Scottish Court of Session Decisions

 

 

OUTER HOUSE, COURT OF SESSION

 

[2014] CSOH 135

 

A514/11

 

OPINION OF LORD BRAILSFORD

 

In the cause

 

A J ALLAN (BLAIRNYLE) LIMITED & ANOTHER

Pursuers;

 

against

 

STRATHCLYDE FIRE BOARD

Defenders:

 

Pursuers:  Balfour;  BLM

Defenders:  Dunlop QC, Irvine;  Simpson & Marwick

 

2 September 2014

[1]        This case called for discussion on the procedure roll on the pursuers’ first plea‑in‑law and the defenders’ first and second pleas‑in‑law.  All were general pleas to the relevance of the pleadings. 

[2]        The pursuers seek damages in respect of loss caused by fire in a farmhouse and outbuildings owned by them.  The damage occasioned by the fire is averred to have been caused as a result of fault and negligence of the defenders who are a joint fire and rescue board responsible, inter alia, for the provision of fire services in Strathclyde region.

[3]        The relevant factual averments may be summarised relatively briefly.  On the morning of 31 October 2008 a fire was discovered within the roof space in the outbuilding adjoining a two storey farmhouse at Blairnyle Farm, Gartochan, Alexandria, Dunbartonshire.  The fire was caused by hot combustion products from a Rayburn stove in a kitchen leaking from the chimney and igniting roof timbers.  An emergency telephone call was made to the defenders who despatched two firefighting appliances to the farm.  On arrival at the farm firefighters sought to contain and extinguish the fire.  After a period of time it was concluded that the fire had been extinguished.  Firefighters then made a visual check of the farmhouse including the ground floor, the first floor and the roof space.  After conducting this visual examination they left.  The fire in fact continued to smoulder within roof timbers in the farmhouse.  During the subsequent night the fire re-ignited and destroyed the farmhouse. 

[4]        Against the background of these factual averments the pursuers aver that the defenders owed a duty of care to them to take reasonable care for the safety of the farmhouse and its contents.  It is averred that the defenders should have appreciated that the initial fire “….involved rotten timbers which were particularly susceptible to igniting and burning in a smouldering fashion”.  It is averred that after the initial fire reasonably competent firefighters would have performed a full and thorough inspection of the farmhouse and the outbuilding to ensure that the fire had been completely extinguished and did not continue to smoulder.  It is averred that reasonably competent firefighters “…would have instructed that a thermal imaging camera be used to ensure …” that the initial fire had been extinguished completely and did not continue to smoulder.

[5]        The defenders submitted that no duty of care rested upon them in the circumstances averred.  Even if all the averments pled against them were proved it was submitted that there was no case in law against them. 

[6]        My attention was drawn to the statutory framework under which the defenders are constituted and operated.  The defenders are a fire and rescue authority created under section 1 of the Fire (Scotland) Act 2005 ("the 2005 Act").  The duties of a fire authority in relation to firefighting are set forth by section 9 of the 2005 Act which provides, inter alia;

“(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.

 

(2) in making provision under section (1) a relevant authority shall in particular –

 

(a) secure the provision of the personnel, services and equipment necessary to meet efficiently all normal requirements;

(b) secure the provision of training for personnel;

(c) make arrangements for –

(i) dealing with calls for help; and

(ii) summoning personnel, in the event of fire

….

(e) make arrangements for ensuring that reasonable steps are taken to prevent or limit damage to property resulting from action taken for the purpose mentioned in that subsection”.

 

The powers granted to a fire authority are, so far as relevant, set forth in section 25 of the 2005 Act as follows:

“(1) an employee of a relevant authority who is authorised in writing by the authority for the purposes of this section (an ‘authorised employee’) and on duty may –

 

(a) if the employee reasonably believes that a fire has broken out, do anything the employee reasonably believes to be necessary for the purpose of –

(i) extinguishing the fire; or

(ii) protecting life or property;

……”

It was submitted that section 9 imposes duties of a general nature on a fire authority, essentially to institute and operate a firefighting service.  The extent to which these duties can be exercised is a matter of construction of the power contained in section 25.  This statutory framework is the background against which the defenders, in common with other fire authorities in Scotland, require to operate.

