Emanuel (H. & N.) Ltd v Greater London Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE PHILLIMORE |
| Judgment Date | 08 March 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0308-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 1971 |
[1971] EWCA Civ J0308-2
In The Supreme Court of Judicature
Court of Appeal
Appeal of Greater London Council from judgment of Mr. Justice James on 20th July, 1970.
The Master of the Rolls (Lord Denning)
Lord Justice Edmund Davies and
Lord Justice Phillimore
Mr. JOHN DAVIES, Q.C., and Mr. C.W.L. WILSON (instructed by Mr. H.F.W. Wilson) appeared on behalf of the First Defendants, Appellants.
Mr. ROY BELDAM, Q.C., and Mr. ALAN LIPFRIEND (instructed by Messrs. Barlow Lyde and Gilbert) appeared on behalf of the Respondent Plaintiffs.
The Second Defendant did not appear and was not represented.
On 15th June, 1963, My. King, whom I will call a contractor, had his men on a site in Burdett Road, Stepney. They were there to remove two prefabricated bungalows. They lit a bonfire to burn the rubbish. Some of the sparks flew over on to the next-door premises belonging to the plaintiffs, H. & N. Emanuel Ltd., who were furniture makers. The sparks set fire to the buildings, and a couple of motor vans which were there, and much damage was done. There is no doubt that Mr. Ring's men were negligent and that he is responsible. But apparently he has no money: so Emanuels seek to recover their loss from the London County Council, now the Greater London Council, who are the owners of the site. They deny liability. I think it will ultimately be found that liability depends on whether they are "occupiers" of the site, and whether King and King's men were "strangers". But, before I consider the law, I will state the facts in a little more detail.
Towards the end of the last war the Government put up many prefabricated bungalows to house those in need, They erected them on land owned by the local Council. Their expected life was only ten years and, after the end of ten years, the local Council was entitled to ask the Government co remove them and to clear the land.
There were two prefabricated bungalows on this site near Burdett Road. They were, under the statutory provisions, to be regarded as affixed to the land and become part of the freehold. The L.C.C. managed them on behalf of the Government and were responsible to the Government for the safe custody of then and the fittings in them.
In 1962 the L.C.C. asked the Ministry of Housing for thebungalows to be removed. The Ministry gave their approval. The Ministry asked the L.C.C. to arrange for the gas, electricity and water to be cut off. The L.C.C. did so. The L.C.C. kept control of these prefabs pending their removal. They had their district foreman near by. He kept the keys. If anyone wanted to go there, they had to get the keys from him.
The Ministry of Housing asked the Ministry of Works to remove the prefabs. The Ministry of Works did it in this way: they sold the prefabs to a contractor, Mr. King. The contract contained special provisions whereby he was to remove the prefabs and leave the site clear and free from all rubbish. There were these specific terms:
"(a) No rubbish may be burnt on the site.
(b) The purchaser must not commence work on the site until he has in his possession the written notice of release of the houses issued by the Ministry of Works. The keys of the houses must be obtained from the local authority; who must be informed of the date on which it is proposed to commence dismantling."
The Ministry of works, on 5th June, 1963, issued a notice of release. It was addressed to the L.C.C.'s foreman. It asked him to release two of the prefabs on this site to the contractor, Mr. King. Mr. King went along to the foreman and collected the notice of release. He sent his men on to the site to remove the prefabs.
Soon after the men got on the site they started a bonfire so as to burn the rubbish. They put on it pieces of wood, mattresses, and so forth. They did not put it close to the road - Burdett Street, because that might cause trouble with the traffic. So they put it further back. But they made quite a big fire. On Saturday morning, 13th June, 1963, at about 11.30 a.m.,sparks were thrown up and went on the premises next door, and set them on fire. The total damage done is put at £12,528.
The evidence shows that, despite the stipulation in the contract. it is the regular practice of these contractors to burn the rubbish. One of the workmen, Mr. Groves, said:
"When we pull these prefabs down we always burn the fire in the rear. You couldn't do it in front because it was too near Burdett Road……. The wood we burnt was nothing over about 6 or 7 feet. Mostly door-posts and pieces of skirting, and that description. No thick timber of any description was burnt…… what we used to do, we used to start the fire off more or less after half an hour after we started work and burn it as we went along so the fire was never too big. It was standard practice."
