Johnson (Trading as Johnson Butchers) v B.j.w. Property Developments Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 30 January 2002 |
| Judgment citation (vLex) | [2001] EWHC J1112-3 |
| Docket Number | Case Number: HT 01/0076 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 January 2002 |
[2001] EWHC J1112-3
In the High Court of Justice
Queen's Bench Division
Technology and Construction Court
His Honour Judge Thornton Q.c.
Case Number: HT 01/0076
Mr Richard Booth appeared for the claimant instructed by Hill Dickinson, Sun Court, 66/67 Cornhill, London, EC3V 3RN (Ref: IK(AJH).AS. Johnson)
Mr Paul Staddon appeared for the defendant instructed by Kinglsey Smith & Co, 81, 87, & 89 High Street, Chatham, Kent, ME4 4EE, DX 6718 Chatham (Ref: 8JJ/13/W1154/1)
This judgment was made in writing and was handed down by the court. For the purposes of paragraph 5.12 of 52PD-19 (Practice Direction—Appeals), this written judgment is to be taken as replacing an official recording and approved transcript of the judgment.
Key words: Strict liability for escape of fire; section 86 of the Fires Prevention (Metropolis) Act 1774; fire started in domestic grate; negligence; assimilation of liability in negligence and nuisance; vicarious liability for fire caused by negligence of independent contractor; escape of fire giving rise to liability in nuisance; extra hazardous operations; Rylands v Fletcher liability for escape of fire.
This claim arises out of a disastrous fire which started on the defendant's premises and spread to the claimant's premises causing extensive damage. The two premises are adjoining and are located in a terrace of houses at High Street, Newington, Sittingbourne, Kent. The claimant's premises at no 45/47 High Street consist of a butcher's shop on the ground floor of no 45 with private living accommodation both above at no 45 and in the adjoining premises no 47, the living accommodation of the two premises have been combined to form one residential unit. The adjoining premises are no 49 High Street and are owned by the defendant and were, in 1997 at the time of the fire, a vacant public house that was being refurbished, having been acquired earlier in that year by the defendant.
Both premises are mid-sixteenth century in origin. They were separated by a party wall consisting of two timber framework skins with the frames infilled with a lath and daub construction. This party wall was crossed by both horizontal and vertical timber beams that were embedded into the wall and which supported the floor boards and the structure of both premises. The fire had been caused by a domestic fire lit in the grate of the fireplace built into the fire breast which was itself built into the party wall in the ground floor lounge of the public house and which had caused adjoining timber members to smoulder. The interconnection of the timbers of both premises was such that this smouldering eventually caused timbers in the claimant's premises to cause flames to break out under or within the floorboards of a first floor bedroom adjoining the party wall. The fire started in the early hours of 14 February 1998. No-one was injured but the fire spread rapidly and eventually caused extensive damage to the claimant's premises and to their contents which caused loss of about £214,000.
The claim is brought against the defendant as the owner and occupier of the premises from where the fire started, spread and escaped and as the employer of an independent contractor whose work to the chimney breast and surround of the fire grate removed the fire and heat protection previously provided to certain timber structural members, thereby creating the conditions under which the fire in the grate was able to cause some timber fillets to start to smoulder. It was one of these fillets which ultimately caused the fire to start in the claimant's adjoining premises.
The evidence adduced at the trial consisted of witness statements from Mr Wilson, the defendant's managing director, and Mr Johnson, the owner and occupier of the damaged premises and the proprietor of the butcher's shop trading there. Mr Wilson was briefly cross-examined. The principal evidence was adduced by the claimant in the form of an expert's report from a fire expert, Mr Bourdillon of Dr J.H. Burgoyne and Partners. The contents had opinions expressed in this report were agreed. Mr Bourdillon had inspected both fire damaged premises on 17 February 1998, only two days after the fire. The report consisted of a thorough and conclusive account of the cause of the fire and I accept and adopt those conclusions in this judgment.
