Defendant liable for fire damage to plaintiff's car under negligence and Rylands v Fletcher principles.

[*117] 1981 December 14

(ARTEMIDES , S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Louis Christodoulides,

Plaintiff,

v,

Spyros Demetriou,

Defendant.

(Action No. 2278/80).

Fire - Damage caused by fire - Section 53 of the Civil Wrongs Law, Cap148 - Principles applicable - Car burnt down from the escape of fire ignited by defendant - Defendant liable to plaintiff both on negligence and on the Rylands and Fletcher principle.

G. Gavrielides, for the Plaintiff,

P. Solomonides, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

ARTEMIDES, S.D.J.:- In the morning of [*118] 25.4.1980 the defendant was employed by the owner of a field in Evrychou to burn down the dry grass and plants which formed a hedge around his field. This field adjoins a public road in the village across of which the vehicle of the plaintiff was parked in the yard of the house of a close relative of his. The vehicle was stationary there for a long time because the plaintiff was abroad. It is common ground that the spot where the defendant was burning down the bushes was about 50 - 60 ft from the vehicle, which caught fire and was burnt down completely. The plaintiff alleges that the fire which the defendant had ignited spread towards the vehicle, which was consequently destroyed. The defendant on the other hand contends that the fire he had started on the dry grass did not and could not spread to the vehicle, which was burnt down for reasons unknown or probably from a short circuit in its battery.

The undisputed facts of the case are the following, and in summarizing them I leave out all unnecessary and irrelevant material put in during the hearing which was rather unduly protracted. The defendant set the fire at about 9.00 a.m. Damianos Constantinou, (P.W.I) the grand-father of the plaintiff who lives nearby, was walking at the time along the main road and saw the defendant who was setting fire on the dry grass and plants. He said that the flames from the fire went high and there was a strong wind blowing at the time. He had then suddenly noticed that the plastic with which the car was covered got fire. He shouted at the defendant that the car was on fire. They both tried to put it down with water but their endeavours were [*119] of no avail. The car was burnt down almost completely.

Damianos proceeded to report the case to the police and on his way he went first to the house of PS. Stelios Milidonis (D.W.3), who escorted him to the police station where Damianos lodged his complaint. The police arrived soon at the scene and Georghios Karydes, a fire expert, was called from Nicosia who arrived at 1.00 p.m. of the same day.

The evidence adduced has been conflicting and I must say I have given to it considerable thought before I reached my conclusions to which I have arrived, I admit, with some difficulty. The plaintiff’s witnesses, in regard to the allegation that the fire which the defendant had started spread to the vehicle of the plaintiff, were Damianos Constantinou and PC 2641 Angelos Gavrielides (P.W.2). Witness Damianos said in his evidence that he saw the fire which the defendant had set on the dry grass spreading on the branch of an olive tree which was hanging partly over the main road. Bits and pieces of this branch as well as from dry grass which were on fire, flew and sat on the plastic cover of the car which caught fire and the flames then burned the car.

PC Gavrielides was the investigating officer. He proceeded to the scene with PC Nicos Stylianou. PC Gavrielides took 8 photos of the scene, exhibit 2. He notified the fire

expert G. Karydes. During his investigation he noticed himself that the branch of the olive tree which was partly hanging over

main road had been recently burnt (pirokameno). [*120] The grass, on which the defendant had set on the fire, was just below the olive tree and the height of the plants was about 7-8 ft. PC. Gavrielides proceeded to say further that strong winds were blowing at the time with a southeastern direction, that is from the direction of the fire towards the car. He noticed around the car and on the main road ashes and recently burnt small sticks and leaves “pokaidia, pozavlidia”.

The defendant called in support of his case on this issue three witnesses notably

G. Karydes a fire expert attached to the Fire Brigade in Nicosia who arrived at the scene at 1.00 p.m. for the specific purpose of investigating the causes of fire to the plaintiff’s car. The witness has described to the Court the scene at the fire and said that in the end he concluded that he could not express any opinion because his investigations did not reveal “Beyond reasonable doubt, so he has put the degree of certainty, the causes of fire to the car. His

conclusion was therefore that he could not express any opinion.

