Gore v Stannard (trading as Wyvern Tyres)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Ward,Lord Justice Etherton,Lord Justice Lewison
Judgment Date04 October 2012
Neutral Citation[2012] EWCA Civ 1248
Date04 October 2012
Docket NumberCase No: B2/2011/2377

[2012] EWCA Civ 1248

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WORCESTER COUNTY COURT

MR RECORDER POTTS

0HR00229

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Etherton

and

Lord Justice Lewison

Case No: B2/2011/2377

Between:
Mark Stannard (t/a Wyvern Tyres)
Appellant
and
Robert Raymond Harvey Gore
Respondent

Jonathan Waite QC and Michele de Gregorio (instructed by DAC Beachcroft LLP) for the appellant

Philip Rainey QC and Nicholas Isaac (instructed by Beaumonts Solicitors) for the respondent

Hearing date: 26th April 2012

Lord Justice Ward
1

Every law student is likely to remember how Mrs Donoghue suffered when a snail in a state of decomposition floated into her glass from the bottle of ginger beer manufactured by Mr Stevenson. Almost as memorable must be the case of Mr Ryland's reservoir bursting and flooding Mr Fletcher's 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:

"We think that the true rule of law is, that the person who for his own purposes brings onto 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 plaintiff's default; or perhaps that the escape was the consequence of vis major or the act of God; but as nothing of this sort is here, it is unnecessary to enquire what excuse would be sufficient. 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 flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisesome vapours of his neighbour's alkali works, is damnified without any default of his own; but it seems 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 confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining 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, water or filth, or stench," see Fletcher v Rylands (1866) LR 1 Ex 265, 279/280.

Whilst entirely concurring with that opinion, Lord Cairns, the Lord Chancellor, 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 H.L. 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 field are more familiar, or have attracted more academic and judicial discussion, than Rylands v Fletcher", see Transco v Stockport MDC [2004] 2 AC 1 at [3].

It was subjected to even more withering criticism by Mason C.J. and the majority of the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at [18] (though it is fair to say that the criticisms were not entirely accepted by the House of Lords in Transco):

"Notwithstanding the many accolades which have been, and continue to be, lavished on Blackburn J's judgment ((see, e.g., Wigmore, (1894) 7 Harvard Law Review 315, 383, 441 at 454: "the master-mind of Mr Justice Blackburn"; Newark, " The Boundaries of Nuisance", (1949) 65 LQR 480 at 487: "his great judgment"; Salmond and Heuston on the Law of Torts, 20th ed. (1992) at 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 at 736 per Blackburn J: "the general rule of common law".) Indeed, it has been all but obliterated by subsequent judicial explanations and qualifications. …"

In Transco itself Lord Hoffmann did say 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."

3

Now we have another occasion to labour. How, if at all, does the rule apply where the damage to the claimant's land is caused by the "escape" of a fire which raged through the defendant's 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 fitter. On 22nd August 2011 Mr Recorder Potts sitting in the Worcester County Court held that all the requirements of Rylands v Fletcher were satisfied and accordingly judgment for the claimant was entered with damages to be assessed. The defendant now appeals.

The facts in a little more detail

4

The defendant carried on business as Wyvern Tyres supplying, fitting and balancing car and van tyres. The business was conducted at Unit 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 fitting the tyres, vulcanising them and balancing them. To the side were two small offices. 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 claimant's premises were behind the defendant's. 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 claimant's premises from the defendant's. It was difficult to know how many tyres were held by the defendant but the Recorder was satisfied that at the material time about 3,000 tyres were stored in and outside the building.

5

Having heard the evidence of experienced former fire officers, the Recorder concluded that tyres have recognised particular characteristics so far as concerns fires and fire fighting as follows:

"(a) They are not in themselves flammable, and in their normal state will not ignite unless there is sufficient flame or heat from another source.

(b) Once however a primary fire has developed, and intensified it can produce sufficient heat or flame to ignite rubber composite tyres.

(c) If tyres catch fire then combustion develops rapidly depending on the quantity of tyres present and how they are stored.

(d) Once fire takes hold of tyres they are difficult to put out."

6

A fire did break out at about 6.15 pm on 4th February 2008 some time after the defendant had secured the premises, set the alarms at 4.50 pm and left the site. It seems that the fire had started in the front workshop section and had quickly intensified. Such was its severity that ten pumping fire appliances attended at the scene with three other special vehicles, a command unit, Ariel ladder platform and water carrier. Once the fire took hold its intensity grew rapidly. By 19.55, just over an hour after the original attendance, the entire Wyvern Tyres unit was fully ablaze; it was already unlikely that the claimant's 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 findings:

"4. I am … satisfied on the balance of probabilities that the fire originated in Wyvern's 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 office and reception, and thence to the unit next door occupied by the double glazing business, and to the rear into Mr Gore's (the claimant's) premises which adjoined directly onto Wyvern's premises, the two being separated by what appears from Mr Gore's plan to be simply a single skin of brick."

The Recorder accepted the evidence of the fire officer who attended the fire that the cause of the fire was "something occurring in the wiring and appliances within Wyvern's premises". Thus he accepted that the primary source was "electrical".

7

The Recorder asked whether the tyres made a difference. 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 fire by the witnesses, including fire officers, is its intensity and severity. … This was a fire which spread with great rapidity and intensity. Indeed it was so aggressive that the Fire Service plainly had difficulty in bringing it under control, and could only do so some hours after they had first 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...

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7 cases
  • William Feeney v Alberto Andreucetti
    • Ireland
    • High Court
    • 10 February 2015
    ...21 21. For a recent exposition of the development of the law in this area, see the judgment of the Court of Appeal in Stannard v. Gore [2012] EWCA Civ 1248 and in particular the very detailed judgment of Lewison Conclusions 22 22. Counsel for the Andreucettis, Mr. Walsh SC, argues that the ......
  • William Feeney v Alberto Andreucetti
    • Ireland
    • High Court
    • 10 February 2015
    ...21 For a recent exposition of the development of the law in this area, see the judgment of the Court of Appeal inStannard v. Gore [2012] EWCA Civ 1248 and in particular the very detailed judgment of Lewison L.J. Conclusions 22 Counsel for the Andreucettis, Mr. Walsh SC, argues that the cour......
  • Webb and Webb v Eustace Auto Supplies Ltd and Quammie
    • St Vincent
    • High Court
    • 6 April 2017
    ...the categories of activities which are naturally carried out on land in that vicinity. 22 In Gore v. Stannard (trading as Wyvern Tyres), [2014] Q.B. 1 Ward, L.J. distilled the applicable legal principles which the court considers in making determinations about that issue. He pointed out th......
  • Nugent v Fogarty
    • Ireland
    • High Court
    • 30 July 2015
    ...1 QB 496 as relied upon by the plaintiff. It is submitted that in the recent English Court of Appeal decision of Stannard v Gore [2012] EWCA Civ 1248 Lewison LJ conducted a detailed review of the law and arrived at the same conclusions as these earlier cases. 30 In light of the foregoing, c......
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