Leeth & Co Ltd v. Mack & Co (Freight Forwarders) Ltd and Others

HCA001636/1976

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Coram: Mr. Commissioner Liu

Date of Judgment: 5th July, 1978.

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JUDGMENT

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1. In these three consolidated actions, all the plaintiffs are respective owners of goods stored at the premises of the 3rd defendant at the outbreak of a fire therein at or about 11.30 a.m. on the 8th January, 1976. At the material time, the 1st defendant in each of these consolidated actions was a Crown Lessee on an adjoining property used for storage of containers and the 2nd defendant was a firm of welders engaged by the 1st defendant in the construction of an expansion to a structure situate near the boundary between the 1st defendant's property and the 3rd defendant's property. Each of the plaintiffs in these consolidated actions has obtained judgment against the 2nd and the 3rd defendants. The respective claim against the 1st defendant by the plaintiffs in each case is the remaining issue for consideration.

2. The 1st defendant has served a Third Party Notice on each of the 2nd and the 3rd defendants in each action. On the application of the 1st defendant made at the inception of the hearing of these proceedings on the 21st June, 1978, the 3rd defendant who had entered an appearance to the actions and to the Third Party Notices was ordered, inter alia, to be bound by the result of this trial and by the court's determination on the liability of the 3rd defendant to the 1st defendant claimed in the Third Party Notices. The 2nd defendant has entered no appearance to the actions nor to the Third Party Notices.

3. The description and the quantity of goods stored by the plaintiffs with the 3rd defendant as well as the proximate causation, extent and quantum of loss are not disputed as between the plaintiffs and the 1st defendant. For them the outstanding question is one of liability.

4. The plaintiffs' claim against the 1st defendant is threefold. First, the 1st defendant by itself, its servant, agent or independent contractor, the 2nd defendant, is strictly liable to the plaintiffs at common law for the spread of fire. Secondly, under the rule of Rylands v. Fletcher ⁽¹⁾ the 1st defendant by itself, its servant, agent or independent contractor, the 2nd defendant, is strictly liable to the plaintiffs for damage caused by the escape of fire, a dangerous thing, as a result of a non-natural user of its premises. And, thirdly, it is a claim for damages for negligence. It is alleged that the 1st defendant by itself, it said servant, agent or independent contractor carried out welding operations without any or any sufficient care particularly with no or no adequate precautionary measure. It is further alleged that with admitted knowledge of sparks of molten metal the 1st defendant failed to exercise any or any proper supervision over the said welding operations. There was also an allegation in the further amended Statement of Claim that the 1st defendant by itself and/or through the 2nd defendant failed to inform the employees of the 3rd defendant of the said welding operations. Such allegation was admittedly unsubstantiated, but counsel for the plaintiffs sought to argue that the further and better particulars supplied therefor were wide enough to include a complaint against the failure of the 1st defendant by itself or through the 2nd defendant to notify the 3rd defendant itself, as opposed to its employees. Such attempted extension of pleading as particularized is, in my view, quite unwarranted.