[7]        Against that background the argument advanced by senior counsel for the defenders was that there is, in general, no duty to rescue another, or to save him from harm (Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175;  Mitchell v Glasgow City Council 2008 SC 351).  It followed that in the absence of statutory innovation the common law imposed no actionable duty to attend a fire, whether upon persons in general, or on the fire service in particular.  If those propositions were correct it further followed that the duties contended for by the pursuer in the present case could only arise by virtue of the statutory functions of the defenders, the fire and rescue authority.  In that regard it was submitted that no actionable statutory duty was pled, nor was such a duty contained in the 2005 Act.  At its highest section 9 of that Act contained what was referred to as a "target duty".  The target duty was not actionable in private law (Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, per Lord Hoffman at [29];  Lord Scott at [72];  Lord Rodger at [89]).  "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" (Stovin v Wise [1996] AC 923 at page 953).  "[If a target] 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" (Gorringe supra per Lord Rodger at [90]).  It followed, submitted senior counsel, that even allowing for the statutory backdrop, there was no actionable duty, arising at common law, to attend a fire.

[8]        Notwithstanding the generality of the final proposition, it was accepted by senior counsel that there was a clear statutory power to attend a fire (the 2005 Act section 25), which afforded the widest discretion to authorised employees of Scottish fire and rescue authorities, who were empowered to do "anything the employee reasonably believed to be necessary…" in extinguishing a fire.  The argument then proceeded that "it is clear…that [a public body] cannot be liable in damages for doing that which Parliament has authorised" (X v Bedfordshire County Council [1995] 2 AC 633).  Having regard to that consideration, absent averments of bad faith or irrationality, the claim in the present case was said to be bound to fail.

[9]        On an esto basis senior counsel submitted that if his previous submission was incorrect then "the mere creation of a statutory power cannot be regarded as imposing a common law duty to exercise the power" (Mitchell v Glasgow City Council (supra) per Lord Rodger at para. [62]).  This was amplified by reference to a speech by Lord Hoffman where he opined that:

 "[Gorringe] slammed shut the door which had been left slightly ajar in Stovin v Wise and said clearly that you cannot get a common law duty of care out of a statutory power or public law duty.  Such powers in duties are simply irrelevant to whether a common law duty of care is owed.  Such a duty is created, if at all, by what the public body has actually done: whether it has assumed responsibilities or done acts which, if they had been done by a private body, would have given rise to a duty of care".[1]

 

The principle enunciated by Lord Hoffman has found judicial expression as follows:

 

"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" (East Suffolk Rivers Catchment Board v Kent [1941] AC 74 per Lord Romer at 102.

 

It was submitted that this proposition remains good law in both England (see Stovin (supra) and Gorringe (supra)) and in Scotland (see Antonucci v Ayrshire & Arran Health Board, unreported, 14 February 2001, per Lord Reed at paragraph 168).

[10]      The submission proceeded that, further, the common law protected anyone acting as a rescuer "from being liable in damages except to the extent that his own acts caused damage beyond that which the claimant would have suffered if he had not intervened".  This was said to be logical since otherwise the party would be better off doing nothing in that situation.

[11]      Taken together these points were said to establish and demonstrate that a Scottish fire and rescue authority is not liable for anything done in the course of attending a fire unless (a) by negligent act they make the situation worse than if they had not attended at all or (b) by their action they effect a voluntary assumption of responsibility to protect the property.

[12]      It was then submitted that there is no suggestion in the averments in the present case that the defenders worsened the position by attending.  There was no suggestion in the averments in the present case that the defenders voluntarily assumed any responsibility.  Even if it were pled, carrying out one statutory function does not amount to a voluntary assumption of responsibility.

[13]      Senior counsel for the defenders recognised in advancing those arguments he required in the circumstances pled in this case to overcome the hurdle presented by the decision in Burnett v Grampian Fire and Rescue Services 2007 SLT 61.  It was accepted that Burnett, a decision of Lord Macphail’s, was indistinguishable in fact from the circumstances of the present case.  Burnett was a decision made after discussion of the defenders’ plea to the relevancy on the procedure roll.  In Burnett the defenders conceded that foreseeability was satisfied and in that situation Lord Macphail expressed the opinion that if the facts averred by the pursuer were established a relationship of proximity would exist between the defenders’ firefighters and the pursuer.  His Lordship further opined that if the pursuer established his averments of fact it would follow that the imposition of a duty of care would be fair, just and reasonable.  It was submitted by the defenders that in reaching that conclusion Lord Macphail was in error as to the law and ignored a line of authority in England which demonstrated that no duty of care existed in the circumstances of the case before him.

