BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Derek Burnett v. Grampian Fire And Rescue Service [2007] ScotCS CSOH_3 (09 January 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_03.html
Cite as: [2007] ScotCS CSOH_3, [2007] CSOH 3

[New search] [Printable version] [Help]


 

 

Opinion of Lord Macphail

 

 

Derek Burnett

v

Grampian Fire and Rescue Service

 

SUMMARY

 

16th January 2007

 

At this debate on a preliminary plea the court was asked to decide if Grampian Fire and Rescue Service owed a duty of reasonable care to Mr Burnett when fighting a fire which caused following the damage sustained to his property. after a fire. Mr Burnett raised the action in 2002.

 

Lord Macphail decided that if the circumstances of the fire were as Mr Burnett claimed them to be, Grampian Fire and Rescue Service would owe himdid have a duty of reasonable care at common law.

 

This action of damages arises from a fire which broke out in a tenement in Aberdeen on 16 October 2000. Mr Burnett was the owner of a flat on the third floor of the tenement. At the time of the fire he was away. The fire broke out in the flat on the second floor which was immediately below his flat. Firefighters employed by the Grampian Fire Brigade attended and appeared to extinguish the fire, but in fact they had failed to do so. They forced entry to Mr Burnett's flat to check that the fire had not spread upwards to it. According to Mr Burnett, they failed to make a thorough search for traces of fire or possible causes of re-ignition. The fire continued to smoulder in the void between the two flats, and on the following day the fire re-ignited in Mr Burnett's flat and caused substantial damage. Mr Burnett now sues the Grampian Fire and Rescue Service (formerly known as Grampian Fire Brigade) for damages of ฃ50,000 to cover the cost of repairs, replacement of the contents of the flat, and inconvenience.

 

Mr Burnett claims that as a result of the fire he suffered loss and damage caused by the Grampian Fire and Rescue Service's breach of a duty of reasonable care for the safety of his property which he claims they owed to him at common law. Grampian Fire and Rescue Service maintain that in the circumstances they did not owe Mr Burnett any such duty, and at a debate before Lord Macphail they contended that the action should therefore be dismissed as irrelevant.

 

Grampian Fire and Rescue Service argued that the law of Scotland as to the liability of a fire brigade in negligence was the same as the law in England and Wales. There the law is that no duty of care is owed by a fire brigade in answering a call or in fighting a fire, except in so far as some additional danger is created by the brigade's own negligence (Capital & Counties plc v Hampshire County Council [1997] QB 1004, a decision of the Court of Appeal).

 

Summary of Lord Macphail's Opinion

 

               Lord Macphail declined to follow the decision of the Court of Appeal and held that if Mr Burnett's averments were proved, Grampian Fire and Rescue Service's firefighters, for whose conduct they are responsible, would owe to Mr Burnett a duty of care to take all reasonable steps not only to extinguish the fire in the flat below but also to take the specific measures averred by Mr Burnett to establish whether circumstances existed which, if not eliminated, constituted a risk either of a re-ignition of the fire in, or of its extension to, his flat above.

 

               Lord Macphail considered that those duties arose from the fact that it was reasonably foreseeable that Mr Burnett's flat and its contents would be exposed to the immediate and direct hazard of the spread of the fire from the flat below, and from the proximity of the relationship between the Mr Burnett, as the owner of his flat, and Grampian Fire and Rescue Service's firefighters who forced entry to it in order to check that the fire had not spread upwards to it and would not be a source of any damage to his flat. Lord Macphail said that in these circumstances it was fair, just and reasonable to treat the firefighters as subject to the common law duties of care averred by Mr Burnett.

 

               Lord Macphail observed that police and ambulance services who respond to a call to an emergency owed a duty of care to those whose lives and property were at risk, and the same must be true of a fire service.

 

               Lord Macphail therefore allowed an inquiry into the facts. His Lordship directed that the inquiry should be by way of proof before answer in view of a challenge by the defenders to the relevancy and specification of Mr Burnett's claim for damages for inconvenience.

 

The next stage in these proceedings will be for the court to hear more detailed evidence abouton the facts of the case in view of the challenge by Grampian Fire and Rescue Service to the claim by Mr Burnett for damage to property and inconvenience.

 

 

NOTE

This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full report of the Court is the only authoritative document.

 

The full opinion will be available on the Scottish Courts website today at this location:

http://www.scotcourts.gov.uk/opinions/2007CSOH3.html


 

 

OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 3

 

A2997/02

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD MACPHAIL

 

in the cause

 

DEREK BURNETT

 

Pursuer;

 

against

 

GRAMPIAN FIRE AND RESCUE SERVICE

 

Defenders:

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Pursuer: Dewar, Q.C., D. Thomson; Morisons

Defenders: Ellis, Q.C.; HBM Sayers

 

 

9 January 2007

 

Introduction

[1] This action of damages arises from a fire at the pursuer's flat in Aberdeen. The defenders are Grampian Fire and Rescue Service, formerly known as Grampian Fire Brigade, established pursuant to the Fire Services Act 1947. The pursuer avers that as a result of the fire he suffered loss and damage caused by the defenders' breach of a duty of reasonable care for the safety of his property which he claims they owed to him at common law. The defenders maintain that in the circumstances they did not owe the pursuer any such duty, and they submit that the action should therefore be dismissed as irrelevant. I have now heard counsel in debate on the defenders' general plea to relevancy.

 

The pleadings

[2] The pursuer narrates that a fire broke out in the flat below his own. The defenders' firefighters attended and appeared to extinguish it, but in fact they failed to do so. They then entered his own flat to check that the fire had not spread upwards to it, but, he avers, they failed to make a thorough search there for traces of fire or possible causes of re-ignition. The fire continued to smoulder in the void between the two flats, and on the following day the fire re-ignited in the pursuer's flat and caused substantial damage.

[3] The pursuer's material averments of fact about the original outbreak and the defenders' firefighters' alleged omissions are set out in these terms in article II.1 of the condescendence:

"Cond. II.1. The pursuer is the heritable proprietor of the flatted dwellinghouse on the right hand side of the third floor (Flat 3R) within 157 Victoria Road, Aberdeen. At or about 7 p.m. on 16th October, 2000 a fire occurred within the flatted dwellinghouse on the right hand side of the second floor (Flat 2R) within 157 Victoria Road, Aberdeen. Flat 2R is directly beneath Flat 3R. At the time the pursuer was staying with his girlfriend and was absent from Flat 3R. The tenant of Flat 2R accidentally started the fire. He was rescued by two friends who alerted the defenders to the fire. The defenders' Firefighters attended the scene and purported to extinguish the fire at Flat 2R."

[4] It is convenient to interpolate here that counsel for the pursuer explained, in response to criticism by counsel for the defenders, that the expression 'purported to' was used in the pursuers' pleadings in the sense of 'appeared to' or 'seemed to': the pursuer did not suggest that the firefighters represented to anyone that they had extinguished the fire. Counsel for the defenders did not pursue the matter, but the expressions "appeared to" and "seemed to" are lacking in precision. I assume that in substance this averment means that the firefighters appeared to conclude that they had put out the immediate fire in Flat 2R.

[5] The pursuer's averments continue:

"They forced entry to Flat 3R. It is believed and averred that they did so in order to check that the fire had not spread upwards to Flat 3R. In firefighting terms, the building containing the two flats was a single building. Having forced entry into Flat 3R, the defenders' firefighters observed smoke damage to Flat 3R. The presence of smoke damage in Flat 3R ought to have alerted them to the fact that there were voids linking the two flats through which smoke had travelled, and that flaming combustion might follow. As a result, they ought to have carried out a thorough search and examination of both flats with a view to discovering and eliminating all remaining pockets of fire, bull's eyes (small cores of burning material), or other possible causes of re-ignition, and any such traces of fire or possible causes of re-ignition ought to have been damped down or cut away, as required. They ought to have stripped back (but did not) the lath and plaster on the ceiling of the bathroom in Flat 2R as it was apparent that the fire had spread into the bathroom at ceiling level. They ought to have exposed for inspection (but did not) the timber lintel hereinafter condescended on as it was, or ought to have been, apparent to them that the fire might well have spread as far as the lintel. Had they stripped back the lath and plaster on the ceiling of the bathroom in Flat 2R, they would have seen that the fire had, in fact, spread as far as the lintel. In the search and examination process, they ought to have utilised, in Flat 3R as well as in Flat 2R (but did not), the thermal imaging equipment available to them. In the circumstances hereinafter condescended on, it is believed and averred that no such thorough search and examination took place, and that no such damping down or cutting away of all traces of fire or possible causes of re-ignition was carried out ..."

