England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)

		Royal Court of Justice
		14th March 1997

1. LORD JUSTICE STUART-SMITH: This is the judgment of the court.
2. By order dated 17 December 1996 Judge LJ ordered that the appeals in these cases should be consolidated and argued together because they raise similar questions of law, in particular whether and if so in what circumstances a fire brigade owes a duty of care to the owner or occupier of premises which are damaged or destroyed by fire.
3. The facts of these cases can for present purposes be stated fairly shortly:
The Hampshire case Capital and Counties PLC (Capco) v. Hampshire County Council Digital Equipment Co. Ltd. (Digital) v. Hampshire County Council
4. This was a decision of H.H. Judge Havery QC sitting as an Official Referee. Capco were the developers and lead lessees of the Crescent, in Basingstoke, Hampshire. Between 1989 and the date of the fire on 6 March 1990 Digital, an American computer company, occupied the Crescent as under-lessees. The Crescent was a modern building equipped with an elaborate smoke detection system and heat-activated sprinkler system. Sprinklers are among the most effective known means of combating fire. It is the golden rule in fire-fighting in sprinklered buildings that you do not normally turn the sprinklers off until you are absolutely sure that the fire is completely extinguished. There are no advantages in doing so which could possibly outweigh the adverse impact on the spread of the fire.
5. The fire began at about 10:00 a.m. in the east of the roof void of Block A. The sprinklers began to operate at 10:23 a.m., shortly before the arrival of the first fire engine. At 10:50 a.m. the sprinkler system was shut down on the instructions of Stn. Officer Mitchell. This was done in those parts of the building where the fire was, as well as in other parts which were as yet unaffected. The Judge, applying the Bolam test as the standard of negligence, held that Stn. Officer Mitchell's action in turning off the sprinklers was negligent.
6. At the time when the sprinklers were disabled, the fire brigade had not yet found the seat of the fire, and were not effectively fighting it themselves. The sprinklers were therefore, at that stage, the only operative means of fighting the fire. Disabling them had an immediate, or almost immediate, adverse effect on the restraining of the fire and rapidly led to its going out of control. It made it impossible to contain the fire in Block A, even after the seat of the fire was located; and it enabled the fire to spread into and across the now unprotected Blocks B and C.
7. At about 10:55 a.m., the fire brigade located the seat of the fire. At 11:10 a.m., the roof of Block A collapsed, and the fire entered Blocks B and C. The fire brigade then withdrew from the interior of the building to fight the fire from the outside. At this point they reactivated the sprinklers. But the spread of the fire had by then destroyed significant parts of the sprinkler system and made it practically useless. The building was a total loss by 12:10pm. There was conflicting evidence about what would have happened if the fire brigade had not turned up at all. The Judge was unable to say whether or not, on balance of probabilities, if the fire brigade had done nothing and the sprinklers had been left on, the building would have been burned down completely.
8. In fact, the fire brigade did turn up and they fought the fire. If they had not only done this but left the sprinklers in operation, the Judge found that the combined effect would have been to avert a total loss. Three quarters of Block A and the whole of Blocks B and C would have been saved. The damage (inclusive of interest) which was attributable to the disabling of the sprinklers was assessed at about £16 million.
The London Fire Brigade case John Munroe (Acrylics) Ltd. v. London Fire Brigade and Civil Defence Authority & Ors.
9. The second defendants, a company specialising in creating special effects for film and television, caused a deliberate explosion on wasteland near the plaintiffs' industrial premises. Burning debris was scattered over a wide area and small fires broke out. Some of the debris was seen to fall onto the plaintiffs' premises and smoke was observed coming from a corner of the plaintiffs' yard. Members of the public made emergency calls to the fire brigade, who responded by sending to the scene within a short time four fire engines complete with a leading fire-fighter and fire crews. The members of the fire brigade attending the scene were employed by the defendant fire authority. When the fire brigade arrived, the second defendants' staff had already extinguished the fires on the wasteland and there was no visible evidence of any continuing conflagration. The fire brigade's officers took steps to satisfy themselves that all fires had been extinguished and that there was no residual danger, and they left the scene about 20 minutes after the initial explosion without inspecting the plaintiffs' premises, which abutted one side of the wasteland, where combustible material was to be seen. It was likely that there would also have been smouldering debris. No member of the Plaintiffs' staff was present and there was no record of any conversation between the fire crews and the plaintiffs' staff. Later that evening a fire broke out at the plaintiffs' premises, which were severely damaged. The plaintiffs issued a writ against the fire authority alleging negligence by their servants or agents in failing adequately to inspect the wasteland and the premises, and failing to ensure that all fires and risk of further fires in the area had been eliminated before leaving.
10. This case came before Rougier J on a preliminary issue whether the fire brigade owed any duty of care to the plaintiffs; the case proceeded on an agreed statement of facts. The Judge held that the fire brigade was not under a duty of care, there was no sufficient proximity, and it was not fair and reasonable to impose such a duty on the fire brigade; nor did they assume responsibility or bring themselves within the necessary degree of proximity so as to impose upon them a duty of care towards persons likely to be affected by the fire, merely by electing to respond to calls for assistance.
The West Yorkshire case The Church of Jesus Christ of Latter Day Saints (Great Britain) v. West Yorkshire Fire and Civil Defence Authority
11. The claim was for £1.8 million, being the cost of repairing the plaintiffs' Chapel after a disastrous fire on the night of 22 October 1992. In the early hours of that night, a fire was spotted in a classroom attached to the Chapel: at 1:42 a.m. The defendants were asked to attend: two fire engines arrived, with commendable promptitude at 1:47 a.m., and further fire engines continued to arrive until, by just after 3 a.m., there were fifteen fire engines present. It was alleged in the Statement of Claim that it was not until some time after that the defendant was able to fight the fire efficiently, owing to the absence of a proper supply of water. No less than seven fire hydrants surrounded the Chapel. Of these, four failed to work for one reason or another, and three were either never found, or found so late as to be of little use. One hydrant was not located until a late stage because there was no yellow marking sign: another was not found at all because the yellow hydrant sign was obscured by ivy. In the end, water had to be obtained from a mill dam over half a mile away. In the result, says the plaintiff, a fire which could and should have been contained in the adjacent classroom, burnt down not only the classroom but the entire Chapel as well.
12. The plaintiff's claim is framed both in negligence and breach of statutory duty: in particular under S13 of the Fire Services Act 1947 (The Act). The particulars are: failing to inspect the hydrants at least once a year; causing or permitting hydrant B to be on a service pipe; failing on inspection at all or properly to have observed that the hydrants were defective; failing at all or properly to have repaired the hydrants; failing to observe that the yellow sign marking hydrant F was obscured by vegetation; failing to locate 2 of the hydrants at an earlier stage. Since the Judgment, the plaintiff has served a proposed Amended Statement of Claim; this makes somewhat more specific reference to the frequency of inspection of the hydrants and adds allegations of breach of statutory duty contrary to S1 of the Act.
13. The defendants applied to strike out the Statement of Claim as disclosing no reasonable cause of action. H.H. Judge Crawford QC, sitting as a Deputy High Court Judge dismissed the action. He held that S13 of the Act did not afford an action for damages for breach of statutory duty. As to the claim in common law negligence he held that there was a relationship of sufficient proximity between the parties, but he went to hold that it was not just, fair and reasonable to impose a duty on the fire brigade. By their appeal the plaintiffs challenge the first and third holdings. By their respondents notice, the defendants challenge the second and seek to uphold the Judge's conclusion on the basis that there was no proximity.

The statutory provisions of the Act

"1. Provision of fire services

(1) It shall be the duty of very fire authority in Great Britain to make provision for fire-fighting purposes, and in particular every fire authority shall secure -

(a) the services for their area of such a fire brigade and such equipments as may be necessary to meet efficiently all normal requirements;

(b) the efficient training of the members of the fire brigade;

(c) efficient arrangements for dealing with calls for the assistance of the fire brigade in case of fire and for summoning members of the fire brigade;

(d) efficient arrangements for obtaining, by inspection or otherwise, information required for fire-fighting purposes with respect to the character of the buildings and other property in the area of the fire authority, the available water supplies and the means of access thereto, and other material local circumstances;

(e) efficient arrangements for ensuring that reasonable steps are taken to prevent or mitigate damage to property resulting from measures taken in dealing with fires in the area of the fire authority;

(f) efficient arrangements for the giving, when requested, of advice in respect of buildings and other property in the area of the fire authority as to fire prevention, restricting the spread of fires, and means of escape in case of fire."

"Fire-fighting purposes" means the purposes of the extinction of fires and the protection of life and property in case of fire. (S38(1))

14. S3(1)(e) gives power to a fire authority to employ the fire brigade maintained by them or use equipment so maintained for purposes other than fighting fires and they can charge for such services. But apart from this a fire authority may make no charge for its services. (S3(4).)

"13. Duty of fire authorities to ensure supply of water for fire-fighting

A fire authority shall take all reasonable measures for ensuring the provision of an adequate supply of water, and for securing that it will be available for use, in case of fire.

30. Powers of firemen and police in extinguishing fires

(1) Any member of a fire brigade maintained in pursuance of this Act who is on duty, any member of any other fire brigade who is acting in pursuance of any arrangements made under this Act, or any constable, may enter and if necessary break into any premises or place in which a fire has or is reasonably believed to have broken out, or any premises or place which it is necessary to enter for the purposes of extinguishing a fire or of protecting the premises or place from acts done for fire-fighting purposes, without the consent of the owner or occupier thereof, and may do all such things as he may deem necessary for extinguishing the fire or for protecting from fire, or from acts done as aforesaid, any such premises or place or for rescuing any person or property therein.

(2) Any person who wilfully obstructs or interferes with any member of a fire brigade maintained in pursuance of this Act who is engaged in operations for fire-fighting purposes shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) At any fire the senior fire brigade officer present shall have the sole charge and control of all operations for the extinction of the fire, including the fixing of the positions of fire engines and apparatus, the attaching of hose to any water pipes or the use of any water supply, and the selection of the parts of the premises, object or place where the fire is, or of adjoining premises, objects or places, against which the water is to be directed.

33. Inquiries

(1) The Secretary of State may hold a public local inquiry into the matter in which any fire authority are performing their functions under this Act, or into the circumstances of, or the steps taken to deal with, any particular outbreak of fire."

Statutory duty or statutory power

15. Until the proposed amendment of the Statement of Claim in the West Yorkshire case it was not suggested by any of the plaintiffs that S1(1) of the Act imposed any duty on a fire authority the breach of which is actionable in private law. Moreover, in spite of the proposed amendment, Mr. Boswood QC on behalf of the plaintiff in the West Yorkshire has not advanced any argument to support this contention. He does however maintain that breach of S13 of the Act gives rise to a private law right at the suit of the plaintiffs. We do not propose therefore to take time over Section 1(1). In our judgment it is plain that this section lays out "target" duties breach of which are not actionable in private law.
16. Although the Act does not in express terms confer on the Fire Authority the power to fight fires, it is implicit in the powers conferred in S30(1)-(3) and indeed the whole tenor of the Act that they do have such a power. The style of drafting adopted may be no more than the recognition that any citizen is entitled to fight fires, although in doing so he will not enjoy the immunity from suit for trespass afforded to fire officers and constables by S30(1).

Is there a common law duty on the fire brigade to answer calls to fires or to take reasonable care to do so?

17. The question whether, in the absence of a statutory duty, a statutory power to act can be converted into a common law duty to exercise the power has been extensively considered by the House of Lords in Stovin v. Wise [1996] AC 923; at p 952H Lord Hoffmann, with whose speech Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed said:

"If [a statutory] duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit or service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.

In the case of mere statutory power, there is the further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory "may" can never give rise to a common law duty of care. I prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer's statement of principle in the East Suffolk case. I shall go on to consider the circumstances (such as "general reliance") in which it has been suggested that such a duty might arise. But the fact that Parliament has conferred a discretion must be some indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions will be rare.

In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised."

18. Mr. Walker QC for the plaintiffs in the London Fire Brigade case submitted that he was entitled to rely on the doctrine of general reliance as giving rise to a duty to exercise statutory powers which have been granted and/or a duty of care to respond to the public's call for help. In the Australian case of Sutherland Shire Council v. Heyman 157 C.L.R. 442 Mason J said:

"there will be cases in which the plaintiff's reasonable reliance will arise out of a general dependence on an authority's performance of its function with due care, without the need for contributing conduct on the part of a defendant or action to his detriment on the part of a plaintiff. Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimise a risk of personal injury or disability, recognised by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realisation that there is a general reliance or dependence on its exercise of the power ..... The control of air traffic, the safety inspection of aircraft and the fighting of a fire in a building by a fire authority ..... may well be examples of this type of function."

19. The principle of general reliance has been applied on a number of occasions in Australia. It was relied upon in Casley & South v. F.S. Evans & Son Ltd. [1989] Aust Tort Reports 80. 281. But that seems to be a case where the fire authority created the danger; Northern Territory of Australia v. Deutsher Klub (Darwin) [1994] Aust Tort Reports 81. 275 (a case of negligent inspection for the purpose of granting a club licence) and Pyrenees Shire Council v Day [1995] Aust Tort Reports 81. 381; in that case Brooking JA paid some regard to the judgment of Roch LJ in Stovin v. Wise [1994] 1 W.L.R. 1124 which was reversed in the House of Lords. But the doctrine has received little if any support in English law. There appears to be no case, except Anns itself, which could be said to be an example of its application. And two of the examples suggested by Mason J have been held not to give rise to a duty of care. In Marc Rich & Co.ACT v. Bishop Rock Marine Co. Ltd. [1996] 1 AC 211 a classification society in which a vessel was entered was held not to be under a duty of care to cargo owners in respect of a negligent inspection of the vessel. And a similar conclusion was reached by the Court of Appeal in Philcox v. Civil Aviation Authority [1995] Times June 8 and transcript, the CAA being held under no duty of care to the owner of an aircraft alleged to have been negligently inspected and improperly given a certificate of airworthiness.
20. Further in a passage in his speech which is admittedly obiter but was a propos Mason J's reference to the principle in the Shire Sutherland case Lord Hoffmann in Stovin's case said at p. 954H:

"[The] application [of the doctrine of general reliance] may require very careful analysis of the role which the expected exercise of the statutory power plays in community behaviour. For example, in one sense it is true that the fire brigade is there to protect people in situations in which they could not be expected to be able to protect themselves. On the other hand, they can and do protect themselves by insurance against the risk of fire. It is not obvious that there should be a right to compensation from a negligent fire authority which will ordinarily enure by right of subrogation to an insurance company. The only reason would be to provide a general deterrent against inefficiency. But there must be better ways of doing this than by compensating insurance companies out of public funds. And while premiums no doubt take into account the existence of the fire brigade and the likelihood that it will arrive swiftly upon the scene, it is not clear that they would be very different merely because no compensation was paid in the rare cases in which the fire authority negligently failed to perform its public duty."

21. Although plaintiffs' counsel have criticised Lord Hoffmann's reference to the existence of insurance, as being an invalid ground for saying that it is not just, fair and reasonable to impose a duty of care, we do not think that this is what Lord Hoffmann is saying in this passage. Rather he is suggesting that there is not a general expectation that fires will necessarily be extinguished by the fire brigade; there is no doubt a hope that they will; but they may arrive too late to be of practical use, or they may not arrive at all; instead for the most part people rely upon insurance for indemnification in case of loss.
22. In Alexandrou v. Oxford [1993] 4 All ER 328 the plaintiff's clothing shop was burgled on a Sunday evening. The shop was equipped with a 999 type burglar alarm which rang in the police station on being activated and gave a recorded message as to the site of the burglary. The alarm sounded at 7:23p.m. and police officers went to investigate. The Judge did not believe that they had inspected the rear of the premises as well as the front. The alarm bell ceased to ring at 9:26 p.m. The Judge found that the burglary had been committed shortly before this, access being obtained through a window at the rear of the premises and egress with the stolen goods through a fire door also at the back. The Judge also rejected the police evidence that at about 9:26 they inspected the rear of the premises and nothing was amiss. He held that, if an inspection had been made at the rear as well as the front, as it should have been, the burglars would have been stopped. It is a case therefore on the facts where the police responded to the 999 call, but through negligent failure to inspect, they failed to prevent the loss to the plaintiff, their intervention being ineffectual. Glidewell LJ with whose judgment Parker and Slade LJJ agreed, dealt with the argument that there was sufficient proximity between the plaintiff and the police to give rise to a duty of care. He said at p338:

"Mr. Scholes QC for the plaintiff accepts the Judge's definition of the class of persons to whom the police owe a duty as owners of intruder alarms connected to the police station, though at one stage in his argument he appeared to limit the class to those with 999 type burglar alarms. He submits that this is a much more limited group than the category of "young or fairly young women" to whom it was alleged that the police owed a duty in Hill's case. Thus, submits Mr. Scholes, the fire brigade was correct in distinguishing the present case from Hill's case.

