William Feeney v Alberto Andreucetti
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 10 February 2015 |
| Neutral Citation | [2015] IEHC 63 |
| Court | High Court |
| Docket Number | [2012 No. 11854P] |
| Date | 10 February 2015 |
[2015] IEHC 63
THE HIGH COURT
BETWEEN
AND
Tort – Negligence – Damages & Restitution – Escape of fire – Liability of independent contractor – The Accidental Fires Act 1943 – Occupiers Liability Act 1995
Facts: Following the determination by the Court that the independent contractor working for the occupiers of a premise was liable for negligence of escape of fire at the premises of the plaintiff, the plaintiff now sought an order for determination of the liability of the first and second named defendants being the occupiers of the premises from which there was an escape of fire.
Mr. Justice Noonan held that all the defendants were liable for escape of fire from the premises of the first and second named defendants. The Court held that the principle that liability for the escape of fire exists without regard to fault had been recognized under English Law since time immemorial. The Court held that the occupier of any premises giving entry to any person into his premises would be presumed to have consented to all the acts of that person, which could not have been done without the permission of the occupier. The Court opined that while on the one hand, the Accidental Fires Act 1943 saved the occupier from any accidental fires, on the other hand the opinio juris regarding vicarious liability for escape of fire reflected a trend that the occupier of a premises would be held liable for the spread of fire on the premises of the neighbour though the escape was due to acts or omissions of an independent contractor.
1. The plaintiff is the owner and occupier of a dwelling house at number 44 Farmhill Road, Goatstown, Dublin 14. The first and second-named defendants are the owners and occupiers of the adjoining dwelling house, number 46. The houses are semi-detached.
2. On the 24th January, 2012, the third-named defendant, a building contractor, was carrying out works on the roof of number 46. Shortly after the completion of these works, a fire broke out on the roof of number 46 which spread to number 44 occasioning substantial damage to both properties. In the related proceedings, Andreucetti v Reilly, 1 gave judgment on the 19 th December, 2014 and found that the fire had been caused by the negligence of Mr Reilly.
3. In these proceedings, it is clear the plaintiff must succeed against Mr. Reilly given my findings in the previous case. It is common case that Mr. Reilly was an independent contractor retained by Mr. and Mrs. Andreucetti who argue that in the normal way they would have no liability for the negligence of such contractor. The plaintiff says that the Andreucettis are liable at common law for an escape of fire unless they can avail of s. 1 of the Accidental Fires Act 1943, which provides that there is no liability for the accidental escape of fire. The plaintiff argues that the escape in this case was not accidental but negligent and the Act does not apply.
4. The Andreucettis argue that whilst it may be the law in England that an occupier is liable for the escape of fire caused by the negligence of an independent contractor, the court is not bound to take the same view in this jurisdiction. They submit further that the English law is anomalous and ought not be applied as it would be unjust to impose liability on an innocent party and contrary to public policy as evidenced by the analogous provisions of the Occupiers' Liability Act 1995. They contend that the court is at large to determine this issue as it has not previously arisen for consideration in this jurisdiction.
5. It has for centuries been a feature of English common law that liability for the escape of fire exists without regard to fault. Ogus in his treatise "Vagaries in Liability for the Escape of Fire" (1969) 27 Cambridge Law Journal 104 notes that a rigid approach to liability for the escape of fire was adopted by the courts since at least the 1400s. In Balfour v. Barty-King [1957] 1 All ER 156, a decision of the English Court of Appeal, Lord Goddard C.J. referred to the strict stance taken in Beaulieu v Finglam ( 1)(1401), Y.B. 2 Hen. 4, which is translated in Fifoot's History and Sources of The Common Law and states that the court held that 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."
6. Lord Goddard considered the decision in Turberville v Stamp ( 2) (1697), ILd. Raym. 264; 12 Mod. Rep. 152, where the court held that:
"According to law and custom in England, every man is bound to keep his fire safely and securely by day and night, lest for want of due keeping any damage in any manner happen..."
7. Lord Goddard considered that these cases appear to assert an absolute duty to keep fire safe. He referred to Blackstone's Commentaries which said that this provision, which was necessary to exempt householders from liability not caused by negligence, seems to show that by the common law there was an absolute duty to prevent the escape of fire.
8. In 1707, the first statute on liability for fire was enacted, 6 Anne c. 31, section 6 thereof providing that there would be no liability on a person for fire damage caused to the property of another in circumstances outside his control. A similar provision was introduced in Ireland in 1715 in a statute entitled "An Act for preventing Mischief that may happen by Fire" ( 2 Geo. 1, c. 5) (Ir.) which provided in s. 1:
"Whereas by the common law of this kingdom every person or persons, in whose house, chamber, or out-house, any fire should accidentally happen, was compellable to make recompense and satisfaction for all damages suffered or occasioned thereby, to the impoverishment and utter ruin frequently of such persons: for remedy whereof, be it enacted ... that no action, suit, or process whatsoever, shall be had, maintained, or prosecuted against any person or persons, in whose house or chamber any fire shall ... begin, or any recompense or satisfaction be made by such person or persons for any damage suffered or occasioned thereby: any law, usage, or custom, to the contrary notwithstanding."
8. The Fires Prevention (Metropolis) Act 1774 re-enacted the provision in the Act of 1707 in England but with a broader interpretation of land. In Johnson v. BJW Property Developments Limited (2001) EWHCJ 1112, Judge Thornton QC, sitting in the Technology and Construction Court of the Queen's Bench Division of the High Court of Justice in England, gives a very useful summary of the historical development of the common law regarding the escape of fire:
"19. Since Anglo-Saxon times, the common law has treated fire damage caused by an escape of fire as being actionable by an adjoining owner without proof of fault. This liability was based on custom and on the special duty imposed on house holders to keep their fires safe. This liability became known in the Year Book cases as a liability for the escape of ignis suus. The strictness of this liability was the result of a land based feudal economy with closely knit domestic housing arrangements that were susceptible to catastrophic loss from fires that got out of control. The early history was well summarised by Lord Goddard CJ in [ Balfour] at page 502:
'From very early times it seems to have been recognised in our law that there is a special duty to guard against the escape of fire. It is perhaps not without interest to observe that in dealing with the meaning and derivation of "curfew", the Oxford English Dictionary points out that its imposition was not an act of political repression. It was a precautionary measure, that people should not retire for the night and leave their fires burning. The Encyclopaedia Britannica says that curfew was rung at Oxford in the days of Alfred the Great. In days when houses were built mainly of timber and when thatch was the commonest roofing, a spark might, and indeed in a country village may still, do almost incalculable damage.'
However, the losses resulting from the Great Fire of London in 1666 fuelled the growing belief that had already started to develop that it was anomalous that a man should be liable for fire damage that had not been caused by his fault. This led to statutory intervention, first in section 6 of the Act of 1707 (6 Anne, c. 31) and then by the section that replaced it, section 86 of the Fires Prevention (Metropolis) Act 1774 (14 Geo. 3, c. 78). Despite the apparently localised ambit of this latter Act, the critical section has always been interpreted as being of general application across England and Wales (Richards v Easto (1846) 15 M & W 246 at page 251, Parke B)."
9. It has long been recognised in this jurisdiction that there is strict liability at common law for the escape of fire. In Rutledge...
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