It is perhaps not surprising that counsel could not find a reported case since the second world war in which anyone had succeeded in a claim under the rule. It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse
This was Lord Hoffmann’s description in Transco v Stockport MBC of the rule in Rylands v Fletcher (it is another matter that India has moved on to absolute liability). In its recent judgment in Mark Stannard v Gore, the Court of Appeal has considered two important questions about the rule: (a) whether the inherently dangerous thing must itself “escape” or may contribute to the escape of something else (such as “fire”); and (b) whether there is a special rule for liability arising out of a fire. The judgments of Ward, Etherton and Lewison, LJJ contain a careful and instructive analysis of the law on this subject, and is another example of the importance of incremental reasoning in the common law. As another great judge (Lord Greene MR) once put it in a different context, the temptation to do “what may appear to be fair in an individual case” must be resisted because “principles of construction are not to be outraged” (see Hankey v Clavering  2 KB 326, overruled on the substantive point it decided in Mannai Ltd v Eagle Star Life Assurance  AC 749).
Mr Stannard ran a tyre business. He kept more than 3,000 tyres in his compound and in the space between his compound and the plaintiff, Mr Gore’s compound at the rear. On 4 February 2008, a fire broke out in Mr Stannard’s premises because of faulty wiring. The tyres, which are ordinarily not combustible, caused the fire to spread rapidly and Mr Gore’s property was entirely destroyed and reduced to rubble the following day. Mr Gore naturally felt that he was blameless (which he was) and sued Mr Stannard for compensation. The claim was put in two ways: ordinary negligence, and strict liability. The negligence claim was destined to fail, which it did once the Recorder found that Mr Stannard had done all he could to ensure that the electricity system was as it should be. The case therefore turned entirely on Rylands v Fletcher, the Recorder holding that the plaintiff was entitled to judgment since Mr Stannard had, within that rule, kept combustible tyres that could cause a fire to break out at his peril. Of course, the “tyres” had not escaped – they had stoked the fire, which had.
Mr Stannard appealed. The first point in the Court of Appeal was that the Recorder had failed to distinguish between the escape of the dangerous “thing” which a defendant must keep or collect on his land to fall within the rule, and the escape of a fire that was stoked by something which did not itself escape.
Ward LJ’s review of the authorities (the leading post-Ryland cases are Cambridge Water Co and Transco) established that the rule had never been invoked in respect of a fire that had broken out accidentally, since, by definition, nothing had “escaped” the land. There was one exception, and that is the case of Musgrove v Pandelis  2 KB 43, in which the defendant’s servant failed to shut off the supply of petrol to a burning car that was in a garage below the plaintiff’s property. This led to a fire that destroyed the car and the plaintiff’s property. Bankes LJ in the Court of Appeal had expressed the view that the car was the dangerous thing (apparently overlooking that the “car” was very much in the land, it was the “fire” which had escaped). Ward LJ notices the criticism to which Musgrove has subsequently been subjected, and explains that if the Rylands rule at all applies to fire, it is confined to fire that is deliberately kindled. In that case it does no more than reaffirm the ancient English custom of the realm (ignis suus) by which an occupier of land was liable for “his” fire unless it was caused by a stranger (a person who entered without his leave) – in other words, deliberately by himself or who entered his property with his leave.
Etherton and Lewison LJJ go even further. Etherton LJ holds that it is impossible to apply Rylands v Fletcher to “fire” cases because the first condition that the inherently dangerous thing must have been “kept” or “collected” in one’s land can never be satisfied; the defendant in such cases does not keep the fire, he keeps the thing that starts or stokes the fire. Lewison LJ holds that Musgrove was wrongly decided. The judgments of Ward and Lewison LJJ contain a valuable historical analysis of liability for fire, and of the influence (in this area of the law as in many others) of the old forms of action on the modern law.
Perhaps the most important point that emerges from this judgment is that Rylands v Fletcher is a principle of limited application: after Transco and Stannard, it is confined to cases in which a defendant keeps a thing that he knows will cause exceptional damage if it escapes, and it can be said that keeping that thing was as an exceptionally unusual use of his land given the context of the land and general practices. It is sometimes tempting for a court to compensate a “victim” by fastening liability on the person from whose land or because of whom (in a “but for” sense) the loss emerged; this judgment emphasises that this approach is not correct, for liability, if any, can arise only on a recognised cause of action in accordance with existing principles of law.