The Accidental Fires Act, 1943

One of the most frequent queries raised by our broker partners relates to the effect of the Accidental Fires Act, 1943. Typically, their client’s property sustains damage caused by the spread of fire from a neighbouring premises. The policyholder can oftentimes be both amazed and annoyed to learn that their neighbour may not be liable to them, and that, instead, they are compelled to claim on their own policy. Of course, the true situation is more nuanced and policyholders can always rest assured that, if there are any genuine prospects of a recovery against a third party, then their own Insurer will seek to recover their own outlay alongside any uninsured losses.

Apart from being one of the shortest Acts on the Statute Book, it has had – and continues to have – wide-ranging consequences for Policyholders and Insurers alike. It was once broadly assumed that in order to successfully invoke the protection of the 1943 Act it was merely necessary for the defendant owner/occupier of the premises (from which the fire escaped) to establish that the fire was caused by “reason of fire accidentally occurring”, in other words, that it was not deliberately caused by the owner or occupier.

Background

At common law, strict liability was imposed upon occupiers for damage caused by the spread of fire. Strict liability is the legal responsibility for damages, or injury, even if the person found strictly liable was not at fault or negligent.

In this country, a defence to strict liability for damage caused by the spread of fire was created by an Act of Parliament. The ‘Act for preventing Mischief that may happen by fire’ was passed by the Irish House of Commons in 1715, before the Act of Union. It provided that no action should be taken against any person in whose ‘house or chamber’ a fire accidentally began. It may interest some readers to know that other laws passed by the same Parliament in the same year included: “An Act to restrain Papists from Being High or Petty Constables” and “An Act to make the Militia of this Kingdom more useful.”

Given that the law makers were so concerned with the nefarious influence of Papists or the uselessness of the Militia, it is noteworthy that they managed pass a law that was fit for purpose for nearly two hundred years. However, the Supreme Court case of Richardson v Athlone Mills in 1942 showed that the law had failed to keep pace with industrial development and that a new Act was required. In that case the Court held that the Act of 1715 was restricted to the spread of fire from a ‘house or chamber’ and that the factory or mill premises was not afforded the protection of the law.

The Accidental Fires Act, 1943 prevents legal proceedings being brought by any person injured by reason of a fire accidentally occurring in or on the building or land of another person. The Act was specifically intended to confine the effect of the Supreme Court’s decision the previous November in Richardson and Webster v Athlone Woollen Mills [1943].

Sean Lemass TD moved the Bill in the Dáil explaining: “As a consequence of a fire which occurred at the Athlone Woollen Mills in November, 1940, an action for damages was taken against the Athlone Woollen Mills Co., Ltd., in respect of the destruction of certain adjacent premises which were used as a private school. The Supreme Court, on appeal, recently decided in favour of the claimants on the ground that, as the mill premises were not a house within the meaning of an Act of the Irish Parliament, of 1715, the company was not protected against claims for damages caused by a fire accidentally originating in its premises and spreading to other property.”

The scope of the 1943 Act was necessarily wider than that of its predecessor, its key provisions are:

1.—(1) Where any person … has suffered damage by reason of fire accidentally occurring (whether before or after the passing of this Act) in or on the building or land of another person, then, notwithstanding any rule of law, the following provisions shall have effect, that is to say:—

(a) no legal proceedings shall, after the passing of this Act, be instituted in any court by the injured person or any person claiming through or under him or as his insurer against such other person on account of such damage;

Although authority was somewhat divided on the question, it appears that the better position is that plaintiff must show that the fire was caused otherwise than by accident, i.e. that there is an assumption that the defendant is entitled to the protection of the Act and that it is for the plaintiff show – on the balance of probabilities – that the fire was not caused accidentally.

Our Head of Major & Complex Losses, Declan Feely was involved, in his capacity a loss adjuster, in the High Court case of Nugent v Fogarty [2015] which confirmed that “accidentally occurring” does not include a fire caused by the negligence of some person. In reaching his decision, The President of the High Court, Mr. Justice Nicholas Kearns, followed two other decisions of the High Court to the same effect: Feeney v Andreucetti [2015] and Ramblers Way v Mr. Middleton Garden Shop [2012].

In the case of Ramblers Way an electric heater had been left switched on in the vicinity of flammable materials. The person concerned had not forgotten to switch off the heater but rather, had turned the thermostat to zero as opposed to plugging-out the device altogether. The court held that the fire did not accidentally occur, and that the defendant had been negligent by failing to plug out the heater in accordance with the instructions and by leaving it close to flammable materials.

The key learning-point is that a fire cannot be ‘accidental’ if there was negligence, either in its creation, or the failure to control it. In the Nugent case, a fire broke out in the attic of the Fogarty’s property as a result of plastic bags of clothing being placed too close to downlighter fittings. Mr. Nugent, the Fogartys’ neighbour, sued the Fogartys and argued that because the danger of the downlighters was known to the Fogartys, they had a duty to keep the plastic bags away from the fixtures. The Fogartys said that because the bags were not placed directly on the fixtures there was no intention to cause the fire and so it was accidental.

Justice Kearns found that the Fogartys were aware of the risk associated with the downlighters but that they still stored flammable material close enough to ignite. Accordingly, the defence provided by the 1943 Act could not apply and the Plaintiff was entitled to succeed.

Summary

The defence provided by the 1943 Act may be seen to be significantly narrower than many brokers, loss adjusters, assessors, and underwriters may once have assumed. Truly accidental fires (from the perspective of the Courts) may potentially  be less common than fires caused negligently. Nevertheless, we continue to recommend that the best approach is for any insured claimant to rely upon their own first-party policy and to then work with their Insurer to determine whether any claim may be brought against the party from whose premises the fire spread.

 

John O’Donoghue – Managing Director

 

 

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