A J ALLAN (BLAIRNYLE) Ltd and another Pursuers and respondents against STRATHCLYDE FIRE BOARD Defenders and reclaimers
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Judgment Date | 13 January 2016 |
| Neutral Citation | [2016] CSIH 3 |
| Published date | 13 January 2016 |
| Date | 13 January 2016 |
| Court | Court of Session (Inner House) |
| Docket Number | No 20 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 3
A514/11
Lady Paton
Lady Dorrian
Lord Drummond Young
OPINION OF LADY PATON
in the cause
A J ALLAN (BLAIRNYLE) LIMITED and another
Pursuers and respondents;
against
STRATHCLYDE FIRE BOARD
Defenders and reclaimers:
Pursuers and respondents: Balfour; BLM
Defenders and reclaimers: R Dunlop QC, E Campbell; Clyde & Co
13 January 2016
Whether fire service liable in damages when a fire, apparently extinguished, re-ignited
[1] In this action for damages, it is averred that the first pursuer owned a farmhouse at Gartocharn, Alexandria, Dunbartonshire. The second pursuer, a director of the first pursuer, lived in a caravan but used the farmhouse kitchen. On 31 October 2008, there was a fire involving the Rayburn stove in the kitchen, and a chimney. The second pursuer called the fire brigade. Fire tenders arrived and extinguished the fire. They left at about 3 pm. Subsequently, in the early hours of the following morning (1 November 2008), the fire re‑ignited. The pursuers aver that this occurred as a result of smouldering rotten timbers in the roof space. The farmhouse burned down.
[2] The pursuers now seek to recover damages on the basis of alleged negligence on the part of the fire brigade. It is averred inter alia that once the fire appeared to be extinguished, the fire fighters should have used a thermal imaging camera to locate any questionable areas. Further it is averred that the fire fighters should have maintained a regular check on the farmhouse to make sure that the fire was truly extinguished.
[3] In paragraph [28] of his opinion dated 2 September 2014, Lord Brailsford allowed a proof before answer, although the interlocutor of that date repelled the defenders’ preliminary pleas. The defenders reclaimed.
Submissions for the defenders
[4] Senior counsel submitted that the action as pled was irrelevant. While the defenders owed a duty of care to the public at large, including the pursuers, the scope of that duty was restricted. It was a duty to take reasonable care not to make things worse, in other words not to inflict a fresh injury (East Suffolk Rivers Catchment Board v Kent [1941] AC 74; Capital & Counties plc v Hampshire County Council [1997] QB 1004). As the fire service were not liable in damages if they failed to attend a fire (East Suffolk Rivers Catchment Board, page 88; Capital & Counties plc page 1030, subsequently approved in the House of Lords at paragraph 32 of Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057), it would be unprincipled to suggest that a fire service which attended and sought to extinguish a fire could be liable in damages (except of course where they negligently caused fresh injury). An analogy could be drawn with rescuers: there was no general duty to rescue, and if a rescuer made a negligent rescue attempt but did not negligently cause fresh injury, he incurred no liability.
[5] The pursuers’ case rested on the concept of assumption of responsibility. However performance of a statutory function did not necessarily equate to an assumption of responsibility (Rowley v Secretary of State for Work and Pensions [2007] 1 WLR 2861; X v Hounslow London Borough Council [2009] PTSR 1158). In any event, the existence of a duty of care was not enough: its scope had to be ascertained (cf Lord Hope of Craighead at paragraphs [11], [14], [23], and [26] of Mitchell v Glasgow City Council 2009 SC (HL) 21). The recent Supreme Court decision in Michael v Chief Constable of South Wales Police [2015] 2 WLR 343 gave further support to the defenders’ position. Previous Scottish decisions had to give way to guidance from the Supreme Court.
[6] In the present case, it was accepted that nothing that the defenders did made matters worse, or inflicted a fresh injury. In law, there were no duties of the scope averred by the pursuers. The action was irrelevant. The reclaiming motion should be allowed and the action dismissed.