It is possible to envisage an agreement between an occupier of a property protected by a burglar alarm and the police which would impose a contractual liability on the police. That is not, however the situation in this case. The communication with the police in this case was by a 999 telephone call, followed by a recorded message. If as a result of that communication the police came under a duty of care to the person who informs them, whether by 999 call or in some other way, that a burglary is being committed or is about to be committed. So in my view if there is a duty of care it is owed to a wider group than those to whom the fire brigade referred. It is owed to all members of the public who give information of suspected crime against themselves or their property. It follows, therefore, that on the facts of this case it is my opinion that there was no such special relationship between the plaintiff and the police as was present in the Dorset Yacht case. On this issue I respectfully disagree with the learned Judge."

23. It is true that in that passage Glidewell LJ is concentrating on the question whether there was any duty to respond to the call; but he cannot have overlooked the fact that the police in fact intervened, albeit ineffectually. This will be a relevant matter when we come to consider the duty if any on the fire brigade once they have reached the fire ground. For present purposes the case of Alexandrou is clear authority for the proposition that there is no sufficient proximity simply on the basis that an emergency call is sent to the police, even if there is a direct line from the premises to the police station. The decision is binding on us, unless it can be distinguished, and in our view on this aspect it cannot.
24. Glidewell LJ also held, following Hill v. Chief Constable of West Yorkshire [1989] AC 53, that it was not just fair and reasonable to impose a duty of care on the police in these circumstances. Slade LJ said at p344:

"it is unthinkable that the police should be exposed to potential actions for negligence at the suit of every disappointed or dissatisfied maker of a 999 call. I can see no sufficient grounds for holding that the police owed a duty of care to this plaintiff on or after receipt of the 999 call on 26 January 1986 if they would not have owed a duty of care to ordinary members of the public who made a similar call."

25. In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.

Does the fire brigade owe a duty of care to the owner of the property on fire, or anyone else to whom the fire may spread, once they have arrived at the fire ground and started to fight the fire?

26. There are to be found some general statements to the effect that they do owe such a duty. Halsbury's Law of England 4th Ed. Vol 18 at para 404 it is stated that:

"A fire authority is vicariously liable for acts of negligence committed by members of the fire brigade acting in the course of, and for the purposes of, their duties. It is doubtful whether there is any method by which the fire authority could free itself from liability for the negligence of persons expressly or impliedly authorised by it to deal with fires in respect to the manner in which they carry out their tasks."

27. The authority cited for this proposition is Kilboy v. South Eastern Fire Area Joint Committee [1952] S.C. 280 and the second sentence is a quotation from the judgment of Lord Keith of Avonholm in that case at p 288 and is clearly obiter. The decision of the Court of Session turned on the defendants argument that it was not vicariously liable for the negligent act of a fireman in throwing down a rope which struck the infant plaintiff in the eye while he was watching fire fighting.
28. In Duff v. Highland & Islands' Fire Board [1995] S.L.T. (Notes) 1362 Times November 3. Lord MacFadyen expressed the view obiter that the fire brigade would owe a duty of care to the owner of property on fire to whose assistance they have gone. He rejected the submission that such a duty should not be imposed as a matter of policy.
29. Before decisions the subject of the present appeals, however, there have been no reported cases on the point in this country. Since the present cases were heard at first instance, Rimer J has followed the decisions in the London Fire Brigade and West Yorkshire cases. He declined to follow the Hampshire case: see Nelson Holdings Ltd. v. British Gas PLC Transcript 5 December 1996. It is therefore necessary to approach this question from first principles.
30. Counsel for the plaintiffs in the Hampshire case submit that there are two approaches in principle which lead to the conclusion of liability in their case.
31. First it is said that, although the correct method for deciding whether there is a duty of care at common law is to adopt the approach advocated by Lord Bridge in Caparo PLC v. Dickman [1990] A.C. 605 at 617-8, namely (i) forseeability of damage arising from the negligent performance of the relevant operation (ii) the existence of a sufficient relationship of proximity between the parties and (iii) whether or not as a matter of legal policy it is "fair just and reasonable" that a duty of care should exist, the direct infliction of foreseeable physical damage is an established category of case where a duty exists. It is argued that Stn. Officer Mitchell's act of switching off the sprinklers was a positive act of misfeasance which foreseeably caused the fire to get out of control and spread and cause the loss of Blocks B and C and part of Block A which would not otherwise have been affected. It was on this basis that Judge Havery found in the plaintiffs' favour. By reason of the differing circumstances in each appeal this line of argument is only of direct assistance to the plaintiffs in the Hampshire case.
32. The alternative ground upon which it is said that proximity will arise is where someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, and there is direct and substantial reliance by the plaintiffs on the defendant's skill. (See Henderson v. Merrett Syndicates Ltd. [1995] 2 AC 145 per Lord Goff of Chieveley at p.178-181 adopting what was said by Lord Morris of Borthy-Guest and Lord Devlin in Hedley Byrne v. Heller [1964] AC 465 at 502-3 and 526).
33. We turn to consider the first of these submissions. The peculiarity of fire brigades, together with other rescue services, such as ambulance or coastal rescue and protective services such as the police, is that they do not as a rule create the danger which causes injury to the plaintiff or loss to his property. For the most part they act in the context of a danger already created and damage already caused, whether by the forces of nature, or the acts of some third party or even of the plaintiff himself, and whether those acts are criminal, negligent or non-culpable.
34. But where the rescue/protective service itself by negligence creates the danger which caused the plaintiff's injury there is no doubt in our judgment the plaintiff can recover. There are many examples of this. In Rigby v. Chief Constable of Northants [1985] 1 W.L.R. 1242 the plaintiff's gun shop was at risk from a lunatic. The police came to deal with the situation; they fired a CS canister of gas into the shop, though it caused a high risk of fire, without ensuring that the fire engine which had previously been available was there to put out any fire that resulted. In Knightly v. Johns [1982] 1 WLR 349 in the course of traffic control following an accident two police constables were instructed to take a course which involve them riding against the traffic flow round a blind bend causing a collision in which the plaintiff was injured. In Dorset Yacht Co. v. Home Office [1970] AC 1004 the defendant's prison officers had brought the Borstal boys who had a known propensity to escape into the locality where the yachts were moored and so had created a potential situation of danger for the owners of those yachts, in which they failed to exercise proper supervision over the boys. (See per Lord Keith of Kinkel in Hill v. The Chief Constable of West Yorkshire [1989] 1 A.C. 53 at p61.) Similarly in Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310 where the question in issue was the liability of the police to those suffering shock as a result of the Hillsborough disaster. There was never any dispute that the police were liable to the primary victims because they had created the danger by incompetent crowd control.
35. These are all cases however where a new or different danger has been created from that which the police were seeking to guard against, except perhaps in Alcock . A comparable situation would be if, on arrival at the scene of a fire, the fire engine was negligently driven into the owner's car parked in the street. But it seems to us that there is no difference in principle if, by some positive negligent act, the rescuer/protective service substantially increases the risk; he is thereby creating a fresh danger, albeit of the same kind or of the same nature, namely fire. The Judge held that at the time the sprinkler systems were turned off, the fire was being contained, but that once they were turned off it rapidly went out of control, spreading to Blocks B and C which had been deprived of their own sprinkler protection.
36. In answer to both ways in which Mr. Sumption Q.C. puts the case for Digital, Mr. Munby relies on the decision in East Suffolk Rivers Catchment Board v. Kent [1941] AC 74. The facts are well known. Owing to a very high tide, a breach was made in the sea wall as a consequence of which the respondent's land was flooded. The appellants, in the exercise of their statutory powers, undertook the repair of the wall, but carried out the work so inefficiently that the flooding continued for one hundred and seventy eight days thereby causing serious damage to the respondent's pasture land. By the exercise of reasonable skill in carrying out the work of repair the breach in the wall could have been repaired in fourteen days.
37. The trial Judge and the majority of the Court of Appeal held the appellants liable. In the House of Lords it was held that where a statutory authority embarks upon the execution of the power to do work, the only duty owed to any member of the public is not thereby to add to the damages which that person would have suffered had the authority done nothing.
38. The statement of principle is to be found in all the speeches of their Lordships except Lord Atkin who dissented. At P.84 Viscount Simon L.C. said:

"It is not, of course, disputed that if the appellants, in the course of exercising their statutory powers, had inflicted fresh injury on the respondents through lack of care or skill, they would be liable in damages for the consequences of their negligent act. If, for example, the appellants, by their unskilful proceedings had caused a further area of the respondents' land to be flooded, or had prolonged the period of flooding beyond what it would have been if they had never interfered, they would be liable. But (apart from two minor matters which it is agreed do not govern the main issue) nothing of this sort happened. The respondents would have gained if the flooding had been stopped sooner; their complaint against the appellants is that they did not act with sufficient skill to stop it more promptly; but the respondents cannot point to any injury inflicted upon them by the appellant Board, unless it be the Board's want of success in endeavouring to stop the flooding at an earlier date."

