER 344 the plainti lit a re in the
domestic grate in his room and went out one afternoon leaving the re
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alight. A spark jumped out of the re and set re to the oorboards. The re
spread to an adjoining room where it caused damage. Although there was
neither a reguard nor a fender, Lord Goddard CJ said that no negligence
was involved. He held that the principle in Rylands v Fletcher did not apply,
because although the re had been deliberately kindled, the kindling of the
re was an ordinary use of land. He continued, at p 345:
It is not the case of a re starting on one owners premises and
spreading to the premises of an adjoining owner. If a re is negligently or
improperly started by a person on his land, as, for instance, lighting a
bonre which spreads, he may be liable, not merely to an adjoining owner
who suers damage, but to any other person who suers damage.
If I happen to be on somebody elses land at a time when a re spreads to
that land and my motor car or property is destroyed, I have just as much
right against the person who improperly allows the re to escape from his
land as the owner of the land on which I happen to be. I do not doubt that
for a moment, but here the re was being used by a man in a replace in
his own room. There was an ordinary, natural, proper, everyday use of a
replace in a room.
152 There was no express discussion of section 86, but it is plain that
Lord Goddard CJ decided the case on the basis of negligence alone.
153 In Solomons v R Gertzenstein Ltd [1954] 1 QB 565 a re started as
a result of an electrical short circuit. That set re to some wood and in due
course to a stack of paper. Lord Goddard CJ held that section 86 applied.
He said, at pp 573574:
In my opinion it was a short circuit that set re to the wood in the
neighbourhood of the ventilator and that in turn set re to the stack of
paper. Pausing here, it does not appear that this paper ever burnt freely;
no doubt it caused a lot of smoke, and I accept the evidence that there was
some ame seen, but it was not that stack apparently that caused the
sudden sheet of ame which caused the real damage here. The cause of
that is obscure; the only explanation was that oered by the re ocers,
that the heating of the paint and varnish caused an accumulation of gas
which suddenly ignited and rushed upwards. However, I do not propose
to deal further with this because I cannot hold that placing packing paper
and cardboard cartons in this recess behind the balustrade was negligent.
Business of the sort carried on by the rst defendants necessitates having a
stack of packing and wrapping material at hand. This material is not
highly inammable like loose tissue paper or shavings would be. It is
common knowledge that it takes a good deal to get closely packed thick
paper well alight, though it will smoulder. But in any case I cannot see
how it can be negligent to store this paper in what was a convenient recess
any more than it would be to store it in one of the rooms occupied by the
rst defendants. They had no reason to suppose that there was likely to
be a short circuit which would re the panelling in the immediate
neighbourhood of the stack, which I may mention was never burnt
through. On the evidence before me I am not prepared to nd that the re
was caused by the negligence of any of the defendants, and I hold that it
was accidental and need only refer on this matter to Collingwood v Home
& Colonial Stores Ltd.
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154 Thus Lord Goddard CJ held that section 86 applied where a re
accidentally began and set re to material that was not readily inammable;
and that to store that material was not negligent. His process of reasoning
was the same as that in Sochacki v Sas. The case went to the Court of Appeal
[1954] 2 QB 243 where Lord Goddard CJs decision was reversed; but on a
completely dierent point.
155 However, where there is negligence liability attaches, even if the
negligence in question is that of an independent contractor. This is shown
by another decision of Lord Goddard CJ, this time sitting in the Court of
Appeal, in Balfour v Barty-King [1957] 1 QB 496. In that case the re
started as the result of the negligent use of a blow torch by an independent
contractor. The use of re had, therefore, been deliberate. The argument
for the successful plainti was that If negligence be shown, it matters
not against whom, the re is not accidental. Lord Goddard CJ said,
at p 504:
The precise meaning to be attached to accidentally has not been
determined, but it is clear from these last two cited cases that where the
re is caused by negligence it is not to be regarded as accidental.
Although there is a dierence of opinion among eminent text writers
whether at common law the liability was absolute or depended on
negligence, at the present day it can safely be said that a person in whose
house a re is caused by negligence is liable if it spreads to that of his
neighbour, and this is true whether the negligence is his own or that of his
servant or his guest, but he is not liable if the re is caused by a stranger.
Who, then, is a stranger? Clearly a trespasser would be in that category,
but if a man is liable for the negligent act of his guest, it is, indeed,
dicult to see why he is not liable for the act of a contractor whom he
has invited to his house to do work on it, and who does the work in a
negligent manner.
156 I come now to the important case Goldman v Hargrave [1967]
1 AC 645. A tree on Mr Goldmans land was struck by lightning and
caught re. He cleared a space round the tree of combustible material, and
arranged for the tree to be cut down. However, once it had been cut down
instead of putting out the re, he left it to burn itself out. Unfortunately it
did not, and it spread to Mr Hargraves land. The question was whether
Mr Goldman was liable. The Privy Council held that an occupier of land
was under a general duty of care, in relation to hazards, whether natural or
man-made, occurring on his land, to remove or reduce such hazards to his
neighbour. The existence of the duty must be based on knowledge of the
hazard, ability to foresee the consequences of not checking or removing it,
and the ability to abate it; and the standard of care required of the occupier is
founded on what it was reasonable to expect of him in his circumstances.
There are a number of important points that arise out of this case. First, the
Privy Council rejected the argument that Mr Goldman had adopted the re
as his own as suus ignisand had made use of it for his own purpose or
advantage. In my judgment this encapsulates the principle of ignis suus
that I have already discussed. It reinforces the proposition which I believe to
be correct, namely that a re that was never deliberately kindled fell outside
the principle of ignis suus. In order to count as ignis suus the re must
have been made for the purpose or advantage of the occupier. Second, the
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case was not one in which the occupier had brought a source of danger
(i e the re) onto his land. This is equally consistent with the rationale of
Rylands v Fletcher, viz that an occupier of land has brought something
dangerous onto his land for his own purposes. Third, the Privy Council held
that in the case of re there was no dierence between a re that started from
natural causes and one that had been started by human agency. Lord
Wilberforce put it thus, at p 661:
Their Lordships would rst observe, with regard to the suggested
distinction, that it is well designed to introduce confusion into the law.
As regards many hazardous conditions arising on land, it is impossible to
determine how they aroseparticularly is this the case as regards res.
If they are caused by human agency, the agent, unless detected in agrante
delicto, is hardly likely to confess his fault. And is the occupier, when
faced with the initial stages of a re, to ask himself whether the re is
accidental or man-made before he can decide upon his duty? Is the
neighbour whose property is damaged bound to prove the human origin
of the re? The proposition involves that if he cannot do so, however
irresponsibly the occupier has acted, he must fail. But the distinction is
not only inconvenient, it lacks, in their Lordships view, any logical
foundation. Within the class of situations in which the occupier is himself
without responsibility for the origin of the re, one may ask in vain what
relevant dierence there is between a re caused by a human agency, such
as a trespasser, and one caused by act of God or nature. A dierence in
degreeas to the potency of the agencyone can see but none that is in
principle relevant to the occupiers duty to act. It was suggested as a
logical basis for the distinction that in the case of a hazard originating in
an act of man, an occupier who fails to deal with it can be said to be using
his land in a manner detrimental to his neighbour and so to be within the
classical eld of responsibility in nuisance, whereas this cannot be said
when the hazard originates without human action so long at least as the
occupier merely abstains. The fallacy of this argument is that, as already
explained, the basis of the occupiers liability lies not in the use of his
land: in the absence of adoption there is no such use; but in the neglect of
action in the face of something which may damage his neighbour. To this,
the suggested distinction is irrelevant.
157 It is important to note that this passage is directed to a case in
which the occupier is without responsibility for the origin of the re: that is
to say the initial ignition. This is clear from the subsequent structure of the
Privy Councils advice because Lord Wilberforce went on to consider the
separate question of liability for the spread of the re. Thus the Privy
Council went on to consider whether, once the re had started, there was a
duty; and held that there was a duty to do what was reasonable in the
circumstances to prevent the spread of the re. This was precisely the
approach of Scrutton LJ in the Job Edwards Ltd case [1924] 1 KB 341.
On the facts Mr Goldman was negligent in having left the re to burn out,
rather than extinguishing it. The last point in the case was whether
Mr Goldman was entitled to rely on the statutory defence under section 86
(which applies in some Australian states). On that question Lord
Wilberforce said [1967] 1 AC 645, 664665:
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The words shall accidentally begin are simple enough, but the
simplicity is deceptive. Read literally they suggest that account need be
taken of nothing except the origin of the re and that given an accidental
beginning, no supervening negligence or even deliberate act can deprive a
defendant of the benet of the statute. But further reection suggests a
doubt both because such a result seems capable of producing absurdity
and injustice, and because of the inherent diculty of saying what the
expression any re is intended to mean. A re is an elusive entity; it is
not a substance, but a changing state. The words any re may refer
to the whole continuous process of combustion from birth to death,
in an Olympic sense, or reference may be to a particular stage in that
processwhen it passes from controlled combustion to uncontrolled
conagration. Fortunately, the Act has been considered judicially and, as
one would expect, the process of interpretation has taken account of these
considerations. In Filliter v Phippard 11 QB 347, 356, Lord Denman
explained the purpose of the earlier Act (6 Anne c 31, section 6) as being
to remove the supposed common liability of a person in whose house a
re originated which afterwards spread to his neighbours property and
held that it did not apply to a re caused deliberately or negligently. This
was carried further in Musgrove v Pandelis [1919] 2 KB 43, where a re
started accidentally in the carburettor of a car, but spread because the
chaueur negligently failed to turn o the petrol tap. The Court of
Appeal held that the Act did not apply. Bankes LJ put it that the Act
relieved an owner for a mere escape of re from his premises but did not
relieve him against a claim for damages for negligence. The re which
caused the damage was, he thought, not the spark which caused the initial
ignition, but the raging re which arose from the act of negligence. Their
Lordships accept this interpretation: it makes sense of the statute, it
accords with its antecedents, and it makes possible a reasonable
application of it to the facts of the present case, that is to say, that the re
which damaged the respondents property was that which arose on
March 1 as the result of the negligence of the appellant. The statutory
defence therefore fails.
158 It will be noted that Lord Wilberforce treated Musgrove v Pandelis
as having turned on negligence and refrained from endorsing any wider basis
for defeating the statutory defence. The decision in Goldman v Hargrave
can in my judgment be summarised thus: (i) an occupier of land is not liable
for the initial outbreak of re, whether due to natural causes or human
agency, unless he himself has brought the re onto the land; (ii) he has a duty
to do what is reasonable to prevent the spread of the re. If he fails to do
what is reasonable to prevent the spread of re he is negligent; (iii) if he is
negligent in preventing the spread of the re the statutory defence under
section 86 will fail. If not, it will succeed.
159 The law as expounded in Goldman v Hargrave has since been
accepted as being the law of England and Wales too: Leakey v National
Trust for Places of Historic Interest or Natural Beauty [1980] QB 485;
Bybrook Barn Garden Centre Ltd v Kent County Council [2001] LGR 239.
160 I turn now to consider a short line of cases about re that have
developed since Musgrove v Pandelis. E Hobbs (Farms) Ltd v Baxenden
Chemical Co Ltd [1992] 1 Lloyds Rep 54 was a case in which the use of a
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grinding machine in a barn emitted sparks that set combustible material