[6] The pursuer's averments about the re-ignition of the fire appear in articles II.2 and II.3:

"Cond. II.2. At about 10 p.m. on the following day, 17th October, 2000, the defenders were again alerted to a fire at 157 Victoria Road, Aberdeen. The fire which the defenders' firefighters had purported to extinguish the previous day had re-ignited in Flat 3R. At this time the pursuer was again staying with his girlfriend and was absent from Flat 3R. The defenders' Firefighters attended the scene and extinguished the fire. Substantial damage had been caused to Flat 3R by the re-ignition of the fire as more particularly condescended upon below ...

Cond. II. 3. The fire originated in the kitchen area of Flat 2R. Following the departure of the defenders' Firefighters on 16th October, the fire continued to smoulder in the void between the ceiling in the bathroom in Flat 2R and floorboards in the kitchen area of Flat 3R. These floorboards were directly above the bathroom of Flat 2R. The fire had been smouldering in this void for a considerable period of time, up to 27 hours, before igniting. The re-ignition of the fire in Flat 3R was a direct consequence of the defenders' Firefighters having failed to extinguish the fire during their attendance at the two flats the previous day. Had the defenders' Firefighters extinguished the fire on 16th October, it would not have re-ignited on 17th October. The defenders are vicariously liable for the acts and omissions of their firefighters in the course of their duties ..."

[7] The pursuer's averments of liability are stated thus in article III:

"Cond. III. In exercising their discretionary power to attend and extinguish a fire, Firefighters for whom the defenders are vicariously liable owe a duty to take reasonable care for the safety of premises and their contents which might reasonably foreseeably be destroyed or damaged by the acts and omissions of such Firefighters. It was reasonably foreseeable that the fire which originated at Flat 2R would cause damage to Flat 3R and its contents which were situated immediately above Flat 2R. In the present case in attending and purporting to take reasonable care to extinguish the fire prior to their departure from the flats on 16 October and in forcing entry to Flat 3R the firefighters accordingly owed a duty to the pursuer as heritable proprietor of Flat 3R to take reasonable care for the safety of Flat 3R and its contents. In particular they owed a duty to the pursuer to extinguish the fire at Flat 2R. The dangers of re-ignition after the main body of a fire has been extinguished have been well known by Firefighters of ordinary competence since at least 1945. No Firefighter of ordinary competence exercising reasonable skill and care and attending the fire would have failed to carry out a thorough search and examination of both flats with a view to discovering and eliminating all remaining pockets of fire, bull's eyes or other possible causes of re-ignition, and to damp down or cut away, as required, any such traces of fire or possible causes of re-ignition as were discovered so as to prevent re-ignition of the fire. No Firefighter of ordinary competence exercising reasonable skill and care and attending the fire would have failed to strip back the lath and plaster on the ceiling of the bathroom in Flat 2R. No Firefighter of ordinary competence exercising reasonable skill and care and attending the fire would have failed to expose for inspection the said timber lintel. No Firefighter of ordinary competence exercising reasonable skill and care and attending the fire would have failed to utilise, in Flat 3R as well as in Flat 2R, the available thermal imaging equipment. The Firefighters attending the fire and for whom the defenders are vicariously liable in breach of their duty to take reasonable care failed to do so. Had they done so the fire would not have re-ignited. Reference is made to section 30 of the Fire Services Act 1947 and to the 1945 Manual of Firemanship, Part 6A, Chapter 34 ..."

The latter publication is said to have been updated and to be "the current standard reference work for United Kingdom Firefighters". The pursuer's pleadings go on to refer to passages from the Manual.

[8] In answer 3 the defenders say, amongst other things, "Explained and averred that there was no duty owed to the pursuer to prevent the damage which occurred to his property in the circumstances". In article 4 the pursuer makes clear that he is suing for damages in respect of the damage to his flat and its contents, the cost of alternative accommodation pending the flat's being rendered habitable, and inconvenience. The sum sued for is ฃ50,000.

[9] The pursuer's first plea-in-law is in these terms:

"(1) The pursuer having suffered loss and damage caused by the defenders' breach of duty, is entitled to reparation."

The pursuer's third plea-in-law is a plea to the relevancy of the defences except in so far as relating to the quantum of damages, but that plea is not insisted in and I shall repel it. The defenders' first plea-in-law is:

"(1) The pursuer's averments being irrelevant et separatim lacking in specification the action should be dismissed."

 

The defenders' submissions

[10] The defenders' counsel stated that the object of their preliminary plea was to attack the relevancy of the pursuer's pleadings. A question of specification would arise only if the pursuer sought to attach to the expression "purported to" any meaning other than "appeared to" or "seemed to". (As I have already noted, the pursuer's counsel disclaimed any such intention.)

[11] Counsel first addressed me on the pursuer's pleadings. He pointed out that the pursuer was founding on alleged omissions by the defenders' firefighters and was not maintaining that they had any actual knowledge of a possible cause of combustion that would endanger the pursuer's flat. The duty averred at the outset of article III, "to take reasonable care for the safety of premises and their contents which might reasonably foreseeably be destroyed or damaged by the acts and omissions of such firefighters", was too widely stated. Only positive acts by a fire brigade might bring into existence a duty of care. The pursuer had made adequate averments of foreseeability, but he had not averred enough to found a duty of care. The alleged duty of reasonable care owed to the pursuer was said to arise because the defenders' officers (1) had attended the fire, (2) had "purported" to extinguish it and (3) had forced entry to the pursuer's flat. The duty to extinguish the fire at his flat depended on the exercise of that duty of reasonable care: had it been exercised, the officers would then have been aware of the existence of the cause of re-ignition which later re-ignited. But their alleged failures were failures of omission only. The defenders did not contend that in no circumstances could they owe any duty to take reasonable care: their submission was that in the circumstances of this case, the defenders and their officers did not owe the pursuer any delictual duty to take reasonable care for his property.

[12] Counsel then addressed me on the law and divided his submissions into the following chapters.

(1) First, counsel pointed to the statutory duties which the defenders were required to discharge at the material time. These were prescribed by the Fire Services Act 1947. Section 1(1) imposed a "target" duty, breach of which would not be expected to give rise to civil liability for breach of statutory duty. In the present case the duty of care founded on by the pursuer was said to arise from the performance of the defenders' statutory duties: the pursuer averred in article 3 that the defenders' officers' duty to take reasonable care arose "[i]n exercising their discretionary power to attend and extinguish a fire".

(2) Counsel made submissions as to the circumstances in which the law imposed a duty to take reasonable care and founded on the familiar passage from the speech of Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605 at 617-618. The tripartite test of foreseeability of damage, proximity between the parties, and considerations of fairness, justice and reasonableness had been accepted in Scotland in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1997 SC 59 at 61-62, 1999 SC (HL) 9 at 12.

(3) Counsel considered the circumstances in which delictual duties might be imposed on statutory bodies when performing their statutory duties. That would be unusual in a case where there was no right to sue a statutory body for breach of its statutory duties. It would be unusual, although not in all circumstances impossible, for such a body to be made liable for failure to perform common law duties. Counsel relied on the speech of Lord Hoffman in Stovin v Wise [1996] AC 923 at 941-957 with which Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed.

(4) Counsel founded on Capital & Counties plc v Hampshire County Council [1997] QB 1004 where the Court of Appeal held that a fire brigade were not under a common law duty to answer a call for help or to take care to do so, nor did they enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the scene of fire and fighting it.

