Fire Spread And Liability For Damage Caused By Independent Contractors: The English V Scottish Approach

Despite the close proximity of the two jurisdictions, it is perhaps surprising that property liability law is not always mirrored north and south of the border. An example of this arises in relation to whether an employer is liable for the damage caused by an independent contractor to another's property.

The general rule in England and Scotland is that an employer is not liable. However, it does not follow that each jurisdiction takes the same approach in recognising the exceptions to the general rule, and this can be seen in the context of the English rules on fire spread which are not followed in Scotland.

The English approach

The rules governing fire liability in England are such that no action can be brought against a person where a fire started in their premises "accidentally." The courts have interpreted this as meaning "without negligence" and an occupier remains liable for an escape of fire whenever negligence by him or his servants or even independent contractors have permitted the escape. These issues arose in the case of Balfour v Barty King [1957]2 WLR 84 following a fire that started as the result of the negligent use of a blow torch by an independent contractor, damaging the plaintiff's property. The use of fire had, therefore, been deliberate. The plaintiff argued that "'If negligence be shown, it matters not against whom, the fire is not accidental."

The claim succeeded. The existence of negligence by the defendant's agent was enough to set aside the operation of the Fire Prevention (Metropolis) Act 1774. Lord Goddard said: "The precise meaning to be attached to 'accidentally' has not been determined, but it is clear from these last two cited cases that where the fire is caused by negligence it is not to be regarded as accidental. Although there is a difference of opinion among eminent text writers whether at common law the liability was absolute or depended on negligence, at the present day it can safely be said that a person in whose house a fire is caused by negligence is liable if it spreads to that of his neighbour, and this is true whether the negligence is his own or that of his servant or his guest, but he is not liable if the fire is caused by a stranger. Who, then, is a stranger? Clearly a trespasser would be in that category, but if a man is liable for the negligent act of his guest, it is, indeed, difficult to see why he is not liable for the act of a contractor whom he has invited to his house to do work on it...