John Mackay Against Scottish Fire And Rescue Service And Another
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Judgment Date | 2015 |
| Neutral Citation | [2015] CSOH 55 |
| Date | 07 May 2015 |
| Docket Number | PD2425/13 |
| Court | Court of Session |
| Published date | 07 May 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 55
PD2425/13
OPINION OF LORD McEWAN
In the cause
JOHN MACKAY
Pursuer;
against
SCOTTISH FIRE & RESCUE SERVICE AND ANOTHER
Defenders:
Pursuer: Allardice; Thompsons
First Defenders: Dunlop QC; Reid Cooper
Second Defenders: Pugh; Simpson & Marwick
7 May 2015
[1] The pursuer sues the defenders in reparation for injuries sustained in 2010 when he was walking in a street in Dundee. Snow, ice and metal fell from a roof and struck him. At the time the weather was very severe. Let me begin by looking in summary at what is averred on record. The pursuer lives at 210 … Road, Dundee. In article 5, the extreme winter conditions of December 2010 are averred. Minus temperatures allowed ice to build up on the facade of numbers 206 to 210 with snow and ice also on the roof. Both defenders inspected the properties there to establish the risk of injury and damage posed by the ice and snow. It is then said that on 8 December these defenders after an inspection “…carried out removal of areas of ice and snow from the roof and façade areas of 206 to 210…” Page 8 of the print discloses that there is a dispute in fact about precisely where snow and ice were removed, coupled with a duty to inspect and remove or at least report upon any hazardous ice at adjacent properties to 206. It seems to be accepted that neither defender owned any of the properties. The risk in question is said to be falling ice and debris.
[2] The answers show that then by day snow was melting and freezing again by night. The second defenders did not have the equipment to access and inspect the roofs. On 9 December it is alleged that the pursuer was walking on the pavement in front of 208 when ice and guttering fell on to him. The breach of duty is found at page 7. The duty is to identify the hazard, make an adequate inspection, then remove any ice and snow presenting a risk. Also, and in particular, it is said there was a failure to remove ice from the guttering. I pause to observe that in the argument before me it was said that when the clearance was done on 8 December, the street was cordoned off by the police. Nowhere is this averred by any party.
[3] I was referred to a number of cases which I list here in approximate date order.
Mersey Docks etc Trustees v Gibbs (1864) HLC 685
Virtue v Commissioners of Police of Alloa (1873) 1 R 285
Cameron v Inverness CC 1935 SC 493
East Suffolk Rivers Catchment Board v Kent [1941] AC 74
Anns v Merton London Borough [1978] AC 728
Caparo Industries v Dickman [1990] 2 AC 605
Duff v Highlands and Islands Fire Board 1995 SLT 1362 (Note)
Capital & Counties Plc v Hampshire County Council [1997] QB 1004
O’Rourke v Camden London Borough Council [1998] AC 188
Gibson v Orr 1999 SC 420
McConnell v Ayrshire and Arran Health Board 14/2/01
Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057
Burnett v Grampian Fire & Rescue Service 2007 SLT 61
Rowley &c v Secretary of State for Work and Pensions [2007] 1 WLR 2861
Mitchell v Glasgow City Council 2009 SC (HL) 21
X v Hounslow London Borough Council [2010] HLR 4
Furnell v Flaherty [2013] EWHC 377 (QB)
Ryder v Highland Council 2013 SLT 847 OH
A J Allan (Blairnyle) Ltd v Strathclyde Fire Board [2014] CSOH 135
STV Central Ltd v Semple Fraser LLP [2014] CSOH 82
Michael &c v Chief Constable of South Wales Police [2015] 2 WLR 343
[4] Mr Dunlop opened by reminding the court that the whole circumstances arose from the very severe winter weather in 2010. The pursuer had been struck by snow and ice falling from a tenement building in Dundee. Having looked at condescendence 5 he turned to the provisions of the relevant statute (The Fire (Scotland) Act 2005) which provided for the setting up and continuation of fire and rescue authorities in local government areas. He confirmed that in the present case his clients could only act under the powers conferred on them by statute. In the context of what happened it was important to note that what was involved was a “power” not a duty. It was not fighting a fire. Because it was a power, they had no duty to act and if they had refused or been unable to act, no liability could have attached to them. If they did act they would only be liable if they made things worse.
