Monday, September 28, 2009

STRICT LIABILITY

THE RULE IN RYLANDS VS FLETCHER Ø Identify the purpose, relevance and application of the rule Ø What is the rule about? Ø What is its relationship with other aspects of the law of negligence and nuisance? Ø Limitations of the rule (why other jurisdictions have abandoned the rule. Ø What are the defences under this rule? Background; The case of Rylands vs Fletcher [1866] LR 1 Ex 265 established the principle of strict liability for loss arising out of escape. In that case, the John Rylands employed independent contractors to build a reservoir on his land he was renting. Thomas Fletcher operated mines in the area and had tunneled up to old disused mines. During construction of the reservoir the contractor stumbled on mine shafts which connected to the plaintiff’s. When the mine was filed with water, it flooded to Rylands mines causing damage to Ryland’s mine. Rylands sued the defendant in negligence. The case went through four courts of increasing status. The Liverpool Court found in favour of the plaintiff Fletcher on the basis of trespass and nuisance. Rylands successfully gained an order for the matter to be heard by the Court of Exchequer of three judges. That the decision was based on trespass requiring direct human involvement in the invasion of an interest (quiet enjoyment of land), which required intent or negligence, and Rylands had been engaged in a reasonable and lawful act, with no ill-intent or negligence, and there was no nuisance as there was nothing offensive to the senses about water. Fetcher took the matter to the Court of Appeal being the Exchequer Chamber of Six judges. The decision was overturned in favour of the appellant Fletcher. Delivering the judgment of court, Blackburn .J stated the legal position that, “We think the true rule of law is, that a person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”. This became a starting point of a new species of liability arising from damage to land available through the tort of cattle trespass, nuisance, as well as the in scienter action, injury by a domesticated animal known to have a disposition to injure. Rylands appealed to the House of Lords which dismissed the appeal. Lord Cairns, speaking for the House of Lords, stated their agreement of Blackburn. J, but added a further limitation on liability, which is that the land from which escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate. Note; The reason the case is called Rylands vs Fletcher when the plaintiff was Fletcher is that the rule was confirmed on appeal by Rylands at the House of Lords, hence the original case name reversed. The rule has its foundation in the Latin maxim ‘sic uture ut tuo alienum non laedes’ (means you can use your land the way you want but hurt no neighbor). The essence of the rule is the protection of neighbors’ property caused by importation of this abnormally dangerous, potentially dangerous, hyper hazardous, or things that carry with them extra ordinary degree of danger.. The rule imposes a certain standard of care- the more the thing is dangerous, the higher degree of care to be exercised. Essentially therefore, the rule is about the responsibility presumed when dealing with dangerous things. N.B, The rule is not distinct from trespass the kind of damage envisaged is not direct physical touch, entry or intrusion on the land. See A.G vs Ivan Eriya Kafeero Mambule [1959] E.A 665 LIMBS OF THE RULE For the case to fall under Rylands vs Fletcher, the following must be established; Bringing on the land; According to Blackburn J’s statement (supra), the defendant must have brought on the land for his own purposes something which he has accumulated and kept there. If water in Rylands v Fletcher case had been naturally on the land, there would have been no cause of action. In David Dibya vs Uganda Electricity Board [1980] HCB 119, where UEB left hanging live ‘highly dangerous cables’ on the road and the plaintiff was shocked upon stepping on them, it was held that the rule applied. Non- natural user; The House of Lords (Lord Cairn) in Rylands vs Fletcher stated that the rule applies where the defendant makes a non-natural use of his land. What does this mean? In Rickards vs Lothian [1913] AC 263 at 280, the Privy Council treated this in flexible terms when Lord Moulton, (speaking for Privy Council) stated; “It is not every use o which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be ordinary use of the land or such a use as is proper for the general benefit of the community” Read, Cambridge Water Co. vs. Eastern Counties Leather plc [1994] 2 A.C 264. In Read vs Lyons & co. [1947] AC 156, [1946] 2 ALLER 471, the