Clark Fixing Ltd & Anor v Dudley Metropolitan Borough Council

An occupier may owe adjoining occupiers a duty concerning fire deliberately or carelessly started by trespassers where the occupier knew, or had means of knowing, that the property presented a real risk of fire. The duty depends on all the circumstances and remains exceptional. It requires only steps reasonably open to the occupier and proportionate to the risk. Where the risk arises from readily removable combustible material, and the material can be removed cheaply, failure to investigate and eliminate the risk may constitute negligence. The relevant risk must be assessed on the information reasonably available at the time, without hindsight.

Dudley Metropolitan Borough Council appealed from a preliminary liability judgment of Her Honour Judge Alton in the Queen’s Bench Division. The judge held the council liable for negligently failing to prevent fire spreading from a vacant former industrial property to adjoining premises through a shared timber roof.

The council had acquired the property for a bypass scheme. Trespassers repeatedly entered, started fires and attempted to steal copper cable. A timber sectional building remained beneath the roof, and the council received complaints about fires and the risk of fire spreading to neighbouring premises. The central issue was whether the council knew, or ought to have known, that the property created a real and foreseeable risk of fire spread and should have taken reasonable steps to prevent it.

Appeal dismissed. The court held that the judge had applied the correct legal principles and was entitled to make her factual findings.

1. The governing approach was that an occupier’s liability for damage caused by fire started by a third party depends on all the circumstances and on socially accepted standards of behaviour. Such duties are likely to be rare. A duty may arise where the occupier has knowledge, or means of knowledge, that third parties have created or are creating a risk of fire, and fails to take reasonable steps open to the occupier to prevent damage to neighbouring property. The steps required depend on the facts and must be proportionate to the risk. This approach was derived from Smith v Littlewoods Organisation Ltd [1987] 1 AC 241.
2. The council knew, or had the means of knowing, that intruders were entering the vacant premises and starting fires. It also knew of concerns about fire spreading through the shared timber roof, knew that the roof was combustible, and knew that the premises remained insecure.
3. The timber sectional building was readily combustible and could have been dismantled and removed at trifling cost. Once the council’s knowledge was assessed cumulatively, the risk of fire spread was real and foreseeable. The council should at least have obtained a proper fire-risk assessment and removed readily movable combustible material, or taken equivalent reasonable steps.
4. The judge’s conclusion did not depend on hindsight. Timber’s combustibility and the unpredictability of fire were matters that could properly be considered on the information available before the fire. The council’s failure to establish clear responsibility for vacant-property safety and to act on the complaints supported the finding of breach.

The appeal was dismissed with costs on an indemnity basis, to be assessed immediately. The stay of proceedings was lifted.

1. Court of Appeal (Civil Division): Appeal from the preliminary liability judgment of Her Honour Judge Alton in the Queen’s Bench Division. The appeal was dismissed.