Sturge v Hackett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DIPLOCK |
| Judgment Date | 06 June 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0606-1 |
| Court | Court of Appeal |
| Date | 06 June 1962 |
[1962] EWCA Civ J0606-1
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice McNair Middlesex.
Lord Justice Seller
Lord Justice Danckwerts and
Lord Justice Diplock
Mr. R. MARVEN EVERETT. Q. C., Mr. J. GOLDIE and Mr. PETER OLIVER (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Appellant (Defendant).
Mr. PATRICK O'CONNOR, Q. C. and Mr. MICHAEL OGDEN (instructed by Messrs. Hewitt, Woollacott & Chown) appeared on behalf of the Respondent (Plaintiff).
LORD JUSTICE SELLERS; I will ask Lord Justice Diplock to deliver the judgment of the court.
in the summer of 1957 Colonel Hackett, the tenant of a first floor flat in Henbury Manor, Wimborne, while trying to smoke out a sparrow's nest in the cornice on the exterior of this eighteenth-century mansion set fire to the roof, burnt down the house and caused much material damage to the property of other tenants of flats in the building and of his landlords who occupied the ground floor.
Complicated and lengthy legal proceedings followed, but the only issue in this appeal is whether Colonel Hackett's liability for his admittedly negligent act falls within a clause of his insurance policy (which we will call the "occupier's liability clause") insuring him against "all sums for which the assured (as occupier of the said…. Flat) may be held legally liable" in respect of claims for damage to property of other persons, for which his maximum cover is £100,000; or whether it falls only within a personal liability extension clause for which his maximum cover is only £10,000.
It is rightly conceded by the respondent insurers that this question turns upon whether upon the facts an action against Colonel Hackett by those who suffered damage as a result of the fire could be framed in a form in which it would be a necessary averment that Colonel Hackett was the occupier of the flat; and that if an action could successfully be brought against him in that form it is irrelevant that a different cause of action, for example based on his personal negligence, could also be successfully alleged against him.
The appellants rely upon the old common law action of trespass on the case against an occupier of premises for allowing his fire to escape from his premises so as to cause damage to others. The history of this cause of action from its origin in Bsaulieu v. Finglam (reported in 1401 Year Book 2 Hen.4 f.18) to the present day was discussed in the judgment of the Court ofAppeal delivered by Lord Goddard, Lord Chief Justice, in ( Balfour v. Barty-King 1957 1 Queen's Bench page 497). In that case, as in the earlier twentieth-century case of Musarove v. Pandelia (1919 2 King's Bench page 43), the liability of the defendant was held to flow from his occupation of the premises upon which the fire which caused the damage started. Lord Goddard there stated the law as follows; "A person in whose house a fire is caused by negligence is liable if it spreads to that of his own or neighbor and this is true whether the negligence 19/ that of his servant or his guest, but.- he is not liable if the fire is caused by a stranger". Mr. O'Connor in tracing the history of the action since 1401 has sought to persuade us that this view is incorrect and that upon a true analysis of the cases liability was never based upon occupation of the premises where the fire started but upon the control by the defendant of his fire (igneous) and he points out that both Musgrove v. Pandelis and Balfour v. Barty-Kina could have been decided upon ordinary principles of vicarious liability, in the former case for the negligence of a servant, and in the latter case for the negligence of an independent contractor employed to carry out an intrinsically dangerous operation (contrast Honeywell & Stein v. Larkin Brothers. 1934 1 King's Bench page 191). It may be that Musgrove v. Pandelis and Balfour v. Barty-Kina could have been decided the same way on these alternative grounds; but they were not, and in this court at any rate we are bound by the actual ratio decidendi. It would thus not be open to us to accede to Mr. O'Connor's submission on this point even if we were persuaded of its correctness. Mr. O'Connor's argument was concise and sufficient to keep the point open but as far as it went we were not persuaded. While the expression "ignis suus" in the writ in Beaulieu v. Finalam may seem ambiguous in the twentieth century, after five hundred years of development of the doctrine of vicarious responsibility, the decision of the court on the oral pleadings reported in the Year Book makes it plain that the defendant was liable as householder for the escape offire from his premises; and that this was the true basis of the liability is confirmed nearly three hundred years later in ( Panton v; Isham 1685 3 Levins page 359) where upon the nonappearance of the defendant the plaintiff recovered damages against him upon the simple finding of the jury that the defendant was in possession of the stable in which the fire originated and from which it escaped.
In our view the learned judge was right in law in holding that the question whether Colonel Hackett's liability falls within the occupier's liability clause depends upon whether the fire that caused the damage started upon premises of which he was the occupier. The learned judge held that it did not. We have to decide whether he was right in so holding; and in reaching our decision we accept what we understand to be his findings of fact as to the structure of the house, the site of the birds' nest and the way in which the fire started.
Henbury Manor was a Georgian country house of a familiar architectural style. It was two storey's high with a pitched tiled or slated roof in which there were attic rooms with dormer windows. On the east or garden front and also on the north or entrance front, where Colonel Hackett's first-floor flat was situated, the wall in the centre of the facade was carried up above the normal roof line into a gable with a shallow-pitched roof at right-angles to the main roof. The main stylistic feature was on the east front, where the gabled part of the wall was brought forward and flat Roman Ionic columns were placed at each edge of the projecting portion and between the windows. A horizontal cornice ran across the top of these so as to give the effect, with the shallow-pitched gable above, of an Ionic en-tablature. The gable in the north front was subjected to similar though less elaborate architectural treatment. Here decorative slightly protruding stone quoins replaced the Ionic columns at the east and west ends of the gable. A wooden cornice was carried horizontally across the face of the table wall at the same level as the roof-line on either side of thegable, and extended at the top of the wall on either side of the gable along the whole of the north front and the east front. There was a similar ornamental cornice under the shallow eloping eaves of the gable itself.
The construction of the roof and of the ornamental cornice at the top of the wall of the north front at either side of the gable is of some importance. The wall was of brick without any cavity and was 27 inches thick. Let into the top course of bricks along the inside edge was a wooden wall plate six inches wide by three inches deep. Into this were notched the rafters of the main roof, the dimensions of which were not given in the evidence, and also the floor joists, 9 inches by 2 inches, of the attic flat. The plaster ceiling of Colonel Hackett's first floor flat was attached to the underside of these floor joists, which since the joists were let into the wall plate, which was 3 inches deep, must have been an inch or two and certainly not more than three inches below the top of the top course of bricks in the wall. The upper side of the joists on which the floor of the attic flat was laid...
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...and invited the drawing of a like inference in relation to Flat C. 84 In addition, Mr Sefi referred us to the decision of this court in Sturge v. Hackett [1962] 3 All ER 166, to the effect that, in the absence of provisions to the contrary in a lease, a demise of a part of a building divide......
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...and Lord Justice Diplock delivering the judgment of the Court of Appeal in Sturge v Hackett [1962] 1 Lloyd`s Rep 117 at p 124, and [1962] 1 WLR 1257. [Emphasis Applying the principles enunciated in these two cases in the construction of cl 19 of the subject policy, the learned trial judge r......
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...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. 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 Tuberville......