appellants, while working in the respondent’s factory was injured by an explosion there. She did not plead negligence, but sought to show that the respondents as manufacturers of dangerous things (explosives) were strictly liable. The House of Lords held for the defendants because there had not been an escape from the defendant’s land. But on ‘non- natural use’ Lord Porter said; “I think that all the circumstances of the time and place of mankind must be taken into consideration so that what might be regarded as non natural may vary according to those circumstances” It is thus the creation of a recognizable risk to other landowners which is an essential constituent of the liability of the defendant. Once such risk has been created, the liability for foreseeable consequences of failure to control and confine is strict. Read; Mason vs Levy Auto Parts of England Ltd [1967]2 QB 530 AT 542-543 Marcic vs Thames Water utilities Ltd [2003] 3 WLR 1603 Things likely to do mischief The things brought on the land must be potentially or actually dangerous. He word ‘dangerous’ has somewhat road meaning in Rylands vs Fletcher . The thing must be capable of being dangerous upon entering the neighboring land. Hence water and filth are dangerous under the rule. The test is whether damage is likely if the ‘thing’ escapes. Therefore, the only objects to qualify are those that are both likely to escape and, in so doing entail exceptional peril to others. In order to attract the rule, there must be both an extraordinary user of the land and the object must in the circumstances be classified as dangerous. ‘Escape’ According to Viscount Simon in Read vs Lyons (supra), there must be “escape from a place where the defendant has occupation of or control over the land to a place which is outside his occupation or control’ Hence in that case, an explosion which injured the plaintiff on the defendant’s own land had not escaped and the rule did not apply. Viscount Simon stated that Rylands vs Fletcher is conditioned by two elements which he called, 1) “the condition of ‘escape’ from land of something likely to do mischief if it escapes” 2) “ the condition of ‘non-natural’ use of the land In Read vs Lyons, the House of Lords stressed that the rule was primarily concerned with rights and duties of occupiers of land. Thus escape from the defendant’s land or control is an essential element. Note: Like nuisance and negligence, Rylands v Fletcher is not actionable perse. Actual damage must be proved. Application in Uganda, Read, Consultant Gas Engineers vs Micheal Bitature & Anor C.A 36/1993 (unreported) Points to ponder about Ø Ryland’s vs Fletcher rule is a remedy to damage to land Ø It does not apply to activities, works or operations authorized by statute. Trasco vs Metropolitan Boruogh Council Ø The rule is not particularly strict because it excludes liability when the escape is for most common reasons vandalism or unusual natural events. Ø If the escape is not due to reasons of vandalism or unusual natural events it gives rise to an inference of negligence. Ø The ill defined exception of ‘natural’ use of land makes the application of the rule impracticable and since 2nd world war no one has succeeded in England in an action in under Rylands v Fletcher rule. Ø Strict liability on social grounds should better be left to statutory intervention. Read, Ø Blake vs Woolf [1898] 2 Q.B 426 Ø North Western Utilities Ltd vs London Guarantee & Accident Co. Ltd. [1936] A.C 108 Defences In the course of interpreting the rule in Rylands v Fletcher, several specific exceptions or defences have been developed. Statutory authority; Normally public bodies are exempted from liability unless it is shown that the acted negligently. Statutory authority like railways and public utilities supplying water (NWSC), gas and electricity (UEDCL), KCC, Uganda Wildlife Authority, etc. It was stated in Trasco vs Stockport Metropolitan borough Council [2004] 1 ALLER 589 that a statute which authorizes the construction of woks like reservoirs, involving high risk to others, may deal expressly with the liability of the undertakers. That in the absence of negligence, damge caused by operations authorized by statute is not compensatable unless the statute expressly so provides. The House of Lords affirmed the decision in Geddis vs Proprietors of Bann Reserviors (1878) 3 App Cass 430,455 where Lord Blackburn summed up the defence that, “ it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone” Statutory immunity is lost if the grantee fails in his duty of care to avoid all unnecessary harm. Read, Ø Charring Cross electricity co. vs Hydraulic Power co [1914]3 K.B 772 Ø Longhurst vs