(5) Counsel referred to two Scottish cases decided before Capital and Counties. In the first, Kilboy v South Eastern Fire Area Joint Committee 1952 SC 280, Lord Keith, in an obiter dictum at page 288, expressed doubt whether there was any method by which the authority could free itself from liability for the negligence of persons expressly or impliedly authorised by the authority to deal with fires in the manner in which they carried out that task. The second case was Duff v Highland and Islands Fire Board 1995 SLT 1362 where Lord Macfadyen sitting in the Outer House observed obiter that he would have rejected a submission that the defenders did not owe to the owners of property affected by a fire which they fought any common law duty to take reasonable care in the course of their firefighting operations. Counsel submitted that those dicta by Lord Macfadyen should not be followed, and that the later cases of Stovin and Capital and Counties were highly persuasive.

(6) Counsel cited two English cases in which reference had been made to Capital and Counties. In OLL Ltd v Secretary of State for Transport [1997] 3 All E R 897. May J applied that decision to a case where the coastguard had responded to an emergency at sea, holding that the latter were under no enforceable private law duty to respond to an emergency call, nor, if they did respond, would they be liable if their response was negligent, unless their negligence amounted to a positive act which directly caused greater injury than would have occurred if they had not intervened at all. The second case was Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057 where the House of Lords held that the public law duties imposed by statute on a highway authority to take appropriate measures to prevent accidents, which were not enforceable by a private individual in an action for breach of statutory duty, did not give rise to a parallel duty of care to take such measures at common law.

(7) Counsel discussed and distinguished Gibson v Orr 1999 SC 420, a decision by Lord Hamilton in the Outer House which I shall consider later.

(8) Counsel also referred to two further Outer House decisions, Forbes v City of Dundee District Council 1997 SLT 1330 Lord Nimmo Smith and McCafferty v Secretary of State for Scotland 1998 SCLR 379.

[13] Having completed his presentation on the law, the defenders' counsel presented his concluding submissions.

(1) The duty said to have been breached by the defenders in the present case was a fault of omission consisting of the failure to search for a cause of combustion which at that stage was hidden and only a possibility: its existence was not actually known to the defenders' officers.

(2) There was no suggestion in the pleadings that the defenders or their officers had made the situation more dangerous by any positive act.

(3) The principles derived in England from high authority, which demonstrated that no duty of care existed in circumstances such as those of the present case, were equally applicable in Scotland. The statutory background was the same in both jurisdictions. It would be a surprising result if a different outcome were to result from the application of the same principles.

(4) The conclusion that would be reached in England in these circumstances was correct. Prior to Duff, there had been no decision indicating that there was a duty of care on a fire brigade in such circumstances. Thus, if one were to take the incremental approach commended by Lord Bridge in Caparo, there would be nothing to start with. The situation could be distinguished from Gibson v Orr which had been concerned with the control of roads. Further, there was no basis on the facts of the present case for the imposition of a duty of care other than the exercise by the defenders of their statutory duty. There were no special circumstances that could be said to equate to an assumption of responsibility by the defenders, or any representation about the quality of the search. The defenders' statutory duty was a target type of duty which did not permit an action for its breach. There was nothing beyond the statutory duty that could be a basis for the imposition of a duty of care: there was no concurrent duty of care in the exercise of the defenders' statutory duties.

(5) If the defenders had done nothing, they would not be liable. Here, they had entered the flat and had not extinguished the fire. There was nothing to suggest that they should have greater liability than if they had not turned up at all.

(6) There were good policy reasons for not finding either that there was sufficient proximity or that it would be fair, just and reasonable to impose a duty of care in the present case. First, counsel referred to Lord Hoffman's discussion of the matter in Stovin v Wise. A liability should not be imposed on public bodies to make good damage to property caused by a fire which had not been started by society or the taxpayer. It would not make sense to require a property-owners' insurers to be paid out of public funds. That should only be done by Parliament; but Parliament had imposed only target duties and had not intended to impose any such liability on fire authorities. Secondly, such a duty of care would be wide - it would be owed to anyone whose property might be affected by a fire. Thirdly, there could be operational difficulties. It would not be desirable to impose civil liability in a case where a team of firefighters was engaged in fighting a fire when an emergency call to another fire was received. In other cases it might be necessary to damage property in order to prevent the spread of fire.

(7) If it were acceptable that if the defenders had not attended they would not have owed any common law duty of care, at what stage did the duty arise? When the officers arrived, or when they started to fight the fire? As to neighbouring property, was the touchstone the time when they entered the property to inspect it? (Counsel later accepted that the tempus inspiciendum was the time when the officers left the pursuer's flat.) The best touchstone was to be found in the English cases: whether the acts of the firefighters created or increased the danger. As to the roads cases (Gibson, Stovin and Gorringe), it should be noted that the history of the liability of roads authorities at common law was different in Scotland and England; but there was no historic difference with regard to fire brigades.

[14] The defenders' counsel accordingly moved me to dismiss the action or to reserve their preliminary plea and allow a proof before answer.

 

The pursuer's submissions

[15] Counsel for the pursuer moved me to repel the defenders' preliminary plea and allow a proof, or to reserve the plea and allow a proof before answer on the basis that I might form the view that I was not in a position to determine questions as to proximity and as to what was fair, just and reasonable, without hearing evidence. Counsel said that the principal question was whether in the circumstances of this case it could be said that a duty of care arose, based on the actions or inaction of the defenders. Both parties accepted the tripartite test of foreseeability, proximity, and that which was fair, just and reasonable. The defenders' counsel had accepted that foreseeability was adequately averred, but he had made submissions about the second and, to some extent, the third elements of the test. It was well recognised that the three elements shaded into each other, especially the second and third.

[16] Turning to the pursuer's pleadings, counsel pointed first to the averment in condescendence II.1 that in firefighting terms, the building containing the two flats was a single building (page 6D-E of the closed record; paragraph 5 above). That distinguished the present case factually from the three scenarios in Capital & Counties: the present case was similar to Duff which had been concerned with two semi-detached houses. The defenders' firefighters had recognised the danger of fire spreading to Flat 3R, had forced entry to that flat and had observed smoke damage: that should have alerted them to the fact that flaming combustion might follow. This was not a case of omission: the defenders' firefighters had taken charge of the situation and taken action because of their apprehension of the fire's spreading; they had forced entry to a place where they considered there might be such a risk; they had observed smoke damage there; and then they had failed to do what they ought to have done to take account of the situation. That was not a case of omission, or pure omission; and that consideration distinguished it from most, if not all, of the cases cited by the defenders.

[17] Counsel next discussed the pursuer's averments of liability in condescendence III (paragraph 7 above). The pursuer's averment of reasonable foreseeability was not in issue: "It was reasonably foreseeable that the fire which originated at Flat 2R would cause damage in Flat 3R and its contents which were situated immediately above Flat 2R" (page 14B). The averments continued (at page 14B-C):

"In the present case in attending and purporting to take reasonable care to extinguish the fire prior to their departure from the flats on 16 October and in forcing entry to Flat 3R the firefighters accordingly owed a duty to the pursuer as heritable proprietor of Flat 3R to take reasonable care for the safety of Flat 3R and its contents. In particular they owed a duty to the pursuer to extinguish the fire at Flat 2R."

Having regard to the factual situation, that was a duty of reasonable care which arose in the circumstances of this case. This was a tenement building of which the two flats were constituent parts. The duty was not without limit: it was limited to the neighbouring flats in a single building. Accordingly, the duty was not too widely stated, as the defenders had argued.

[18] Counsel pointed out that the pursuer went on to make averments that no firefighter of ordinary competence exercising reasonable skill and care would have failed to take the various steps specified in the pleadings, as in cases of professional negligence. These were relevant averments which placed limits on the scope of the duty which, the pursuer contended, arose in this case. The averments about the specified contents of the Manual of Firemanship formed the basis on which it was said that the firefighters should have taken these steps, and would come into play at the proof.

[19] Counsel observed that the defenders' counsel had rightly said that in so far as there was said to be a duty of care, it was said to arise at common law against the statutory background of the 1947 Act. The present case was concerned with a statutory duty as opposed to a statutory power: that was a significant distinction. Section 1(1) of the Act laid out "target duties" (Capital & Counties plc v Hampshire County Council [1997] AC 1004 at pages 1025H-1026B). The pursuer did not contend that there was any direct right of action based on the section.

