Nugent v Fogarty
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 30 July 2015 |
| Neutral Citation | [2015] IEHC 523 |
| Docket Number | [2014 No. 4613P] |
| Court | High Court |
| Date | 30 July 2015 |
[2015] IEHC 523
[2014 No. 4613P]
THE HIGH COURT
Damages & Restitution – Escape of fire – Negligence – The Accidental Fires Act, 1943 – meaning of term ‘accidental fires’
Facts: Following the judgment of the Court that the defendant was responsible and negligent for the damage caused to the plaintiff owing to the fire that occurred on the defendant's dwelling, the parties now came to the Court for the interpretation and application of the Accidental Fires Act, 1943 in the subject case. The plaintiff asserted that the fire accidentally occurring implied that there was no negligence or want of care on part of the defendant. The defendant contended that negligence could arise in the absence of an intention and unless the acts of the defendant could be categorised as deliberate and intentional, he would not be held liable.
Mr. Justice Kearns P. held that the plaintiff would succeed in its arguments that it was the negligent action of the defendant in keeping the flammable materials nearby downlighters that ultimately caught fire. The Court held that negligence acts could not be said to be accidentally occurring so as to preclude the plaintiff from bringing a suit under the Accidental Fires Act, 1943. The Court observed that even though the defendant did not intend to store flammable materials in the vicinity of downlighters, she was aware of the propensity of the downlighters to overheat and hence, she was under a duty to take reasonable care of the belongings on her premises.
These proceedings relate to liability for a fire which occurred on the defendant's dwelling house premises on or about the 27th July, 2010. The plaintiff's claim against the defendant is for damages for loss and damage suffered by the plaintiff to his adjoining dwelling house by reason of the negligence of the defendant.
The plaintiff is the owner of the premises at 125 Coolevin, Ballybrack, Co. Dublin. The defendant is the owner and occupier of the premises at 126 Coolevin, Ballybrack. The two properties adjoin one another in a row of terraced houses.
On or about the 27th July, 2010 a fire broke out in the attic of the defendant's property and spread to the plaintiff's property, causing considerable damage. Damages were agreed between the parties in the sum of €96,748.43. There was no dispute between the relevant experts who attended and examined the scene as to both the seat and proximate cause of the fire. The fire broke out in the attic at a point adjacent to downlighter fittings and was caused by plastic bags containing clothing being placed on the attic floor close to such a fitting. The lower part of the downlighters was in the bathroom ceiling. The heat generated by the appliance caused one of the bags of clothing to ignite.
By letter dated 10th September, 2010 Mr. Ian Doyle of OSG Chartered Loss Adjusters, on behalf of the defendant, wrote to Mr Declan Feely of Cunningham Lindsey Chartered Loss Adjusters, for the plaintiff, indicating that ‘we wish to advise that OSG are not going to pursue the manufacturer of the appliance for recovery of the Insurer's outlay as the cause of damage has been confirmed as being accidental in nature…Under the Accidental Fires Act 1943 no recovery is possible in this instance due to the accidental nature of the damage as well as there being no negligence on the part of the policyholder or her family.’
The matter came before this Court on 23rd June 2015 and evidence was heard from the defendant and her daughter as well as the experts who visited the site and prepared reports. The Court ruled that the fire was caused due to the negligence of the defendant or her daughter. The bags contained the clothing of the defendant's recently deceased husband and had undoubtedly been placed in the attic by either the defendant or her daughter. There was evidence from both that the deceased had warned both of the dangers of leaving anything flammable in the vicinity of the downlighter fittings in the attic floor.
Negligence having been established, the matter was then adjourned to allow the parties time to prepare legal submissions in relation to the interpretation and application of the Accidental Fires Act, 1943. It is this issue with which this decision is concerned.