Mentropolitan Water board [1948] 2 ALLER 834 Ø Dunne vs North Western Gas Board [1964]2 QB 806 Act of a stranger or third party. Liability is excluded under Rylands vs Fletcher rule if the escape was due to the deliberate act of a stranger which could not be reasonably anticipated. The stranger’s interference must have been “a conscious act of volition”, deliberate or intentional, and not merely negligent, because it appears that the owner of a dangerous thing is bound to guard others against negligence of third parties. see, Dominion Gas Co. vs Collins [1909] A.C 640, at 647 Read, Rickards vs Lothian [1913] A.C 263 Volenti non-fit injuria: This applies if the plaintiff has knowingly and voluntarily consented to the bringing of the thing on the defendant’s land. Read, Peters vs Prince of Wales Theatre [1943] K.B. 73 Contributory negligence See, Dunn vs Birmingham Canal co. Ltd [1872] LR 7 Q.B 224, the plaintiff worked a mine under the defendant’s canal. This caused the water of the canal to seep through the mine to the plaintiff’s land. Corkburn, CJ said, “The plaintiff saw the danger and may be said to have courted it” Act of God; Fleming (6th Edition, p.316) defines an Act of god to signify the operations of natural forces, free from human intervention, rather than phenomena which, in common belief, are sometimes attributed to a positive intervention of deity If the escape arises from natural causes and without human intervention in circumstances which no human foresight could have provided for, that is said to be an act of god. In Nicholas vs Marsland [1876] 2 EX.D 1, the defence was allowed where an extremely violent thunderstorm caused flooding. Earthquakes and tornadoes may fall here. But ordinary rain, a small storm etc may not. Whether a particular occurrence amounts to an act of god is a question of fact. The test is not whether or not the event could be reasonably foreseeable, but whether or not human foresight and prudence could reasonably recognize the possibility of such an event. (See; Fleming p.317, Lamb vs Phillips(1911) 11SR (N.S.W)109). It therefore seems to differ from “inevitable” accident both in degree of unexpectability and exclusion of events having a casual link with human activity. Escapes of water and the like are often the result of natural events-heavy rains or drains blocked by falling leaves. In Carstairs vs Taylor (1871) LR 6 Ex 217 Kelly CB said that a rat gnawing a hole in a wooden gutter box counted as an Act of god Personal injury- in Cambridge Water Co. vs Eastern Counties Leather p/c [1994] AC 264 court stated that damages for personal injuries are not recoverable under the rule. This was affirmed by Lord Hoffman in Trasco vs Stockport Metropolitan borough Council [2004] 1 ALLER 589; [2004] AC 1 Read, Greenock Corporation vs Caledonian Ry [1917] A.C 556 Common benefit Default of the plaintiff Remoteness of damage Questions; 1) Discuss the principles in Ryands vs Fletcher and explain the problems that have been encountered in its application. 2) “There will never be a case where the plaintiff will succeed in Rylands vs Fletcher without also succeeding in Negligence, and there would rarely be a plaintiff who will succeed in nuisance without also succeeding in Negligence” Critically examine this statement, clearly highlighting the nexus among the three causes of action. 3) “The rule in Rylands vs Fletcher is an extension of both nuisance and negligence” Per Ssekandi J in Paskali Bahizi vs Kibandama, Civil Appeal No. 93 of 1976. [1977]HCB 91 Critically examine the above assertion in light of relevant authorities. LIABILITY FOR ANIMALS Notwithstanding the usefulness of animals, their propensity for harm may well justify imposing on the owner a duty to protect the community, at his peril, against the typical risks involved in keeping them for his own benefit. Ordinarily, the owner of animals is liable under the general law of tort in negligence for the damage they inflict. There are however, cases where liability for animals is strict ie where negligence need not be proved. These are; a) Liability for cattle trespass b) Liability under Scienter rule. Both the cattle- trespass rule and liability for dangerous animals are but instances of the wider principle of strict liability which, attaches to the control of all exceptionally dangerous things. See, Winfield & Jolowicz on Tort, 11th Ed. Pg 433-443; 15th Ed. Pg569-582 John G. Fleming, The law of Torts, 6th Ed. Ps 324-337 Cattle Trespass. This is not an ordinary trespass, since trespass is ‘direct intentional interference’ It is not nuisance since; a) substantial interference need not be proved b) the defendant’s conduct need not be unreasonable