Vagaries in Liability for the Escape of Fire

Abstract

The vexed question of liability for the escape of fire, described by Winfield as a “confusing medley of remedies for the same wrong,” has re-emerged recently with all its customary vigour. The reason for the bewildering complexity of this branch of the law is clear: whereas other fields of tortious liability were allowed to advance within the expanding nineteenth-century doctrine of negligence, the development of liability for the escape of fire was hindered by section 86 of the Fires Prevention (Metropolis) Act 1774, a provision which was relevant only to a form of liability which had become outmoded in the nineteenth century. The initial confusion resulting from the conflicting and unhistorical approaches of the courts was aggravated by an irrational flirtation with the doctrine of Rylands v. Fletcher. The object of this study is to place the statutory provision in its true historical context, to extract and explain the various threads of development which have been indiscriminately intermingled by the judges and finally to propose that section 86 be repealed, leaving negligence or nuisance as the basis of liability.