[20] Counsel went on to discuss a number of cases. He examined, in particular, East Suffolk Rivers Catchment Board v Kent [1941] AC 74, Duff v Highland and Islands Fire Board 1995 SLT 1362, Gibson v Orr 1999 SC 420 and Capital & Counties. Counsel submitted that the defenders' case was based on the East Suffolk case and on Capital & Counties. Neither case was binding on this Court, although each was entitled to considerable respect. A proper analysis for Scotland was better set out in Duff and Gibson.

[21] As to the East Suffolk case, the pursuer's counsel pointed out that it was concerned with a statutory authority which had been entrusted with a power, not with a duty; and the House of Lords had held that such an authority could not be made liable for any damage sustained by a member of the public by reason of a failure to exercise the power (Lord Romer at page 102). That decision had not been followed in Scotland; and in Duff Lord Macfadyen had found the dissenting speech of Lord Atkin more convincing than the view of the majority.

[22] Counsel founded on Lord Macfadyen's obiter dicta in Duff where his Lordship observed that had it been necessary for him to do so, he would have rejected a submission by the defenders that they owed the pursuers no common law duty to take reasonable care in the course of their firefighting operations. Counsel also referred to Gibson v Orr as demonstrating that the duty sought to be imposed on the defenders in the pursuers' pleadings was not too wide. Lord Hamilton there held (at page 435D-E) that if police constables, having the function of the protection in a civil context of life and property, in furtherance of that function take control of a hazard on a public road, they are "in a sufficiently proximate relationship with road users likely to be immediately and directly affected by that hazard as is sufficient for the purposes of the existence of a duty of care to such road users." His Lordship also held (at page 437G) that in the circumstances of that case it was fair, just and reasonable to hold that a duty of care was owed by the police constables in question to persons such as the pursuer.

[23] As to Capital & Counties, counsel for the pursuer did not take issue with the proposition that "a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground and fighting the fire" (page 1038E-F). That concession, if I have understood it properly, does not seem consistent with counsel's other submissions and, as will appear, I am not satisfied that it is correct. Counsel went on to say that in the present case the defenders' firefighters had done more than attend and fight the fire. They had been attending and fighting a fire in a tenement building; they had recognised the risk to Flat 3R; they had forced entry to that flat and had noted fire damage there; but they had done nothing about the possible consequences. In "the London Fire Brigade case", the third of the four appeals considered in Capital & Counties, the firefighters had not inspected the plaintiffs' premises, which were adjacent to the land on which the fires they extinguished had broken out. It was not abundantly clear why in the third and fourth appeals the Court had considered that there was insufficient proximity to establish a duty of care.

[24] Counsel for the pursuer also referred to Stovin v Wise [1996] AC 923; Kilboy v South Eastern Fire Area Joint Committee 1952 SC 280; OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897; Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057; Forbes v City of Dundee District Council 1997 SLT 1330; and McCafferty v Secretary of State for Scotland 1998 SCLR 379.

 

The defenders' reply

[25] As to the pursuer's pleadings, counsel for the defenders accepted that the tempus inspiciendum was the time when the defenders' fire officers left the flat. But at that stage all that had been done was that the officers had gone into the building and had left, having extinguished the fire in the flat below the pursuer's. Nothing of substance distinguished this case from Capital & Counties. The various alleged failures of the officers were to be characterised as sins of omission: there could not have been any sin of commission because they had done nothing to make the danger any worse. The pursuer did not offer to prove that the officers had taken control of the danger: they were entirely ignorant of the existence of the possible cause of re-ignition. Further, the general duty averred at page 14B-C was criticised by the defenders as too wide on grounds of principle, not because of the factual assertions made in the pleadings.

[26] As to the cases discussed by counsel for the pursuer, counsel for the defenders pointed out that he had not cited the East Suffolk case, although it had been mentioned in the cases to which he had referred. He recognised that it was concerned with a statutory power to do an act. The pursuer was concerned to attempt to found a common law duty of care upon a statutory duty to do an act. Such an attempt had been commented on by Lord Hoffman in Stovin at page 952E-H and by Lord Rodger of Earlsferry in Gorringe at paragraph 90.

[27] The defenders' counsel accepted that the dicta in Duff were against him, but he pointed out that they were entirely obiter. The discussion before Lord Macfadyen had not been as detailed as it might have been. In Forbes (at page 1340J-K) Lord Nimmo Smith had not been persuaded that clear indication in favour of liability existed in Duff. Lord Macfadyen's doubts about the East Suffolk case had not been shared by the House of Lords in Stovin, which had been decided after Duff and was highly persuasive. His Lordship's reasoning would have been different if he had had to deal with Stovin and the other later cases of Capital & Counties and Gorringe.

[28] Counsel for the defenders again distinguished Gibson, on grounds which I shall discuss later. As to Capital & Counties plc, factual distinctions could not elide the reasoning in that case. The test of foreseeability had been satisfied both there and in the present case. The test of proximity could not depend on whether no inspection had been made, or an inspection had been made and nothing had been observed. A duty of care did not arise merely from attendance at and fighting the fire; and carrying out an inspection was included in fighting the fire. It was clear that the Court in Capital & Counties would not have imposed a duty in the circumstances of the present case: see page 1036C-D.

[29] In Gorringe Lord Hoffman had made it clear (at paragraph [38]) that in that case the House of Lords was not concerned with cases in which public authorities had actually done acts which gave rise to a common law duty of care. In the present case any duty on the defenders could be imposed only because of some particular act they had done. If the pursuer had had as a neighbour an off-duty fireman who had gone into the pursuer's flat and made the check which the defenders' officers made, the neighbour could not be said to be under the duty contended for. The pursuer's attempt to impose a common law duty on the defenders was based solely on the existence of a broad public law duty.

[30] Finally, even if the defenders' arguments were to be unsuccessful, it would be going too far to repel their preliminary plea before proof. The pursuer's claim for damages included a claim of damages for inconvenience which was of doubtful relevancy, and the defenders' plea should be reserved.

 

Discussion

[31] The question I have to decide is whether to dismiss this action on the ground that it is irrelevant, or to allow inquiry by way of proof or proof before answer. The test of the relevancy of a pursuer's averments is familiar. "The true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved." (Jamieson v Jamieson 1952 SC (HL) 44 at page 50 per Lord Normand; Henderson v 3052775 Nova Scotia Ltd [2006] UKHL 21, 2006 SC (HL) 85 at paragraph [16] per Lord Rodger of Earlsferry).

[32] In reaching my decision I shall consider, first, whether the law of Scotland does not impose liability in negligence for a "pure omission" and, if it does not, whether the alleged negligence founded on by the pursuer is a "pure omission" for which no liability may be attached to the defenders. If it is, the action must be dismissed. If it is not, the next issue will be whether, in the circumstances averred by the pursuer, the defenders owed him any duty of care. Here it will be necessary to consider, first, the statutory framework within which the defenders' firefighters were acting; and secondly, whether there was any relationship between the pursuer and the defenders. The latter issue requires an examination of whether the second and third elements of the Caparo test are satisfied, that is, whether there was sufficient "proximity" between the parties and whether considerations of fairness, justice and reasonableness indicate that a duty should be imposed. I shall also consider whether the imposition of a duty of care on the defenders would be a pragmatic step in accordance with the view that the law should develop in this area incrementally and by analogy with established categories. If the defenders owed the pursuer any duty of care, the final issue will be the content of the duty. Did it extend to a duty to search for a cause of combustion that should have been observed by reasonably careful firefighters carrying out inspections they ought reasonably to have made to establish whether there existed circumstances which, if not eliminated, constituted a risk of an extension of the fire to the pursuer's flat? Or was their duty nothing more than a duty not to make the situation more dangerous by some positive act? If I am led to the conclusion that the pursuer's action must necessarily fail, the result will be dismissal: otherwise, I shall allow inquiry.

 

Pure omission

[33] Counsel for the defenders maintained that the pursuer was seeking to blame the defenders' officers for a fault of omission which consisted in their failure to search for a cause of combustion which was hidden, unknown to them and only a possibility. That was a failure of omission only, and in these circumstances the defenders did not owe the pursuer any delictual duty to take reasonable care for his property. The pursuer's counsel, on the other hand, submitted that this was not a case of omission.

