‘Caparo Under Fire’: a Study into the Effects upon the Fire Service of Liability in Negligence

AuthorRosemarie Everton,Nicholas Smith,John Hartshorne
DOIhttp://doi.org/10.1111/1468-2230.00277
Publication Date01 Jul 2000
Caparo Under Fire’: a Study into the Effects upon the
Fire Service of Liability in Negligence
John Hartshorne*, Nicholas Smith* and Rosemarie Everton**
This article discusses a research project which aimed to analyse the relationship
between judicial pronouncements over the likely effects upon a defendant of the
imposition of a duty of care in negligence, and any effects in practice. Empirical
research was carried out to ascertain the effect upon the fire service of the Court
of Appeal decision in Capital and Counties and Digital Equipment vHampshire
County Council [1997] QB 1004. This decision imposed a duty of care upon fire
services to avoid making mistakes whilst fighting fires which might cause the fire
to become more serious. The findings of the project are drawn upon to make
observations regarding how the courts presently apply the third limb of the three
stage test of duty of care derived from Caparo vDickman, which asks whether it
would be fair, just and reasonable to impose a duty of care.
Introduction
In spite of efforts to try and limit the expansion of liability in negligence heralded
by the ‘incremental era’ of Caparo vDickman1(hereinafter referred to as
Caparo’), recent years have witnessed the tort of negligence making a number of
high profile inroads into virgin territories of liability.2In many of these recent
disputes the case has turned on the issue of whether it would be fair, just and
reasonable to impose a duty of care upon the defendant, the so called ‘third limb’
of the Caparo three stage test of liability. This issue is sometimes alternatively
expressed in terms of whether it would be contrary to ‘public policy’ to impose a
duty of care.3The type of arguments that are commonly deployed at this stage
ßThe Modern Law Review Limited 2000 (MLR 63:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
502
* Lecturers in Law, University of Leicester.
** Professor of Fire Law, University of Central Lancashire.
At the outset the authors would like to express their sincere thanks to fire brigades and others in the ‘fire
community’ for their willing and helpful assistance with this project. Thanks are also extended to Giorgio
Monti, for his helpful comments upon an earlier draft of this article, and Trevor Buck, for his helpful
comments on a draft questionnaire. In addition the sterling work of Dorothy Tomlinson in helping to
administer the project was much appreciated. We wish to place on record our gratitude to the late Jon
Holyoak, for inspiring us to invest study in the field of negligence.
2 Notable examples include White vJones [1995] 2 AC 207, Spring vGuardian Assurance plc [1995] 2
AC 296, and Henderson vMerrett Syndicates Ltd [1995] 2 AC 145.
3
Which begs the question whether ‘public policy’ is a matter that the courts should consider separately from
the fair, just and reasonable requirement, in effect adding a ‘fourth limb’ to the Caparo test? In Costello v
Chief Constable of Northumbria [1999] 1 All ER 550, 558A, May LJ declared ‘It seems to me that
considerations of public policy, although they are often treated separately, may be seen as aspects of the third
of the Caparo criteria, ie whether it is just and reasonable to impose a duty of care.’ Furthermore, in X
(Minors) vBedfordshire County Council [1995] 2 AC 633, 749F, Lord Browne-Wilkinson was of the opinion
that the public policy discussion in Hill vChief Constable of West Yorkshire Police [1989] AC 53, was an
example of the operation of the third limb of Caparo. The suggestion that public policy considerations are
really facets of whether it would be fair, just and reasonable to impose a duty of care also receives support
from Winfield & Jolowicz on Tort: ‘[I]t is difficult to see how there can be a ‘‘public policy’’ interest which
cannot be handled in the court’s analysis of what is ‘‘fair, just and reasonable’’.It is submitted therefore that
there is in fact no fourth stage in an area which gives the appearance of being already complicated enough.’
W.V.H. Rogers, Winfield & Jolowicz on Tort (London: Sweet & Maxwell, 15th ed, 1998) 108.
include whether the imposition of a duty of care would lead to defensive practices;
a diversion of resources; an increase in insurance premiums; or the disturbance of
an existing statutory framework. What is striking is that in most cases these
arguments have been resolved by the court on a basis that can be little other than
speculation. So in Hill vChief Constable of West Yorkshire Police 4it was held that
the imposition of a duty of care might lead to detrimental defensive policing. By
contrast, in Capital and Counties and Digital Equipment vHampshire County
Council 5it was held that the imposition of a duty of care would not lead to
defensive fire fighting. One asks in both cases, how could the court actually know
or predict what the effects might be?
The authors decided to conduct an empirical survey, which would study the
relationship between judicial predictions of the likely implications of the
imposition of a duty of care, and the actual effects. To fulfil this aim it was
necessary to identify a body where a duty of care had been imposed in a novel
situation after consideration of whether it would be fair, just and reasonable to
impose such a duty. An ideal candidate was a fire authority. In 1997 the Court of
Appeal in Capital and Counties and Digital Equipment vHampshire County
Council 6(hereinafter referred to as ‘Hampshire’), decided that a fire authority
could be held accountable in respect of property loss resulting from negligent fire
fighting by its fire officers. The Court of Appeal held that it would be fair, just and
reasonable to impose a duty of care, and in so doing rejected the usual arguments to
the contrary, for example the spectre of defensive fire fighting. Research to identify
the effects of the imposition of a duty of care upon fire authorities was carried out
within 52 public fire authorities in England and Wales.
At the outset the authors concede the limitations of this research. It aims to shed
a little light on the application of the third limb of Caparo, but can do no more than
that. Moreover, the findings to an extent will be coloured by the very specific
organisation of the fire service, its public spirited ethos, its rich history, and the fact
that for much of its recent past it has been the focus of a plethora of challenges,
reviews, initiatives, changes and proposals for change.7But this research does wish
to raise questions, and it does seek to spark a debate regarding the application of
the third limb of Caparo. It questions, for example, whether some bodies, such as
the police, may have enjoyed years of immunity from proceedings in negligence
unnecessarily.
The article is divided into four sections, and a conclusion. The first section sets
out the legal background to the survey, considering the role and significance of the
fair, just and reasonable requirement in establishing a duty of care, and setting out
the decision in Hampshire.8The second section sets out fire service background
information and the methodology adopted for the survey. The third discusses the
research findings. The final section sets out some observations that can be drawn
from the findings in relation to the application of the third limb of Caparo, and
discusses some of the questions raised by these observations.
4 [1989] AC 53.
5 [1997] QB 1004.
6ibid.
7 Major concerns of the moment include the achievement of ‘best value’, the shift of emphasis from fire
fighting to fire prevention and safety education, the progression of changing criteria for planning the
standards of fire cover, and the ‘Europeanisation’ of industrial and commercial fire safety legislation.
8 n 5 above.
July 2000] Effects of Negligence Liability upon the Fire Service
ßThe Modern Law Review Limited 2000 503

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