(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would burn itself out. The fire spread to neighbouring property.
Held: An occupier of land is under a general duty of care in relation to hazards, whether natural or man-made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures. Risks such as the spread of fire are not ones which, without more, call for the imposition of any risk based liability; liability if any must be based upon some antecedent creation of risk or some subsequent fault.
Lord Wilberforce said: ‘the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive’. And ‘one may say in general terms that the existence of a duty must be based upon a hazard, ability to foresee the consequences of not checking or not removing it, and the ability to abate it.’
The occupier here was in breach of his duty of care for failing to extinguish a fire which had started by natural causes. The defendant was found to be negligent because he chose not to put the fire out, but to let it burn itself out instead. This erroneous decision allowed a wind to revive the fire which then spread to the plaintiff’s property.
In the case of fire there was no difference between a fire that started from natural causes and one that had been started by human agency. Lord Wilberforce said: ‘Their Lordships would first observe, with regard to the suggested distinction, that it is well designed to introduce confusion into the law. As regards many hazardous conditions arising on land, it is impossible to determine how they arose – particularly is this the case as regards fires. If they are caused by human agency, the agent, unless detected in flagrante delicto, is hardly likely to confess his fault. And is the occupier, when faced with the initial stages of a fire, to ask himself whether the fire is accidental or man-made before he can decide upon his duty? Is the neighbour whose property is damaged bound to prove the human origin of the fire? The proposition involves that if he cannot do so, however irresponsibly the occupier has acted, he must fail. But the distinction is not only inconvenient, it lacks, in their Lordships’ view, any logical foundation.
Within the class of situations in which the occupier is himself without responsibility for the origin of the fire, one may ask in vain what relevant difference there is between a fire caused by a human agency, such as a trespasser, and one caused by act of God or nature. A difference in degree – as to the potency of the agency – one can see but none that is in principle relevant to the occupier’s duty to act. It was suggested as a logical basis for the distinction that in the case of a hazard originating in an act of man, an occupier who fails to deal with it can be said to be using his land in a manner detrimental to his neighbour and so to be within the classical field of responsibility in nuisance, whereas this cannot be said when the hazard originates without human action so long at least as the occupier merely abstains. The fallacy of this argument is that, as already explained, the basis of the occupier’s liability lies not in the use of his land: in the absence of ‘adoption’ there is no such use; but in the neglect of action in the face of something which may damage his neighbour. To this, the suggested distinction is irrelevant.’
Wilberforce, Perason, Morris of Borth-y-Gest, Reid LL
[1967] 1 AC 645, [1966] 3 WLR 513, [1966] 2 All ER 989, [1966] UKPC 2, [1966] UKPC 12
Bailii, Bailii
Australia
Citing:
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited by:
Cited – Thames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
Cited – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
Cited – Gabriel v Kirklees Metropolitan Council CA 24-Mar-2004
The claimant (aged 6) sought damages after being hurt when other children playing on a building site threw stones from the site, hitting him as he passed by.
Held: The case raised questions of law and it was incumbent on the judge to provide . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Cited – Stockley v Knowsley Metropolitan Borough Council CA 1986
A council owned a two-storey building divided into four flats, one of which was occupied by the plaintiff. It failed to prevent frozen water pipes in the roof of the building (which was outside the demise to the plaintiff) from bursting and flooding . .
Cited – Bybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .
Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Cited – Lambert and Others v Barratt Homes Ltd (Manchester Division) and Another QBD 17-Feb-2009
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were . .
Cited – Lambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .
Cited – Page Motors v Epsom Borough Council CA 9-Jul-1981
The plaintiffs were lessees of land neighbouring that of the Council. Over several years the council’s land had been occupied by gypsies who, it was said had damaged the plaintiff’s business. Though the Council had obtained a possession order in . .
Determinative – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
Cited – Stagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Cited – Miller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .
Lists of cited by and citing cases may be incomplete.
Nuisance, Negligence
Leading Case
Updated: 01 November 2021; Ref: scu.179685