alight. The re spread to adjoining property. Sir Michael Ogden QC found
that the contractor who operated the grinding machine had been negligent,
with the result that the statutory defence under section 86 failed. Since
negligence was established, the decision is plainly correct. What he said
about Rylands v Fletcher was therefore obiter. In Johnson (trading as
Johnson Butchers Ltd) v BJW Property Developments Ltd [2002] 3 All ER
574 a re was deliberately kindled in a domestic grate. It spread to adjoining
property because a re brick lining to the chimney had been negligently
removed. As Judge Thornton QC put it, at para 44:
It follows that the defendant in this case is to be held vicariously liable
for the damage caused by the escape of re into and onto the claimants
premises since the re only escaped and caused damage because of the
negligent workmanship of the defendants independent contractor for
whom the defendant is to be held separately liable.
161 I agree that on the facts found in that case, section 86 was no
defence. I do not, however, agree with Judge Thornton QCs more general
observations on liability for the spread of re.
162 I have already mentioned Mason v Levy Auto Parts of England Ltd
[1967] 2 QB 530. MacKenna J followed Musgrove v Pandelis with obvious
reluctance. He recognised correctly that the principle of Rylands v Fletcher
could not be directly applied to a case where the occupier had not brought
the re onto the land. Nothing that the occupier had brought onto the land
had escaped. He therefore had to nd a modied and extended version of
the principle. The principle that he formulated was that an occupier of land
was liable if, at p 542:
(1) he brought onto his land things likely to catch re, and kept them
there in such conditions that if they did ignite the re would be likely to
spread to the plaintis land; (2) he did so in the course of some
non-natural use; and (3) the things ignited and the re spread.
163 This formulation has been followed in subsequent cases at rst
instance: see, for example, LMS International Ltd v Styrene Packaging and
Insulation Ltd [2005] EWHC 2065; Harooni v Rustins Ltd [2011] EWHC
1632 (TCC).
164 The unfortunate result of Musgrove v Pandelis compelled
MacKenna J reluctantly to extend the principle of Rylands v Fletcher. It is
equally unfortunate that in neither Cambridge Water Co v Eastern County
Leather plc [1994] 2 AC 264 nor the Transco case [2004] 2 AC 1 did the
House of Lords discuss the modied principle that had been applied to re
cases. But in the light of the Transco case the extension of the principle in
Mason v Levy Auto Parts of England Ltd was, in my judgment, a wrong
turning in the law. No extension of the principle in Rylands v Fletcher can
be justied. I would therefore overrule Mason v Levy Auto Parts of England
Ltd, a result that MacKenna J would no doubt have welcomed.
165 Where a person brings combustible materials onto his land, he may
well owe his neighbour a duty to take reasonable precautions to prevent
their combustion or to take reasonable precautions to prevent the spread of
re. The principle was well put by Lord Macmillan in Read v J Lyons & Co
Ltd [1947] AC 156, 172173:
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Every activity in which man engages is fraught with some possible