[14]      The line of authority relied upon by the defenders, and which Lord Macphail was said to have ignored, commences with the case of East Suffolk Rivers Catchment Board v Kent and another [1941] AC 74, a decision in the House of Lords.  In that case a seawall had been breached owing to a very high tide as a consequence of which the respondents’ land was flooded.  The appellants, the Rivers Catchment Board, in the exercise of statutory powers undertook the repair of the wall.  The work was carried out inefficiently and the flooding continued for 178 days to the damage of the respondents’ land.  Evidence suggested that with the exercise of reasonable skill the breach in the wall might have been repaired in 14 days.  The House of Lords determined that where a statutory authority was entrusted with a mere power it could not be made liable for any damage sustained by a member of the public by reason of a failure to exercise the power.  If in the exercise of its discretion the authority embarked upon an execution of the power, 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.  Chronologically the next case relied upon by the defenders was X (Minors) v Bedfordshire County Council [1995] 2 AC 633, a case which established that a breach of statutory duty did not, by itself, give rise to any private law cause of action.  Such a right could arise but only where, on a proper construction, the statute imposed a duty for the protection of a limited class of the public and there was a clear intention to confer a private right of action for breach on members of that class.  This line was developed, again in the House of Lords, in Stovin v Wise and another [1996] AC 923 where, in reviewing the authorities, and commenting upon the principle in the East Suffolk case (supra) Lord Hoffman stated at page 949F:

“…a public authority which has a mere statutory power cannot on that account owe a duty at common law to exercise the power… This, if I may respectfully say so, seems to me to be right.  If the public authority was under no duty to act, either by virtue of its statutory powers or on any other basis, it cannot be liable because it has acted but negligently failed to confer a benefit on the plaintiff or to protect him from loss.  The position is of course different if the negligent action of the public authority has left the plaintiff in a worse position than he would have been if the authority had not acted at all”.

 

From this authority counsel for the defenders submitted that it was clear that having regard to the statutory framework against which the defenders operated there was no duty on their part to act in the circumstances of the present case.  There was no general duty to rescue incumbent upon them.  These principles were developed further in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, in particular in the speech of Lord Hoffman, paragraph 31 and in Desmond v Chief Constable of Nottinghamshire Police [2011] PTSR 1369.  From this line of authority the defenders submitted that it was well established that a statutory power cannot of itself generate a common law duty of care.  But whether a statutory duty gives rise to a private common law cause of action is always a question of construction of the relevant statute.  That would require an examination of the policy of the statute to determine whether it was intended to confer a right to compensation for its breach.  If the statute does not create a private right of action, the mere existence of the statutory duty could not, it was submitted, create a common law duty of care.  The existence of a broad public law duty alone cannot give rise to a common law duty of care owed to an individual.

[15]      The conclusion of this line was the case of Capital and Counties PLC v Hampshire County Council [1997] QB 1004.  This was a decision of the English Court of Appeal in which four cases all considering the issue of the extent of duty on public authorities were considered.  The third case, where the plaintiff’s premises were destroyed by fire after a fire at adjacent premises had been extinguished and the fire brigade which went to the scene had left, was said to be on all fours with the present case.  The court concluded that no common law duty of care existed with the fire brigade.

[16]      The defenders concluded by submitting that notwithstanding that their principal submission was that there was no duty of care incumbent upon the defenders, the averments in the present case failed to satisfy the well‑recognised tests of proximity and fairness set forth in Caparo Industries PLC v Dickman [1990] 2 AC 605.

[17]      In response to these submissions counsel for the pursuers initially stressed that the pursuers' case was not based on a common law duty parasitic on a statutory duty or statutory power such as those considered in the passages referred to by the defenders in East Suffolk Rivers Catchment Board (supra), Stovin (supra) and Gorringe (supra).  The case was based upon ordinary principles of common law negligence and fell to be regarded as a case of the type described in the speech of Lord Hoffman at paragraph 38 of Gorringe (supra) in the following terms:

"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 of 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 cases relied upon by the defenders were cases where liability may arise as a consequence of an assumption of responsibility on the creation of a relationship.  That analysis was submitted to apply directly to the present case where the pursuers offer to prove that the fire brigade defenders had actually done acts, entered into a relationship and undertaken responsibilities.  As a matter of averment the defenders had answered a call to attend a fire and set about extinguishing that fire.  In that context a duty of care arose.  Although the defenders were acting pursuant to a statutory duty and a statutory power, the pursuers did not seek to argue that the power gave rise to a common law duty of care.  It was also observed that the statute did not exclude liability.  The existence of the common law duty of care arose from the fire brigade assuming responsibility for extinguishing the fire.