5. The evidence adduced by the plaintiffs was, subject to some clarification sought, left almost unchallenged. On the 8th January, 1976, during the welding operations a fire was detected within the premises of the 3rd defendant near the boundary with the property of the 1st defendant, and the plaintiffs' goods stored with the 3rd defendant were thereby destroyed. The sequence of events leading up to the said fire is: On or about the 30th December, 1975, the 2nd defendant instructed by the 1st defendant commenced to enlarge a structure on the property of the 1st defendant near the boundary line with the 3rd defendant by welding. The object of the exercise was to bring the 1st defendant's structure right up to the border. The proposed extension was expected to be a structure supported by four vertical poles at the boundary line joined by 25 horizontal bars. Between every two vertical poles, the horizontal bars were to be welded at each end, but between the side wall of the existing structure and each of the two outside vertical poles, the horizontal bars were to be welded at one end to the vertical pole and at the other end to such side wall of the existing structure. The roof of the existing structure was slanting, and the extended area was to have a similar slanting roof. The edge of the proposed extension to the existing structure, when completed, would run parallel to the boundary line between the property of the 1st defendant and the property of the 3rd defendant. Therefore, the operations entailed welding works at the boundary line of these adjoining properties, at times, at a height of some 18 feet. Welding operations were commenced from the 30th December 1975. By the 5th January, 1976, an iron platform of 3 ½ feet high had been constructed. Welding was halted for some days pending the arrival of materials. One or two days before the fire on the 8th January, 1976, works were resumed. Immediately prior to the outbreak of the fire on the 8th January, out of 25 horizontal bars 21 had been put in position. At the time of the fire, the three welders of the 2nd defendant were working on the upper horizontal bars some 18 feet above the ground. There was a corrugated iron fence of about 7 foot in height running along the boundary between the properties of the 1st and 3rd defendants. At or about 11.30 in the morning, one of the welders, a Mr. Wong, noticed burning next door at a distance of about 5 or 6 feet away from the corrugated iron fence, opposite to the welding operations then in progress, in about 10 odd places each of the size as big as a plate. The three welders, in conjunction with some people from the 3rd defendant company, unsuccessfully attempted to put out the fire which subsequently engulfed the properties of the 3rd defendant together with, inter alia, the goods of the plaintiffs. According to the welder in charge, one Mr. Lo Bing, he warned a lady working within the property of the 3rd defendant at or about the commencement of the welding work and on two or three occasions thereafter but prior to the arrival of goods for storage at a space, viz. Zone 21, virtually next to the boundary and opposite to the 1st defendant's welding operations. According to Mr. Lo Bing, he and the other welders reminded the same lady of the necessity of protecting goods with non-combustible materials. Mr. Lo Bing testified in his cross-examination that he advised that lady to remove the goods from the vicinity of the welding operations and that upon seeing her placing three cardboards on top of the canvas covering the goods near the welding operations at the corner of Zone 17 near Zone 20, he told the lady in no uncertain terms that they would provide no protection. I have not lost sight of the fact that in his statement, Exhibit P.6(2), not only was Mr. Lo totally silent on his alleged advice for removing goods from the vicinity and his alleged warning that cardboards would be of no avail, he claimed to have assisted her in covering the canvas of the goods near the fence with three cardboards. Such discrepancies were not probed into. I am thus left with and accept the evidence of Mr. Lo Bing in his written statement as qualified by his cross-examination. The goods on Zone 21 arrived one or two days before the fire, and they came after the last warning of the welders. These goods on Zone 21 were covered by a thick canvas, and Zone 21 on the 3rd defendant's property was next to the site of the welding operations.

6. Mr. Lo had 14/15 years of welding experience of which 8 was spent in the employ of the 2nd defendant. It would not be impertinent to set out part of his evidence in re-examination:

7. There were four zones within the 3rd defendant's property next to the site of welding operations conducted on the property of the 1st defendant. These areas are marked 20, 21, 22 and 23 in a plan annexed to the Fire Report, Exhibit "P1". From appendix 3 to the Fire Report, it can be seen that in Zone 20, there were "squirt animals - Toys and wax". In Zone 21, it was wholly wax. In Zone 22, there were "wooden packets and metal lines", and in Zone 23, it was scrap metal. We know not what were stored at the corner of Zone 17, but in Zone 17 there were, inter alia, wooden goods, P.V.C. jackets, beauty cases, plastic toys, printed plastic sheets, toys, cooking oil, rattan goods, cotton goods, toy (T.V.sets), wax, plastic raw materials, toys, plastic goods, transistor radios and certain unidentified goods.

8. Though the 1st defendant and the 3rd defendant are Crown lessees on similar terms for the purpose of storage of cargo containers, there is no evidence whether the 3rd defendant or the 1st defendant had any permission for the storage of exposed goods. The 3rd defendant has been charged with and convicted of having on the 9th January 1976 stored approximately 104 gallon of paints in 26 4-gallon drums without a Dangerous Goods Licence. These 26 drums were retrived intact after the fire. There is no evidence whether or not other drums, if in fact they contained paints as reported, simply exploded or how and to what extent they contributed to the spread of the fire. As for the wax, there is likewise no evidence that the 3rd defendant had no authority to store the same. The wax was described as having melted and, due to the geographical layout, flowed into the compound of the 1^st defendant's. No evidence was adduced as to the precise location of the plaintiffs' goods. The Divisional Fire Officer, Mr. Murray, testified that but for the presence of the wax, the fire could have been contained and localized.