This head of claim is normally relied on where the invasion by cattle is not intentional on the cattle-owner’s part. Where it is intentional or as a result of negligence, it is more sensible to proceed in trespass and negligence respectively. Cattle trespass is also different from Rylands vs Fletcher because; a) It is irrelevant whether land from which animals escape is being put to natural use b) It is actionable per se ( no need to prove damage) c) It only arises when the land owner also has interest in the cattle d) It is possible to have cattle trespass without cattle Ingredients of cattle trespass. The keeper of cattle is bound at his peril to keep them from trespassing and to prevent harm from animals of whose dangerous tendencies he has actual or presumed knowledge. a) There must be cattle: The definition of cattle extends to cows, bulls, goats,swine, sheep, horses, asses, domestic birds (hens, geese, ducks, turkeys peacocks). But it does not include cats and dogs. Read; Tallents vs Bell [1944] 2 ALLER 474; Buckle vs Holmes [1926]2 K.B 125 Theya vs Purnell [1918] 2 K.B 333 Searle vs Wallbank [1947] A.C 341 b) The defendant need not have intended the trespass and need not have acted negligently. c) There need not be damage suffered. Liability for straying animals. Brock vs Richards-as a general proposition, the owner of animals is under no liability to prevent them from straying, even though the straying may take a form of leaping over or through hedges. No liability attaches to the owner of such animals simply because he has allowed them to escape from his land. There is no obligation in such circumstances to fence one's land and to keep one's domestic animals in. The rule although found in earlier common law is usually referred to as the rule in Searle v. Wallbank[1947] A.C 341 In Searle v. Wallbank[1947] A.C 341 the plaintiff was injured when at 1.30 a.m. on 1 April 1944 the bicycle which he was riding collided with the defendant's horse on a public highway. The plaintiff's front light was masked in accordance with war-time regulations at the time of the accident. The field, in which the horse was kept, with other animals, adjoined the highway and the horse escaped because of a defective fence. The House of Lords in dismissing the plaintiff's appeal held that the owner of a field adjoining the highway is under no prima facie legal obligation to users of the highway so to keep and maintain his hedges and gates along the highway as to prevent his animals from straying onto it. Nor is he under any duty to users of the highway to take reasonable care to prevent any of his animals, not known to be dangerous, from straying onto the highway. The justification for the rule in Searle v. Wallbank seems to be mainly historical. It has been stated that “in early times, very few roads were fenced off from the adjoining land, and it would have been a considerable imposition on the owner of cattle if he had been compelled to prevent them from straying”. Moreover, road users were usually taken to have accepted the risks inherent in road travel and this seems to have included the possibility of the presence of straying animals. In recent years, however, because of the increasing speed with which road traffic moves, because of the increasing number of wide and fast-surfaced roads, and because of the serious consequences which may occur nowadays if fast moving traffic collides with animals on the highway, a great deal of dissatisfaction has been expressed about the rule in Searle v. Wallbank. Judicial precedents have put limits on the scope of the rule viz; First, it seems that it does not apply in Ireland, if the animals are straying on the roadway in sufficiently large numbers to cause an obstruction. Second, it was held in Brock vs Richards [1951] 1 K.B 529 at p.535 that the rule does not apply to wild animals or to domestic animals who show peculiar characteristics or where scienter is proved. Thus, if a person knows that his dog has a mischievous propensity to chase passing motor-cyclists he may be liable in scienter if he allows his dog to stray onto the highway. Third, it was held in Gomberg vs Smith [1963]1Q.B 25 it does not apply if animals are brought onto the highway. Fourth, in Howard v. Bergin, O'Connor & Co. O'Connor J., was inclined to limit the application of Searle v. Wallbank to rural conditions. He was of the opinion that the defence that there was no obligation on adjoining owners to fence and that there was no liability for any damage caused by straying animals in any circumstances, was too wide a proposition to be accepted as law. Although it was unnecessary for him to decide the question in the case