In the recent case of Stannard v Gore [2012] EWCA Civ 1248 (judgment 4.10.12) the Court of Appeal took on the herculean task of reviewing several hundred years of case law in order to answer the following: Will a landowner be liable for the damage caused by fire which (through no fault of his own) ‘escapes’ from his land? Judgment runs to 170 paragraphs in 62 pages, and concludes with a Gilbert & Sullivan-esque ‘no never…well, hardly ever’.

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Mr Stannard owned a tyre fitting business on an industrial estate in Hereford. He kept about 3,000 tyres on the premises. At around 1815 on 4 February 2008 a fire broke out due to a faulty wire, and spread to the tyres. Tyres (it seems) are difficult to ignite but once lit burn well and are very difficult to put out. This particular fire was so ferocious that it totally destroyed Mr Gore’s neighbouring property.

Mr Gore argued that Mr Stannard was liable in negligence for allowing the fire to escape from his land. Alternately, he was strictly liable under the rule in Rylands v Fletcher LR 3 HL 330. The negligence claim failed at first instance but the Rylands v Fletcher claim succeeded. Mr Stannard appealed the second finding. 

Ward LJ considered the proper approach in an ordinary Rylands v Fletcher case, having regard to Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1:

  1. The defendant must be the owner or occupier of the 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.

Reversing the decision at first instance, Ward LJ held the rule of strict liability does not apply unless the ‘thing’ which escapes is that which is collected on the land. Mr Stannard kept tyres. The tyres did not escape; only the fire which grew from them. Tyres are not ‘exceptionally dangerous or mischievous’ things and the use of the land as a tyre fitting business was neither ‘extraordinary’ nor ‘unusual’.

Ward LJ did not discount the possibility that Rylands v Fletcher could apply in a fire case, but that would be very rare. Insofar as the 'troubling' case of Musgrove v Pandelis [1919] 2 KB 43 diluted the test for applying the rule, it was confined to its facts. The other judges were less gracious: For a masterclass in judicial trashing, see Lewison LJ at paragraph 144.

This case highlights how, and more importantly why, the rule in Rylands v Fletcher has been continually eroded by the developing tort of negligence. As Lord Hoffman put it in Transco at [39]: ‘It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse.