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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Derek Burnett v. Grampian Fire And Rescue Service [2007] ScotCS CSOH_3 (09 January 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_03.html
Cite as: [2007] ScotCS CSOH_3, [2007] CSOH 3
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Opinion of Lord Macphail
Derek Burnett
v
Grampian Fire and Rescue Service
SUMMARY
At this debate on a preliminary
plea the court was asked to decide if Grampian Fire and Rescue Service owed a
duty of reasonable care to Mr Burnett when fighting a fire which caused following
the damage sustained to his property. after a fire. Mr Burnett raised the action in 2002.
Lord Macphail decided that if the circumstances of the fire were as Mr Burnett
claimed them to be, Grampian Fire and Rescue Service would owe himdid have
a duty of reasonable care at common law.
This action of damages arises from a fire which broke out in
a tenement in
Mr Burnett claims that as a result of the fire he suffered
loss and damage caused by the Grampian Fire and Rescue Service's breach of a
duty of reasonable care for the safety of his property which he claims they
owed to him at common law. Grampian
Fire and Rescue Service maintain that in the circumstances they did not owe Mr
Burnett any such duty, and at a debate before Lord Macphail
they contended that the action should therefore be dismissed as irrelevant.
Grampian Fire and Rescue Service argued that the law of
Summary of Lord Macphail's Opinion
ท
Lord
Macphail declined to follow the decision of the Court
of Appeal and held that if Mr Burnett's averments were proved, Grampian Fire
and Rescue Service's firefighters, for whose conduct
they are responsible, would owe to Mr Burnett a duty of care to take all
reasonable steps not only to extinguish the fire in the flat below but also to
take the specific measures averred by Mr Burnett to establish whether
circumstances existed which, if not eliminated, constituted a risk either of a
re-ignition of the fire in, or of its extension to, his flat above.
ท
Lord
Macphail considered that those duties arose from the
fact that it was reasonably foreseeable that Mr Burnett's flat and its contents
would be exposed to the immediate and direct hazard of the spread of the fire
from the flat below, and from the proximity of the relationship between the Mr
Burnett, as the owner of his flat, and Grampian Fire and Rescue Service's firefighters who forced entry to it in order to check that
the fire had not spread upwards to it and would not be a source of any damage
to his flat. Lord Macphail
said that in these circumstances it was fair, just and reasonable to treat the firefighters as subject to the common law duties of care
averred by Mr Burnett.
ท
Lord
Macphail observed that police and ambulance services
who respond to a call to an emergency owed a duty of care to those whose lives
and property were at risk, and the same must be true of a fire service.
ท
Lord
Macphail therefore allowed an inquiry into the
facts. His Lordship directed that the
inquiry should be by way of proof before answer in view of a challenge by the
defenders to the relevancy and specification of Mr Burnett's claim for damages
for inconvenience.
The next stage in
these proceedings will be for the court to hear more detailed evidence
abouton
the facts of the case in view of the challenge by Grampian Fire and
Rescue Service to the claim by Mr Burnett for damage to property and
inconvenience.
NOTE
This summary is provided to assist in
understanding the Court's decision. It
does not form part of the reasons for that decision. The full report of the Court is the only
authoritative document.
The
full opinion will be available on the Scottish Courts website today at this
location:
http://www.scotcourts.gov.uk/opinions/2007CSOH3.html
|
OUTER
HOUSE, COURT OF SESSION [2007] CSOH 3 |
|
|
A2997/02 |
OPINION OF LORD MACPHAIL in the cause DEREK BURNETT Pursuer; against GRAMPIAN FIRE AND RESCUE SERVICE Defenders: ญญญญญญญญญญญญญญญญญ________________ |
Pursuer: Dewar, Q.C., D. Thomson; Morisons
Defenders: Ellis, Q.C.; HBM Sayers
Introduction
[1] This action of damages arises from a
fire at the pursuer's flat in
The pleadings
"Cond. II.1. The pursuer is the heritable proprietor of
the flatted dwellinghouse on the right hand side of
the third floor (Flat 3R) within
[5] The pursuer's averments continue:
"They forced entry to Flat 3R. It is believed and averred that they did so
in order to check that the fire had not spread upwards to Flat 3R. In firefighting
terms, the building containing the two flats was a single building. Having forced entry into Flat 3R, the
defenders' firefighters observed smoke damage to Flat
3R. The presence of smoke damage in Flat
3R ought to have alerted them to the fact that there were voids linking the two
flats through which smoke had travelled, and that flaming combustion might follow. As a result, they ought to have carried out a
thorough search and examination of both flats with a view to discovering and
eliminating all remaining pockets of fire, bull's eyes (small cores of burning
material), or other possible causes of re-ignition, and any such traces of fire
or possible causes of re-ignition ought to have been damped down or cut away,
as required. They ought to have stripped
back (but did not) the lath and plaster on the ceiling of the bathroom in Flat
2R as it was apparent that the fire had spread into the bathroom at ceiling
level. They ought to have exposed for
inspection (but did not) the timber lintel hereinafter condescended on as it
was, or ought to have been, apparent to them that the fire might well have
spread as far as the lintel. Had they
stripped back the lath and plaster on the ceiling of the bathroom in Flat 2R,
they would have seen that the fire had, in fact, spread as far as the
lintel. In the search and examination
process, they ought to have utilised, in Flat 3R as well as in Flat 2R
(but did not), the thermal imaging equipment available to them. In the
circumstances hereinafter condescended on, it is believed and averred that no
such thorough search and examination took place, and that no such damping down
or cutting away of all traces of fire or possible causes of re-ignition was
carried out ..."
[6] The pursuer's averments about the
re-ignition of the fire appear in articles II.2 and II.3:
"Cond. II.2. At about
Cond. II. 3. The fire originated in the kitchen area of
Flat 2R. Following the departure of the
defenders' Firefighters on 16th October, the fire
continued to smoulder in the void between the ceiling in the bathroom in Flat
2R and floorboards in the kitchen area of Flat 3R. These floorboards were directly above the
bathroom of Flat 2R. The fire had been
smouldering in this void for a considerable period of time, up to 27 hours,
before igniting. The re-ignition of the
fire in Flat 3R was a direct consequence of the defenders' Firefighters
having failed to extinguish the fire during their attendance at the two flats
the previous day. Had the defenders' Firefighters extinguished the fire on 16th October, it
would not have re-ignited on 17th October.
The defenders are vicariously liable for the acts and omissions of their
firefighters in the course of their duties ..."
[7] The pursuer's averments of liability are
stated thus in article III:
"Cond. III. In exercising their discretionary power to
attend and extinguish a fire, Firefighters for whom
the defenders are vicariously liable owe a duty to take reasonable care for the
safety of premises and their contents which might reasonably foreseeably be destroyed or damaged by the acts and
omissions of such Firefighters. It was reasonably foreseeable that the fire
which originated at Flat 2R would cause damage to Flat 3R and its contents
which were situated immediately above Flat 2R.
In the present case in attending and purporting to take reasonable care
to extinguish the fire prior to their departure from the flats on 16 October
and in forcing entry to Flat 3R the firefighters
accordingly owed a duty to the pursuer as heritable proprietor of Flat 3R to
take reasonable care for the safety of Flat 3R and its contents. In particular they owed a duty to the pursuer
to extinguish the fire at Flat 2R. The
dangers of re-ignition after the main body of a fire has been extinguished have
been well known by Firefighters of ordinary
competence since at least 1945. No Firefighter of ordinary competence exercising reasonable
skill and care and attending the fire would have failed to carry out a thorough
search and examination of both flats with a view to discovering and eliminating
all remaining pockets of fire, bull's eyes or other possible causes of
re-ignition, and to damp down or cut away, as required, any such traces of fire
or possible causes of re-ignition as were discovered so as to prevent
re-ignition of the fire. No Firefighter of ordinary competence exercising reasonable
skill and care and attending the fire would have failed to strip back the lath
and plaster on the ceiling of the bathroom in Flat 2R. No Firefighter of
ordinary competence exercising reasonable skill and care and attending the fire
would have failed to expose for inspection the said timber lintel. No Firefighter of
ordinary competence exercising reasonable skill and care and attending the fire
would have failed to utilise, in Flat 3R as well as in Flat 2R, the available
thermal imaging equipment. The Firefighters attending the fire and for whom the defenders
are vicariously liable in breach of their duty to take reasonable care failed
to do so. Had they done so the fire would not have re-ignited. Reference is made to section 30 of the Fire
Services Act 1947 and to the 1945 Manual of Firemanship,
Part 6A, Chapter 34 ..."
The
latter publication is said to have been updated and to be "the current standard
reference work for United Kingdom Firefighters". The pursuer's pleadings go on to refer to
passages from the Manual.
[9] The pursuer's first plea-in-law is in
these terms:
"(1) The pursuer having suffered loss and damage caused by the
defenders' breach of duty, is entitled to reparation."
The
pursuer's third plea-in-law is a plea to the relevancy of the defences except
in so far as relating to the quantum of damages, but that plea is not insisted
in and I shall repel it. The defenders'
first plea-in-law is:
"(1) The pursuer's averments being irrelevant et separatim lacking
in specification the action should be dismissed."
The defenders' submissions
[12] Counsel then addressed me on the law and
divided his submissions into the following chapters.
(1) First, counsel pointed to the statutory duties
which the defenders were required to discharge at the material time. These were prescribed by the Fire Services
Act 1947. Section 1(1) imposed a
"target" duty, breach of which would not be expected to give rise to civil
liability for breach of statutory duty.
In the present case the duty of care founded on by the pursuer was said
to arise from the performance of the defenders' statutory duties: the pursuer averred in article 3 that the
defenders' officers' duty to take reasonable care arose "[i]n
exercising their discretionary power to attend and extinguish a fire".
(2) Counsel made submissions as to the circumstances
in which the law imposed a duty to take reasonable care and founded on the
familiar passage from the speech of Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605 at 617-618.
The tripartite test of foreseeability of
damage, proximity between the parties, and considerations of fairness, justice
and reasonableness had been accepted in Scotland in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1997 SC 59 at 61-62, 1999 SC (HL) 9 at 12.
(3)
Counsel considered the circumstances in which delictual
duties might be imposed on statutory bodies when performing their statutory
duties. That would be unusual in a case
where there was no right to sue a statutory body for breach of its statutory
duties. It would be unusual, although
not in all circumstances impossible, for such a body to be made liable for
failure to perform common law duties.
Counsel relied on the speech of Lord Hoffman in Stovin v Wise [1996] AC 923 at
941-957 with which Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed.
(4)
Counsel founded on Capital & Counties
plc v Hampshire County Council [1997] QB 1004 where the Court of Appeal held that a fire brigade were not under a
common law duty to answer a call for help or to take care to do so, nor did
they 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
scene of fire and fighting it.
(5) Counsel referred to two Scottish
cases decided before Capital and
Counties. In the first, Kilboy v
South Eastern Fire Area Joint Committee 1952 SC 280, Lord Keith, in an
obiter dictum at page 288, expressed doubt whether there was any method by
which the authority could free itself from liability for the negligence of
persons expressly or impliedly authorised by the authority to deal with fires
in the manner in which they carried out that task. The second case was Duff v Highland and Islands
Fire Board 1995 SLT 1362 where Lord Macfadyen
sitting in the Outer House observed obiter that he would have rejected a
submission that the defenders did not owe to the owners of property affected by
a fire which they fought any common law duty to take reasonable care in the
course of their firefighting operations. Counsel submitted that those dicta by Lord Macfadyen should not be followed, and that the later cases
of Stovin and Capital
and Counties were highly persuasive.
(6) Counsel cited two English cases
in which reference had been made to Capital
and Counties. In OLL Ltd v Secretary of State for Transport [1997] 3 All E R 897. May J applied that decision to a case
where the coastguard had responded to an emergency at sea, holding that the
latter were under no enforceable private law duty to respond to an emergency
call, nor, if they did respond, would they be liable if their response was
negligent, unless their negligence amounted to a positive act which directly caused
greater injury than would have occurred if they had not intervened at all. The second case was Gorringe v Calderdale Metropolitan
Borough Council [2004] UKHL 15, [2004] 1 WLR 1057 where the House of Lords held that the public law duties imposed by
statute on a highway authority to take appropriate measures to prevent
accidents, which were not enforceable by a private individual in an action for
breach of statutory duty, did not give rise to a parallel duty of care to take
such measures at common law.
(7) Counsel discussed and
distinguished Gibson v Orr 1999 SC 420, a decision by Lord
Hamilton in the Outer House which I shall consider later.
(8) Counsel also referred to two
further Outer House decisions, Forbes v City of Dundee District Council 1997 SLT
1330 Lord Nimmo Smith and McCafferty v Secretary of State for Scotland 1998
SCLR 379.
(1) The duty said to have been
breached by the defenders in the present case was a fault of omission
consisting of the failure to search for a cause of combustion which at that
stage was hidden and only a possibility:
its existence was not actually known to the defenders' officers.
(2) There was no suggestion in the
pleadings that the defenders or their officers had made the situation more
dangerous by any positive act.
(3) The principles derived in
(4) The conclusion that would be
reached in
(5) If the defenders had done
nothing, they would not be liable. Here,
they had entered the flat and had not extinguished the fire. There was nothing to suggest that they should
have greater liability than if they had not turned up at all.
(6) There were good policy reasons
for not finding either that there was sufficient proximity or that it would be
fair, just and reasonable to impose a duty of care in the present case. First, counsel referred to Lord Hoffman's
discussion of the matter in Stovin v Wise.
A liability should not be imposed on public bodies to make good
damage to property caused by a fire which had not been started by society or
the taxpayer. It would not make sense to
require a property-owners' insurers to be paid out of public funds. That should only be done by Parliament; but
Parliament had imposed only target duties and had not intended to impose any
such liability on fire authorities.
Secondly, such a duty of care would be wide - it would be owed to anyone
whose property might be affected by a fire.
Thirdly, there could be operational difficulties. It would not be desirable to impose civil
liability in a case where a team of firefighters was
engaged in fighting a fire when an emergency call to another fire was
received. In other cases it might be
necessary to damage property in order to prevent the spread of fire.
(7) If it were acceptable that if
the defenders had not attended they would not have owed any common law duty of
care, at what stage did the duty arise?
When the officers arrived, or when they started to fight the fire? As to neighbouring property, was the
touchstone the time when they entered the property to inspect it? (Counsel later accepted that the tempus inspiciendum
was the time when the officers left the pursuer's flat.) The best touchstone was to be found in the
English cases: whether the acts of the firefighters created or increased the danger. As to the roads cases (Gibson, Stovin
and Gorringe),
it should be noted that the history of the liability of roads authorities at
common law was different in
The pursuer's submissions
"In the present case in attending and purporting to
take reasonable care to extinguish the fire prior to their departure from the
flats on 16 October and in forcing entry to Flat 3R the firefighters
accordingly owed a duty to the pursuer as heritable proprietor of Flat 3R to
take reasonable care for the safety of Flat 3R and its contents. In particular they owed a duty to the pursuer
to extinguish the fire at Flat 2R."
Having
regard to the factual situation, that was a duty of reasonable care which arose
in the circumstances of this case. This
was a tenement building of which the two flats were constituent parts. The duty was not without limit: it was limited to the neighbouring flats in a
single building. Accordingly, the duty
was not too widely stated, as the defenders had argued.
[20] Counsel went on to discuss a number of cases. He examined, in particular, East Suffolk Rivers Catchment
Board v
[21] As to the East Suffolk case, the pursuer's counsel pointed out that it was
concerned with a statutory authority which had been entrusted with a power, not
with a duty; and the House of Lords had held that such an authority could not
be made liable for any damage sustained by a member of the public by reason of
a failure to exercise the power (Lord Romer at page
102). That decision had not been
followed in
[24] Counsel for the pursuer also referred to Stovin v
Wise [1996] AC 923; Kilboy v South
Eastern Fire Area Joint Committee 1952 SC 280; OLL Ltd v Secretary of State
for Transport [1997] 3 All ER 897; Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057; Forbes v City of Dundee District Council 1997 SLT
1330; and McCafferty v
Secretary of State for Scotland 1998 SCLR 379.
The defenders' reply
[27] The defenders' counsel accepted that the
dicta in Duff were against him, but
he pointed out that they were entirely obiter.
The discussion before Lord Macfadyen had not
been as detailed as it might have been.
In Forbes (at page 1340J-K)
Lord Nimmo Smith had not been persuaded that clear indication in favour of
liability existed in Duff. Lord Macfadyen's
doubts about the
Discussion
[31] The question I have to decide is whether
to dismiss this action on the ground that it is irrelevant, or to allow inquiry
by way of proof or proof before answer.
The test of the relevancy of a pursuer's averments is familiar. "The true proposition is that an action will
not be dismissed as irrelevant unless it must necessarily fail even if all the
pursuer's averments are proved." (Jamieson v Jamieson 1952 SC (HL) 44 at page 50 per Lord Normand; Henderson v 3052775 Nova
Scotia Ltd [2006] UKHL 21, 2006 SC (HL) 85 at paragraph [16] per Lord Rodger of Earlsferry).
[32] In reaching my decision I shall consider,
first, whether the law of
Pure omission
[34] In my opinion the law of
"Reliance
was placed by counsel for the defender on the proposition that the common law
does not impose liability for what are called 'pure omissions' (Malaco v Littlewoods Organisation [1987 SC (HL) 37] per
Lord Goff at page 76). Of course,
where no pre-existing relationship exists, a failure to act may not, whatever
the moral obloquy, amount in law to a breach of duty of care (as in failure to
stop a blind stranger stepping out in front of busy traffic), while a positive
act (as in carelessly walking into such a stranger and propelling him in front
of such traffic) may well do so.
However, where a relationship does pre-exist, whether with an individual
or with a limited group of persons, the distinction between acts and omissions
becomes less important."
I
would respectfully agree with Lord Macfadyen and Lord
Hamilton, and I would also adopt the following passage from volume 15 of the Stair Memorial Encyclopaedia (1996) at
paragraph 296:
"Drawing the distinction [between acts and omissions]
suggests that there may be liability for acts but there is never a duty of care
to avoid omissions: this has never been
wholly accurate. Lord Atkin himself makes this perfectly plain when he says,
'you must take reasonable
care to avoid acts and omissions which you can reasonably foresee would be
likely to injure your neighbour' [Donoghue v Stevenson 1932 SC (HL) 31 at page 44].
There has been no reported case in
[35] Let it be assumed, however, that I am
mistaken on that point and that, contrary to my view, the law of
"There are sound reasons why omissions require
different treatment from positive conduct.
It is one thing for the law to say that a person who undertakes some
activity shall take reasonable care not to cause damage to others. It is another thing for the law to require
that a person who is doing nothing in particular shall take steps to prevent
another from suffering harm from the acts of third parties (like Mrs Wise) or
natural causes."
His
Lordship said in Gorringe v
Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057
at paragraph [17]:
"Reasonable foreseeability
of physical injury is the standard criterion for determining the duty of care
owed by people who undertake an activity which carries a risk of injury to
others. But it is insufficient to
justify the imposition of liability upon someone who simply does nothing: who
neither creates the risk nor undertakes to do anything to prevent it."
The statutory framework
[37] I therefore examine the question whether,
in the circumstances averred by the pursuer, the defenders owed him any duty of
care at common law. It is necessary to
begin by examining the material terms of the Fire Services Act 1947, which was
the relevant statute in force at the time of the fire. (I note in passing that the whole Act, except
sections 26 to 27A, has been repealed by the Fire (
"If the plaintiff's
complaint alleges carelessness, not in the taking of a discretionary decision
to do some act, but in the practical manner in which that act has been
performed (e.g. the running of a school) the question whether or not there is a
common law duty of care falls to be decided by applying the usual principles
i.e. those laid down in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618. [ ...
]
However
the question whether there is such a common law duty and if so its ambit, must
be profoundly influenced by the statutory framework within which the acts
complained of were done. [ ... ] [I]n my
judgment a common law duty of care cannot be imposed on a statutory duty if the
observance of such common law duty of care would be inconsistent with, or have
a tendency to discourage, the due performance by the local authority of its
statutory duties."
In
Gorringe Lord Steyn
made observations about negligence and statutory duties and powers, "a subject
of great complexity and very much an evolving area of the law" (paragraph
[2]). Having referred to X (Minors), Stovin
v Wise, Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619, his Lordship said (at paragraph [3]):
"There are two comments on these decisions which I
would make. First, except on a very
careful study of these decisions, there is a principled distinction which is
not always in the forefront of discussions.
It is this: in a case founded on
breach of statutory duty the central question is whether from the provisions
and structure of the statute an intention can be gathered to create a private law remedy?
In contradistinction in a case framed in negligence, against the
background of a statutory duty or power, a basic question is whether the
statute excludes a private law
remedy? An assimilation of the two
inquiries will sometimes produce wrong results."
[39] The Act is, in the opening words of the
long title, "An Act to make further provision for fire services in
"(1) It
shall be the duty of every fire authority in
(a) the services for their
area of such a fire brigade and such equipment 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;
[ ... ]
(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;
[ ... ]"
Section 36 of the Act, whose provisions have effect for the
purpose of the application of the Act to
"My
Lords, I must make it clear that this appeal is concerned only with an attempt
to impose upon a local authority a common law duty to act based solely on the
existence of a broad public law duty. We
are not concerned with cases in which public authorities have actually done
acts or entered into relationships or undertaken responsibilities which give
rise to a common law duty of care. In
such cases the fact that the public authority acted pursuant to a statutory
power or public duty does not necessarily negative the existence of a duty."
"[I]t has been generally accepted that, unless the
statute manifests a contrary intention, a public authority which enters upon an
exercise of statutory power may place itself in a relationship to members of
the public which imports a common law duty to take care."
In
the present case the defenders were not engaged in the exercise of a statutory
discretion involving broad issues of policy or the allocation of resources,
such as might have imposed a limitation upon their liability for
negligence. The negligence founded on is
said to have occurred in the carrying out of a routine operation, the
containment and extinction of a fire. In
my opinion the observance of a common law duty of care to the pursuer in the
circumstances of this case is not inconsistent with the defenders' due
performance of their statutory duties, nor it is
liable to discourage it. It will be
appropriate to consider the latter point in the context of the application of
the "fair, just and reasonable" element of the Caparo test.
The Caparo test
[42] It will be useful to set out the familiar
passage from the speech of Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605 at pages 617G-618E:
"But since the Anns case [Anns v Merton
London Borough Council [1978] AC 728] a series of decisions of the Privy
Council and of your Lordships' House, notably in judgments and speeches
delivered by Lord Keith of Kinkel, have emphasised
the inability of any single general principle to provide a practical test which
can be applied to every situation to determine whether a duty of care is owed and,
if so, what is its scope. [ ... ] What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any
situation giving rise to a duty of care are that there should exist between the
party owing the duty and the party to whom it is owed a relationship
characterised by the law as one of 'proximity' or 'neighbourhood' and that the
situation should be one in which the court considers it fair, just and
reasonable that the law should impose a duty of a given scope upon the one party
for the benefit of the other. But it is
implicit in the passages referred to that the concepts of proximity and
fairness embodied in these additional ingredients are not susceptible of any
such precise definition as would be necessary to give them utility as practical
tests, but amount in effect to little more than convenient labels to attach to
the features of different specific situations which, on a detailed examination
of all the circumstances, the law recognises pragmatically as giving rise to a
duty of care of a given scope. Whilst
recognising, of course, the importance of the underlying general principles
common to the whole field of negligence, I think the law has now moved in the
direction of attaching greater significance to the more traditional
categorisation of distinct and recognisable situations as guides to the
existence, the scope and the limits of the varied duties of care which the law
imposes. We must now, I think, recognise
the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43-44, where he said:
'It
is preferable, in my view, that the law should develop novel categories of
negligence incrementally and by analogy with established categories, rather
than by a massive extension of a prima facie duty of care restrained only by
indefinable "considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed.'"
[43] As Lord Hamilton observed in Gibson v Orr 1999 SC 420 at page 430D, the tripartite test of foreseeability of damage, proximity between the parties,
and considerations of fairness, justice and reasonableness has on a number of
occasions been adopted and applied without challenge in
[44] Lord Hamilton also referred to the speech
of Lord Mackay of Clashfern in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1999 SC (HL) 9 at 12. Lord Mackay of Clashfern
cited the passage in the speech of Lord Steyn in
Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 211 at 235 where his Lordship referred with approval to the following
observations by Saville LJ (as he then was):
"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."