39. After referring to the well know dictum of Lord Blackburn in Geddis v. Proprietor of Bann Reservoir 3 App Cas 430, 455 Viscount Simon said at p.87:

"it would be misapplied if it were supposed to support the proposition that a public body, which owes no duty to render any service, may become liable at the suit of an individual, if once it takes it upon itself to render some service, for failing to render reasonable adequate and efficient service. On the other hand, if the public body by its unskilful intervention created new dangers or traps, it would be liable for its negligence to those who suffered thereby."

40. At P.88:

"It is admitted that the respondents would have no claim if the appellants had never intervened at all. In my opinion, the respondents equally have no claim when the appellants do intervene, save in respect of such damage as flows from their intervention and as might have been avoided if their intervention had been more skilfully conducted."

41. Lord Thankerton considered that the essential question in the case was one of causation (see p.96). At p.95 he said:

"But I am equally clear that, as soon as they entered upon the land and commenced operations, the appellants owed a duty to the respondents to conduct such operations with such reasonable care as would avoid causing damage to the respondents' property, and that they would be liable to the respondents if the latter could show (a) absence of such reasonable care in the conduct of operations, and (b) that they had suffered loss which was caused by such lack of reasonable care."

42. Lord Romer at p.102 said:

"Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing. So long as they exercise their discretion honestly, it is for them to determine the method by which and the time within which and time during which the power shall be exercised; and they cannot be made liable, except to the extent that I have just mentioned, for any damage that would have been avoided had they exercised their discretion in a more reasonable way."

43. Lord Porter at p.104 said:

"Damage caused by anything negligently done by the appellants in the course of the exercise of their power which would not have occurred if they had refrained from exercising it at all would undoubtedly have to be made good on the principles set out in the well known words of Lord Blackburn in Geddis v. Proprietors of Bann Reservoir already quoted by Lord Romer; but where, as here, the damage was not caused by any positive act on the part of the appellants but was caused and would have occurred to the like extent if they had taken no steps at all, I cannot see that the loss which the respondents suffered was due to any breach of a duty owed by the appellants. Their duty was to avoid causing damage, not either to prevent future damage due to causes for which they were not responsible or to shorten its incidence. The loss which the respondents suffered was due to the original breach, and the appellants' failure to close it merely allowed the damage to continue during the time which they took in mending the broken bank. For that I do not think them liable nor can I find any case the decision in which would lead to that result."

44. Mr Munby also relies upon the Judge's finding, or rather lack of finding, as to what would have happened if the fire brigade had not turned up at all. The Judge said that he was "unable to say whether or not, on balance of probabilities, if the fire brigade had done nothing and the sprinklers had been left on the building would have been burned down completely." Mr. Munby submits that, in the absence of a positive finding, the plaintiffs' case must fail, since the burden of proof rests on the plaintiff to show all the necessary elements for recovery.
45. We do not accept Mr. Munby's submission. The danger with fire is that, unless it can be controlled and prevented from spreading at a relatively early stage, it will quickly become out of control and consume all in its path. That danger was particularly acute having regard to the construction of the roof at the Crescent. Having negligently turned off the sprinklers which were at that stage containing the fire, the defendants by their positive act exacerbated the fire so that it rapidly spread. The question is thus one of causation and has to be tested with the benefit of hindsight by comparing what would have happened if the sprinklers had been left on with what in fact happened. This is what the Judge did. He was correct to compare one hypothetical situation with one real eventuality, rather than two hypothetical situations. It is not to be supposed that having arrived on the fire ground the fire brigade would simply have sat on their hands.
46. We think that the true analogy between the Hampshire case and the East Suffolk case would be this: Suppose that after the main sea wall had been breached the plaintiff had constructed a temporary wall which contained the floodwater to a relatively small area, and that the defendants then came upon the land to repair the main wall and negligently destroyed the plaintiff's temporary wall so that the area of the flooding increased before the repairs were completed. In such circumstances the defendants would at least prima facie be liable for the extra damage unless they could show, (and the burden would be upon them,) that the damage would have occurred in any event, even if they had never come upon the scene. If they were unable to discharge that burden, then they would be liable. Similarly in the present case, the Judge's inability to make such a finding in their favour must in our view render the defendants liable.
47. We now turn to consider the second submission made on behalf of all the plaintiffs that the requisite proximity exists. It involves the concept of assumption of responsibility by the fire brigade and particular reliance by the owner. As a general rule a sufficient relationship of proximity will exist when someone possessed of special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is direct and substantial reliance by the plaintiff on the defendant's skill. Hedley Byrne & Co. v. Heller & Partners and Henderson v. Merett Syndicates Ltd, already cited. There are many instances of this. The plaintiffs submit that that which is most closely analogous is that of doctor and patient or health authority and patient. There is no doubt that once the relationship of doctor and patient or hospital authority and admitted patient exists, the doctor or the hospital owe a duty to take reasonable care to effect a cure, not merely to prevent further harm. The undertaking is to use the special skills which the doctor and hospital authorities have to treat the patient. In Cassidy v. Ministry of Health [1951] 2 K.B. 343 Denning LJ said at p.360

"In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the selfsame duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment."

48. In Barnett v. Chelsea & Kensington Hospital Management Committee [1969] 1 Q.B. 428 Nield J drew a distinction between a casualty department of a hospital that closes its doors and says no patients can be received, in which case he would by inference have held there was no duty of care, and the case before him where the three watchmen who had taken poison entered the hospital and were given erroneous advice, where a duty of care arose.
49. Likewise a doctor who happened to witness a road accident will very likely go to the assistance of anyone injured, but he is not under any legal obligation to do so (save in certain limited circumstances which are not relevant) and the relationship of doctor and patient does not arise. If he volunteers his assistance, his only duty as a matter of law is not to make the victim's condition worse.
50. Moreover it is clear that no such duty of care exists, even though there may be close physical proximity, simply because one party is a doctor and the other has a medical problem which may be of interest to both. In X (Minors) v. Bedfordshire County Council [1995] A.C. 633 at p.752 G Lord Browne-Wilkinson, with whose speech the other members of the House agreed said:

"The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child. Moreover the tendering of any advice will in many cases involve interviewing and, in the case of doctors, examining the child. But the fact that the carrying out of the retainer involves contact with and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority. The Court of Appeal drew a correct analogy with the doctor instructed by an insurance company to examine an applicant for life insurance. The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant."

