A J Allan (blairnyle) Limited And Another Against Strathclyde Fire Board
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2014] CSOH 135 |
| Date | 02 September 2014 |
| Docket Number | A514/11 |
| Published date | 02 September 2014 |
| Court | Court of Session |
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...
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