[18]      Having regard to that background the defenders' submissions in relation to the cases of East Suffolk (supra), Stovin (supra) and Gorringe (supra) proceeded on the basis of a misunderstanding of the nature of the case presented by the pursuers.  The pursuers' case was founded on ordinary principles of negligence in accordance with the tripartite test set forth by Lord Bridge of Harwich in Caparo Industries PLC v Dickman at 617-618:

"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".

 

In the context of the present case the defenders concede that the pursuers have pled a relevant case to satisfy the first of these criteria, foreseeability, but not the second and third.  In particular the defenders argued that there were no averments that indicated a sufficient relationship of proximity between the pursuers and the defenders, or that it would be fair, just and reasonable to impose a duty of care.

[19]      In relation to those matters, the pursuers drew my attention to averments in article 3 of condescendence in the following terms:

"Prior to 31 October 2008 the Farmhouse was occupied by the second pursuer.  The second pursuer is a director of the first pursuer.  On the morning of 31 October 2008 the second pursuer discovered a fire within the roof space in the Outbuilding ('the First Fire').  The First Fire was caused by hot combustion products from a Rayburn stove in the kitchen leaking from the chimney and igniting roof timbers.  The fire involved rotten timbers which were particularly susceptible to igniting and burning in a smouldering fashion.  On discovering the First Fire, the second pursuer made an emergency telephone call to the defender.  The defender despatched two firefighting appliances to the farm".

 

and in article 4 of condescendence:

"At approximately 12.01 the firefighting appliances arrived at the farm. The Incident Commander was James McEwan.  He was an employee of the defender.  The firefighters sought to contain and extinguish the First Fire.  The firefighters were employees of the defender…..".

 

These averments were said to set out the pursuers' case in proximity which was to the effect that the pursuers were the owners and occupiers of the property.  The second pursuer made an emergency telephone call to the defenders, the defenders' employees attended at the property and the defenders' employees sought to contain and extinguish the fire.  It was contended that these averments set out sufficient relationship of proximity to justify the imposition of a duty of care.  Moreover it was submitted that those averments disclosed a relevant relationship of proximity such as to give rise to a duty of care and that in the circumstances averred it would be fair, just and reasonable to impose a duty of care.

[20]      Against this background counsel for the pursuers then turned to consider the case of Burnett v Grampian Fire and Rescue Services (supra).  The emphasis placed upon this authority by counsel for the pursuers is not surprising given the concession made by senior counsel for the defenders that the facts of that case were indistinguishable from the facts of the present case and that Lord Macphail, declining to follow Capital Counties PLC (supra) considered that on the facts averred the defenders owed the pursuer a duty of care to take all reasonable steps not only to extinguish the fire in the adjacent premises but also to take specific measures as averred by the pursuer to establish whether circumstances existed which, if not eliminated, constituted a risk either of a re-ignition of the fire in the adjacent premises or its extension.  The basis of Lord Macphail's reasoning was essentially that, on the assumption that the pursuers’ factual averments here proved, duties arose from the fact that it was reasonably foreseeable that the pursuer's premises and its contents would be exposed to the immediate and direct hazard of the spread of fire from the adjacent premises and from the proximity of the relationship between the pursuer as the owner of his own premises and the defenders who had entered these premises in order to check that the fire had not spread into them.  In these circumstances Lord Macphail expressed the view that it was fair, just and reasonable to treat the defenders as subject to the common law duties of care averred by the pursuer.  It was submitted on behalf of the pursuers that the approach of Lord Macphail was correct and should be followed in the present case.  The assessment of proximity adopted by Lord Macphail was said to follow both Scottish and English authority, as had been recognised by the Inner House in Mitchell v Glasgow City Council (supra) per Lord Reed at paragraph 87.  My attention was drawn by counsel to Lord Macphail's approach to the issue of proximity which was to commence by considering the statutory framework against which fire authorities operated.  Whilst the statutory framework considered by Lord Macphail, the Fire Services Act 1947 had been repealed and replaced by the Fire (Scotland) Act 2005 which was the governing legislation at the time of the present case nothing was said to turn upon this.  The relevant statutory provisions in both Burnett (supra) and the present case were submitted to be sufficiently similar to have no bearing on the decision.  In his conclusions on the statutory framework Lord Macphail first observed at paragraph [40]:

"I observe, first, that the Act does not manifest any intention to exclude civil liability for negligence in the conduct of routine operations such as the containment and extinction of a fire".