The Cause of the Fire
The public house has a ground floor lounge. When the claimant acquired these premises the fireplace had a Victorian surround. Mr Wilson showed Mr Young around the premises in November 1997. Mr Young is both an old acquaintance of Mr Wilson's and an antiques dealer. Mr Young mentioned that he had come across a fire surround that would be an ideal replacement for this surround. Mr Wilson inspected the proposed surround, liked it and agreed to buy it from Mr Young who also mentioned that he had installed a similar fire surround in his own home. Mr Wilson also inspected this fire surround, liked what he saw and decided that Mr Young was fully capable of undertaking the apparently simple building work that would be involved in the installation of the fire surround he was buying. He therefore also contracted with Mr Young to instal the fire surround and arranged to pay him £400 for the surround and a further £400 to instal it. Mr Young carried out the installation work soon afterwards.
The existing chimney breast had an opening which was about 400 mm wide. Its sides were lined with fire bricks. The fireplace it contained opened up into the chimney which was embedded into the party wall. The rear of the fireplace was protected by a fire curtain constructed of glass fibre which had been added a few years previously as an infill into the void between the double skin of the timber framed partitioning forming the party wall. This fire curtain had only been added by the previous owners of the public house in order to obtain a fire certificate. The new fire surround required, for full visual effect, a much larger opening. The surround also, again for visual effect, required the chimney breast to be widened so as to appear significantly wider than it was in its constructed state. Mr Young achieved this adaptation by enlarging the fire opening and by attaching a dummy extension to each side of the chimney breast. The enlargement work involved removing the fire brick lining to the two sides of the fireplace and rendering the underlying brickwork with a render face which was taken up a short distance into the chimney itself. The dummy extension was made of a timber and stud rectangular frame which was built against the two sides of the chimney breast and then plastered over. This extended piece left a void within it positioned against the existing side of the chimney breast and the existing external face of the party wall against which the chimney breast abutted. The extension, therefore, sat in the rectangular corner made by the side of the breast and the party wall. The resulting visual effect was of a chimney breast which was wider than before and with a wider fire place opening.
The original chimney breast had been constructed with a number of timber fillets embedded into the brickwork. These lengths of timber were located so that they ran from the internal faces of the brickwork within the fireplace to the edges of the sides of the chimney breast with the internal end of the fillet abutting the fire brick lining and the external end abutting the existing plaster covering of the side wall of the chimney breast. Mr Young's installation work affected these timber fillets in two material respects. Firstly, the internal end of each fillet was exposed by the removal of the fire brick lining of the fireplace. The protection provided by those bricks was replaced with a thin layer of facing plaster. Secondly, the external end of each fillet had placed next to it part of the timber frame of the dummy extension that was being added to each side of the chimney breast. Embedded into the party wall were a number of structural timbers.
The consequence of this arrangement was that there was a potential fire path made of timber that lead directly from the grate through the side wall of the chimney breast to the timber studwork of the extension and on to timber structural members embedded into the party wall which in turn connected to the timber structural members of the adjoining premises including the connecting floor boards and other internal timbers. This potential fire path was not arrested by the fire curtain since the timbers within the party wall associated with the public house were not completely separated from those of the adjoining structure by the fibre glass curtain infill.
After Mr Young had installed the fire surround, he successfully lit a fire in the grate to demonstrate to Mr Wilson that the surround, fireplace and grate were satisfactory. The internal redecoration of the lounge and other rooms then continued. Some of this work was undertaken by a Mr Andrews who, on 13 February 1998, some weeks after Mr Young had installed the new fire surround, lit a fire in the grate to keep him warm whilst he was working. He ceased work in the early afternoon, extinguished the fire and left the premises unoccupied. There was no unusual smell or other untoward signs. The outbreak of fire within the adjoining premises was not first noticed until about 2.00 am the following morning.
It is now accepted how the outbreak of fire occurred. At least two of the timber fillets linking the side faces of the fire place with the cavity erected by Mr Young at each side of the chimney breast were exposed to heat sufficiently to cause them to ignite and slowly to smoulder along their entire length. This smouldering eventually caused part of the timber studwork within...
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