9. Let me deal with the plaintiffs' charge of negligence. In view of the evidence of Mr. Lo Bing as the welder in charge of his team, it is undeniable that a reasonable and prudent welder would, in the situation Mr. Lo found himself, think it folly not to take proper precaution. The welders appreciated the imminent risk of the welding operations and were well aware that precaution was so obviously wanted. In reply, counsel for the 1st defendant urged the Court to have all the circumstances taken into consideration, particularly the very fact that the practice followed by the welders was common. Mr. Mills-Owens justifiably criticised that such common practice had not been made an issue and that in addition there was no evidence of what a safe common practice is. Mr. Murray, who openly admitted to be no expert in welding, told the court that there had been no screen or guard used in welding in Hong Kong at any height although they were used in other countries, Mr. Murray further told the court that collapsible screens were in use elsewhere. Mr. Lo and Mr. Tang are both local welders of considerable experience, and they maintained that no screen or guard are being used in Hong Kong even for welding at a height. Mr. Li of counsel was not seeking to argue that it necessarily followed from a single fact that a common practice was put to use, then there was no negligence, but counsel maintained that the adoption of a common practice was a factor which would weigh with the court.

10. On adoption of a common trade practice, Lord Reid in Morris v. West Hartlepool Steam Navigation Co. Ltd. , ⁽²⁾ a case concerning the practice of leaving open hatches of a vessel unprotected, had this to say:

"It was argued that, whether the practice of leaving the hatches unprotected was good or bad, the respondents were entitled to rely on it because it had gone on a long time and no one had heard of an accident arising from it. I would agree that, if a practice has been generally followed for a long time in similar circumstances and there has been no mishap, a reasonable and prudent man might well be influenced by that, and it might be difficult to say that the practice was so obviously wrong that to rely on it was folly. But an employer seeking to rely on a practice which is admittedly a bad one must at least prove that it has been followed without mishap sufficiently widely in circumstances similar to those in his own case in all material respects."

11. Exhibit "P3", a Departmental Report for 1976 by the Director of Fire Services, gives a figure of 80 fires caused by welding operations in which 14 sustained injuries with one fatality. The circumstances in which a fire was caused were not specified in the annual report, but from the nature of the welding operations causing sparks of molten metal flying off at a tangent at various angles, the higher they are the further they fly, as explained by Mr. Murray, it would take only common sense to appreciate that welding operation without sufficient guard or screen is a practice which leaves much to be desired. There is no evidence that there has been no or no known mishap in this sort of operation. In fact, I would be exceedingly surprised to receive any evidence of the kind. There was no small measure of risk which was fully appreciated by the welders. For the reminder of the reckless, the Labour Department has issued "Safety Hints" for welding operations which can be found in the document at page 52 in Bundle A the second paragraph of which reads as follows:

"Sparks from welding, and particularly from cutting, can travel a considerable distance. Where possible such works should be carried out in a safe place, away from all risk of causing fire. Where work cannot be moved, all materials likely to catch fire should be taken to safe distance from work and not placed near cylinders or hose."

There is no evidence that this is an official literature for wide circulation, but all that is there is pure common sense not beyond the apprehension of welders of experience such as that enjoyed by Mr. Lo Bing, Tang Kai and even Wong Fat.

12. Lo Bing had warned the woman next door that cardboard covering over canvas would be of no avail. Upon the arrival of goods on Zone 21 said to be covered by a thick canvas, in my view no reasonable welder, guided upon those considerations which ordinarily regulate conduct of human affairs, would proceed with welding operations without taking proper precaution for avoiding the hazards of a fire. There is no evidence that the 1st defendant or the 2nd defendant ever notified the administration in charge of the 3rd defendant company of the desirability to remove the goods from the vicinity or offered to do so at their own expense; nor has the 1st or the 2nd defendant ever attempted to cover or cause to be covered the goods in the vicinity of the welding operations with non-combustible materials to their satisfaction.