While
keeping in view the fact that the three elements of the test are not wholly
separate and distinct requirements, it will be useful to consider each in turn
before attempting to reach a view as to whether a duty should be imposed in the
circumstances of this case. The
defenders have conceded that the element of foreseeability
is satisfied. I now consider the
remaining two elements.
"(1) Each relevant authority
shall make provision for the purpose of -
(a) extinguishing fires in
its area; and
(b) protecting life and
property in the event of fires in its area."
While
similar language does not appear in the 1947 Act, it could scarcely be
contended that section 9(1) of the 2005 Act has imposed new responsibilities
which were not implicit in the 1947 Act.
That the protection of both life and property must be taken into account
is clearly an inescapable consideration where, as in this case, a fire brigade
has responded to a call to a fire in a residential tenement.
Proximity
"Indeed it is difficult to resist a conclusion that
what have been treated as three separate requirements are, at least in
most cases, in fact merely facets of the same thing, for in some cases the
degree of foreseeability is such that it is from that
alone that the requisite proximity can be deduced, whilst in others the absence
of that essential relationship can most rationally be attributed simply to the
court's view that it would not be fair and reasonable to hold the defendant
responsible. 'Proximity' is, no doubt, a
convenient expression so long as it is realised that it is no more than a label
which embraces not a definable concept but merely a description of
circumstances from which, pragmatically, the courts conclude that a duty of
care exists."
In
Stovin Lord Nicholls of
"The Caparo tripartite test elevates proximity to
the dignity of a separate heading. This
formulation tends to suggest that proximity is a separate ingredient, distinct
from fairness and reasonableness, and capable of being identified by some other
criteria. This is not so. Proximity is a slippery word. Proximity is not legal shorthand for a
concept with its own, objectively identifiable characteristics. Proximity is convenient shorthand for a
relationship between two parties which makes it fair and reasonable one should
owe the other a duty of care. This is
only another way of saying that when assessing the requirements of fairness and
reasonableness regard must be had to the relationship of the parties."
[47] In the present case the defenders founded
strongly on the decision of the Court of Appeal in Capital & Counties plc v
Hampshire County Council [1997] QB 1004.
They submitted that it could not be distinguished from the present
case. The Court in Capital & Counties considered the question whether, and if so,
in what circumstances a fire brigade owe a duty of care to the owner or
occupier of premises which are damaged or destroyed by fire (page
1022A-B). In the first and second of
four appeals which were heard together, a fire brigade attended a fire in a
building and turned off the sprinkler system, an action which led to the fire's
going out of control. The plaintiffs'
claims against that fire brigade succeeded.
In the third appeal, a fire brigade attended at a fire scene and, having
satisfied themselves that the fires had been extinguished, left the scene
without inspecting the plaintiff's premises on adjacent land, which were later
destroyed by fire. The plaintiffs' claim
against that fire brigade failed. The
Court held, first (at page 1030A-B), that a fire brigade are not under a common
law duty to answer a 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." Secondly, the Court considered the question
whether 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.
The Court said (at page 1038E-F):
"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."
The
Court also held, however, that where a fire brigade by its negligence has
created or increased the risk of the danger which caused damage to the
plaintiff, it would be liable for negligence in respect of that damage, unless
it could show that the damage would have occurred in any event (pages 1031D-E,
1034E-G). Thus the effect of the
judgment, in so far as it has a bearing on the circumstances averred by the
pursuer, is that a fire brigade does not owe any duty of care in fighting a
fire except in so far as it creates by its own negligence some additional
danger.
[48] I have repeatedly studied this judgment
with great respect and care, but I regret that I am unable to regard it as
representing the law of
[49] I am unable to find anything in the
reasoning in Capital & Counties which
persuades me to disagree with Lord Macfadyen. In particular, I regret that I do not
understand the role of proximity in Capital
& Counties. The Court appears to
say that while there is insufficient proximity for the creation of a general
duty of care owed by the fire brigade to the property-owner, there is
nevertheless sufficient proximity between them to give rise to a duty not to
make matters worse. Thus a fire brigade
is not liable for negligently failing to prevent damage, but only for causing
greater injury than would have occurred if the fire brigade had done nothing at
all. It seems difficult to discern a
sound foundation in principle for this distinction. The Court appears to have been influenced by
the decision of the House of Lords in an English appeal, East Suffolk Rivers Catchment Board v
"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 the 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."