PC Ioakim was the officer who was instructed to go and keep watch of the scene until the fire expert Karydes would arrive. He said that he saw no “posavlides”or ashes.In his opinion, from what he saw, the fire was not a big one and although winds were blowing these were not strong ones. PS. Stelios Milidonis went also to the scene, when the car had already been burnt down, and he had noticed that the wind at the time was not strong. [*121]

After summarizing the evidence it is my duty to arrive at my findings. Before doing this, however, I shall deal briefly with the law applicable in the matter.

Our Civil Wrongs Law Cap. 148, makes specific provision for a case in which damage is caused by fire. Section 53 reads as follows:-

“In any action brought in respect of any damage in which it is proved –

(a) that such damage was caused by or in “ consequence of any fire, and

(b) that the defendant kindled such fire or was liable for the kindling of such fire or was the occupier of the immovable property or “the owner of the movable property on which such fire originated, the onus shall be upon the defendant to show that there was no negligence for which he is liable in connection with the origin or spread of. such fire.”

In the case of Mustafa Hamza v. Kyriacos A.Vlachos 21 C.L.R. 169 the Supreme Court, consisting of Hallinan L.J. and Zannetides J. held that section 53 (then 49) creates a rebuttable presumption of negligence and the burden of disturbing this presumption lies with the occupier of the premises where the fire had started or the person that ignited it. The Supreme Court further held that this section creates an independent tort from the strict liability principle enunciated in the notorious case of Rylands v. Fletcher [*122]

(1868) 3 H.L. 330.

Hallinan C.J. had this to say at p. 172 of the report in the Mustafa case:-

“In our view section 49 of the Civil Wrongs: Law by making provision for the burden of proof in actions for damage caused by the negligent use of fire has not excluded the application of the common law action for strict liability, where the damage is caused by fire spreading from premises owned or occupied by the defendant to the plaintiff’s land; and it is open to the plaintiff in this case on his statement of claim to rely on the rule in Rylands v. Fletcher”.

The same view had in fact been expressed earlier, than the Mustafa case by Asquith J. as he then was, in the case of Mulholland & Tedd, Ltd. v. Baker were the Judge held that despite the provisions in the Fires Prevention

(Metropolis) Act, 1774, the common law principle enunciated in Rylands v. Fletcher still applies. The Judge said the following at p. 256

of the report:-

“If I am wrong in finding that the fire was caused by the negligence of the defendant, I still think that the plaintiffs are in this case entitled to succeed on the principle of Rylands v. Fletcher. The Fires Prevention (Metropolis) Act, 1774, which in effect provides that negligence is a condition of liability in the case of a fire spreading from a defendant’s premises to a plaintiff’s, [*123] has been held not to apply in cases in which the defendant has brought on his premises an object likely to do damage if it is not kept under control and that object catches fire or causes a fire.”

The plaintiff bases his action on negligence and in paragraph 4 of the specially endorsed writ he says that he relies also on the principle of “Res ipsa loquitur”. In my view counsel for the plaintiff is labouring under a misapprehension with regard to the application of this principle and probably he has misunderstood it for the “Rylands and Fletcher rule”. The Res ipsa loquitur principle is applied procedurally In cases of negligence where the plaintiff cannot prove it by adducing evidence, as to the particular acts and circumstances constituting it, because these are within the particular knowledge of the defendant himself. In this case the burden of proof shifts on the defendant to disprove negligence. There are two requirements before the rule comes into play:

(a)The accident must be of such a nature as would not have occurred in the normal course of events without negligence and

(b)The thing that caused the accident must be under the management and control of the defendant,

Scott v. The London and St, Katherine Docks Co. (1865) 3 H & C 596, (See also the cases decided by our Supreme Court notably, The Tunnel Portland Cement Co, Ltd.v. The Prince Line Ltd. and Another (1963)

2 C.L.R. 181, Portland Cement[*124]Co. v. Prince Line. 1962) C.L.R. 236, Theodossiou v. Koulia and Another

(1970) I C.L.R. 310, Nicou v. Nicolaou (1976) 2 J.S.C. 539 , Morides v. Ioannou (1975) 7 J.S.C. 955. No doubt the Res ipsa loquitur

rule does not apply in the present case but certainly the Rylands and Fletcher does.