13. That leads me to a further argument advanced on behalf of the 1st defendant. Mr. Li submitted that in the circumstances of this case, the giving of warning and reminders to the woman on the property of the 3rd defendant and the open operations of welding which ought to have put the 3rd defendant on notice would sufficiently discharge the 1st and the 2nd defendants' duty of care towards the 3rd defendant and the plaintiffs as its clients. Mr. Li argued that since the 1st defendant could not as of right enter upon the property of the 3rd defendant for rearranging its goods, the failure of the 3rd defendant to take heed of the warning and reminders given by the welders would deprive the 1st defendant of its right to build by a trade practice so commonly followed in this Colony. The 1st defendant has made no offer to render any assistance or pay any compensation to the 3rd defendant for the removal or covering of the goods stored next to the welding site. The welders and through them the 1st defendant blatently ignored a risk of no small magnitude which could have been avoided by a relatively small expense and trouble on the part of the 1st defendant. There is no evidence that the 3rd defendant declined to co-operate.

14. It is no defence to say that everyone else in the welding business is just as careless as himself, and that is precisely what the 1st defendant is advocating in this trial. I find as proved the negligence particularised in paragraph 8 (i), (ii), (iii), (v) and (vi) of the further amended Statement of Claim. In my judgment, the welders were negligent and, through them, the 1st defendant was likewise negligent, liability for independent contractors not being a matter in dispute in these proceedings. As employer, the 1st defendant was further negligent in failing to supervise or permitting the said welding operations.

15. It would be quite unnecessary for me to embark on the other limbs of law submitted by Mr. Mills-Owens who relied also on the strict liability in the rule of Rylands v. Fletcher ⁽¹⁾. Counsel submitted that the welding operations constituted a non-natural use of the land whereby the 1st defendant brought upon it a dangerous thing, i.e. a fire which was likely to do damage if it escaped. Counsel referred to paragraph 1486 of Clerk & Lindsell on Torts, 14th Ed. and paragraph 443 of Charlesworth on Negligence 6th Ed. An accurate test for "non-natural user" has yet to be devised, and "Charlesworth" suggests its dispensation, but in the prevailing circumstances, there is not a shadow of doubt in my mind that welding operations on this location and at this height was not a natural user of the land envisaged by the Crown lease. The choice of the work site and the want of precautionary measure rendered the welding extra- hazardous. Welding is achieved by fusion of metalic parts under intense heat in the form of a fire which melts the metal and fuses the joint. Sparks of molten metal would shoot in all directions from the heated material in such welding operations. Such sparks are, in my view, no different from the sparks from a fire started on a demolition site for disposing of unwanted timber and debris as in H & N Emanuel Ltd. v. Greater London Council ⁽³⁾ or sparks from a locomotive engine driven along the highway which are all considered to be a fire for the purposes of the strict liability in the rule of Rylands v. Fletcher ⁽¹⁾.

16. Mr. Li, counsel for the 1st defendant, advanced a submission of some ingenuity that the fire did not in fact start in the premises of the 1st defendant by the welders but started on the property of the 3rd defendant. Mr. Li relied on a passage in Musgrove v. Pandelis ⁽⁴⁾ in which the defendant's inexperienced and incompetent chauffeur started the engine of his motor car causing, from some unexplained cause and without negligence, the petrol in the carburettor to catch fire. The defendant's servant failed to properly turn off the tap leading from the petrol tank to the carburettor. The fire, instead of harmlessly burning itself out, spread and burnt the car, the garage and the plaintiff's rooms and furniture above it. It was held that had the defendant's servant had the sense to turn off the tap of the petrol tank, the fire would have been localised and that the fire spread and damaged the plaintiff's properties was the second fire fed by the continuous supply of petrol from the petrol tank. At page 48, Bankes, L.J. explained:-

"The other point raised the question what is the meaning of the expression 'fire' to which the statute refers when it speaks of a person in whose house, chamber, stable etc., 'any fire shall ..... accidentally begin.' The statute is dealing with a fire which occasions damage, and it is in reference to that fire that it says no action shall be maintained nor shall any recompence be made by such person for any damage suffered or occasioned thereby. No more can be said as matter of law than that the fire contemplated by the Act is the fire which causes the damage, and so it is necessary in each case to consider what that fire was in view of the facts of that particular case. In this case it is impossible to say that the spark which originally ignited the petrol, though no doubt it was the original cause of the fire, was the fire which caused the damage."

