Homeowner liable for spread of fire High Court judgement – William Feeney –v- Alberto Andreucetti and Jenny Andreucetti and Michael O’Reilly trading as Elm Construction. A most interesting decision was handed down by Mr. Justice Noonan in his High Court judgement on 10th February 2015 in a case involving spread of fire where he held that a homeowner was responsible for the negligence of an independent Contractor in allowing fire to spread to a neighbours house.
The fire occurred when Building Contractor, Michael O’Reilly trading as Elm Construction was carrying out work on the roof of Mr. & Mrs. Andreucetti’s home. As a result of the Contractor’s negligence, fire broke out and spread to the adjoining property owned by William Feeney causing approximately €94,000 worth of damage. Mr. Feeney sued both his neighbours and the Contractor and the decision for the High Court was whether Mr. & Mrs. Andreucetti were also liable to Mr. Feeney. Mr. & Mrs. Andreucetti argued that they could not have a liability for the negligence of Mr. O’Reilly, an independent Contractor.
The essence of this case was which of two innocent parties (the Andreucettis and the Feeneys) must bear the loss. The Courts in England and Ireland have consistently taken the view that the occupier of the property from which the fire escapes must bear the loss. Liability for escape of fire is similar to the rules pertaining in Rylands –v- Fletcher i.e. strict liability though possibly not quite so strict. For Rylands –v- Fletcher to apply, an occupier has to bring something highly combustible onto his land, stores it on his land and allow the subsequent fire to escape. Rylands –v- Fletcher was considered in the Feeney –v- Andreucetti case and a recent U.K. case, Stannard –v- Gore (2013) was also referenced. In that case a fire in a tyre storage unit spread to neighbouring property owned by a Robert Gore who was uninsured. The Court at first instance concluded that Mr. Stannard had not been negligent but was strictly liable under Rylands –v- Fletcher reasoning that the tyres had a special fire risk and the haphazard way in which they were stored constituted “non natural” use of the land as required under the rules of Rylands –v- Fletcher etc. However the decision was overruled by the Court of Appeal in that having a stock of tyres on the premises was not extraordinary or unnatural use of land and as liability under Rylands –v- Fletcher was not established and as Mr. Stannard had not been found negligent the claim against him failed. On the basis of that judgement the scope for applying Rylands –v- Fletcher in cases of non-negligent fire damage to neighbouring properties is considerably restricted and as the Court of Appeal noted “the moral of the story is make sure you have insurance cover for losses occasioned by fire on your premises”.
The situation under statute was also considered in Feeney –v- Andreucetti and in particular the Accidental Fires Act 1943 which provides that “where any person has suffered damage by reason of fire accidentally occurring in or on the building or land of another person then notwithstanding any rule of law…. no legal proceedings shall be instituted in any Court by the injured person or any person claimed through or under him or as his Insurer against such person on account of such damage”. For guidance as to what constitutes “accidental” one has to refer to the equivalent statute in the U.K. the Fire Prevention Act 1774 and in this regard it has been held that the Act primarily refers to a fire in respect of which there is no reasonable explanation as to the origin. For example spontaneous combustion of stacks of hay or straw might be considered accidental but if they were stacked in damp conditions or too tightly then there is a reasonable explanation for the fire’s origin. Furthermore the Act does not provide protection for a fire which is allowed to spread negligently. In essence the Accidental Fires Act has little practical application and furthermore, in this Country, the Fire Services Act 1981 imposes a duty on a person to take all reasonable measures to guard against the outbreak of fire and in essence creates a civil liability in the event of its breach and more or less restates the common law position i.e. the position in negligence. In any event in Feeney –v- Andreucetti it was held that the Defendant could not avail of Section 1 of the Accidental Fires Act 1943 as the fire was not “accidental” but caused by the Contractor’s negligence thereby depriving the Andreucettis of the entitlement to rely on the defence. The Andreucettis argued that in the normal course they should have no liability for the negligence of an independent Contractor. In certain circumstances, the law in the U.K. dictates that an occupier is liable for the escape of fire caused by the negligence of an independent Contractor. The Irish Court was not bound to take the same view. In this respect English Law makes a distinction that where liability is strict, for example rules under Rylands –v- Fletcher, an occupier is responsible for the acts of an independent Contractor and an occupier is also responsible for the negligent escape of fire from his premises even though caused by an independent Contractor. The only defence being that the damage was caused by the negligence of a stranger i.e. not an invited visitor etc. In this respect the U.K. case of Balfour –v- Barty – King (1957) was referenced in the judgement in Feeney –v- Andreucetti. In that case the defendant employed Contractors to unfreeze a pipe and they negligently used a blow lamp setting fire to lagging. The fire spread and caused damage to neighbouring property. Whilst this was not strictly a case of Rylands –v- Fletcher i.e. Mrs. Barty-King had not accumulated a dangerous thing on her premises, she was held to be liable on the grounds that an occupier is liable for the escape of fire from his premises as a result of the negligence of persons invited onto those premises. It would appear therefore that Justice Noonan took a similar approach in this instance and Mr. & Mrs. Andreucetti were held liable to Mr. Feeney for the damage to his property.
This judgement is consistent with the approach of the Courts historically in that where fire spreads negligently from one property to another the occupier of the property from which the fire spreads is invariably responsible. This is perhaps similar to the doctrine of “res ipsa” whereby the burden of disproving negligence is on the defendant. Clearly this does not alter the ability of the defendant in recovering against the negligent Contractor and in related proceedings (Andreucetti –v- Reilly) judgement was given on the 19th December 2014 and found that the fire had been caused by the negligence of Reilly. From an insurance perspective, the liability section of a Household Policy should indemnify the “negligent” house owner leaving his household Insurers to subrogate or recover against a negligent Third Party or Contractor. A practical implication is that if the independent Contractor does not hold relevant or current insurance.
A further recent implication for householders is the Safety Health & Welfare at Work (Construction) Regulations 2013 whereby homeowners need to make statutory appointments in terms of appointing Project Supervisors in relation to certain extensions or building works carried out on their home. The overriding message is to have requisite cover in place for all eventualities be you a home owner or occupier or indeed contractor. Alan FitzGerald is an independent Chartered Loss Adjuster who acts on behalf of both Insurers and Policyholders. Alan FitzGerald, FCII, FCILA, FUEDI-ELAE, May 2015