Possible but very unlikely to apply
 EWCA Civ 1248
Although liability for fire damage in principle fell within the rule in Rylands v Fletcher, it was unlikely in practice that cases involving this type of damage would be brought within the rule. It did not do so in this case.
W carried on a tyre fitting business. Tyres were stored on racks and were tightly packed in and piled up high in “chimneys”. C’s premises were behind W’s. At the time of the fire there were approximately 3,000 tires stored inside and outside the building. Fire broke out in the workshop after it had been locked up for the night. The source of the fire was accepted to be an electrical fault. The fire spread fast and C’s property was damaged.
The expert evidence was that tyres are not themselves flammable in their normal state, but that if a primary fire has developed and intensified it could produce sufficient heat or flame to ignite rubber composite tyres. Once alight the fire in the tyres would spread quickly and be difficult to put out.
The trial judge held that the claim in negligence failed but that the claim in strict liability succeeded under the rule in Rylands v Fletcher (1865-66) L.R. 1 Ex. 265. The primary cause of the fire was the wiring but there was nothing to show failure to maintain or keep the wires in good order. The Fires Prevention (Metropolis) Act 1774 limited a defendant’s liability to non-accidental fires. However, the judge took the view that when a fire arose from something dangerous that the defendant had brought onto his land there could be nothing accidental about any fire that arose as a result, and Rylands v Fletcher continued to apply with full force, although it was the fire itself that escaped rather than whatever caused the fire to arise in the first place. He concluded that there was plainly an escape within the meaning of the rule.
W appealed to the Court of Appeal, which allowed the appeal and dismissed the claim. The question for the court was whether the judge erred in his application of the test for strict liability under the rule in Rylands v Fletcher as applied to fire cases. One of the major difficulties was that the House of Lords in Transco v Stockport MDC  1 AC 1 had analysed and clarified the law on the rule in Rylands v Fletcher, but had not dealt with the issue of whether the rule extended to fire cases. Ward LJ extracted the principles from Transco and previous case and summarised them as follows:
“1. The defendant must be the owner or occupier of the land;
2. He must bring or keep or collect an exceptionally dangerous or mischievous thing on his land;
3. He must have recognised or ought reasonably to have recognised, judged by the standards appropriate at the relevant place and time, that there is an exceptionally high risk of danger or mischief if that thing should escape, however unlikely an escape may have been thought to be;
4. His use of his land must, having regard to all the circumstances of time and place be extraordinary and unusual;
5. The thing must escape from his properly into or onto the property of another;
6. The escape must cause damage of a relevant kind to the rights and enjoyment of the claimant’s land;
7. Damages for death or personal injury are not recoverable;
8. It is not necessary to establish the defendant’s negligence but an Act of God or the act of a stranger will provide a defence.”
He looked at the decision in Transco and said that he was bound to conclude that liability for escape of fire was not excluded by the guidance in that case.
However he went on to say that cases of fire damage are likely to be very difficult to bring within the rule because it is the “thing” which had been brought onto the land which must escape, not the fire which was started or increased by the “thing”. While fire may be a dangerous thing, the occasions when fire as such is brought onto the land may be limited to cases where the fire has been deliberately or negligently started by the occupier or one for whom he is responsible. In any event starting a fire on one’s land may well be an ordinary use of the land.
Applying the test (set out above) he concluded that the tyres did not escape and the judge at first instance was wrong to say that there had been an escape of fire that brought the case within the rule.
Since the 1940s no fire damage case under the Rylands rule has succeeded where a concurrent negligence claim has failed. Anyone considering litigating under the Rylands rule should consider the judgment in Transco. The following words of Lord Bingham in that case provide a salutary warning:
- “Bearing in mind the historical origin of the rule, and also that its effect is to impose liability in the absence of negligence for an isolated occurrence, I do not think the mischief or danger test should be at all easily satisfied”.