before him, and although he could find no authorities to support him, he was inclined to the view that the common law which relieves occupiers of land adjoining the highway from fencing does not apply to cities. City dwellers, should according to O'Connor's view, be obliged to fence. Lastly in the case of Ellis v. Johnstone [1963] 2 Q.B. 8 it was stated that where there were special circumstances such as peculiar topography or where the animal was engaged in an activity which could only be carried on under a high degree of human control it has been suggested that liability might also arise. See also Bativala v. West [1970] 1 Q.B. 716 Liability for dangerous animals Liability under the Scienter rule When an animal of harmless species betrays its own kind by perpetrating damage, its keeper will not be held to strict liability unless actually of its dangerous disposition. This proof is known technically as ‘the scienter rule’. This head is concerned with liability for damage done by animals which are in the control of the defendant when he knows or is presumed to know of their tendency to do harm of the type In the case of Behrens & Anor vs Bertram Mills circus Ltds [1957]2 QB 1 Lord Devlin. J stated that the law as follows; a person who keeps an animal with knowledge (scienter retinuit) of its tendency to do harm is strictly liable for damage that it does if it escapes; he is under absolute duty to confine or control it so that it shall not do injury to others. Unlike Rylands vs Fletcher, no escape need have occurred. Secondly, it basically deals with personal injuries.. Thirdly unlike rylands vs fletcher rule that is based on the occupation of the land, scienter rule is based on the possession of the animal, see Bertram’s case. For purposes of this tort, animals are divided into; a) Ferae naturae; Animals which are dangerous by nature b) Mansuetae naturae; ordinarily harmless animals “Harmless” animals are of two kinds; Those harmless by their very character e.g rabbits, and those shown by long experience to be harmless e.g sheep, horses and dogs. All animals in the second class (mansuetea naturae) are conclusively presumed to be harmless until they have manifested a savage or vicious propensity; proof of such manifestation is proof of scienter and serve s to transfer the animal, so to speak, out of its natural class into the class ferae naturea( Behrens & Anor vs Bertram Mills circus Ltds [1957]2 QB 1) On the other hand, all animals, ferae naturae ie all animals which are not by nature harmless or have not been tamed by man and domesticated are conclusively presumed to have such tendency to do harm so that the scienter need not in their case be proved. Lord Macmillan in regard to liability for such animals stated in Read vs Lyons & Co. Ltd [1946] 2 ALLER 471 at p.476 that a person is under absolute duty to confine or control ( a dangerous animal) so that it shall not do injury. There must be failure to control. Whether or not an animal is harmless under the scienter rule is a question of law. From decided cases, elephants, zebras, bears, bees, and lions are ferae naturae. In the case of Filburn vs Peoples Palace & Aquarium Co. Ltd (1890) 25 QBD 258 the court of Appeal held as a matter of law that an elephant is an animal ferae naturea. This decision was followed and considered to be binding by Lord Devlin j in Behrens & Anor vs Bertram Mills circus Ltds [1957]2 QB 1. Lord Devlin J further stated that the reason why this is a question of law and not a question of fact is because it is a matter of which judicial notice has to be taken and no evidence is required to prove it. This doctrine has from its formulation, proceeded on the supposition that knowledge of what kind of animals are tame and what kind are savage is common knowledge. However, common knowledge about the ordinary course of nature will extend to knowledge of the propensities of animals according to their different genera, but cannot be supposed to extend to the manner of behavior of animals of the same genus in the different parts of the world. The classification being a question of law the precedent suffices to justify the classification for the future. The balance of English authority before 1971 seemed to favour the view that whether an animal was to be classed as a ferae naturea or not depended on whether the animal belonged to a species which was a danger to mankind. See Buckle v Holmes [1926]2 K.B 125, although in determining the issue the courts may have regard to the experience of other countries with the animal. It seems that this was the reason why the English Court in McQuaker v. Goddard [1940] 1 K.B 687 classified a camel as mansuetae