element of danger to others. Experience shows that even from acts
apparently innocuous injury to others may result. The more dangerous
the act the greater is the care that must be taken in performing it. This
relates itself to the principle in the modern law of torts that liability exists
only for consequences which a reasonable man would have foreseen. One
who engages in obviously dangerous operations must be taken to know
that if he does not take special precautions injury to others may very well
result . . . The sound view, in my opinion, is that the law in all cases
exacts a degree of care commensurate with the risk created.
166 In my judgment the law is as stated in Goldman v Hargrave [1967]
1 AC 645 at least as regards res that have not been deliberately kindled. An
occupier of land will not be liable to his neighbour for a re that begins
accidentally unless he is negligent in failing to prevent its spread. The
general test of negligence may entail the taking of special precautions where
the use in question involves the accumulation or storage of inammable or
readily combustible materials. But that is a question of fact to be decided on
a case-by-case basis. This conclusion is, I believe, also consistent with the
subsequent decision of the Privy Council in Leong Bee & Co v Ling Nam
Rubber Works [1970] 2 Lloyds Rep 247.
167 It may be said that the retention of a special rule of liability in the
case of re is justied as a matter of policy. But in my judgment that route is
barred by the Cambridge Water Co and Transco cases.
168 In the present case the recorder found that the primary source of the
re lay in the wiring of electrical appliances in the defendants unit.
However, he also found:
there is nothing to show that such a state of aairs was the result of
failing to maintain or keep in good order the electrical system itself, of
those electrical appliances that were located within Wyverns premises, as
opposed to something that may have arisen entirely by accident.
169 He also found that there was no allegation or evidence about what
(if anything) the defendant should have done to prevent the spread of the re
from reaching the tyres, and thereby involving them in the conagration.
He thus concluded that, subject to the principle in Rylands v Fletcher, the
defendant made good his defence under section 86. Having referred to a
number of case both on the principle in Rylands v Fletcher and the modied
principle applied to re cases, he concluded:
The only relevant activity was the storage of tyres. Was this
dangerous within the Rylands v Fletcher rule, i e did it constitute a
foreseeable and exceptional high risk of damage to [the claimants]
premises? Tyres are not in themselves ammable, and will not ignite
unless there is a sucient ame or heat source. It is, however, not
impossible for tyres to catch re (as obviously happened here), and if they
do ignite, they have a special re risk quality. This is that once alight they
may burn rapidly and intensively, such that they are dicult to put
out . . . If re broke out there was an exceptionally high risk of damage to
[the claimants] premises because of the rapidity and intensity of the re
that would be created by the tyres that the defendant had stored on
Wyverns premises.
680

