Law of Torts
Liability for Fire: The Occupier's Fire, the Accidental Fire Exception and the Overlap With Rylands
The old common law rule was severe. A man was answerable for a fire that began on his land and spread to his neighbour's, the action lying for the ignis suus, his own fire, without proof of any negligence at all. English statute cut the rule down in 1774 by protecting a person on whose land a fire begins accidentally, and the courts then narrowed the protection almost to vanishing point by holding that accidentally means a fire produced by mere chance, and does not cover one caused by negligence or kept going by it. India has no equivalent statute, so the older rule is less encumbered here, and fire claims are decided on negligence, nuisance and Rylands v. Fletcher, which between them reach almost everything the original rule did.
1. The Heads of Liability
The head | When it applies |
The common law rule of the occupier's fire | A fire begins on the occupier's land and spreads. Liability was strict, subject to the accidental fire exception |
Negligence | The fire was started, allowed to spread, or not extinguished, through a want of reasonable care |
Nuisance | The keeping or conduct of the fire is an unreasonable interference with a neighbour's use and enjoyment, or the occupier continued or adopted a fire hazard he did not create |
Rylands v. Fletcher | Fire, or a thing likely to catch fire, brought and kept on land in a non natural use, which escapes |
Absolute liability | Where the fire arises from a hazardous or inherently dangerous activity carried on by an enterprise: TORT 117 |
Breach of statutory duty | Fire safety obligations under the building, factory and municipal legislation, where a private right of action arises: TORT 152 |
Vicarious and non delegable liability | For fires caused by servants, and by independent contractors where the duty cannot be delegated: TORT 133 |
2. The Old Rule and the Accidental Fire Exception
- At common law the occupier answered for his own fire, and the action was brought on the custom of the realm without any allegation of negligence.
- The Fires Prevention (Metropolis) Act 1774, section 86, provided in England that no action should lie against a person on whose land a fire accidentally begins. Despite its title the section applies throughout England and not only in the metropolis.
- Filliter v. Phippard, (1847) 11 QB 347 construed the word narrowly, and that construction is the reason the protection means so little. An accidental fire is one produced by mere chance, or one incapable of being traced to any cause. A fire which is lit intentionally, or which spreads because of negligence, is not accidental within the section, whatever the parties may call it.
- The effect of that construction is to leave the occupier liable in almost every case in which a plaintiff can point to a cause. The protection survives only for the fire of unknown origin, and even there the occupier may be liable for failing to contain it once it started.
- India has no corresponding statute. The protection given by the 1774 Act is statutory and local to England, so it does not operate here as such, and the Indian cases proceed on the general principles of negligence, nuisance and Rylands rather than on the section and its exception.
3. Fire and Rylands v. Fletcher
📖 Musgrove v. Pandelis, [1919] 2 KB 43 Facts The defendant kept a motor car in a garage beneath the plaintiff's rooms. His servant started the engine, and petrol in the carburettor caught fire without any fault in the starting. The servant failed to turn off the petrol tap, which would have stopped the fire at once. The fire spread and destroyed the plaintiff's property. Held The defendant was liable. Ratio Keeping a motor car with petrol in its tank in a garage is a non natural use of land, and the rule in Rylands v. Fletcher applies to the escape of the fire. The statutory protection for an accidental fire does not assist a defendant where the fire, however it began, was allowed to spread through negligence: the fire that did the damage was not the fire that accidentally began but the fire that the servant failed to extinguish. |
- The case establishes two things: that fire is within Rylands where a dangerous thing has been accumulated in a non natural use; and that the accidental fire defence is defeated by negligence in dealing with the fire after it starts.
- Whether keeping a car is a non natural use today is doubtful, the decision belonging to 1919, and the case is now valued for the second proposition rather than the first.
- Ordinary domestic fires are a natural use of land, so a hearth fire, a kitchen fire or ordinary electrical wiring does not attract Rylands, and the claim must be in negligence or nuisance.
- An industrial accumulation of inflammable material is different, and there the non natural use is plain: TORT 115.
4. Fires Started by Others
- The occupier answers for fires caused by his servants on ordinary principles of vicarious liability: TORT 132.
- Balfour v. Barty King, [1957] 1 QB 496 extends it to independent contractors. Contractors thawing frozen pipes with a blowlamp set fire to lagging, and the fire spread to the adjoining house. The occupier was liable, the duty in respect of fire brought onto the premises being one he could not delegate.
- H. and N. Emanuel Ltd. v. Greater London Council, [1971] 2 All ER 835 states the principle in its modern form: an occupier is liable for a fire caused by anyone other than a stranger, a stranger meaning a trespasser or a person over whom the occupier has no control and whose presence and conduct he neither permitted nor could have anticipated.
- A fire started by a stranger does not absolve the occupier who then fails to deal with it. Once he knows or ought to know of the hazard, a duty to take reasonable steps arises.