Section 1 of the 1943 Act deals with the restriction on legal proceedings in respect of accidental fires and provides as follows –
1.—(1) Where any person (in this section referred to as the injured person) has suffered damage by reason of fire accidentally occurring (whether before or after the passing of this Act) in or on the building or land of another person, then, notwithstanding any rule of law, the following provisions shall have effect, that is to say:—
(a) no legal proceedings shall, after the passing of this Act, be instituted in any court by the injured person or any person claiming through or under him or as his insurer against such other person on account of such damage;
(b) if, in case the fire occurred before the passing of this Act, any such legal proceedings were instituted after the 16th day of November, 1942, and before the passing of this Act, and are pending at such passing, such legal proceedings shall be discharged and made void, subject to such order as to costs as the court in which such legal proceedings are pending or a judge thereof thinks fit to make.
(2) Nothing contained in sub-section (1) of this section shall be construed as affecting legal proceedings for the enforcement of any covenant or agreement contained in any lease or letting of a building or land.
(3) In this section the word ‘ building’ includes any structure of whatsoever material or for whatever purpose used.
Counsel for the plaintiff submits that the crucial words in section 1 are ‘fire accidentally occurring’. It is submitted that it seems clear that the phrase “accidentally” means without negligence and that this view was expressed in McMahon & Binchy's Law of Torts as follows –
‘It seems clear that the 1943 Act confers immunity (in the absence of negligence on the part of the Defendant) even where there has been no spread of fire from the Defendant's premises to those of the victim…’
Counsel relies on the recent decision of Noonan J. in Feeney v Andreucetti & Ors. [2015] IEHC 63 where the cause of a fire was the omission of a building contractor carrying out works on an adjoining property. Noonan J. referred to the decision of the English Court of Appeal in Balfour v. Barty-King [1957] 1 All ER 156 where Lord Goggard CJ cited the following remarks from Beaulieu v Finglam (1)(1401), Y.B. 2 Hen. 4–
‘…[a man] shall answer to his neighbour for each person who enters his house by his leave or knowledge, or is a guest, if he does any act, with a candle or aught else, whereby his neighbour's house is burnt.’
Counsel submits that this absolute duty of care which was placed on the occupier at common law was modified initially by the 1707 Statute, introduced in Ireland in 1715 as “An Act for preventing Mischief that may happen by fire’.
In Feeney, the court considered the meaning of the term “accidentally” and noted the following views of Lord Goddard in Barty-King –
‘The precise meaning to be attached to “accidentally” has not been determined, but it is clear from these last two cited cases that where the fire is caused by negligence, it is not to be regarded as accidental. Although there is a difference of opinion among eminent text writers whether at common law the liability was absolute or depended on negligence, at the present day it can safely be said that a person in whose house a fire is caused by negligence is liable if it spreads to that of his neighbour, and this is true whether the negligence is his own or that of his servant or his guest, but he is not liable if the fire is caused by a stranger.’
Counsel submits that the position of the defendants in the Feeney case was much stronger as they had hired an independent contractor to carry out works. However, in the present case, only the defendant and her family had access to the attic where the fire originated. In addition, the danger posed by the downlighters was well known to the family and there does not appear to be any reason why the property which ignited could not have been stored safely. Unless there were exceptional reasons for doing so, it was submitted that the Court should not depart from the views so recently expressed by a colleague judge in the High Court.
It is submitted that it does not matter whether the bag of clothing was placed on top of the downlighter or nearby and that no sensible explanation has been offered as to how property stored at a different portion of the attic could have moved to the point where they came into contact with the down-lighters. The presence of the downlighters was a permanent hazard and as the risk was known to the family there was a requirement to ensure safety by making sure that there was a zone of separation between items such as flammable bags of clothing and the source of heat. It is submitted that in taking into account what is meant by “non-accidental” or “negligent” the Court is entitled to weigh in the balance the enormous risk which was caused by placing flammable material so close to a source of heat.
In the case of Ramblers Way v Mr. Middleton Garden Shop [2012] IEHC 473 an electric heater had been left switched on in the vicinity of flammable materials. The person concerned had not forgotten to switch off the heater but rather, had turned the thermostat to zero as opposed to plugging out the device altogether. The court held that the fire did not accidentally occur and that the defendant...
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