(1) The "Wembridge Claimants" and Others v (1) Martin Paul Winter* (First Defendant) (2) East Sussex Fire and Rescue Service and Another (Second Defendant) Austin
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] EWHC 2331 (QB) |
| Docket Number | Case No: HQ10X0197 |
| Court | Queen's Bench Division |
| Date | 30 July 2013 |
[2013] EWHC 2331 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: HQ10X0197
Martin Seaward (instructed by Thompsons) for the (1) Wembridge Claimants
Frank Burton QC, Andrew Roy & Vanessa Cashman (instructed by Slater & Gordon) for the (2) Wicker Claimants
Lawrence West QC & Adam Heppinstall (instructed by Goldbergs) for the (3) Austin Claimant
Lord Faulks QC, Muhammed Haque & James Sharpe(instructed by Clyde & Co) for the Second Defendant
Hearing dates: 25 February — 20 March 2013
Supplementary Submissions 20 June and 1 July 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claims in this case arise from a large explosion of fireworks stored in a steel shipping container ["the ISO container"] on premises known as Marlie Farm near Lewes in East Sussex on the afternoon of 3 December 2006. Two men died in the explosion. They were Geoffrey Wicker, a firefighter, and Brian Wembridge, a video technician employed by the Second Defendant. The other Claimants pursue claims for injuries and the consequences of those injuries. They are, or were, firefighters or police officers.
Marlie Farm was a site with a number of buildings. A significant part of the site was occupied by the First Defendant Martin Winter, and by Festival Fireworks (UK) Limited, a company operated by Mr Winter. The First Defendant and his company operated a business storing and selling fireworks from Marlie Farm. The business, including the First Defendant and his son Nathan Winter, also mounted fireworks displays. Although the detail is to some degree uncertain, at around lunchtime on the day in question, a fire began as a consequence of some mishandling of fireworks by Nathan Winter on the site. The Claimants all attended as part of the emergency services' response to the fire and were thus exposed to the explosion.
Subject to some detail and to interpretation, the great majority of the primary facts in the case are agreed. It is agreed that the First Defendant and Nathan Winter gave inadequate or misleading information to firefighters at the scene about the contents of the container, although the Claimants rely upon what was said by Nathan Winter in particular, as time progressed, as constituting sufficient warning about fireworks inside the container to found their case. I address the detail of this below. Because of the misleading or inaccurate information they gave to the emergency services, the First Defendant and his son Nathan were convicted of manslaughter by gross negligence, following a trial before Cooke J and a jury at Lewes Crown Court in December 2009. Their appeals against conviction were dismissed: Martin Winter, Nathan Winter -v- The Crown [2010] EWCA Crim 1474. The First Defendant's sentence of 7 years imprisonment was undisturbed on appeal, although Nathan Winter's sentence was reduced from 5 to 4 years imprisonment, following successful submissions that he had in fact given information to the authorities as time progressed.
Summary judgment has been obtained against the First Defendant, although he was granted permission to raise the issue of contributory negligence in respect of Mr Wembridge. The First Defendant did not appear at the trial. Mrs Wembridge applies for summary judgment for damages to be assessed against the First Defendant. She is entitled to such judgment. Judgment was entered against the First Defendant on behalf of Mrs Wicker on 26 July 2011. Subject to causation, any Claimant in the action who has not obtained judgment against the First Defendant would be entitled to such judgment.
However, the First Defendant has insufficient assets to satisfy such judgments. His insurers have refused to indemnify him in respect of his losses and liabilities arising out of the fire and explosion. The Third Defendant has been sued only by the Claimant Tim Austin, but the Third Defendant also has no assets to satisfy judgment.