The Ministry of Works were well aware of the practice. They had an officer, Mr. Stothard, whose duty it was to look into any complaints about fires. He said:
"It is part of my duty because if I do find bonfires I have to send off a letter to the contractor concerned calling attention to it…. I have had a lot of trouble with King's men over bonfires in the past."
The L.C.C. did not call their foreman, but it is reasonable to assume that he would know of the practice of the contractors and also that it was prohibited by the contract.
Such being the facts, I turn to consider the law. After considering the cases, it is my opinion that the occupier of a house or land is liable for the escape of fire 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. Finxham 1401) 2 Hen. 4, 18, pi. 6), which is well translated by Mr. Fifoot in his book on The History andSources of the Common Law, at page 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 Q. B. 496; and of a guest who negligently drops a lighted match. See Boulcott Golf Club Incorporated v. Engelbrecht in 1945 New Zealand Law Reports, page 556. The occupier is liable because he is the occupier and responsible in that capacity for those who come by his leave and licence. See Sturges v. Hackett (1962) 1 M. L. R. 1260.
But the occupier is not liable for the escape of fire which is not due to the negligence of anyone. Sir John Holt himself said in Turberville v. Stampe (1697) 1 Salk. 13, that if a man is properly burning up weeds or stubble, and, owing to an unforeseen wind-storm, without negligence, the fire is carried into his neighbour's ground, he is not liable. Again, if a haystack Is properly built at a safe distance, and yet bursts into flames by spontaneous combustion, without negligence, the occupier is not liable. That is to be inferred from Vaughan v. Menlove (1837) 3 Bing. N.C. page 468. So also if a fire starts without negligence owing to an unknown defect in the electric wiring: Colling wood v. Home & Colonial Stores Ltd. ( 1936) 3 A. E. R. 200; or a spark leaps out of the fireplace without negligence - ( Sochacki v. Sas 1947) A. E. R. 344. All those cases are covered, if not by the common law, at any rate by the Fire Prevention Act, 1774, which covers all cases where a fire begins or spreads by accident without negligence. But that Act does not cover a fire which begins or is spread by negligence: see ( Filliter v. Phinnard 1847) 11 Q. B. D. 347; and ( Musgrove v. Pandelis 19192 K.B. 43; and Goldman v. Hargrave (1967) 1 A.C. 645.
Nevertheless, as I have said earlier, the occupier is not liable if the outbreak of fire is due to the negligence of a "stranger". But who is a "stranger" for this purpose? In Beaulleu v. Fingham (1401) (2 Han. 4, 18, P1. 6) Mr. Justice Markham put this case:
"If a man from outside my household against my will sets fire to the thatch of my house or does otherwise per quod my house is burned and also the houses of my neighbours, I shall not be held to answer to them, because this cannot be said to be ill on my part, but against my will."
And in ( Turberville v. Stampe 1697), Sir John Holt said:
"If a stranger set fire to my house and it burns my neighbour's, no action will lie against me."
Who then is a stranger? I think a "stranger" is anyone who in lighting a fire or allowing it to escape acts contrary to anything which the occupier could anticipate that he would do: such as the person in ( Rickards v. Lothian 1913) A. C. 263. Even if it is a man whom you have allowed or invited into your house, nevertheless, if his conduct in lighting a fire is so alien to your invitation that he should qua the fire be regarded as a trespasser, he is a "stranger". Such as the man in Lord Justice Scrutton's well-known illustration:
"When you invite him to use the staircase you do not invite him to slide down the bannisters."
which was quoted by Lord Atkin in Hillen and Pettigrew v. I.C. I.(Alkali) Ltd. ( 1936) A.C. 65. It seems to me that the New Zealand case of Erikson v. Clifton in 1963, N.Z.L.R. 705, falls within this category. The school mistress could not possibly have any idea that the man who came to look at the garden would light a fire. It was alien to anything which she permitted him to do. He was in that respect a "stranger".
There has been much discussion about the exact legal basis of liability for fire. The liability of the occupier can be said to be a strict liability in this sense that...
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