Submissions for the pursuers
[7] Counsel for the pursuers emphasised that it was not suggested that there was a common law duty of care parasitic on a statutory duty or a statutory power. The pursuers’ case was based on ordinary principles of common law negligence, and was of the type described by Lord Hoffmann in paragraph 38 of Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, namely a case where the fire service had “actually done acts or entered into relationships or undertaken responsibilities which [gave] rise to a common law duty of care” (Barrett v Enfield London Borough Council [2001] 2 AC 550; K2 Restaurants Limited v Glasgow City Council [2013] CSIH 49, paragraphs 39 to 42). What was criticised was the manner in which the statutory duty was performed (Lord Browne-Wilkinson’s category (b) at page 735F of X (Minors) v Bedfordshire County Council [1995] 2 AC 633). As the pursuers’ case was not parasitic on a statutory duty, the dicta cited from Rowley v Secretary of State for Work and Pensions [2007] 1 WLR 2861 paragraph 54, Mitchell v Glasgow City Council 2008 SC 351 paragraph 79, and X v Hounslow London Borough Council [2009] PTSR 1158 paragraph 90, were not in point.
[8] The facts as averred were sufficient to disclose an assumption of responsibility and a relationship of proximity between the pursuers and the fire service such as was described in paragraph 38 of Gorringe. The Outer House decision Burnett v Grampian Fire and Rescue Services 2007 SLT 61 was entirely in point, and was correctly decided. Further support for the pursuers could be found in Duff v Highlands and Islands Fire Board 1995 SLT 1362. Moreover Gibson v Orr 1999 SC 420 constituted a major problem for the defenders: if a duty of care was owed by the police in Gibson, it was inconceivable that a duty of care was not owed by the fire service in the present case.
[9] While it was accepted that different considerations might apply to the ambulance service (Kent v Griffiths [2001] QB 36), there could nevertheless be circumstances in which the fire service should be held to owe both broad duties to the public and specific duties to individuals. This was such a case.
[10] On the basis of Burnett and Gibson, and to a lesser extent Duff, the pursuers had pled a relevant case and were entitled to a proof (rather than a proof before answer). The reclaiming motion should be allowed, but only to the extent of allowing a proof rather than a proof before answer. Otherwise the Lord Ordinary’s interlocutor should be adhered to and the reclaiming motion refused.
Discussion
[11] The Fire (Scotland) Act 2005 set up fire-fighting authorities. Duties were imposed and powers granted. In particular, sections 9 and 25 of the 2005 Act provide:
“9. Fire-fighting
(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 subsection (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;
(d) make arrangements for obtaining information required or likely to be required for the purpose mentioned in that subsection;
(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 …
25. Powers of authorised employees in relation to emergencies
(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;
(b) if the employee reasonably believes that a road traffic accident has occurred, do anything the employee reasonably believes to be necessary for the purpose of –
(i) rescuing people; or
(ii) protecting them from serious harm;
(c) if the employee reasonably believes that an emergency other than a fire or road traffic accident has occurred, do anything the employee reasonably believes to be necessary for the purpose of carrying out any function conferred on the authority in relation to the emergency; and
(d) do anything the employee reasonably believes to be necessary for the purpose of preventing or limiting damage to property resulting from action taken as mentioned in paragraph (a), (b) or (c).
(2) An authorised employee may in particular under subsection (1) –
(a) enter premises or a place (by force if necessary);
(b) move a vehicle without the consent of its owner;
(c) force open and enter a lockfast vehicle;
(d) close a road;
(e) stop and regulate traffic;
(f) restrict the access of persons to premises or a place …”
[12] Thus the defenders are a statutory body with a “general public law duty to make provision for efficient fire-fighting services” (Lord Hoffmann at paragraph 32 of Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057), a duty sometimes referred to as a “target duty” (Lord Rodger of Earlsferry at paragraph 89 of Gorringe). The defenders have been given certain statutory powers to enable them to deal with fires, floods, road traffic accidents, and other emergencies. But there is no statutory duty owed to private individuals such as might give rise to a private claim for damages.
[13] In this case it is not disputed that a private common law duty of care does not arise from the general public law duty (cf dicta of Lord Hoffmann at paragraph 19 et seq of Gorringe). However emergency services – including fire, police,...
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