[50] While the East Suffolk case continues to be cited
in the House of Lords for the proposition stated in the first sentence (Stovin at page 947F-G; Gorringe at paragraph [41]), the House of Lords has also made it clear
in Anns v
Merton London Borough Council [1978] AC 728 that it approves the analysis
in the dissenting speech of Lord Atkin (Lord
Wilberforce at page 757A-E, with whose speech Lord Diplock,
Lord Simon of Glaisdale (both at page 761A-B) and
Lord Russell of Killowen (at pages 771G-772A) agreed;
Lord Salmon at pages 764E-767A). Lord Atkin said (at pages 88-89):
"But apart from the existence of a
public duty to the public, every person whether discharging a public duty or
not is under a common law obligation to some persons in some circumstances to
conduct himself with reasonable care so as not to injure those persons likely to
be affected by his want of care. This
duty exists whether a person is performing a public duty, or merely exercising
a power which he possesses either under statutory authority or in pursuance of
his ordinary rights as a citizen."
[51] In any event,
the view that a body exercising statutory powers is liable only for any damage
it causes which makes matters worse, appears not to have been accepted in the
law of
"I do not regard the
"Be
that as it may, the
"There
is no doubt an element of discretion vested in the fire authority to determine
precisely what manpower and equipment should be provided and what arrangements
should be made for dealing with calls.
Fundamentally, however, the intervention of the defenders to fight the
fire at Inchree stemmed not from an exercise of pure
discretionary power, but from performance of the duties imposed by section
1. I am therefore of opinion that I
would, had it been necessary to decide this issue, have been free to take the
view that in a real and practical sense the destruction of the pursuer's house
was caused by the defenders' failure to extinguish completely the chimney
fire."
[52] The Court of Appeal in Capital & Counties accepted a
submission (at page 1036A-B)
"that the fire brigade's duty
is owed to 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."
It
seems arguable, however, that when a fire brigade is fighting a fire it owes a
duty, not to the public at large, but to the limited class of those whose lives
or property are endangered. In the
present case, where the defenders' firefighters were
engaged in containing and extinguishing a fire in a flat in a residential
tenement which consisted of a single building, it does not appear to strain any
reasonable concept of proximity to say that they owed a duty to the owner of
the flat upstairs, especially once they had broken into that flat and observed
smoke damage.
"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 s skill: see Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465 and Henderson
v Merrett Syndicates Ltd [1995] 2 AC 145. There
are many instances of this."
The
Court discussed Barnett v Chelsea and Kensington Hospital Management
Committee [1969] 1 QB 428 and X
(Minors) and said (at pages 1035H-1036A):
"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."
The
Court went on to note (at page 1037D):
"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."
The
Court examined Kirkham v
Chief Constable of the Greater Manchester Police [1990] 2 QB 283, Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692, Osman v
"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."
The
Court's view appears to be that a sufficiently proximate relationship between
the fire brigade and the owner or occupier cannot be based on assumption of
responsibility and reliance. It is not
altogether clear, however, why that must always be so. The fact that the Court's proposition is
supported by examples rather than by argument illustrates the difficulty that
the concept of proximity is more readily exemplified than analysed.
[54] I consider that some further assistance
may now be derived from two later decisions of the House of Lords which are
referred to in Gorringe: Barrett
v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. In Gorringe Lord Hoffman discussed these cases in this way:
"38 My Lords, I must make it clear that
this appeal is concerned only with an attempt to impose upon a local authority
a common law duty to act based solely on the existence of a broad public law
duty. We are not concerned with cases in
which public authorities have actually done acts or entered into relationships
or undertaken responsibilities which give rise to a common law duty of
care. In such cases the fact that the
public authority acted pursuant to a statutory power or public duty does not
necessarily negative the existence of a duty.
A hospital trust provides medical treatment pursuant to the public law
duty in the 1977 Act, but the existence of its common law duty is based simply
upon its acceptance of a professional relationship with the patient no different
from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common
law foundation and the question is not whether it is created by the statute but
whether the terms of the statute (for example, in requiring a particular thing
to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well
established since Geddis v
Proprietors of Bann Reservoir (1878) 3 App Cas 430.
39 [ ... ] In
Barrett v Enfield London Borough
Council [2001] 2 AC 550 the plaintiff claimed that when he was taken into
care, the council assumed parental responsibilities over him and so came under
a duty of care in respect of the way he was treated. It was alleged that various acts and
omissions had been in breach of this duty.
The council tried to get the claim struck out as disclosing no cause of
action because it had been exercising wide statutory discretions. The House refused to strike out the
action. The plaintiff did not rely upon
a common law duty of care generated by the existence of statutory powers. It is true that the council only assumed
parental responsibility because of its statutory powers and duties, but the
fact was that it did so. It was that
which the plaintiff alleged gave rise to the duty. The statutory powers and duties might have
provided the council with defences in respect of its specific acts and
omissions but that could not be decided without an investigation into the
facts.
40 Similarly in Phelps v Hillingdon London Borough Council [2001] 2 AC 619 the local education authority employed an educational psychologist to
examine the plaintiff and diagnose her learning difficulties. The psychologist negligently failed to
diagnose dyslexia and, as a result, the plaintiff left school with fewer skills
than she would have learned if she had been diagnosed earlier. The council relied upon the fact that it had
provided the psychologist pursuant to its public law duties which were not actionable
at private law. But the House held that
the duty of care did not depend upon the statute. It arose because the psychologist had
impliedly undertaken to exercise proper professional skill in diagnosis, in the
same way as a doctor provided by the National Health Service. The fact that the doctor-patient relationship
was brought into being pursuant to public law duties was irrelevant except so
far as the statute provided a defence.