51. In those instances, the social workers and doctors owed duties to the local authority or insurance company which were inconsistent with a duty being owed to the plaintiff. But that is only part of the reason why no duty existed. There was no undertaking to treat the plaintiff and no assumption of responsibility to try to effect a cure. Moreover, we consider that Mr. Munby is right when he submitted that the fire brigade's duty is owed the public at large to prevent the spread of fire and that this may involve a conflict between the interests of various owners of premises. It may be necessary to enter and cause damage to A's premises in order to tackle a fire which has started in B's. During the great fire of London the Duke of York had to blow up a number of houses not yet affected by fire, in order to make a fire break.
52. Mr. Walker, in the course of his submissions in the London Fire Brigade case, was clearly in difficulty in seeking to identify to whom any such duty would be owed. It might be thought that the owner of the building on fire is the primary candidate. But that would not be enough for the plaintiff in the London Fire Brigade case. It would have to extend to owners and occupants of adjoining or neighbouring premises to which the fire might reasonably have been expected to have spread, if only by a spark or burning debris. Mr. Walker asserted the duty would extend to a bystander who came to watch the spectacle and, ultimately, he submitted that it might extend to a whole town or district on the grounds that if the fire got completely out of control the town or district would be at risk.
53. Plaintiffs' counsel argue that the provisions of S30(3) and (2) which confer on the senior fire brigade officer present sole charge and control of fire fighting operations and make it a criminal offence wilfully to obstruct or interfere with any member of a fire brigade engaged in fire fighting, establish a proximate relationship, once responsibility for fighting the fire is taken over by the brigade.
54. This argument has its attraction, particularly on the somewhat extreme facts of the Hampshire case. As Mr. Slater QC pointed out, the plaintiffs had two systems of fire fighting, one very effective in the form of automatic sprinklers, the other the manual fire-fighting capability of their employees. Stn. Officer Mitchell rendered the first ineffectual and ordered out of the building the plaintiffs' employees who were attempting to attack the fire.
55. But it seems to us that the statute imposes control of operations on the senior officer for the benefit of the public generally where there may be conflicting interests. By taking such control that officer is not to be seen as undertaking a voluntary assumption of responsibility to the owner of the premises on fire, whether or not the latter is in fact reliant upon it.
56. Plaintiffs' counsel have sought to rely on the fact that fire brigades are under a duty of care to their own employees. There does not appear to be much authority on this point, the only reported decision being that of McNair J in Bull v. London County Council Times 29 March 1953. But even assuming this is so, the duty arises out of the ordinary master and servant relationship. It is of no assistance in the present context.
57. It has been held that a property owner owes a duty of care to firemen not by his negligence to start a fire or create special hazards to fire fighting operations: Ogwo v. Taylor [1988] AC 431. That being so, it was submitted that there ought to be a reciprocal duty on the part of the fire brigade to the property owner, the argument being that if there is proximity in one direction it ought to be in both. But the reason why a duty is owed to rescuers is because the law recognises, that if A by his negligence puts the person or property of B at risk, it is reasonably foreseeable that some courageous and public spirited person C will come to the assistance of B. C is the secondary victim of A's negligence and the duty is owed to C as well as B. A has created the danger which causes injury to both B and C. But simply by attending the fire and conducting fire fighting operations the fire brigade do not, save in exceptional circumstances such as the Hampshire case, create or increase the danger.
58. It is not clear why a rescuer who is not under an obligation to attempt a rescue should assume a duty to be careful in effecting the rescue merely by undertaking the attempt. It would be strange if such a person were liable to the dependants of a drowning man who but for his carelessness he would have saved, but without the attempt would have drowned anyway. In Canada it has been held that he is not. "The Ogopogo" [1969] 1 LIR 374. [1970] 1 LIR 257. [1971] 2 LIR 410. This is consistent with the East Suffolk case. It is also, as we have pointed out, the effect of Alexandrou v. Oxford because the ineffective intervention by the police in incompetently inspecting the plaintiff's premises did not create a relationship of proximity.
59. There are a number of cases where the courts have held that the relationship of proximity arises so as to give rise to a duty of care for the plaintiff's physical safety which are based on assumption of responsibility and reliance. In Kirkham v. Chief Constable of Greater Manchester [1990] 2 QB 283 the plaintiff's husband was taken into custody by the police. The police were told by the plaintiff that her husband was a suicide risk. When the husband was remanded in custody to the prison authorities that information was not passed on the prison authority. The husband committed suicide and the police were held liable to the plaintiff.
60. Lloyd LJ who gave the leading judgment said at p.289:

"The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility towards the plaintiff, and whether the plaintiff has relied on that assumption of responsibility. In both cases the Court of Appeal held, on the facts, that the defendant was under no duty to speak, and was therefore not liable. But the principle is well established.

In the present case I have no difficulty in holding that the police assumed certain responsibilities towards Mr. Kirkham when they took him into custody, and in particular assumed a responsibility to pass on information which might affect his well-being when he was transferred from their custody to the custody of the prison authorities. Nor have I any difficulty in inferring reliance. That is sufficient to impose on the police a duty to speak."

61. It is not altogether clear whether the reliance in that case was that of the plaintiff or her husband. But the reasoning was clear.
62. In Welsh v. Chief Constable of Merseyside & Another [1993] 1 All ER 692 Tudor Evans J held that there was arguably a breach of duty by the Crown Prosecution Service which had undertaken to pass on certain information to the Court relating to the plaintiff's case, but failed to do so.
63. In Osman v. Ferguson [1993] 4 All ER 344 a great deal of information had been given to the police by the victim's family identifying P as a potentially dangerous criminal, but the police failed to apprehend him. McCowan and Simon Brown LJJ considered that there was arguably a sufficiently close degree of proximity between the police and the victim's family to give rise to a special relationship. Beldam LJ expressed no opinion on this. The action was struck out on the basis that it would be contrary to public policy to impose a duty of care on the police.
64. In Barratt v. Minsitry of Defence [1995] 1 WLR 1217 the deceased, a 30 year old naval airman, engaged in a bout of heavy drinking; having become unconscious, was placed on a bunk lying in the recovery position, but his condition was not checked and he was later found dead having asphyxiated on his vomit. The defendant officer was not liable for preventing the deceased abusing alcohol or for anything prior to his collapse. Beldam LJ at p 1225E said:

"Thereafter, when the defendant assumed responsibility for him, it accepts that the measures taken fell short of the standard reasonably to be expected. It did not summon medical assistance and its supervision of him was inadequate"

65. It is apparent that the point was conceded. But it is not surprising, having regard to the fact that the deceased was under command of the officer concerned.
66. These are all examples of where the Court has considered on the special facts of the case that there is a sufficiently close relationship of proximity to give rise to a duty of care. But we do not think they are anywhere near the circumstances that arise in these appeals. In our judgment, a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground and fighting the fire; this is so, even though the senior officer actually assumes control of the fire-fighting operation.

Is it just fair and reasonable to impose a duty of care? - Public policy immunity

67. In the Hampshire case H.H. Judge Havery held that it was just and reasonable to hold the defendant liable for negligent actions of Stn. Officer Mitchell. Rougier J in the London Fire Brigade case held both that there was no sufficient proximity to give rise to a duty of care, and also that it would not be just fair and reasonable to impose such a duty. Rimer J in the Nelson Holdings case followed the same course. In the West Yorkshire case H.H. Judge Crawford Q.C. held there was sufficient proximity, but it was not just fair and reasonable to impose the duty of care.
68. In the light of our conclusion that there is not sufficient proximity in the London Fire Brigade case and West Yorkshire case it is perhaps not necessary to consider in either case whether the third test in Caparo is satisfied or not, since treated separately, the third test only arises, following the conclusion of the Court that the test of proximity is prima facie satisfied. However, the second and third test in Caparo are closely inter-related. In Marc Rich & Co. v Bishop Rock Ltd [1996] 1 AC 211 Lord Steyn, with whose speech Lord Keith and Lord Jauncey agreed, approved at p.235F the following passage from the judgment of Saville LJ in the Court of Appeal.

"Whatever the nature of the harm sustained by the plaintiff, it is necessary to consider the matter not only by inquiring about foreseeability but also by considering the nature of the relationship between the parties; and to be satisfied that in all the circumstances it is fair, just and reasonable to impose a duty of care. Of course . . . these three matters overlap with each other and are really facets of the same thing. For example, the relationship between the parties may be such that is obvious that a lack of care will create a risk of harm and that as a matter of common sense and justice a duty should be imposed . . . . Again in most cases of the direct infliction of physical loss or injury through carelessness, it is self-evident that a civilised system of law should hold that a duty of care has been broken, whereas the infliction of financial harm may well pose a more difficult problem. Thus the three so-called requirements for a duty of care are not to be treated as wholly separate and distinct requirements but rather as convenient and helpful approaches to the pragmatic question whether a duty should be imposed in any given case. In the end whether the law does impose a duty in any particular circumstances depends upon those circumstances..."