[34] In my opinion the law of Scotland does not draw a distinction between acts and omissions comparable to that which appears to exist in the English law of tort between misfeasance and non-feasance. In Duff v Highland and Islands Fire Board 1995 SLT 1362 Lord Macfadyen stated (at page 1363L) that he would have rejected a submission that the law did not impose liability in negligence for pure omission. I also refer to the observations of Lord Hamilton in Gibson v Orr 1999 SC 435 at page 435F-H:

"Reliance was placed by counsel for the defender on the proposition that the common law does not impose liability for what are called 'pure omissions' (Malaco v Littlewoods Organisation [1987 SC (HL) 37] per Lord Goff at page 76). Of course, where no pre-existing relationship exists, a failure to act may not, whatever the moral obloquy, amount in law to a breach of duty of care (as in failure to stop a blind stranger stepping out in front of busy traffic), while a positive act (as in carelessly walking into such a stranger and propelling him in front of such traffic) may well do so. However, where a relationship does pre-exist, whether with an individual or with a limited group of persons, the distinction between acts and omissions becomes less important."

I would respectfully agree with Lord Macfadyen and Lord Hamilton, and I would also adopt the following passage from volume 15 of the Stair Memorial Encyclopaedia (1996) at paragraph 296:

"Drawing the distinction [between acts and omissions] suggests that there may be liability for acts but there is never a duty of care to avoid omissions: this has never been wholly accurate. Lord Atkin himself makes this perfectly plain when he says,

'you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour' [Donoghue v Stevenson 1932 SC (HL) 31 at page 44].

There has been no reported case in Scotland in which liability has been denied unequivocally because there is no duty to avoid omissions."

[35] Let it be assumed, however, that I am mistaken on that point and that, contrary to my view, the law of Scotland does recognise some distinction between acts and omissions such as exists in the law of England. That would not, in my opinion, assist the defenders. The nature of the distinction drawn in English law appears from two dicta by Lord Hoffman in English appeals. In Stovin v Wise [1996] AC 923 his Lordship said (at page 943G-H):

"There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs Wise) or natural causes."

His Lordship said in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057 at paragraph [17]:

"Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to prevent it."

[36] I therefore ask whether it appears from the pursuer's averments in the present case that the defenders' firefighters "simply did nothing" or "did nothing in particular". The answer is clear. Far from doing nothing, they attended at the scene of the fire, they appeared to conclude that they had extinguished the fire in Flat 2R, then they decided to check that the fire had not spread upwards to the pursuer's flat. They therefore forced entry to the pursuer's flat and observed smoke damage. It is then said that they failed to take measures which they ought to have taken in order to discover and eliminate any traces of fire or possible causes of re-ignition. Their failure to do so was no doubt an omission to act, but it was an omission which occurred after they had gone into action and in the course of their firefighting activities. It was not a pure omission in the sense in which that term appears to be employed in English law, but the kind of omission for which liability would attach if the defenders owed the pursuer a duty of care. To take a simple illustration which is conveniently to hand: when Mrs Wise emerged from the minor road, having failed to observe Mr Stovin on his motorcycle on the major road, and collided with him, her failure to keep a good lookout could no doubt be described as an omission to act, but for the purpose of the law of delict that is irrelevant: it was a breach of her duty to take reasonable care for the safety of other road users, including Mr Stovin.

 

The statutory framework

[37] I therefore examine the question whether, in the circumstances averred by the pursuer, the defenders owed him any duty of care at common law. It is necessary to begin by examining the material terms of the Fire Services Act 1947, which was the relevant statute in force at the time of the fire. (I note in passing that the whole Act, except sections 26 to 27A, has been repealed by the Fire (Scotland) Act 2005 (2005 asp 5), Schedule 4, paragraph 1). In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 Lord Browne-Wilkinson said (at page 739A-E) in relation to a claim against a defendant on whom a statutory duty has been imposed:

"If the plaintiff's complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (e.g. the running of a school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles i.e. those laid down in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618. [ ... ]

However the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. [ ... ] [I]n my judgment a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties."

In Gorringe Lord Steyn made observations about negligence and statutory duties and powers, "a subject of great complexity and very much an evolving area of the law" (paragraph [2]). Having referred to X (Minors), Stovin v Wise, Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619, his Lordship said (at paragraph [3]):

"There are two comments on these decisions which I would make. First, except on a very careful study of these decisions, there is a principled distinction which is not always in the forefront of discussions. It is this: in a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy? In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy? An assimilation of the two inquiries will sometimes produce wrong results."

[38] In the present case the pursuer's case is not founded on breach of statutory duty, nor does he seek to impose a common law duty on a statutory duty: his submission is that in the course of carrying out the defenders' statutory functions the defenders' employees brought about such a relationship between themselves and the pursuer as to give rise to a duty of care at common law. I shall nevertheless consider the broad purpose of the 1947 Act in order to determine whether that statute excludes a common law remedy, and if it does not, whether in the circumstances of this case the imposition of a duty of care upon the defenders would be inconsistent with, or have a tendency to discourage, their due performance of their duties under the Act.

[39] The Act is, in the opening words of the long title, "An Act to make further provision for fire services in Great Britain." Section 1 provides in part:

"(1) It shall be the duty of every fire authority in Great Britain to make provision for fire-fighting purposes, and in particular every fire authority shall secure -

(a) the services for their area of such a fire brigade and such equipment as may be necessary to meet efficiently all normal requirements;

(b) the efficient training of the members of the fire brigade;

(c) efficient arrangements for dealing with calls for the assistance of the fire brigade in case of fire and for summoning members of the fire brigade;

[ ... ]

(e) efficient arrangements for ensuring that reasonable steps are taken to prevent or mitigate damage to property resulting from measures taken in dealing with fires in the area of the fire authority;

[ ... ]"

Section 36 of the Act, whose provisions have effect for the purpose of the application of the Act to Scotland, does not modify section 1(1) in any way.

[40] I observe, first, that the Act does not manifest any intention to exclude civil liability for negligence in the conduct of routine operations such as the containment and extinction of a fire. Secondly, I note that the defenders pointed to the fact that in Capital & Counties the Court of Appeal held (at page 1026A-B) that section 1 laid out "target" duties breach of which was not actionable in private law. In the present case, however, the pursuer does not submit that he has any direct right of action based on section 1: he does not say that the statutory duties imposed by the Act give rise to a duty of care. This case is therefore to be distinguished from Stovin and Gorringe which were founded on by the defenders. In those cases the House of Lords was concerned to affirm that if a statute did 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 (Stovin, Lord Hoffman at pages 952F-953E; Gorringe, Lord Hoffman at paragraph [23], Lord Rodger of Earlsferry at paragraph [90]). In Gorringe Lord Hoffman said (at paragraph [38]):

"My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty."

[41] The pursuer's argument is, in effect, that his is a case of the latter kind. He does not say that the duty of care at common law on which he founds is simply generated by the defenders' statutory duty, but rather that the duty arose when the defenders were discharging a statutory duty or, to adapt the words of Lord Brown-Wilkinson in X (Minors) at page 739, that the alleged carelessness arose from the practical manner in which the acts done were performed. Such a situation would not be unusual. The law on this subject was considered in Sutherland Shire Council v Heyman (1985) 157 CLR 424, passages from which are cited in Caparo by Lord Bridge of Harwich at page 618D-E and in Gorringe by Lord Rodger of Earlsferry at paragraph [88]. Mason J (as he then was) said at page 459:

"[I]t has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care."

In the present case the defenders were not engaged in the exercise of a statutory discretion involving broad issues of policy or the allocation of resources, such as might have imposed a limitation upon their liability for negligence. The negligence founded on is said to have occurred in the carrying out of a routine operation, the containment and extinction of a fire. In my opinion the observance of a common law duty of care to the pursuer in the circumstances of this case is not inconsistent with the defenders' due performance of their statutory duties, nor it is liable to discourage it. It will be appropriate to consider the latter point in the context of the application of the "fair, just and reasonable" element of the Caparo test.

 

The Caparo test

[42] It will be useful to set out the familiar passage from the speech of Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605 at pages 617G-618E:

"But since the Anns case [Anns v Merton London Borough Council [1978] AC 728] a series of decisions of the Privy Council and of your Lordships' House, notably in judgments and speeches delivered by Lord Keith of Kinkel, have emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope. [ ... ] What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think, recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43-44, where he said:

'It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.'"