 

He thereafter continued in paragraph [41]:

"The pursuer's argument is, in effect that his is a case of the latter kind he does not say that the duty of care at common law on which he founds is simply generated by the defenders' statutory duty, but rather that the duty arose when the defenders were discharging a statutory duty or, to adopt the words of Lord Browne-Wilkinson in X (Minors) at [1995] 2 AC, page 739, that the alleged carelessness arose from the practical manner in which the acts done were performed.  Such a situation would not be unusual.  The law on this subject was considered in Sutherland Shire Council v Haymen, passages from which are cited in Caparo by Lord Bridge of Harwich at [1990] 2 AC, page 618D-E and in Gorringe by Lord Rodger of Earlsferry at paragraph 88 (page 1083).  Mason J (as he then was) said at (1985) 157CLR, page 459:

 

'[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 is it 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 submission for the pursuers was that the foregoing reasoning was applicable to the present case and in the result the functioning of the court in the present case was, essentially, to determine if the "Caparo" (supra) tests were satisfied.  If they were satisfied then a duty of care would exist.

[21]      Lord Macphail in Burnett (supra) then considered at length the branches of the test set forth by Lord Bridge in Caparo (supra).  This examination included consideration of the authorities in which the proximity test had been considered (see paragraphs [46] – [57]).  The conclusion reached by Lord Macphail is to be found in paragraph [58] in the following terms:

"However the matter may be put, it appears to me to be undeniable that, if the facts averred by the pursuer were to be established, a relationship of proximity would be held to have existed between the defenders' firefighters and the pursuer.  This is not a case where the firefighters failed to attend the fire at all.  The statement by the Court of Appeal in Capital Counties (at page 1030) that a fire brigade is not under a common law duty to answer a call, which was approved by Lord Hoffmann in Gorringe at paragraph [32], page 1067, is not applicable to the circumstances of this case.  There may well be insufficient proximity between the fire brigade and the public at large to give rise to a duty to answer a call;  but in my opinion there is a proximity between the fire brigade, on the one hand, and the owner or occupier of burning property and other persons immediately and directly liable to be affected, on the other, once the call has been answered and the fire brigade has attended and is attempting to deal with the fire".

 

Lord Macphail then considered the issue of fairness, justice and reasonableness of the imposition of a duty of care, and concluded that in the circumstances averred if those matters were established as facts then the test would be satisfied.  Lord Macphail's last consideration was what he termed "pragmatic and incremental developments" where he considered whether the imposition of a duty of care on the defenders in the circumstances of the case before him "…would be a pragmatic step which would accord with the view that the law should develop in this area incrementally and by analogy with established categories".  In analysing this issue Lord Macphail drew attention to the decision in Gibson v Orr 1999 SC 420 a decision of Lord Hamilton in the Outer House.  Lord Macphail agreed with Lord Hamilton's analysis and found the pragmatic test he had posed satisfied. 

[22]      Having regard to the foregoing counsel for the pursuers submitted that I should follow the decision of Lord Macphail in Burnett and, in the result, allow a proof before answer. 

[23]      The issue which I require to determine is whether this action should be dismissed on the ground that it is irrelevant and lacking in specification or to allow a proof before answer of the averments at large.  It is trite that dismissal on the grounds of relevance will only be permitted if the pursuers' case must necessarily fail even if all the pursuers' averments are proved.  (Jamieson v Jamieson 1992 SC (HL) 44 per the Lord Normand at page 50).  When faced with the same question in Burnett (supra), a case which, as I have already noted, is as a matter of concession by the defenders indistinguishable on its facts from the present, Lord Macphail commenced his consideration of the issue with a discussion on the issue of whether or not liability arose in Scots law as a result of pure omission.  This issue is not live in the present case and I need not discuss that matter further.