69. We consider first, therefore, whether there is any reason of policy why the Hampshire Fire Authority should not be liable. The starting point is that "the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied, and that very potent considerations are required to over-ride that policy" (per Lord Browne-Wilkinson in X (minors) v. Bedfordshire County Council [1995] 2 AC 633 at 749G). Counsel for the fire brigades have placed much reliance on the police cases,, on the basis that there is a similarity between fire brigades answering rescue calls and the police answering calls for help and protection from the public. But it is clear from the leading case of Hill v. Chief Constable of West Yorkshire [1989] 1 A.C. 53 that the police do not enjoy blanket immunity. At p.59 B-C Lord Keith said;

"There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his actions or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightly v. Johns [1982] 1 WLR 349 and Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242"

70. Other examples would be Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310 the Hillsborough case, and Marshall v. Osmond [1983] Q.B. 1034. These are cases, as we have already pointed out, where the police created danger and are closely analogous to the Hampshire case.
71. There is no general immunity for professionals or others carrying out difficult tasks in stressful circumstances. Doctors, barristers (save for immunity in court), salvors (The Tojo Maru [1972] A.C. 242) police (save in certain circumstances) and prison officers do not have immunity.
72. In the East Suffolk case, it is clear that the Board would have been liable if through their negligence they had added to the damage the plaintiff would otherwise have suffered. The dividing line between liability and non-liability is thus defined and there is no need to pray in aid any concept of public policy. We agree with Mr. Sumption that the Courts should not grant immunity from suit to fire brigades simply because the Judge may have what he describes as a visceral dislike for allowing possibly worthless claims to be made against public authorities, whose activities involve the laudable operation of rescuing the person or property of others in conditions often of great danger. Such claims may indeed be motivated by what is sometimes perceived to be the current attitude to litigation –

"if you have suffered loss and can see a solvent target - sue it."

73. Nonetheless, if a defendant is to be immune from suit such immunity must be based upon principle.
74. It seems to us that in those cases where the courts have granted immunity or refused to impose a duty of care it is usually possible to discern a recognition that such a duty would be inconsistent with some wider object of the law or interest of the particular parties. Thus if the existence of a duty of care would impede the careful performance of the relevant function, or if investigation of the allegedly negligent conduct would itself be undesirable and open to abuse by those bearing grudges, the law will not impose a duty. Some cases on either side of the line illustrate this.
75. Judges and arbitrators whilst involved in the judicial process are immune, but not mutual professional valuers. Arenson v. Arenson [1977] A.C. 405. In Marc Rich & Co an independent and non-profit making entity, created and operating for the sole purpose of promoting collective welfare, namely the safety of lives and ships at sea..." would [not] be able to carry out their functions as efficiently if they became the ready alternative target for cargo owners…" per Lord Steyn at p.241.
76. Solicitors and barristers, but only whilst acting as advocates in Court, are immune because their duty to the Court might conflict with their duty to their clients. Rondel v. Worsley [1969] 1 AC 191 and Saif Ali v. Sydney Mitchell & Co [1980] AC 198.
77. In X (minors) v. Bedfordshire County Council in relation to social workers Lord Browne-Wilkinson said at 751 B:

"Finally, your Lordships' decision in the Caparo case [1990] 2 AC 605 lays down that, in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretions and powers which could not exist in the private sector and which in many case bring them into conflict with those who, under the general law, are responsible for the child's welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty. In neither of those cases has it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer: see Hill v. Chief Constable of West Yorkshire [1989] AC 53 and Yuen Kun Yeu v. Attorney General of Hong Kong [1988] A.C. 175. In the latter case, the Privy Council whilst not deciding the point said, at p.198, that there was much force in the argument that if the regulators had been held liable in that case the principles leading to such liability "would surely be equally applicable to a wide range of regulatory agencies, not only in the financial field, but also, for example, to the factory inspectorate and social workers, to name only a few." In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."

78. There is no general duty of care owed by the Crown Prosecution Service in the conduct of its prosecution of a defendant, since the effectiveness of the CPS in its central function of prosecuting crime would be inhibited by the imposition of such a duty. Elguzouli - Daf v. Commissioner for Police [1995] QB 335. But there will be such a duty where there is an express "assumption of responsibility" to a particular defendant. Welsh v. Chief Constable of Merseyside Police [1993] 1 All ER 692.
79. In the police case Lord Keith of Kinkel in Hill v. Chief Constable of West Yorkshire said this at p.63D:

"In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not his was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted."

80. See also Hughes v. NUM [1991] 4 All ER 278; Alexandrou v. Oxford [1993] 3 All ER 328.
81. In Ancell v. McDermot [1993] 3 All ER 355 it was held that the imposition of a duty of care on the police to protect road users from hazards caused by others would be so extensive as to divert the police from the proper functions of detecting and preventing crime. And in Osman v. Ferguson [1993] 4 All ER 344 although the majority of the Court considered that it was arguable that there was sufficient proximity between the plaintiff's family and investigating police officers, the imposition of a duty of care towards a potential victim might result in the significant diversion of police resources from the investigation and suppression of crime and was therefore contrary to public policy.
82. On the other hand liability has been imposed when, in the course of carrying out their duties, the police have themselves created the danger. (See the cases already cited, Rigby v. Chief Constable of Northamptonshire, Knightly v. Johnson, Alcock v. Chief Constable of South Yorkshire and Marshall v. Osmond).
83. In our judgment there is no doubt on which side of the line a case such as the Hampshire case falls. It is one where the defendants, by their action in turning off the sprinklers, created or increased the danger. There is no ground for giving immunity in such a case.
84. Rougier J in the London Fire Brigade case, after citing from the speeches of Lord Keith and Lord Templeman in Hill's case, set out a number of reasons why in his judgment it was not appropriate to impose a common law duty to take care on fire brigades. He said at p.1003D:

"I think that as regards the fire brigade many of these considerations are applicable and militate on grounds of public policy against the imposition of any common law duty. In particular, I would single out the following. (1) I do not think than any extra standard of care would be achieved. (2) Rather the reverse, if a common law duty of care can lead to defensive policing, by the same token it can lead to defensive fire-fighting. Fearful of being accused of leaving the scene too early, the officer in charge might well commit his resources when they would have been better employed elsewhere. He would be open to criticism every time there was a balance to be struck or that sort of operational choice to be made. (3) If the efficiency of the emergency services is to be tested, it should be done not in private litigation but by an inquiry instituted by national or local authorities who are responsible to the electorate. This follows the reasoning of Lord Templeman in Hill's case [1989] AC 53. (4) Marc Rich & Co. A.G. v. Bishop Rock Marine Co. Ltd. [1996] AC 211 suggests that the fact that a defendant in the position of the fire brigade acts for the collective welfare is one that should be taken into account. (5) Last, and to my mind by far the most important consideration is what is sometimes referred to as the "floodgates" argument."

85. Judge Crawford in the West Yorkshire case added a number of others, namely (we continue the numbering from that set out in the passage above):

6. The distraction that court cases would involve from the proper task of fire-fighting.

7. It might create massive claims which would be an unreasonable burden on the tax payer.

8. It is for the individual to insure against fire risks.

86. These reasons have been subjected to considerable criticism by counsel for the plaintiffs on the following lines:

1 and 2. No improvement in standard of care; defensive fire-fighting

87. It seems hardly realistic that a fire officer who has to make a split second decision as to the manner in which fire-fighting operations are to be conducted will be looking over his shoulder at the possibility of his employers being made vicariously liable for his negligence. If there can be liability for negligence, it is better to have a high threshold of negligence established in the Bolam test and for judges to remind themselves that fire officers who make difficult decisions in difficult circumstances should be given considerable latitude before being held guilty of negligence. It is not readily apparent why the imposition of a duty of care should divert the fire brigade resources from other fire-fighting duties.

3. Private litigation unsuitable for discovering failures of service

88. As to this reason counsel for the plaintiffs in the Hampshire case point out that although there was a very extensive internal enquiry in that case starting on the day of the fire it was only the litigation that uncovered the serious shortcomings of the service.

4. Undesirability of actions against authorities operating for collective welfare

89. It is said that the fact that the defendant is a public authority acting for the collective welfare of the community such as the National Health Service has never been regarded as a ground for immunity; in any event the benefit is also for the individual householder.

5. Floodgates

90. Having regard to the extreme paucity of recorded cases against fire brigades in spite of the fact that for over 40 years Halsbury's Laws of England have indicated that an action would lie, this argument should be disregarded. Again, the Bolam test should afford sufficient protection.

6. Distraction from fire-fighting

91. In any action against a public authority officers and employees will be distracted from their ordinary duties; that should not be regarded as a valid ground for granting immunity.