Lewison LJ
[2013] 3 WLR
170 Although the recorder said that he drew support from Mason v
Levy Auto Parts of England Ltd [1967] 2 QB 530, in fact he went much
further than that case. One of MacKenna Js conditions for liability was that
the occupier brought onto his land things that were likely to catch re. This
was also the view of Judge Coulson QC in LMS International Ltd v Styrene
Packaging and Insulation Ltd [2005] EWHC 2065 and of Akenhead J in
Harooni v Rustins Ltd [2011] EWHC 1632. On the recorders ndings the
tyres were not likely to catch re. Thus although the scope of Rylands v
Fletcher has been narrowed each time the highest courts have considered it,
the recorder in fact extended it beyond any previous expression of the
principle. He imposed strict liability where it had not existed before.
Accordingly, even if I am wrong in thinking that the extended principle in
Rylands v Fletcher does not defeat a defence under section 86 against
liability for the consequences of a re that starts and spreads without
anyones negligence, in my judgment the recorder was wrong to hold the
defendant liable on the facts that he found.
Appeal allowed.
Permission to appeal refused.
20 February 2013. The Supreme Court (Lord Walker of Gestingthorpe,
Lord Sumption and Lord Carnwath JJSC) dismissed an application by the
claimant for permission to appeal.
MATTHEW BROTHERTON, Barrister

