Ogwo v Taylor
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE NEILL |
| Judgment Date | 16 December 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1216-2 |
| Docket Number | 86/1133 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 1986 |
[1986] EWCA Civ J1216-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE NOLAN
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Stephen Brown
Lord Justice Neill
86/1133
MR B.A. HYTNER Q.C. and MR JOHN LEIGHTON WILLIAMS, instructed by Messrs Robin Thompson & Partners (Ilford), appeared for the Appellant (Plaintiff).
MR W.R.H. CROWTHER Q.C. and MR R.W. MOXON BROWNE, instructed by Messrs Berrymans, appeared for the Respondent (Defendant).
The plaintiff, Mr Ogwo, appeals against a decision of Nolan J. of 25th November 1985 whereby his claim for damages against the defendant, Mr Taylor, was rejected, and the defendant was awarded his costs of the action.
The defendant was at the material time the occupier of a house, No. 91, Laburnum Avenue, at Hornchurch in Essex. The plaintiff was, and is, a member of the local fire brigade. No. 91, Laburnum Avenue is a two-storey terrace house with a roof and roof space above. On the morning of 11th August 1982 the defendant set about burning off the paint on the fascia board under the guttering of the roof, using a blowlamp for the purpose. Realising that the use of a blowlamp involved a risk of fire, he had a bucket of water at hand, but despite that precaution, such as it was, the roof timbers caught fire. The fire brigade was summoned, and among the team who came was the plaintiff, then an acting leading fireman.
The fire was only in the roof space, or loft, which was a confined space. On the evidence, the rafters at the rear of the house were burning more or less from the eaves to the ridge and the fire was spreading. There was a lot of smoke. The plaintiff went up into the roof space to tackle the fire. He was wearing normal fireman's gear and breathing apparatus with a mask over his face. He took a hose with him to play water on the fire, and the impact of the water on the fire necessarily caused steam. A colleague, Leading Fireman Cannon, followed him into the roof space. After a bit the plaintiff came out from the roof space because of the intense heat, but he went back in again when Leading Fireman Cannon needed help, and together they succeeded in putting out the fire. When the fire was out they came down, and the plaintiff found that he had suffered very serious burns under his fireman's tunic. These would have been caused by steam rather than by direct flames; the fireman's tunic cannot, and is not intended to, provide complete protection against steam or flames. The plaintiff was taken to hospital, and Leading Fireman Cannon also went to hospital suffering from heat exhaustion. The plaintiff's injuries were severe and very painful. The figure for damages has been agreed, if liability is established, at £12,902 including interest. The issue is over liability.
There is no suggestion of any fault or contributory negligence on the part of the plaintiff; he acted bravely and efficiently in tackling the fire. There is also no suggestion that the contents of the roof space or loft were unusually combustible or that there was any special danger from some hidden cause. It was an ordinary fire, in a confined space, with nothing unusual about it.
The plaintiff put his case against the defendant on the ground that the defendant had been negligent at common law in starting the fire and allowing it to get out of the defendant's control. Alternatively, he alleged that the defendant was in breach of his statutory duty under the Occupiers Liability Act 1957. The judge had no hesitation in finding that the defendant had been negligent, and that finding has not been—and could not be—challenged in this court. It is therefore unnecessary for us to consider the 1957 Act, since it is common ground that the Act does not impose any higher duty on the defendant in the circumstances of this case than he is under at common law. We have to consider whether a person who negligently starts a fire—and it matters not whether he is the occupier of the premises in question, a contractor or licensee or even a trespasser—may in the absence of special circumstances not known to the fireman be liable to a fireman who is injured in fighting that fire.
We have been referred to a number of cases where claims for damages by injured firemen or by the dependants of firemen killed on duty have been considered by the courts, but most of these are readily distinguishable from the present case and do not really assist.