7. Massive claims against the taxpayer

92. This is ultimately an argument for the immunity from suit of government departments and all public authorities.

8. Insurance

93. The general rule in English law is that in determining the rights inter se of A and B, the fact that one them is insured is to be disregarded.(see per Viscount Simonds in Lister v. Romford Ice and Cold Storage Co. Ltd [1957] AC 555 at 576 and 7. Insurance premiums are calculated having regard to the existence and likely response of the fire brigade; very substantial reductions in premiums are granted where buildings are protected by sprinklers; there may be underinsurances and absence of insurance particularly in the lower end of the property market. Further, it would be unusual for there to be effective insurance against personal injury. Finally, there is nothing to prevent fire brigades insuring against their liability. Indeed the London and West Yorkshire brigades are insured.
94. In our judgment there is considerable force in the criticisms made. If we had found a sufficient relationship of proximity in the London Fire Brigade and West Yorkshire cases, we do not think that we would have found the arguments for excluding a duty of care on the grounds that it would not be just fair and reasonable convincing. The analogy with the police exercising their functions of investigating and suppressing crime is not close. The floodgates argument is not persuasive; nor is that based on insurance. Many of the other arguments are equally applicable to other public services for example the National Health Service. We do not think that the principles which underlie those decisions where immunity has been granted can be sufficiently identified in the case of fire brigades.

Statutory immunity

95. The argument for the defendant authorities is that section 30 confers immunity or creates a statutory defence against liability for negligence or breach of statutory duty by the fire brigade and firemen involved in extinguishing a fire. If that is correct, the plaintiffs' claims would fail. Liability for activities which caused damage at the scene is said to be limited to cases of deliberate bad faith, which is not in question in any of the present cases.
96. There is a clear distinction to be observed at this stage of the argument between the general question whether the plaintiffs are entitled to maintain an action at common law and the question currently under consideration, which is whether, assuming that the 1947 Act would otherwise be appropriate to sustain an action for negligence at common law or breach of statutory duty, section 30 precludes any such liability.
97. Liability of a public authority in tort may be restricted or avoided by appropriate statutory language. Section 30 itself provides a clear example of language which authorises what would otherwise be a tortious interference with property.
98. In Allen v. Gulf Oil Refining Ltd [1981] AC 1001 Lord Wilberforce observed that:

"Where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what it is authorised with immunity from any action based on nuisance. That right of action is taken away."

99. However it is an elementary principle repeated in different language in numerous authorities that a public body is normally expected to use its statutory powers with reasonable care.
100. See Mersey Docks and Harbour Board Trustee v. Gibbs (1886) LR1 HL93; Geddis v Proprietor of Bann Reservoir (1873) 3 App. Cass. 430, and the more recent examples in Dorset Yacht Company Ltd v. Home Office [1970] AC 1004, X (minors) v. Bedfordshire County Council [1955] 2 A.C. 633 and Stovin v. Wise [1996] A C 923
101. For the purpose of construing any particular section on which a purported claim for immunity is based Lord Greene MR in Fisher v. Ruislip-Northwood UDC & MiddlesexCounty Council [1945] K.B. 585 explained.

"The duty of undertakers in respect of the safety of works executed under statutory powers has been considered on many occasions ... If ... the legislature authorises the construction and maintenance of a work which will be safe or dangerous to the public according as reasonable care is or is not taken in its construction or maintenance, as the case may be, the fact that no duty to take such care is expressly imposed by the statute cannot be relied on as showing that no such duty exists. It is not to be expected that the legislature will go out of its way to impose express obligations or restrictions in respect of matters which every reasonably minded citizen would take for granted."

102. Accordingly liability for negligence or breach of a statutory duty by a public body in the course of fulfilling its statutory obligations may only be excluded by express language or by necessary implication.
103. It is common ground between the parties that fire authorities are not expressly required to respond to emergency calls and attend the scene of each fire and to extinguish it. There is however a reasonable public expectation that normally the emergency call will be answered and the fire extinguished. In addition to their fire fighting duties, fire officers attend and assist at emergencies where their fire fighting skills as such are not required. (Section 3(1)(e))
104. Each member of a fire brigade on duty who attends the scene of any fire in order to extinguish it is granted specific powers directly concerned with fire fighting (see section 30(1)) and sole charge and control of all operations for the extinction of the fire is given to the senior fire brigade officer present at the scene (see section 30(3)).
105. The language of these sections, set out earlier in this judgment, is striking. These powers may be used only when the fireman is fighting fires, not for the purpose of any other emergencies he may attend. A police officer attending the scene of a fire is granted precisely the same powers as the fireman. It is an offence wilfully to obstruct or interfere with either a police officer or fireman who is engaged in fire fighting. The effect is that while the owner or occupier of premises which are ablaze is entitled to fight the fire as best he can, with or without the assistance of his neighbours and friends, once the fire brigade arrives at the scene he must defer to the fire brigade and is at risk of prosecution if he fails to do so. Therefore if he is ordered out of his house he must leave it; if he is anxious to retrieve an object of particular personal importance or exceptional value, or even a pet, he cannot do so against the express requirements of any fireman; indeed, in theory, he may be committing an offence if, in defiance of an instruction to the contrary, he returns to his home to rescue his own children. Forcible entry and damage to adjoining or nearby premises, not themselves affected or likely to be affected by fire, cannot be prevented by the owner or occupier, provided such entry is necessary for the purpose of fire-fighting. In the interests of the community as a whole he, like the owner of the property which is ablaze, is obliged to defer to the authority of the fire officers, whether he agrees or not, even when he considers that their actions are totally unnecessary.
106. Section 30 therefore removes potential impediments to efficient fire fighting. The chain of command is clear. Neither the fireman, nor his brigade, nor the police officer at the scene, can be held liable in trespass (whether to land, goods, or the person) if he enters and fights the fire at the premises where it has broken out or at which someone (including himself) reasonably believes a fire has broken out, or if he enters adjacent premises which are not in fact on fire in order to extinguish a fire elsewhere provided it is necessary to enter for that purpose or to protect life and property. The entry itself, and the necessary actions, are permitted.
107. There is no entitlement to compensation, even for the owner of premises which have been entered under the powers granted by section 30 which have themselves never been on fire nor indeed at any risk, and which have been entered and damaged in order to extinguish a fire elsewhere. Inefficiency in the general organisation and conduct of the fire authority, as well as investigations into the way in which a particular outbreak has been fought, may be considered at a public local enquiry held by the Secretary of State.
108. The powers granted to members of a fire brigade, and police officers, for the purpose of extinguishing fires are very extensive. They are entitled to exercise a very large measure of subjective judgement in deciding what is necessary to extinguish the particular fire, or deal with the emergency which has been created, and then to implement the decision. In the ultimate analysis each fire officer is empowered to do whatever he considers necessary for the purpose of fire-fighting. Any attempt to define by statute the steps which may or may not be appropriate in an individual emergency would be absurd: the decisions have to made at the scene. Liability for what would otherwise amount to trespass, when it occurs, is excluded.
109. Although the powers are very wide, there is nothing in section 30 which permits them to be exercised negligently. If it had been intended to exclude liability for negligence express provision could readily have been made. None was, and the omission in a section which otherwise expressly exonerates firemen from potential liability in tort for trespass is striking. If the fireman were permitted to do whatever he thought was "reasonable" or "believed to be reasonable" for all the purposes of section 30(1) this would have provided the foundation for an argument based on Holgate-Mohammed v. Duke [1984] 1 A.C. 437 that the decisions could be impugned only on the basis of bad faith or irrationality (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 22. However, the only reference in section 30 to the reasonableness of the fireman's belief relates to his power of entry into premises in which fire has broken out or is "reasonably believed" to have broken out, thus justifying what would otherwise be a trespass. Fire demands rapid attention. The consequences of not dealing with it urgently may be catastrophic. Therefore a reasonable belief that a fire has broken out is made sufficient justification for confirming whether or not it has. Accordingly premises where it is reasonably believed that a fire has broken out are equated, for the purposes of entry, forcible if necessary, with those in which it is known that fire has indeed broken out. In relation to premises where, contrary to the earlier reasonable belief, it emerges that there is no fire, the fireman ceases to be entitled to remain in the premises unless they also happen to be premises in which it is necessary for him to remain for the purpose of fighting an outbreak of fire elsewhere. In our view those words in section 30 which empower a fire officer to do all such things as he may deem necessary for extinguishing the fire etc. Are no more than the adoption of a comprehensive formula to enable the officer to do all those things which might otherwise amount to trespass to property person or goods, or other infringements of private rights in the course of fire-fighting.
110. The language of section 30 is not apt to establish an implied immunity from proceedings in negligence, whether brought by those whose property has been damaged, or indeed other fireman working at the scene, or individuals present who have suffered personal injury as a result of negligence in the course of fire-fighting.