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623

Gore v Stannard (trading as Wyvern Tyres) (CA)

Gore v Stannard (trading as Wyvern Tyres)

2012 April 26;

Ward, Etherton, Lewison LJJ

Rylands v Fletcher Fire damage Liability Fire breaking out on defendants

A re broke out at the defendants business premises as a result of an electrical

Gore v Stannard (trading as Wyvern Tyres) (CA)

Collingwood v Home and Colonial Stores Ltd [1936] 3 All ER 200, CA

APPEAL from Mr Recorder Potts sitting in the Worcester County Court

Gore v Stannard (trading as Wyvern Tyres) (CA)

reliance on the rule in Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR

4 October 2012. The following judgments were handed down.

Gore v Stannard (trading as Wyvern Tyres) (CA)

vapours of his neighbours alkali works, is damnied without any fault of

Notwithstanding the many accolades which have been, and continue

Gore v Stannard (trading as Wyvern Tyres) (CA)

The facts in a little more detail

Gore v Stannard (trading as Wyvern Tyres) (CA)

was reasonably practicable the safety of any of the defendants employees

Gore v Stannard (trading as Wyvern Tyres) (CA)

As for Rylands v Fletcher, he noted:

the following well known requirements to the rule in order that

Gore v Stannard (trading as Wyvern Tyres) (CA)

of its dedicated storage facilities. This was non-natural use. Consequently

Gore v Stannard (trading as Wyvern Tyres) (CA)

Gore v Stannard (trading as Wyvern Tyres) (CA)

on the basis of the rule in Rylands v Fletcher, Lord Go of Chieveley none

Gore v Stannard (trading as Wyvern Tyres) (CA)

It may well be that, now that it is recognised that foreseeability of

Gore v Stannard (trading as Wyvern Tyres) (CA)

Gore v Stannard (trading as Wyvern Tyres) (CA)

exacerbated by the fact that many things not ordinarily regarded as

Gore v Stannard (trading as Wyvern Tyres) (CA)

Gore v Stannard (trading as Wyvern Tyres) (CA)

Gore v Stannard (trading as Wyvern Tyres) (CA)

Something had to be done. In 1707 the Fires Prevention (Metropolis) Act

No action, suit, or process whatsoever shall be had, maintained, or

It may be that, as Sir William Holdsworth in his A History of English

Gore v Stannard (trading as Wyvern Tyres) (CA)

An action for negligence

Gore v Stannard (trading as Wyvern Tyres) (CA)

Gore v Stannard (trading as Wyvern Tyres) (CA)

Bankes LJ, after stating the facts, proceeded as follows at p 46:

So Bankes LJ continued, at pp 4748:

Warrington LJ was of the same opinion. He held, at p 49:

Gore v Stannard (trading as Wyvern Tyres) (CA)

neighbour. The Act of Geo 3 [the Fires Prevention (Metropolis) Act

Duke LJ also agreed. He held, at pp 5051:

Romer LJ said, at p 208:

Gore v Stannard (trading as Wyvern Tyres) (CA)

And I respectfully agree with them.

Gore v Stannard (trading as Wyvern Tyres) (CA)

I am bound to conclude, therefore, that when their Lordships laid down

Gore v Stannard (trading as Wyvern Tyres) (CA)

the recorder erred. (6) Therefore Rylands v Fletcher liability is not

Gore v Stannard (trading as Wyvern Tyres) (CA)

Gore v Stannard (trading as Wyvern Tyres) (CA)

Gore v Stannard (trading as Wyvern Tyres) (CA)

Notwithstanding the many accolades which have been, and continue

the following well known requirements to the rule in order that

It may well be that, now that it is recognised that foreseeability of

No action, suit, or process whatsoever shall be had, maintained, or

I shall answer to my neighbour for anyone who enters my house by

And . . . no action, suit or process whatever shall be had, maintained

Blackburn J several times refers to the defendants duty as being the

If a person brings, or accumulates, on his land anything which, if it

The general rule of common law is correctly given in Fletcher v

Every activity in which man engages is fraught with some possible