naturae. It seems that once a species has been judicially classified as dangerous, then, subject to the doctrine of precedent, there is no room for distinctions based upon the fact that some variants or individual animals within the species may not in fact be at all dangerous. Read; 1. M’Quaker vs goddard [1940] 1 K.B 687 at 700-1 2. Yesero Mugenyi vs Securicor (U) Ltd [1972] 1 ULR 80 3. Securicor (U) Ltd vs Yesero Mugenyi [1973]1 ULR 61(EACA) 4. Fulburn vs Peoples Palace Co. [1890]25 QBD 258 5. Glanville v. Sutton [1928] 1 K.B. 571. Mischievous propensity or viciousness When an animal ferae naturae causes injury, liability on the part of the keeper thereof automatically arises. But when the animal is ‘harmles’ (mansuetae naturae), then the plaintiff must prove scienter i.e. the dangerous propensity of the animal by showing; a) That the animal had previously committed or attempted to commit an act showing that particular trait of viciousness complained of b) That the defendant knew of the act or attempt Knowledge of one particular act of biting is sufficient. It is not necessary that the dog has been going around snapping at everybody. It is irrelevant that it is long since the animal last committed the kind of act. The kind of harm inflicted on the defendant must be direct and physical. Knowledge of particular propensity may be imputed to the defendant General knowledge of the tendencies of a harmless species – e.g. bulls will attack red, or greyhounds will chase running children – will not be sufficient evidence of mischievous propensity. The evidence must be specific; it must relate to the particular animal in question as well as the particular kind of damage complained of. The mischievous propensity need not be a chronic or permanent element of its nature, but may be a passing or temporary phase of the character or temper of the particular animal in question. Accordingly, a bitch with pups may have a mischievous propensity to bite, and a cow with calf afoot may have a mischievous propensity to attack. In Howard v. Bergin, O'Connor & Co. Kennedy C.J. put the matter in the following way: “In my opinion, however, what is called a “mischievous propensity” may be as well a passing or temporary phase of character or temper of the particular animal as a chronic or permanent element of its nature. If this opinion needs any authority to support it, reference may be made to, inter alia, Turner v. Coates; Manton v. Brocklebank. .... I understand by the expression “a mischievous propensity”, a propensity to do mischief, a tendency to do harm or cause injury, whether, in one case, by some single characteristic action such as kicking or goring or biting or, in another case, generally when mischief may be done in any of a variety of ways.” The defendant must have the knowledge of the vicious propensity before he will be liable in scienter. To summarize the law, a) Knowledge means actual knowledge, but it is immaterial whether it be acquired, b) From personal observation or by hearsay, whether c) By the defendant himself or by his servant who has general charge of the animal, and d) A long time before or only shortly before injury complained of e) Both the vicious act and the defendant’s knowledge of it may be proved by an admission of a very general nature. In Bennet & Another vs Walsh knowledge of a mischievous propensity by a nine year old girl was sufficient to render her father liable in scienter. In Brock vs Richards 1951] 1 K.B 529 the Court of Appeal of England (Sir Raymond Evershed MR) stated that in order to impose liability, the characteristics mus be those of viciousness or mischievousness. That the word “vicious” as applied to animals is well understood and indicates a savage disposition, a propensity to attack people. The Master of Rolls (MR) further stated that an animal though not savage, which is dangerous because of its frolicsome behavior, must equally be taken to have propensities against which (if known to the owner) the owner has a duty to guard. The Proper Defendant: Owner or Keeper? Liability in scienter is by possession rather than by ownership. The problem becomes acute only where possession and ownership are separated as where, for example, a person lends an animal to another or gives it to another under a contract of bailment. The word used in the old writ – scienter retinuit – also supports the view that possession should be the crucial factor in determining liability rather than ownership. In Walker v. Hall (1876) 40 J.P 456 the trainer of a horse which he knew was accustomed to bite was held liable simply because he had control over the animal. Although it is doubtful whether the owner is liable as such