The Second Defendant denies liability in respect of their employees and the attending police officers, Police Sergeant Simmons and Constables Pitcher, Scott and Allcorn. The Claimants' case is based both on common law liability and on breach of statutory regulations. The Second Defendant takes issue with the legal basis of the claims. Their legal submissions are summarised in four points: firstly, that the "target duties" imposed on the fire service by the Fire and Rescue Services Act 2004 ["the 2004 Act"] are not justiciable by way of private law action; secondly, decisions made by an Incident Commander on the fireground should be immune from claim; thirdly, the statutory regulations relied on by the Claimants are either ultra vires or:
"cannot give rise to a justiciable obligation where they overlap the target duties in the 2004 Act; fourthly, if there is a duty of care, then the threshold for breaches established must be high and/or such that it incorporates the Bolam test in a reference to the well-known test for clinical negligence in Bolam -v- Friern Hospital Management Committee [1957] 1 WLR 582".
In addition to the issues of pure law, there are important issues of application of the law to the facts. There are a number of critical areas of fact, concerning knowledge and preparation for attending such a fire, the approach to fighting the fire, and indeed the question of whether the fire should have been fought at all. A further critical issue concerns the implementation of the decision taken by Incident Commander ["IC"] Upton at 14.29, to evacuate all personnel from the fireground. The Claimants submit this decision should have been taken earlier. They also submit that even taken when it was, had it been carried through reasonably effectively, no one would have been killed or injured. Subject perhaps to some individual issues of causation, the Second Defendant concedes that, had the fireground been evacuated to a reasonable distance, the deaths and injuries sustained would have been avoided.
For the reasons which I set out in the remainder of this judgment, and subject to any individual issues of causation, I have concluded that the Claimants are entitled to judgment against the Second Defendant and concedes to assessment of damages.
Objectively Available Knowledge of the Risk of Mass Explosion from Fireworks in December 2006
On 22 March 1989 a vehicle carrying explosives itself exploded in Peterborough. This incident was the explicit basis for the compilation and issue of "Technical Bulletin 1/1992: Explosives Guide" issued by the Home Office, which recounted in its preface that the 1989 incident:
"focused attention on the need for a reference document to provide the sort of information that fire service personnel require in order to understand the operational considerations and dangers at such incidents".
The Bulletin drew on previous documents including the "Manual of Firemanship", on advice from the Health and Safety Executive ["HSE"] and advice from the Ministry of Defence.
In the introduction, the Technical Bulletin emphasises:
"Of all the commonly encountered materials which may be involved in fire, it is likely that explosives pose the greatest and most immediate danger to life and property."
Because of the high degree of care exercised by those responsible for explosives, the Bulletin emphasised the rarity of large fires in explosives installations. It was emphasised that it was important for fire-fighters to:
"seek guidance from those responsible at an explosives installation whenever they are engaged in fire fighting at such premises, in order to avoid being exposed to any unforeseen risk from the dangerous materials present."
However, it was also emphasised that fire services needed to have a "general understanding of explosives and of their nature" and of the approach to fire fighting in their vicinity.
The Technical Bulletin summarised commonly found explosives and their uses, including gunpowder/black powder/black blasting powder, defined as follows:
"These are synonyms for a mixture of charcoal, sulphur and potassium nitrate which are low explosives, very sensitive to ignition from sparks, heat and friction. They burn violently even when loose and uncompressed. They also release volumes of smoke on exploding. They are used in blasting fuse and as "black powder" for ….fireworks and pyrotechnic compositions."
The Technical Bulletin noted the categorisation of fireworks as Class 7 explosives under the Explosives Act 1875, although also noting that the classes defined in that Act were outdated.
The Bulletin goes on to note that the more modern categorisation arising under the Classification and Labelling of Explosives Regulations 1983 defines 9 classes of dangerous goods, of which "Class 1 explosives" are further subdivided as follows:
"Division 1.1. Substances and articles which have a mass explosion hazard.
Division 1.2. Substances and articles which have a projection hazard but not a mass explosion hazard.
Division 1.3 Substances and articles which have a fire hazard and either a minor blast hazard, or a minor projection hazard, or both, but not a mass explosion hazard.
…………
Division 1.5. Very insensitive substances which have a mass explosion hazard."
I pause to note that, even without knowledge of the mass explosion hazard associated with bulk fireworks...
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