5. Fires Arising Naturally: the Measured Duty
📖 Goldman v. Hargrave, [1967] 1 AC 645 Facts A tall redgum tree on the defendant's land in Western Australia was struck by lightning and caught fire. He had the tree felled and could have extinguished the fire with water, which was available. Instead he left it to burn itself out. The weather changed, the wind revived the fire, and it spread to neighbouring properties. Held The defendant was liable. Ratio An occupier owes a duty in respect of a hazard which arises on his land from natural causes, or from the act of a trespasser, of which he knows or ought to know. The duty is to do what is reasonable in the circumstances to prevent or minimise the risk to his neighbour. It is a measured duty, in that what is required is judged with regard to the particular occupier's means, resources and ability to abate, and a modest occupier is not required to do what only a wealthy one could. Here the defendant knew of the fire, had the means of putting it out, and chose a course that left the risk alive. |
- Sedleigh Denfield v. O'Callaghan, [1940] AC 880 is the companion authority for a hazard created by a trespasser, holding an occupier liable who continues or adopts a nuisance he did not create: TORT 139.
- The measured duty is a significant qualification. It is the one place in the law of negligence where the defendant's personal resources are taken into account in fixing what reasonable care required, and it is justified by the fact that the hazard was thrust upon him rather than created by him.
6. Where Fire Claims Arise in Practice
The situation | How it is framed |
A fire in a factory or godown spreading to adjoining premises | Negligence, nuisance and Rylands, with breach of the fire safety legislation |
A fire in a hospital, cinema, hotel or coaching centre | Negligence in the systems of escape, alarm, extinguishers and exits, and breach of the statutory fire safety requirements, with the occupier's duty to visitors: TORT 045 |
A fire spreading from an electrical fault | Negligence against the occupier, and against the supplier where the fault lay in the supply: TORT 107 |
A fire from a hazardous industrial process | Absolute liability under M.C. Mehta, and the Public Liability Insurance Act, 1991: TORT 117 |
Burning of stubble or refuse spreading to a neighbour's field | Negligence, nuisance, and the old rule of the occupier's fire |
A fire started by a trespasser and not put out | The measured duty in Goldman v. Hargrave, once the occupier knew or ought to have known |
A fire caused by a contractor working on the premises | Non delegable duty, following Balfour v. Barty King |
Fire from a locomotive or a vehicle | Negligence, and any applicable statutory provision governing the undertaking |
7. What to Plead
- Plead negligence, nuisance and Rylands together, since the classification is a question of law and they fail for different reasons.
- Plead the statutory fire safety obligations applicable to the premises, both as a breach of statutory duty where a private right exists and as evidence of the standard of reasonable care where it does not: TORT 152.
- Plead res ipsa loquitur where the origin of the fire is unknown, since fires do not ordinarily start in well conducted premises and the facts lie within the occupier's knowledge: TORT 127.
- Plead the failure to contain as well as the origin, because Musgrove shows that a defendant who escapes on the origin may still answer for the spread.
- Plead knowledge or means of knowledge where the fire arose naturally or from a stranger, which is what engages the measured duty in Goldman v. Hargrave.
- Plead the non delegable duty where a contractor was at work, following Balfour v. Barty King.
⚠ Why the old rule mattered and why its decline is less significant in India The rule that a man answers for his own fire was formulated in a world of timber buildings, thatched roofs and open hearths, where a single careless householder could destroy a street and where proving how a fire began was hopeless. Strict liability in that setting was not harshness but practicality: it placed the loss on the person who had the fire, because nobody else could possibly have prevented it and nobody could ever prove what went wrong. The 1774 Act was a response to a different problem, the growth of insurance and the unfairness of ruining a householder for a genuine accident, and Filliter v. Phippard then confined the relief so tightly that the practical position returned to something close to the original rule by a different route. For India the debate is largely beside the point, because the statute never applied here and the question has never been whether the occupier is protected but what he must be shown to have done or failed to do. The modern Indian fire case is therefore an ordinary one: it is about whether there were extinguishers that worked, exits that opened, wiring that had been inspected and a system that anybody was operating, and it is won on the statutory fire safety requirements and on res ipsa loquitur far more often than on any question about the rule in Rylands v. Fletcher. |
8. The Position Stated Shortly
1. At common law an occupier answered strictly for a fire that began on his land and spread, the action lying for his own fire.
2. The Fires Prevention (Metropolis) Act 1774 protects a person on whose land a fire accidentally begins, and applies throughout England.
3. Filliter v. Phippard construes accidental narrowly: a fire produced by mere chance or incapable of being traced to any cause, and not one caused or spread by negligence.
4. India has no equivalent statute, so fire claims here are decided on negligence, nuisance and Rylands v. Fletcher.
5. Musgrove v. Pandelis applies Rylands to fire and holds that the accidental fire defence is defeated by negligence in failing to extinguish it.
6. An ordinary domestic fire is a natural use of land and does not attract Rylands; an industrial accumulation of inflammable material does.
7. Balfour v. Barty King holds the duty in respect of fire brought onto premises to be non delegable, so a contractor's fire is the occupier's.
8. H. and N. Emanuel v. Greater London Council: the occupier is liable for a fire caused by anyone other than a stranger.
9. Goldman v. Hargrave imposes a measured duty in respect of a hazard arising naturally, judged with regard to the occupier's own means and ability to abate.
10. In practice the Indian fire case is won on the statutory fire safety requirements and on res ipsa loquitur rather than on the old rule.