Pausing here for a moment to comment that the learned Lord Justice clearly recognised the spark as a fire.

17. The Lord Justice continued:-

"As well might it be said that a housemaid striking a match to light her master's fire causes the fire which ultimately consumes the house because it originated from the match she struck. In this case the fire which caused the damage began when the flaming petrol acquired such volume as to become a source of danger."

18. This passage does not really assist Mr. Li. Moreover, fire was intentionally ignited to generate heat of great intensity for the purpose of welding within the 1st defendant's property, and sparks of molten metal escaped from such fire. The circumstances as borne out by the evidence in this case clearly let in the rule of Rylands v. Fletcher so strongly craved in aid by Mr. Mills-Owens, counsel for the plaintiffs. Before I turn to consider the common law liability of the 1st defendant, I should wind up the rule in Rylands v. Fletcher on a subsidiary point to which Mr. Li, counsel for the 1st defendant, alluded. The point arose from the reference made by Mr. Mills-Owens to paragraph 1518 in Clerk & Lindsell on Torts, 14th Edition the first two sentences of which read as follows:-

"A person who carries on himself or causes to be carried on by servants, agents, or independent contractors any operation which involves the creation of fire is under a duty to see that the fire is harmless to third parties. The duty has been variously described as absolute or as one to take special care, but it does not appear that any amount of care will absolve from liability in the event of damage being caused by the fire."

The case of Honeywill & Stein Ltd. v. Larkin Brothers Ltd. ⁽⁵⁾ is cited in support of that proposition. At page 200, Slesser, L.J. in delivering judgment of the Court of Appeal in Honeywill's case had this to say:-

"To take the photograph in a cinema with a flashlight was, on the evidence stated above, a dangerous operation in its intrinsic nature involving the creation of fire and explosion on another person's premises, that is in the cinema, the property of the cinema company. The appellants in procuring this work to be performed by their contractors, the respondents, assumed an obligation to the cinema company which was, as we think, absolute, but which was at least an obligation to use reasonable precautions, to see that no damage resulted to the cinema company from these dangerous operations: that obligation they could not delegate by employing the respondents as independent contractors, but they were liable in this regard for the respondents' acts."

Mr. Li contended that the words "absolute obligation" used in Honeywill's case bore a technical meaning as elaborated in the case of The Pass of Ballater ⁽⁶⁾. At pages 115 & 116, Langton, J. observed:-

"In the end, therefore, he (counsel for the plaintiffs) put his case squarely on the authority of the Court of Appeal in Honeywill & Stein, Ltd. v. Larkin Bros., Ltd. By that decision the Court of Appeal went, I think, a little further than they have done in the previous cases in putting on a person who assumes the obligation of doing dangerous work a duty which they describe as absolute to guard against damage from such an operation ..... I confess that the language here employed has puzzled me a little. The use of the word 'absolute' which is introduced apparently to denote a different and higher degree of obligation than the obligation 'at least .... the use of reasonable precautions' seems to suggest that the court has in mind a lower degree which is sufficient for the case in hand and a higher kind of obligation which the court also thinks might be applied in this and other unspecified cases. But if this were really the meaning, if there could ever be a higher obligation than to use reasonable precautions, if, that is to say, the word 'absolute' is to be taken to mean that the contractor assumes an obligation which admits of no answer or excuse, it could only signify that the contractor actually warranted the work. It would mean, for example, that he would be obliged to make good the damage which was in no sense the result of any lack of reasonable precaution, but the result of pure chance, such, say, as the sudden and unexpected death of a workman in charge of the operation at the critical moment of its performance. I cannot believe that it was ever intended to suggest such a degree of obligation as arising at common law, though it is of course no stranger to statute law: see Smith v. Camell, Laird & Co., Ltd. It would seem to be far more probable that the word 'absolute' is employed here rather in a sense of 'strict', and conveys only that the duty to use reasonable precautions when dealing with substances or materials which are dangerous in themselves, is one which the contractor cannot escape through employing a sub-contractor."