The House decided that no such defence had been established."
"[ ... ] the common law duty
of care in those cases was found or suggested to have arisen not by reference
to the existence of the respective authorities' statutory powers and duties but
rather from the relationships in fact created between those authorities and the
children for whom in differing ways they had assumed responsibility."
Fairness, justice and
reasonableness
"The
inclusion of 'what is just (fair) and reasonable' is a discreet acknowledgment
at long last of what in academic and popular discourse is more forthrightly
referred to as 'policy'. It admits
'instrumentalist' goals beyond the equities between this plaintiff and this defendant. Looking beyond the parties, it considers the
wider effects of a decision on society; the burden it would inflict no less
than the benefit it would secure. In
short, it recognises the public law element in this area of private law."
"[ ... ] 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."
In
Capital & Counties (at page
1028D-F) the Court of Appeal
commented on that passage as follows:
"Although
the plaintiffs' counsel have criticised Lord Hoffman'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 Hoffman 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."
"If we had found a sufficient relationship of
proximity in [the third and fourth cases], we do not think that we would have
found the arguments for excluding a duty of care on the ground that it would
not be fair, just and reasonable convincing."
In
my opinion, accordingly, if the pursuer were to establish his averments of
fact, it would follow that the third element in the Caparo test would be satisfied.
Pragmatic and incremental
development
[67] The position of the police in
[68] Counsel for the defenders submitted that Gibson was distinguishable from the
present case. There, the police officers
had had control of the hazard: here, the
fire officers had not been aware of the hazard.
There, the duty was owed to a limited class: here, the duty was allegedly owed to a large
class. The background of Scottish
authority as to liability for the state of the roads made it easy to impose a
duty on the police where they had control of the roads. Further, the present case was concerned only
with damage to property, while Gibson was
an action of damages for personal injuries which was concerned with a situation
that presented a grave and immediate risk of death or serious injury and
resulted in the death of two people and injury to the pursuer. That was an important distinction. In Stovin (at page
955A-C) Lord Hoffman had had in mind damage to property. If there had been a risk to people, and the
fire officers could see the risk and had then walked away, there could be room
or a duty of care, which might have been breached. Gibson was
not inconsistent with the defenders' propositions: on the facts of Gibson, the same result might have been
reached in
[70] The position of ambulance services was
considered in
"The fact that it was a person
who foreseeably would suffer further injuries by a
delay in providing an ambulance, when there was no reason why it should not be
provided, is important in establishing the necessary proximity and thus duty of
care in this case. In other words, as
there were no circumstances which made it unfair, unreasonable or unjust that liability
should exist, there is no reason why there should not be liability if the
arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case
established the duty of care."
The
Court distinguished Capital &
Counties apparently on the grounds that a fire service's obligation is to
the public at large and that an ambulance service provided services of a
different category from those provided by a fire service (paragraph [45]).
I would respectfully suggest that an obligation to the public at large is not
inconsistent with an obligation towards those likely to be immediately and
directly affected by the emergency with which the service is dealing; and that
it is not easy to see a clear distinction in principle between an ambulance
service on the one hand, and a police or fire service on the other, once a call
has been accepted and responsibility assumed for dealing with the emergency
with the result that those likely to be immediately and directly affected are
dependent on the efficient performance by the service of its professional
skills. I therefore would not agree that
an analogy between an ambulance service, on the one hand, and police and fire
services on the other, should be rejected.
In any event, the Court considered that there a duty of care was owed by
the ambulance service in the circumstances of that case.
"Here
what was being provided was a health service. In the case of health services
under the 1977 Act [the National Health Service Act 1977] the conventional
situation is that there is a duty of care.
Why should the position of the ambulance staff be different from that of
doctors and nurses?"
In
Capital & Counties the Court said
(at page 1035A-B):
"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."
Conclusion
Other cases
[74] Lest it be thought that I have overlooked
them, I refer to the other cases cited in argument which I have not discussed
in this Opinion. Kilboy v South Eastern Fire Area
Joint Committee 1952 SC 280, was concerned with
the question whether a fire authority was vicariously responsible for the
negligence of members of the brigade when on duty, and not with whether the
defenders owed any duty of care to the pursuer.
OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 is an
application of the decision in Capital
& Counties. Like Lord Hamilton
in Gibson (at page 437F-G), I
respectfully disagree with the dicta in Forbes
v City of Dundee District Council 1997
SLT 1330 relative to the third element of the Caparo test. Counsel were agreed
that Sutradhar v Natural
Environment Research Council [2006] UKHL 33, [2006] 4 All ER 490, which I
mentioned during the hearing, and McCafferty v Secretary of State for Scotland 1998
SCLR 379 did not help to resolve the issues in the present case.
Proof before answer
Result