a master who obliges a servant to keep an animal in the course of his employment, may be vicariously liable in scienter, or at any rate in negligence Read, Knott v. London County Council [1934] 1 K.B. 126; North v. Wood [1914] 1 K.B. 629. In Crean v. Nolan & Others sheep belonging to the plaintiff were killed by some beagles, which had strayed after the termination of a drag hunt organised by the Festival of Kerry Committee. It was held that although a prima facie principal-agent relationship existed between the Festival Committee and the owners of the beagles, this relationship had ended at the time when the beagles had killed the sheep some considerable time after the hunt was over. It is clearly suggested in this case that the defendants might have been liable either in trespass, in negligence or if scienter was proved, if the damage was inflicted during the hunt. During the hunt the Festival Committee it seems would have had sufficient control to attract liability. What is the distinction between ferae naturae and mansuetera naturea animals? What exactly amounts to a “mischievous propensity” on the part of a mansueturea animal? Who is the proper defendant in the sceinter action; the owner of the animal or its keeper? What defences are available to the defendant in such an action? Liability for fire The early common law provided a special action of trespass on the case against occupiers for “negligently using fire and allowing its escape contrary to the general custom of the realm”. However the later judicial developments remodeled the law. It fire was readily treated as a Ryland vs Fletcher object in E,. Asia Nav. Co vs Fremantle Harbour (1951) 83 C.L.R 353. The new principle of strict liability came to be applied not only to escaping fire that has been brought on the land (like igniting rubbish) but also to all other things likely to catch fire and kept under conditions involving substantial risk of spreading to neighbours. The case of Collingwood vs Home & Colonial Stores Ltd (1936) CA, highlights the position before the Fire Prevetion (Metropolis) Act 1774 and after. Lord Wright MR stated that, the state of law before the statute was that a man was liable at common law for damage done by fire originating on his property; (i) by the mere escape of fire - that was the old rule; (ii) if the damage was caused by the negligence of himself or his servants,or by his own willful act; and (iii) On the principle of Rylands vs Fetcher However, sec. 86 of the Fire Prevention (Metropolis) Act 1774 altered the earlier position. That section provides in effect that no action shall be brought against any person in whose house chamber, or other building any fire shall accidentally begin, any law usage or custom to the contrary notwithstanding. That Act changed the law, because before the Act if fire spread from a man’s premises and did damage to adjoining premises, he was liable in damage on the broad ground that it was his duty at his own peril to keep any fire that originated on his premises from spreading to and damaging his neighbor’s premises. The protection of the section is limited by the word “accidentally”. Read Goldman vs Hargraves & Ors [1966]2 ALLER 989, [1967]1 AC 645. The Act did not apply to a fire caused deliberately or negligently. The common law position was reiterated in the Ugandan case of Uganda Motors Limited vs Wavvah Holdings SCCA No. 19/1991 where the Supreme Court further sated that the Fire Prevention ( Metropolis) Act 1774 though an Act of general Application was no longer applicable in Uganda because reference to Acts of general applicability was deleted from the 1967 Judicature Act. It followed therefore that if fire originated from the appellant’s premises, then having in mind that the premises comprised a motor garage and repair shop that it pointed to negligence on the part of the appellant. Much as earlier authorities in Uganda reflected that the defendant could claim protection under Fire Prevention (Metropolis) Act 1774, where there was no negligence, the Supreme Court imputed negligence where no explanation could be given on what caused fire. It further expressly stated that the Act was no longer applicable in Uganda. This position is different from the Tanzanian position as reflected in Rahmtulla Bandali vs The Commmisioner of Transport, The East African Railways & Harbours, Tanzania Civil Case No. 1576 of 1967 where Court stated that in order to hold the occupier of the premises liable in damages for fire breaking out on such premises, negligence on his part must be positively established. Read, Balfour vs Barty King [1957] 1 QB 496

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