I now turn to the facts of the case. At first sight the evidence of the fire expert looks impressive in particular when he says that he cannot express an opinion as to the causes of the fire on the car. When, however, his testimony is examined more closely it becomes apparent that it lends support to the case of the plaintiff, bearing in mind of course that this is a civil action the burden of proof cast on the plaintiff being to make out his case on a balance of probabilities. Mr. Karydes said that he could not express an opinion because he did not find at the scene of the fire any real evidence or material that would lead him to conclude “beyond reasonable doubt”, as he himself has put it, on the causes of fire. He admitted, however, that taking into consideration the place where the fire had been ignited, the place where the car was stationary as well as other factors such as the blowing towards car wind, it was probable that small burning pieces of leaves could be blown onto the plastic cover of the car. In such a case the cover could be set on fire which would consequently burn the vehicle.

Mr. Karydes proceeded to say that he did not find traces of burning pieces of leaves or

small sticks along the main road in between the burning bushes and the car. It [*125] should be remembered, however, that the witness

arrived at the scene at 1.00 p.m., that is 3 - 4 hours after the vehicle had been completely burnt down, and by that time those pieces would have also been completely destroyed by fire to the point of extinction.

The evidence of Milidonis, the first police officer to arrive at the scene, is not very helpful. He simply went there and saw the defendant engaged in the burning of the bushes. The car had been already burnt down. He then asked the defendant to report to the police station. He proceeded to say further that he did not notice on the. road burning leaves or small sticks along the space between the flames and the vehicle. However, Milidonis did not investigate the case and what he said the had noticed were the result of a cursory look of an ordinary man and not the careful observations of an investigating officer.

The officer who was appointed to examine the case, for the purposes of a criminal investigation of course, is PC Gavrielides (P.W.2), called by the plaintiff, who arrived at the scene very early, almost immediately after the complaint had been lodged. He went there and took photos of the scene. He said that winds were blowing strongly at the time from southeastern direction i.e. from the flames towards the car. He noticed that there were “pokaidia” and “pozavlidia”on the main road scattered around the bushes which had been set on

fire and the land where the vehicle was parked. He further noticed that a[*126]branch of an olive tree, shown in photo 2,

had been partly burnt , "kapsaliasmeno". The olive tree, it is admitted, that it is positioned just above and very near to the spot where the fire had been ignited. The branch which was partly burnt is overhanging the main road as shown in photo 2 and opposite it is the land where the vehicle was stationary.

The evidence of Gavrielides, who is an independent witness and whom I believe as a truthful one, supports the evidence of Damianos (P.W.2) , who of course is an interested person, the plaintiff being his grand-son The most material part of the testimony of Damianos is when he said that he saw escaping from the flames the burning pieces of leaves which were blown by the wind' towards the car and then falling on its plastic cover.

Having seen and heard the witnesses on oath, I have decided to rely on the evidence of the investigating officer Gavrielides, who, as I have said earlier supports the testimony of the eye witness Damianos whose evidence I also believe because of this corroboration. If it were not for the evidence of Gavrielides supporting that of Damianos I would not have relied on the evidence of Damianos only and find for the plaintiff.

Counsel for the defendant has suggested during c. oss examination that the car was probably set on fire as a result of a short circuit. Witness Kakais (P.W.3) who repaired the vehicle excluded this possibility because, as he said he found the wires of the car unburnt. If a short [*127] circuit had occurred those would have been destroyed from burning. The fire expert Karydes excluded this as well because the car, and this is almost undisputed, was stationary for months and its battery would be flat thus not producing enough energy for a short circuit to occur.

In the light of my above findings I conclude that the car of the plaintiff was burnt down from the escape of fire ignited by the defendant who is responsible to the plaintiff both on negligence and on the Rylands and Fletcher principle.

With regard to the question of damages the evidence of Kakais, who repaired the vehicle, is unchallenged and having perused it I accept it.

Before concluding I feel it my duty to say that the case, being a civil action, has been decided on the preponderance of probabilities but I consider it to be a borderline case I would feel happy if my higher tribunal is given the opportunity to review my judgment in the interest of Justice.

In the light of the above judgment is entered for the plaintiff as per claim with costs to be assessed by the Registrar.

Judgment as per claim with costs.