Section 13

111. The particular relevance of section 13 arises in relation to the West Yorkshire appeal. There are certain distinctions between that appeal and the other two before the court in the following respects. First, there is a claim for breach of statutory duty simpliciter under section 13 which provides:

"A fire authority shall take all reasonable measures for ensuring the provision of an adequate supply of water, and for securing that it will be available for use, in case of fire."

112. Secondly unlike the crucial allegation in the Hampshire case, the allegations made against this defendant consists of omissions rather than positive acts. Thirdly, save for an allegation of failing to locate the hydrants close to the Chapel on arrival at the fire, none of the allegations relates to conduct in the course of fighting the fire, but rather to the failure of the defendants to take reasonable steps to ensure that the necessary plant and equipment was in place to enable the fire to be fought.
113. In support of his assertion that section 13 gives rise to a statutory duty, breach of which affords a personal remedy to a party injured as a result of such breach, Mr. Boswood has relied upon the authority of Dawson & Co. v. Bingley U.D.C. [1911] 2 KB 149, in which the Court of Appeal considered the nature of the duty of a local authority under section 66 of the Public Health Act 1875 to;

"cause fire hydrant plugs and all necessary works, machinery and assistance for securing an efficient supply of water in case of fire to be provided and to maintain and ... paint or mark on the buildings and walls within the streets, words or marks near to such fire hydrant plugs to denote the situation thereof ..."

114. The plaintiffs had suffered a fire on their premises which were a short distance from a fire plug provided; however, on the arrival of the fire brigade there was considerable delay causing additional damage by reason of a misleading indication placed by the defendants on the wall nearby, and the fact that the fire-plug was hidden beneath accumulated dirt as a result of having been placed below the surface level of the street. The authority having been found guilty of misfeasance rather than non-feasance in the performance of their duty ( a distinction no longer relevant in this context: see Atkin LJ in Phillips v. Britannia Hygienic Laundry [1933] 2 K.B. 832 at 841), was held liable to the plaintiff for the extra damage. Kennedy LJ stated:

"The law is, I think, correctly stated in Addison on Torts, 8th Ed., p.104, referring to Comyn's Digest:

'In every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy on the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.'...."

115. He went on to distinguish the earlier case of Glossop v. Heston & Isleworth Local Board as being a case where the plaintiff had failed because:

"The alleged neglect was the neglect of the performance of their duty to provide a satisfactory and healthy system of drainage for a whole district; and . . . the defendants there were under no particular duty cast upon them with reference to any particular individuals. The present case belongs obviously, to a different class."

116. By way of contrast, he characterised the provisions of section 66 of the 1875 Act as:

"the precise enactment of a definite duty for the protection of the class of persons to which the plaintiffs, as local residents, belong, against the kind of mischief which has in fact occurred."

117. In the case of West Yorkshire, the Judge held that the duty under section 13 of the 1947 Act was "set out for everyone, not merely a limited class" and therefore did not give rise to a private right of access. He distinguished Dawson on the grounds that it turned upon "a different statute, which in its application assisted a limited class of people, the ratepayers of Bingley".
118. Mr. Boswood criticised this approach. He submitted that Dawson constituted a precedent which this Court should follow on the basis that section 66 of the 1875 Act was historically the precursor of section 13 and section 14 of the 1947 Act. He also pointed out that the 1875 Act was a public general Act, and that although the Court found a private right of action to exist in relation to a duty, the benefit of which was local in effect, that right was nonetheless available for the benefit of ratepayers throughout the United Kingdom.
119. It is true that, historically, the provisions of section 66 of the 1875 Act in relation to the provision and maintenance of fire-plugs (or fire-hydrants as they were subsequently called) and the marking of their location were re-enacted in somewhat different form in section 2(1) of the Fire Brigade Act 1938. It is also true that, later, the general scheme for provision of fire services (following interim wartime legislation) was then embodied in the 1947 Act. However the context and wording of section 13 and section 14 in relation to the supply of water for fire fighting are so changed from the preceding legislation that the decision in Dawson affords no real assistance in considering the effect of those sections. The proper approach must be to take a fresh look at the terms of section 13 in its statutory context, guided by the recent re-statement by Lord Browne-Wilkinson in X, under the heading "Breach of Statutory Duty Simpliciter" at p.731:

"The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed or the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of duty. There is no general rule by reference to which it can be decided whether a statute does create such right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there might be a private right of action, since otherwise there is no method of securing the protection the Statute was intended to confer. If the Statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action... However, the mere existence of some other statutory remedy is not necessarily decisive... Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages, notwithstanding the imposition by the Statutes of criminal penalties for any breach...

Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant Statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provision establishing a regulatory system or a scheme of social welfare for the benefit of the public at large have been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general... The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions."

120. Considered in that light, we do not consider that section 13 is intended to confer a right of private action upon a member of the public injured by a breach. The duty propounded in section 13 is in no way "limited and specific" in the sense contemplated by Lord Browne-Wilkinson; it is more in the nature of a general administrative function of procurement placed on the fire authority in relation to supply of water for fire-fighting generally. There is no reference to any specific measure contemplated, nor any reference, whether expressly or by implication, to any class of person short of the public as a whole being ear-marked for protection under the section. By way of contrast with the provisions of section 66 of the 1875 Act (the subject of the Dawson decision) and section 2(1) of the 1938 Act, all specific reference to the provision and maintenance of fire-hydrants and their marking is omitted. That is no doubt because it is contemplated by section 14(3) that the responsibility for the supply of fire hydrants rests with water undertakers, who by section 14(3):

"(a)... shall at the expense of the fire authority cause the situation of every fire hydrant provided by the undertakings to be plainly indicated by a notice or distinguishing mark..."

121. It seems to us that the nature and wording of section 13, as the first of a group of sections in the Act appearing under the heading "Supply of water for fire-fighting" follows the same pattern, and is intended to have the same broad effect, as section 1 which appears as the first of a number of sections under the heading "Provision of fire services". As already indicated, it has not been argued before us that the duties set out in section 1 are other than "target" duties, providing in general terms for the organisation and administration of nation-wide fire services. As such, it seems to us that the duties in section 1 and section 13 are collectively in the nature of statutory provisions establishing a regulatory system or scheme of social welfare for the benefit of the public at large, as adumbrated by Lord Browne-Wilkinson in the passage quoted above. We therefore consider that in the West Yorkshire case no action lies for breach of statutory duty under section 13.
122. It is of some interest to note that the statutory duty to have fire hydrants which was the duty upon which the Court of Appeal founded in Dawson is now enforceable against the water authority by means of an enforcement order obtained by the Secretary of State. The obligation to comply with the enforcement order is owed to any person affected by the contravention of the order who may sue for loss and damage attributable to such breach. (See section 14(4) of the Act and section 18 and 22 of the Water Industry Act 1991). It is clear therefore that if a similar claim was now made to that in Dawson's case, it could only succeed if there was breach of the enforcement order and not merely the statutory duty in section 14(3).

Negligence in law

123. Mr. Munby's final grounds of appeal in the Hampshire case relate to the Judge's finding that Stn. Officer Mitchell's conduct in turning off the sprinklers did not amount to negligence in law. The Judge applied as his bench-mark the test laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582. This is a very high threshold in establishing negligence, namely, it must be established that the error was one that no reasonably well informed and competent fireman could have made. (See Saif Ali v. Sydney Mitchell & Co [1980] AC 198 per Lord Diplock at p.218D). The defendant's fire expert, Chief Fire Officer Beech of the Kent Fire Authority said that there were occasions when he had known sprinklers to be turned off, notwithstanding the normal rule that sprinklers in sprinkled buildings should not be turned off until the fire-fighters are sure that there the fire is completely extinguished. But the Judge considered with great care the reasons advanced by Stn. Officer Mitchell for departing from the normal rule, namely to prevent damage to Digital's computers and because the sprinklers were hampering the fire-fighters, he gave unassailable reasons for not accepting them. The third reason, namely the sprinklers were not assisting in fighting the fire, is obviously no reason at all and was completely untenable. In our view the Judge's conclusion that Stn.Officer Mitchell's conduct amounted to negligence cannot be disturbed.
124. In the event all the appeals will be dismissed.

Order:

Hampshire case: appeal dismissed with costs on standard basis.

Fire Brigade case: appeal dismissed with costs.

West Yorkshire case: appeal dismissed with costs.

Application for leave to appeal to the House of Lords refused.