[43] As Lord Hamilton observed in Gibson v Orr 1999 SC 420 at page 430D, the tripartite test of foreseeability of damage, proximity between the parties, and considerations of fairness, justice and reasonableness has on a number of occasions been adopted and applied without challenge in Scotland. His Lordship also held that the three-element test now fell to be applied in Scotland "in personal injury actions based on a duty of care as well as in other actions of damages so based." His Lordship said that he could see "no logical justification in modern circumstances and as the law has developed for applying a different test for the existence of a duty of care in respect of personal injury from that applicable relative to physical damage to property or to economic loss" (page 431A-E).

[44] Lord Hamilton also referred to the speech of Lord Mackay of Clashfern in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1999 SC (HL) 9 at 12. Lord Mackay of Clashfern cited the passage in the speech of Lord Steyn in Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 211 at 235 where his Lordship referred with approval to the following observations by Saville LJ (as he then was):

"Thus the three so-called requirements for a duty of care are not to be treated as wholly separate and distinct requirements but rather as convenient and helpful approaches to the pragmatic question whether a duty should be imposed in any given case. In the end whether the law does impose a duty in any particular circumstances depends upon those circumstances."

While keeping in view the fact that the three elements of the test are not wholly separate and distinct requirements, it will be useful to consider each in turn before attempting to reach a view as to whether a duty should be imposed in the circumstances of this case. The defenders have conceded that the element of foreseeability is satisfied. I now consider the remaining two elements.

[45] When doing so, I respectfully adopt the view of Lord Hamilton that no distinction can be drawn between a duty of care in respect of personal injury and a duty of care in respect of physical damage to property. Such a distinction seems particularly inappropriate in relation to the duties incumbent on a fire brigade, which is concerned with the protection of life as well as with the protection of property. That truism is now made explicit in section 9 of the Fire (Scotland) Act 2005, which provides:

"(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."

While similar language does not appear in the 1947 Act, it could scarcely be contended that section 9(1) of the 2005 Act has imposed new responsibilities which were not implicit in the 1947 Act. That the protection of both life and property must be taken into account is clearly an inescapable consideration where, as in this case, a fire brigade has responded to a call to a fire in a residential tenement.

 

Proximity

[46] Lord Bridge of Harwich observed in Caparo that the concept of proximity, like that of fairness, is not susceptible of any such precise definition as would be necessary to give it utility as a practical test. It may be that a finding of the necessary degree of proximity results from the court's view of what is fair, just and reasonable. In Caparo Lord Oliver of Aylmerton said (at page 633C-D):

"Indeed it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court's view that it would not be fair and reasonable to hold the defendant responsible. 'Proximity' is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists."

In Stovin Lord Nicholls of Birkenhead, who dissented as to the result but not in relation to the applicability of the Caparo test, said (at page 932B-C):

"The Caparo tripartite test elevates proximity to the dignity of a separate heading. This formulation tends to suggest that proximity is a separate ingredient, distinct from fairness and reasonableness, and capable of being identified by some other criteria. This is not so. Proximity is a slippery word. Proximity is not legal shorthand for a concept with its own, objectively identifiable characteristics. Proximity is convenient shorthand for a relationship between two parties which makes it fair and reasonable one should owe the other a duty of care. This is only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship of the parties."

[47] In the present case the defenders founded strongly on the decision of the Court of Appeal in Capital & Counties plc v Hampshire County Council [1997] QB 1004. They submitted that it could not be distinguished from the present case. The Court in Capital & Counties considered the question whether, and if so, in what circumstances a fire brigade owe a duty of care to the owner or occupier of premises which are damaged or destroyed by fire (page 1022A-B). In the first and second of four appeals which were heard together, a fire brigade attended a fire in a building and turned off the sprinkler system, an action which led to the fire's going out of control. The plaintiffs' claims against that fire brigade succeeded. In the third appeal, a fire brigade attended at a fire scene and, having satisfied themselves that the fires had been extinguished, left the scene without inspecting the plaintiff's premises on adjacent land, which were later destroyed by fire. The plaintiffs' claim against that fire brigade failed. The Court held, first (at page 1030A-B), that a fire brigade are not under a common law duty to answer a call for help, and are not under a duty to take care to do so. "If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable." Secondly, the Court considered the question whether the fire brigade owe a duty of care to the owner of the property on fire, or anyone else to whom the fire may spread, once they have arrived at the fire ground and started to fight the fire. The Court said (at page 1038E-F):

"In our judgment, a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground and fighting the fire; this is so, even though the senior officer actually assumes control of the fire-fighting operation."

The Court also held, however, that where a fire brigade by its negligence has created or increased the risk of the danger which caused damage to the plaintiff, it would be liable for negligence in respect of that damage, unless it could show that the damage would have occurred in any event (pages 1031D-E, 1034E-G). Thus the effect of the judgment, in so far as it has a bearing on the circumstances averred by the pursuer, is that a fire brigade does not owe any duty of care in fighting a fire except in so far as it creates by its own negligence some additional danger.

[48] I have repeatedly studied this judgment with great respect and care, but I regret that I am unable to regard it as representing the law of Scotland. For a Scottish approach to an issue of this kind I refer to Duff v Highland and Islands Fire Board 1995 SLT 1362. The pursuers in that case raised an action of damages against the defenders on the ground of negligence. Firefighters employed by the defenders attended a chimney fire in one of two semi-detached houses. The fire re-started after they left, and destroyed both houses. Lord Macfadyen held that the fire had not been fully extinguished, but he also held that no negligence had been proved in relation to the failure by the firefighters to discover a pocket of combustion before leaving. His Lordship made it clear, however, that he would have rejected a submission that the defenders owed the pursuers no common law duty to take reasonable care in the course of their firefighting operations. His Lordship dismissed arguments which referred to (a) the absence of any such duty imposed by statute, (b) the proposition that it would be contrary to public policy too impose such a duty, and (c) a submission that the common law did not impose liability for pure omissions.

[49] I am unable to find anything in the reasoning in Capital & Counties which persuades me to disagree with Lord Macfadyen. In particular, I regret that I do not understand the role of proximity in Capital & Counties. The Court appears to say that while there is insufficient proximity for the creation of a general duty of care owed by the fire brigade to the property-owner, there is nevertheless sufficient proximity between them to give rise to a duty not to make matters worse. Thus a fire brigade is not liable for negligently failing to prevent damage, but only for causing greater injury than would have occurred if the fire brigade had done nothing at all. It seems difficult to discern a sound foundation in principle for this distinction. The Court appears to have been influenced by the decision of the House of Lords in an English appeal, East Suffolk Rivers Catchment Board v Kent [1941] AC 74. The ratio of the decision is often said to be found in the speech of Lord Romer at page 102:

"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. So long as they exercise their discretion honestly, it is for them to determine the method by which and the time within which and the time during which the power shall be exercised; and they cannot be made liable, except to the extent that I have just mentioned, for any damage that would have been avoided had they exercised their discretion in a more reasonable way."

[50] While the East Suffolk case continues to be cited in the House of Lords for the proposition stated in the first sentence (Stovin at page 947F-G; Gorringe at paragraph [41]), the House of Lords has also made it clear in Anns v Merton London Borough Council [1978] AC 728 that it approves the analysis in the dissenting speech of Lord Atkin (Lord Wilberforce at page 757A-E, with whose speech Lord Diplock, Lord Simon of Glaisdale (both at page 761A-B) and Lord Russell of Killowen (at pages 771G-772A) agreed; Lord Salmon at pages 764E-767A). Lord Atkin said (at pages 88-89):

"But apart from the existence of a public duty to the public, every person whether discharging a public duty or not is under a common law obligation to some persons in some circumstances to conduct himself with reasonable care so as not to injure those persons likely to be affected by his want of care. This duty exists whether a person is performing a public duty, or merely exercising a power which he possesses either under statutory authority or in pursuance of his ordinary rights as a citizen."