In H & N Emanuel Ltd. v. Greater London Council and Another ⁽³⁾, at p.839 C/D Lord Denning, M.R. analysed the situation admirably:-

"There has been much discussion about the exact legal basis of liability for fire. The liability of the occupier can be said to be a strict liability in this sense that he is liable for the negligence not only of his servants but also of independent contractors and, indeed, of anyone except a 'stranger'. By the same token it can be said to be a 'vicarious liability', because he is liable for the defaults of others as well as his own."

19. Finally, I pass to liability at common law which Mr. Mills-Owens submitted is strict. In paragraphs 1511 & 1512 of Clerk & Lindsell on Torts, 14th Ed., the liability of an occupier for fire at common law has been described as strict without proof of negligence, and it is said that such common law liability still remains in all cases today which are not covered by the Fire Prevention (Metropolis) Act 1774. The 1774 Act is applicable to Hong Kong and modifies the strict common law liability of an occupier by exempting him from the spread of fire which shall "accidentally begin". The word "accidental" has been held to mean "a fire produced by a mere chance, or incapable of being traced to any cause." Apart from the question of negligence, the fire in question was lit and brought to great intensity deliberately in the process of welding operations, and, therefore, the 1774 Act is not applicable. In paragraphs 517 & 518 of Charlesworth on Negligence, 6th Edn. similar passages of strict common law liability appear.

20. Mr. Li, counsel for the 1st defendant, relied heavily on passages at p.383 in Winfield on Torts, 10th Edn. as well as an article written by Mr. Winfield in the Law Quarterly Review ⁽⁷⁾. At page 46 in his thesis, having given an historical review of the law the learned author summarized as follows:-

"It is worthwhile to examine one instance in which the idea of absolute liability has run amok in expositions of our legal history. Students are usually told that at common law 'a man must keep his fire in at his peril'; and most writers on the topic seem to consider that, apart from a statute which came late in our law, this has always been so."

At page 50, the learned author continued:

"One thing, however, is clear. We cannot be sure that at any period in the history of English common law a man was absolutely liable for the escape of his fire. Nor is mediaeval liability for fire satisfactorily explained by saying that a man acts at his peril, and is excused only by misfortune or for the act of a stranger, because neither of these was his act; for it is by no means certain that he was liable if he lit the fire (unquestionably his act) and a stranger scattered it. In fact, here and elsewhere in the history of our law, such formulae as 'a man acts at his peril' or 'liability absolute in mediaeval law' are rather inaccurate generalisations."

21. Suffice it for me to say that at page 383 the same learned author in his textbook repeated the same observation.

22. Whilst there seems to be academic discord on an occupier's common law liability for fire, there has been no judicial dissonance. That judges do not share the view of Mr. Winfield's can be seen in the Emanuel's case. Lord Denning, M.R. at page 838 f, had this to say:-

"All those cases are covered, if not by common law, at any rate by the Fire Prevention (Metropolis) Act 1774, which covers all cases where a fire begins or spreads by accident without negligence. But that Act does not cover a fire which begins or is spread by negligence."

Edmund Davies, L.J. said at page 841 a/b:-

"Counsel for Emanuels, as I have already related, sought to uphold the judgment on three grounds. I do not find it necessary for the purposes of this appeal to consider the question of the strict liability at common law, nor do I propose to go into the validity - for such I believe it to be - of the decision of the learned trial judge that the LCC were in truth and in law liable under Rylands v. Fletcher."

At page 842 a, Phillimore, L.J. observed:-

"The LCC were undoubtedly occupiers of this land. They were sued in that capacity and they did not call any evidence to suggest otherwise. As such they owed a duty to their neighbours which is best described in the old latin maxim: sic utere tuo a ut alienum non laedas. As Markham, J. put it in Beaulieu v. Finglam:

'I shall answer to my neighbour for him who enters my house by my leave or knowledge whether he is quest to me or my servant, if either of them acts in such a way with a candle or other things that my neighbour's house is burned."