Thus in Merrington v. Ironbridge Metal Works Ltd. [1952] 2 A.E.R. 1101 and in Hartley v. British Railways Board decided in this court on 28th January 1981 it was held that an injured fireman could recover from the occupier of premises where there was a fire, if the fireman had, in fighting that fire, been exposed to a special danger through the negligence of the occupier of the premises. In the former case there was an exceptional risk of explosion in the premises of which the occupier knew, or ought to have known, but of which the fireman did not know. In the latter case the fireman was, by the negligence of an employee of the owner of the premises, exposed to the unnecessary risk of going into an upper room in blazing premises to see if it was occupied. In the light of the explanation by Mr Hytner of how that case was argued (viz. that though the findings in the lower court that the fire had not been caused by negligence were challenged the case was argued on the basis of special danger only), it would not be safe to treat it as authority for any wider proposition. In the present case, though the fire was started by the negligence of the defendant, there was no special danger from any source not known to the firemen.
In Sibbald or Bermingham v. Sher Brothers [1980] S.L.T 122 Lord Fraser commented that a fireman was no doubt a "neighbour" of the occupier of the relevant premises in the sense of Lord Atkin's famous dictum in Donoghue v. Stevenson [1932] A.C. 562, so that the occupier owed him some duty of care, such as a duty to warn fireman of an unexpected danger or trap of which the occupier knew, or ought to have known. But that was a case in which it had not been made out that the fire had been started by the negligence of the occupier, and so the House was not considering the consequences of negligence in starting the fire. The points actually decided—that the occupier did not owe a duty to the fireman to provide a safe means of escape from the premises throughout a fire and was not liable for a sudden extension of the fire which neither the occupier nor the firemen could have foreseen—do not assist in the present case.
Much more germane to the present case is that it is well established that a person who negligently starts a fire in a house is liable for any damage to an adjoining house caused by the spread of the fire. So equally he is liable for any injury to any person which is a foreseeable consequence of the negligent starting of the fire and its consequent spread. The foreseeability of the injury is the crux of the matter, since in the present case Nolan J. held that the defendant could not reasonably have foreseen, as neither the plaintiff himself nor his colleague the leading fireman foresaw, the injury which the plaintiff would suffer from an ordinary fire in an ordinary loft of an ordinary house.
That approach by Nolan J. is however, in my judgment, extremely difficult to reconcile with the decision of Woolf J. in Salmon v. Seafarer Restaurants Ltd. [1983] 1 W.L.R. 1264. In that case a fire had been started in premises through the negligence of the defendants, the occupiers. The fire brigade were predictably called in to put the fire out. The plaintiff, a fireman, was told to use a ladder to get to the second floor via a flat roof. As he was doing so outside the premises, there was an explosion inside the premises because the fire had reached the gas meter, and the plaintiff was injured by the explosion. Woolf J. held that the defendants were liable in damages to to the plaintiff. He said (at page 1272C-D):
"The leaving of the fish or chip fryer ignited created the unnecessary hazard in the form of the fire which occurred. There is a direct link between the fire breaking out and the explosion, and to try and divide one from the other and say that, because the precise explosion was not foreseeable, the defendants are not responsible, seems to me to be contrary to the ordinary approach as to causation where the acts of an individual which are negligent give rise to a series of events all of which are linked one to the other."
He then considered whether there was any basis for limiting, because they are specially trained to deal with the dangers inherent in any outbreak of fire, the duty which is owed to firemen. He concluded (at page 1272G):
"Where it can be foreseen that the fire which is negligently started is of the type which could, first of all, require firemen to attend to extinguish that fire, and where, because of the very nature of the fire, when they attend they will be at risk even though they exercise all the skill of their calling, there seems no reason why a fireman should be at any disadvantage when the question of compensation for his injuries arises."
Woolf J.'s phrase "because of the very nature of the fire" is perhaps a bit cryptic, but in general I respectfully agree with him. In the present case the nature of the fire was that it was a fire in the confined space of the loft.
Fire is inherently dangerous. If a person, as the defendant did, negligently starts a fire and allows it to get out of his control, it is predictable that the fire brigade will be called...
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