[51] In any event, the view that a body exercising statutory powers is liable only for any damage it causes which makes matters worse, appears not to have been accepted in the law of Scotland. The East Suffolk case is not cited anywhere in the title on Obligations in volume 15 of the Stair Memorial Encyclopaedia (1996) or in Professor Thomson's textbook on Delictual Liability (3rd edition, 2004), and a search of the Faculty Digest and the Current Law Case Citators has not disclosed any Scottish case in which it has been followed on this point. It does not seem tenable to regard the distinction between nonfeasance and malfeasance as defining the limits of a statutory body's responsibility: an action against an NHS Trust for medical negligence could not be defended on the ground that the pursuer's condition had been left untreated rather than aggravated by positive action. In Duff Lord Macfadyen said (at page 1362I-1363A) in language which I would respectfully adopt:

"I do not regard the East Suffolk case as very satisfactory, and I am reassured to find that that view was shared by Lord Salmon in Anns v Merton London Borough Council [1978] AC 728 at page 764F. On the question of causation of loss which would have been suffered if there had been no intervention, would have been prevented by careful intervention, but has been allowed to happen by careless intervention, I find the dissenting speech of Lord Atkin at page 93 more convincing than the view of the majority.

"Be that as it may, the East Suffolk case is in my view distinguishable from the present one. The view that there can be no liability for loss which would have resulted if there had been no intervention by the statutory authority depends essentially on the fact that the authority is exercising a mere power, and is under no statutory duty. That is not in my view the situation here. Certainly there is no express statutory duty on the defenders to exercise reasonable care in the fighting of fires. But section 1 of the Fire Services Act 1947 provides inter alia that: '(1) It shall be the duty of every fire authority in Great Britain to make provision for firefighting purposes, and in particular every fire authority shall secure - (a) the services for their area of such a fire brigade and such equipment as may be necessary to meet efficiently all normal requirements; ... (c) efficient arrangements for dealing with calls for the assistance of the fire brigade in case of fire.'

"There is no doubt an element of discretion vested in the fire authority to determine precisely what manpower and equipment should be provided and what arrangements should be made for dealing with calls. Fundamentally, however, the intervention of the defenders to fight the fire at Inchree stemmed not from an exercise of pure discretionary power, but from performance of the duties imposed by section 1. I am therefore of opinion that I would, had it been necessary to decide this issue, have been free to take the view that in a real and practical sense the destruction of the pursuer's house was caused by the defenders' failure to extinguish completely the chimney fire."

[52] The Court of Appeal in Capital & Counties accepted a submission (at page 1036A-B)

"that the fire brigade's duty is owed to the public at large to prevent the spread of fire and that this may involve a conflict between the interests of various owners of premises. It may be necessary to enter and cause damage to A's premises in order to tackle a fire which has started in B's. During the Great Fire of London the Duke of York had to blow up a number of houses not yet affected by fire, in order to make a fire break."

It seems arguable, however, that when a fire brigade is fighting a fire it owes a duty, not to the public at large, but to the limited class of those whose lives or property are endangered. In the present case, where the defenders' firefighters were engaged in containing and extinguishing a fire in a flat in a residential tenement which consisted of a single building, it does not appear to strain any reasonable concept of proximity to say that they owed a duty to the owner of the flat upstairs, especially once they had broken into that flat and observed smoke damage.

[53] The Court in Capital & Counties considered whether a relationship of proximity might exist between a fire brigade and the owner of property based on the concept of the assumption of responsibility by the fire brigade and particular reliance by the owner. The Court said (at pages 1034G-1035A):

"As a general rule a sufficient relationship of proximity will exist when someone possessed of special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is direct and substantial reliance by the plaintiff on the defendant's s skill: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 and Henderson v Merrett Syndicates Ltd [1995] 2 AC 145. There are many instances of this."

The Court discussed Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 and X (Minors) and said (at pages 1035H-1036A):

"In those instances, the social workers and doctors owed duties to the local authority or insurance company which were inconsistent with a duty being owed to the plaintiff. But that is only part of the reason why no duty existed. There was no undertaking to treat the plaintiff and no assumption of responsibility to try to effect a cure."

The Court went on to note (at page 1037D):

"There are a number of cases where the courts have held that the relationship of proximity arises so as to give rise to a duty of care for the plaintiff's physical safety which are based on assumption of responsibility and reliance."

The Court examined Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283, Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692, Osman v Ferguson [1993] 4 All ER 344 and Barrett v Ministry of Defence [1995] 1 WLR 1217, and concluded (at page 1038E-F):

"These are all examples of where the court has considered on the special facts of the case that there is a sufficiently close relationship of proximity to give rise to a duty of care. But we do not think they are anywhere near the circumstances that arise in these appeals. In our judgment, a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground and fighting the fire; this is so, even though the senior officer actually assumes control of the fire-fighting operation."

The Court's view appears to be that a sufficiently proximate relationship between the fire brigade and the owner or occupier cannot be based on assumption of responsibility and reliance. It is not altogether clear, however, why that must always be so. The fact that the Court's proposition is supported by examples rather than by argument illustrates the difficulty that the concept of proximity is more readily exemplified than analysed.

[54] I consider that some further assistance may now be derived from two later decisions of the House of Lords which are referred to in Gorringe: Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. In Gorringe Lord Hoffman discussed these cases in this way:

"38 My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the 1977 Act, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430.

39 [ ... ] In Barrett v Enfield London Borough Council [2001] 2 AC 550 the plaintiff claimed that when he was taken into care, the council assumed parental responsibilities over him and so came under a duty of care in respect of the way he was treated. It was alleged that various acts and omissions had been in breach of this duty. The council tried to get the claim struck out as disclosing no cause of action because it had been exercising wide statutory discretions. The House refused to strike out the action. The plaintiff did not rely upon a common law duty of care generated by the existence of statutory powers. It is true that the council only assumed parental responsibility because of its statutory powers and duties, but the fact was that it did so. It was that which the plaintiff alleged gave rise to the duty. The statutory powers and duties might have provided the council with defences in respect of its specific acts and omissions but that could not be decided without an investigation into the facts.

40 Similarly in Phelps v Hillingdon London Borough Council [2001] 2 AC 619 the local education authority employed an educational psychologist to examine the plaintiff and diagnose her learning difficulties. The psychologist negligently failed to diagnose dyslexia and, as a result, the plaintiff left school with fewer skills than she would have learned if she had been diagnosed earlier. The council relied upon the fact that it had provided the psychologist pursuant to its public law duties which were not actionable at private law. But the House held that the duty of care did not depend upon the statute. It arose because the psychologist had impliedly undertaken to exercise proper professional skill in diagnosis, in the same way as a doctor provided by the National Health Service. The fact that the doctor-patient relationship was brought into being pursuant to public law duties was irrelevant except so far as the statute provided a defence. The House decided that no such defence had been established."

[55] Barrett and Phelps were also referred to by Lord Steyn at paragraphs [3] to [5], Lord Scott of Foscote at paragraph [73] and Lord Brown of Eaton-under-Heywood at paragraphs [99] and [100]. At paragraph [100] his Lordship said:

"[ ... ] the common law duty of care in those cases was found or suggested to have arisen not by reference to the existence of the respective authorities' statutory powers and duties but rather from the relationships in fact created between those authorities and the children for whom in differing ways they had assumed responsibility."

[56] A consideration of Barrett and Phelps suggests that the relationship between the defenders and the pursuer in the present case may be described in various ways. As Lord Hamilton observed in Gibson at page 432B-C, it is important to determine the issue of proximity with reference to the relevant point of time. Here, the defenders have accepted that the tempus inspiciendum is the time when the defenders' fire officers left the pursuer's flat. It may be said that the defenders' firefighters, in forcing entry to the pursuer's flat in order to check that the fire had not spread upwards to it, assumed responsibility for examining the flat to discover any traces of fire or possible causes of re-ignition and thus for averting the risk of further damage. If they were not assuming such responsibility, it is difficult to understand why they were there. Having assumed such responsibility, they created a relationship between themselves and the pursuer, albeit he was not present. That relationship obliged them to exercise reasonable care for the safety of the pursuer's flat and its contents.