[5] He referred me to East Suffolk RCB, the Lord Chancellor at 84, 85, 87; Lord Romer 102. They had no duty to go to the roof at all and it was counter intuitive to make them liable for attempting to help. Counsel then took me to Gorringe v Calderdale MBC, a case where road markings had been rubbed out. He referred in particular to the speech of Lord Hoffmann in paragraphs 17 to 32. Next was Furnell and another v Flaherty, a single judge decision (Turner J). It concerned E. coli at a pet farm. The case stressed the need for a relationship; and various passages were highlighted between paragraphs 37 to 65. O’Rourke v Camden London BC was referred to lightly, then Antonucci v Ayrshire Health Board, a decision of Lord Reed in the Outer House approving at paragraph 168 of East Suffolk. Counsel then referred to at great length Capital and Counties Plc v Hampshire CC, a decision of the Court of Appeal concerning four different cases where fire damaged property. These were cases involving a fire fighting duty. There was a danger in accepting a limitless duty. Passages were read between pages 1030 to 1038.
[6] Mr Dunlop then distinguished two cases which he accepted did not favour his argument about East Suffolk. These were Burnett v Grampian Fire & Rescue Service and A J Allan (Blairnyle) Ltd and another v Strathclyde Fire Board both Outer House cases.
[7] Four more cases were looked at which I note viz Mitchell v Glasgow City Council both in the Inner House and in the Supreme Court. I have some familiarity with this case as I was the trial judge at what was originally a murder indictment. I note twelve years on with some interest Lord Hope’s remarks on the ultimate disposal of the case on appeal (paragraph 1). Proximity was an issue in that case. There were finally three cases on assumption of responsibility viz Rowley v Secretary of State; X v Hounslow LBC and finally STV Central Ltd v Semple Fraser again an Outer House decision. In his reply Mr Dunlop accepted what was contained in Mersey Docks pointing out that the case was referred to with approval in East Suffolk and Capital and Counties for example. In this area the laws of Scotland and England ought to be the same. That was said in Virtue and repeated in various places in Mitchell. In Scots law there could be a difference between acts and omissions. It could depend on control, and Gibson was a good example of control, whereas the facts of this case showed no control and it had to be emphasised that there could be no duty to clear away all the snow. These defenders did not make it worse and the pursuer was injured a day later when they were not there. Mitchell made it clear that a critical issue was the scope of the duty. Here there was no proximity or relationship between the parties.
[8] He concluded by looking again at Michael which he described as a narrower case and yet it had been “struck out”. From it he took a number of salient points. Capital and Counties had been approved and East Suffolk was not criticised (as it had been in Anns). None of the Outer House cases had been expressly approved. There was insufficient proximity and no assumption of responsibility. The facts of the present case showed even less proximity.
[9] Mr Pugh for the second defenders adopted the argument for the first defenders and made the following other points. These defenders did not own the building and had no control over it. Any work done was on the day before any accident. His clients were not the landlords of the pursuer as were the defenders in Mitchell. He referred me to the Civil Contingencies Act 2004, sections 1 and 2; and the Local Government in Scotland Act 2003, section 20. While these defenders had wide powers they had no duty to clear the roof.
[10] Counsel for the pursuer moved me to allow a proof before answer against both defenders. The issue was not what the law was in the English cases. This was simply common law negligence. Foreseeability was conceded and the proximity was the people on the “cordoned off” street when the defenders were there. The argument that statute gave immunity had been tried and rejected in several Scottish Outer House cases. He referred me to Aitken, Allan, and Gibson v Orr.
[11] When the case resumed Mr Allardice developed a slightly different argument with new authorities. Referring back to the law in 1830 he said that a case in that year had held that if there were statutory powers there could be no common law claim in fault. However, with the Mersey Docks case the law changed and common law claims could be admitted against a statutory body. The case of Virtue confirmed that Mersey Docks was good law in Scotland. Counsel referred extensively to passages between pages 291 to 296. In the present case the defenders were seeking to impose the old rule. These cases, he said, were binding on me as was Cameron (he referred to pages 496 to 498). Ryder was another helpful example (page 859 onwards).
[12] He then turned to Gibson on the question of acts or omissions. There the damage to the bridge had not been done by the police. They had attended then left. It was a simple omission. This could be compared with the fire brigade cases where they did not search for other sources of fire. The test was one of common sense. If what happened in Gibson was negligence then the facts of the present case were a fortiori. Counsel read extensively from pages 429 to 434. Gibson was approved in Mitchell he said. Counsel then looked at Burnett and how the Lord Ordinary had distinguished the English cases especially Capital and Counties. The next Outer House case of Allan had followed Burnett. As far as East Suffolk was concerned the important point was...
To continue reading
Request your trial
-
A J ALLAN (BLAIRNYLE) Ltd and another Pursuers and respondents against STRATHCLYDE FIRE BOARD Defenders and reclaimers
...(Turner J, Queens Bench); Michael v Chief Constable of South Wales Police [2015] 2 WLR 343; and Mackay v Scottish Fire and Rescue Service 2015 SLT 342 (Lord McEwan, Outer House). [15] In my opinion, in a case such as this (concerning the possible liability in delict on the part of a public ......