"Since the Fire Prevention (Metropolis) Act 1774 it is I think necessary to insert the word 'negligently' after the word 'acts'."

23. As the judges in Emanuel's case, the judges in the earlier case of Balfour v. Barty-King ⁽⁸⁾ at page 503 in a judgment of the Court of Appeal delivered by Lord Goddard, C.J. took the same view:

"Sir William Holdsworth, in his History of English Law, Volume XI, page 607, thinks that by the time this case was decided, 1698, lawyers were beginning to think it was anomalous that a man should be liable for fire damage not caused by negligence, and that this was one of the reasons for the Act of 1707, 6 Anne C.31, which provided that no action should lie against any person in whose house a fire should accidentally begin. This provision was re-enacted in the Fire Prevention (Metropolis) Act 1774, s.86, an Act which has been held to extend to the whole of the country. That it was necessary to give this measure of exemption to house-holders seems to show that by the common law there was an absolute duty to prevent the escape of fire, and this was the opinion of Blackstone, who says (Commentaries I, p.431) that the common law was altered by the Statute of Anne."

24. Apart from negligence, for a fire intentionally started in the form of a blowpipe torch for the welding operations, the 1774 Act has no application, and in my judgment, at common law the 1st defendant is strictly liable for its escape to the premises of the 3rd defendant and to the goods of the plaintiffs.

25. In conclusion, under each of the heads pursued by counsel for the plaintiffs, the 1st defendant is liable and judgment must therefore be given against the 1st defendant in favour of the plaintiffs as claimed with costs.

26. For similar reasons, the 2nd defendant was, I find, negligent in the welding operations and it must be ordered to give an indemnity as claimed in the Third Party Notices in favour of the 1st defendant. I also make the declaration and award damages sought, such damages to be assessed by the Registrar.

27. As for the 3rd defendant, the role, if any, its unlawful storage of paints without a Dangerous Goods Licence played in the fire is unknown. It has not been established that there was a breach of any rule or regulation on the part of the 3rd defendant to store wax on its own property. In no way can it be said in the known circumstances that the 3rd defendant owed any duty to its neighbour, the 1st defendant, in accepting wax for storage.

28. The duty on the part of the 3rd defendant as an adjoining occupier was no more than a duty to take care to maintain its property in a reasonably safe condition and use the same in such a manner as not to cause any nuisance. The storage of wax did not, in my view, constitute a breach of such a duty. That the storage of wax is per se negligence is not open to the 1st defendant on the pleading or on the evidence. The cause of the fire was not the wax. It was not the 3rd defendant who turned the wax to fluid or allowed it to flow onto the 1st defendant's land. The proximate cause for the flow of the wax was the fire, not its storage, and was traceable to the negligence of the 1st and 2nd defendants. On the evidence, criticisms sought to be levelled at the 3rd defendant's use of his property cannot be justified. The 3rd defendant was not obligated to heed any warning of or take precaution for the hazards of works undertaken by its neighbour, the 1st defendant, who was expected to use reasonable care to see that such works would not cause damage to adjoining property. In my judgment, the claims against the 3rd defendant on the Third Party Notices fail. Subject to costs already awarded to the 3rd defendant, if any, in the Third Party proceedings, I would make no order as to costs as between the 1st defendant and the 3rd defendant.

Representation:

Mr. Mills-Owens instructed by Messrs. Deacons for Plaintiffs.

Mr. Andrew Li instructed by Messrs. Wilkinson & Grist for 1st Defendant.

(1) [1868] LR 3 HL 330

(1) [1868] LR 3 HL330. See also para. 1517 Clerk & Lindsell on Tort 14th Ed.

(2) [1956 A.C. 552 at p.574]

(3) [1971] 2 A.E.R. 835

(4) [1919] 2 K.B. 43

(5) [1934] 1 K.B. 191

(6) [1942] p.112

(7) [1926] 42 L.Q.R. 37

(8) [1957] 1 Q.B. 496