[24]      The first live issue is therefore the statutory framework.  In Burnett (supra) Lord Macphail was concerned with the provisions of the Fire Services Act 1947, that being the statute which provided for the provision of fire services in Scotland at the time when the incident in that case occurred.  As already noted the statutory provision governing the provision of fire services in Scotland at the time of the events germane to the instant case was the 2005 Act.  Whilst the precise wording of these provisions is not identical I am satisfied, and it was not disputed in submissions, that the meaning of the 2005 Act was, so far as relevant to the present argument, to the same effect as the Fire Services Act 1947 considered by Lord Macphail.  That consideration has the effect of making the construction placed upon the said Act of 1947 arrived at by Lord Macphail (see paragraph [41] of his Opinion), highly persuasive.  The conclusion on the appropriate construction of the provisions his Lordship was considering in Burnett (supra) was in terms I have already recorded in paragraph [20] of this opinion.  Similar duties were imposed upon the defenders in the present case by virtue of section 9 of the 2005 Act.  In my view the duties imposed upon the defenders as a fire authority by that provision are of a general nature and amount to a requirement to institute, maintain and operate a firefighting service.  The defenders in attending the fire at the pursuer’s premises were, in my view, doing no more and no less than exercising the powers vested in them by section 25 of the 2005 Act for exactly the purpose envisaged by the statute, that is to fight fires.  It amounted to an exercise of discretion in the manner for which fire and rescue authorities such as the defenders had been created by Parliament.  To use the language of Lord Macphail “…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”.  Adopting the reasoning of Lord Macphail I see nothing inconsistent in that general duty with the existence of a common law duty of care to the pursuer in circumstances such as pertained in the present case.  Going further such an approach would appear in my opinion consistent with a rational and easily understood system for the administration of firefighting services as a matter of generality.

[25]      It is against these considerations that the pleadings require to be considered.  I have already referred to the general nature of the factual averments in this case.  On the basis of the factual averments the pursuers' case is a straightforward one of an allegation of breach of common law duty of care on the part of the defenders.  The pursuers' categorisation of his pleadings was that this represented a case of assumption of responsibility by the defenders.  In implement of the duties imposed upon them by section 9 of the 2005 Act to institute, operate and maintain a fire service the defenders, in response to a routine call, attended at the pursuers' premises to attend to a fire.  On attending the fire they set about, again in normal course and as would be anticipated, to deal with the fire situation which pertained at those premises.  Those actions are, in my view, properly to be categorised as the assumption of a responsibility to exercise reasonable care in dealing with the situation which pertained.  That is consistent with the pursuer’s analysis that although the defenders were acting pursuant to a general statutory duty the common law duty of care pled did not arise from that general duty.  The common law duty of care arose from the assumption of responsibility for tending to the fire situation which the defenders discovered and commenced to deal with.  I am of the view that this situation, as pled on record, falls squarely within the category of case described and anticipated by Lord Hoffman at paragraph 38 of Gorringe (supra) which I have already quoted in recording submissions of parties.

[26]      It follows from what I have already said that the remaining issue would be whether the present case satisfied the tests set forth by Lord Bridge of Harwich in Caparo (supra).  In relation to the Caparo tests the defenders concede that the first of the criteria mentioned by Lord Bridge, that is foreseeability, has been satisfied and I do not require to consider that further.  In relation to the second of Lord Bridge's criteria, proximity, I have already noted that the defenders concede that the present case is indistinguishable on its pled facts from Burnett (supra).  In considering the issue of proximity in Burnett (supra) Lord Macphail, at paragraph [48], approved and followed the approach to this issue taken by Lord Macfadyen in Duff v Highland & Islands Fire Board 1995 SLT 1362 – a case to which I was referred in the course of submissions.  Duff (supra) was another case which, on its facts, appears to be essentially the same as the instant case.  Plainly the approach taken to proximity in Burnett (supra) and Duff (supra) by two other Scots judges would be highly persuasive.  I can however go further and state that having considered these opinions I agree with their reasoning in relation to proximity.  I am accordingly satisfied that the second of the Caparo (supra) tests has been satisfied. 

[27]      There remains the third of the Caparo tests, fairness, justice and reasonableness.  This issue was again analysed with care by Lord Maphail in Burnett (supra).  I am satisfied that Lord Macphail's analysis and conclusions are correct and that I should follow them in this case. 

[28]      It follows from all the foregoing that I consider that the pursuers have pled a relevant case which entitles them to proof.  I shall accordingly repel the defenders' first and second pleas‑in‑law.  The pursuers preliminary plea (plea‑in‑law three) was not insisted in and falls to be repelled.  Quoad ultra I will allow a proof before answer.