[57] It may be objected that a relationship based on the concept of assumption of responsibility is inappropriate because the elements of a Hedley Byrne relationship did not exist. The firefighters did not tell the pursuer that he could rely on them, and it may be assumed that even if they had done, he would not have taken any action in reliance on such an assurance. Lord Hamilton criticised such concepts in Gibson at page 434F-H. It may also be unsatisfactory to say that the relationship is based on any concept of general reliance, in view of the comments of Lord Hoffman on that concept in his speech in Stovin v Wise (at pages 953E-955C) with which Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed. It may be preferable to say that the basis of the relationship was the fact that the pursuer was dependent on the firefighters for the protection of his property against damage or destruction by fire. He was not present to see the smoke damage for himself, even if he had possessed skills that would have enabled him to do something about it that would not have involved the fire brigade. Whether the flat would be vulnerable to an outbreak of fire depended entirely on the skills of the firefighters. They saw the smoke damage, and they knew that no one was in the flat. They knew that the future safety of the flat from fire was entirely up to them. It was therefore their duty to undertake the task of searching for possible causes of re-ignition and to do so as firefighters of ordinary competence exercising reasonable skill and care.

[58] However the matter may be put, it appears to me to be undeniable that, if the facts averred by the pursuer were to be established, a relationship of proximity would be held to have existed between the defenders' firefighters and the pursuer. This is not a case where the firefighters failed to attend the fire at all. The statement by the Court of Appeal in Capital and Counties (at page 1030) that a fire brigade is not under a common law duty to answer a call, which was approved by Lord Hoffman in Gorringe at paragraph [32], is not applicable to the circumstances of this case. There may well be insufficient proximity between the fire brigade and the public at large to give rise to a duty to answer a call; but in my opinion there is proximity between the fire brigade, on the one hand, and the owner or occupier of burning property and other persons immediately and directly liable to be affected, on the other, once the call has been answered and the fire brigade has attended and is attempting to deal with the fire.

 

Fairness, justice and reasonableness

[59] When applying the third element of the Caparo test I assume that in this context the words "fair", "just" and "reasonable" are synonymous. They appear to imply that the Court must take account of a wider range of issues than technical questions of law. It is helpful to keep in view the following observations by a jurist of eminence (John G Fleming, The Law of Torts (9th edition, 1998) at page 133):

"The inclusion of 'what is just (fair) and reasonable' is a discreet acknowledgment at long last of what in academic and popular discourse is more forthrightly referred to as 'policy'. It admits 'instrumentalist' goals beyond the equities between this plaintiff and this defendant. Looking beyond the parties, it considers the wider effects of a decision on society; the burden it would inflict no less than the benefit it would secure. In short, it recognises the public law element in this area of private law."

[60] In submitting that it would not be fair, just and reasonable to impose a duty of care on the defenders, their counsel founded, first, on observations by Lord Hoffman in Stovin v Wise. His Lordship said (at page 955A-C):

"[ ... ] in one sense it is true that the fire brigade is there to protect people in situations in which they could not be expected to be able to protect themselves. On the other hand, they can and do protect themselves by insurance against the risk of fire. It is not obvious that there should be a right to compensation from a negligent fire authority which will ordinarily enure by right of subrogation to an insurance company. The only reason would be to provide a general deterrent against inefficiency. But there must be better ways of doing this than by compensating insurance companies out of public funds. And while premiums no doubt take into account the existence of the fire brigade and the likelihood that it will arrive swiftly upon the scene, it is not clear that they would be very different merely because no compensation was paid in the rare cases in which the fire authority negligently failed to perform its public duty."

In Capital & Counties (at page 1028D-F) the Court of Appeal commented on that passage as follows:

"Although the plaintiffs' counsel have criticised Lord Hoffman's reference to the existence of insurance as being an invalid ground for saying that it is not just, fair and reasonable to impose a duty of care, we do not think that this is what Lord Hoffman is saying in this passage. Rather he is suggesting that there is not a general expectation that fires will necessarily be extinguished by the fire brigade; there is no doubt a hope that they will; but they may arrive too late to be of practical use, or they may not arrive at all; instead, for the most part people rely upon insurance for indemnification in case of loss."

[61] In the present case the defenders' counsel argued that a liability should not be imposed on public bodies to make good damage to property caused by a fire which had not been started by society or the taxpayer. It would not make sense to require a property-owner's insurers to be paid out of public funds. That should only be done by Parliament; but Parliament had imposed only target duties and had not intended to impose any such liability on fire authorities.

[62] I am not persuaded by these dicta and submissions. They are focused on the insurance of property. But, as I have already observed, a fire brigade is concerned with the protection of life as well as with the protection of property. Any assessment of what is fair, just and reasonable which disregarded that consideration would appear to be questionable. In any event it would seem to be material to know, for example, what proportion of properties are in fact insured, whether the proportion varies in different parts of the country, and to what extent properties are underinsured. The Court of Appeal in Capital & Counties in the passage just quoted appeared to consider that the existence of insurance indicated that there was no common law duty on a fire brigade to answer calls to fires or to take reasonable care to do so. In a later passage, however, the Court accepted that the availability of insurance was not a factor excluding the imposition of a duty of care at the scene of the fire on the grounds of what was fair, just and reasonable. The Court noted, amongst other things, that "there may be underinsurances and absence of insurance, particularly in the lower end of the property market" (page 1044C-E). I would respectfully accept these latter views expressed by the Court.

[63] The defenders' counsel also submitted that any duty of care imposed would be wide: it would not be fair, just and reasonable for a fire brigade to owe a duty to anyone whose property might be affected by a fire. As I have said above, however, I consider that the duty is owed only to the limited class of those whose lives or property are endangered. In any event, if a fire service may have to take into account risks to other property when fighting a fire, it is difficult to see why that must mean that they have no duty of care to the owner of the property the fire is consuming or threatening to fight the fire efficiently.

[64] The defenders also argued that if a neighbour who was an off-duty fireman had gone into the pursuer's flat and made the check which the defenders' officers made, the neighbour would not be under the duty contended for by the pursuer. The officers, however, entered the flat not as Good Samaritans but as persons employed by the defenders to exercise particular skills in the fulfilment of the defenders' statutory duty. Finally, counsel submitted that the imposition of a duty of care might lead to operational difficulties. It would not be desirable to impose civil liability in a case where a team of firefighters was engaged in fighting a fire when an emergency call to another fire was received. The present case, however, is concerned with the duty which arises after a call has been answered and the fire brigade has gone into action. As I have observed above, while there may well be insufficient proximity between the fire brigade and the public at large to give rise to a duty to answer a call, there is proximity once the call has been answered and the fire brigade has attended and is attempting to deal with the fire. That distinction also disposes of the defenders' submission that if they had done nothing, they would not be liable, and they should not incur greater liability by attending to fight the fire. Counsel further argued that in other cases it might be necessary to damage property in order to prevent the spread of fire. In my view, however, there would surely be no breach of duty to the owner of the property destroyed if its destruction had been a reasonable measure to take.

[65] On the question whether the imposition of the duty contended for by the pursuer would be fair, just and reasonable I respectfully accept the reasons given by the Court of Appeal in Capital & Counties for the rejection of eight grounds on which it was said not to be appropriate to impose a common law duty to take care on fire brigades. Those grounds included the insurance argument noted above, and arguments that the imposition of such a duty would be liable to discourage the defenders' due performance of their statutory duties (cf X (Minors) per Lord Browne-Wilkinson at page 739A-E). The Court, having considered each ground, said (at page 1044E-F):

"If we had found a sufficient relationship of proximity in [the third and fourth cases], we do not think that we would have found the arguments for excluding a duty of care on the ground that it would not be fair, just and reasonable convincing."

In my opinion, accordingly, if the pursuer were to establish his averments of fact, it would follow that the third element in the Caparo test would be satisfied.

 

Pragmatic and incremental development

[66] It remains to consider whether the imposition of a duty of care on the defenders would be a pragmatic step which would accord with the view that the law should develop in this area incrementally and by analogy with established categories (Caparo at pages 617G-618E). Here I shall notice the duties imposed by law on the other emergency services, that is, on the police when carrying out civil functions, and on the ambulance service.

[67] The position of the police in Scotland is apparent from Gibson v Orr 1999 SC 420, a decision by Lord Hamilton in the Outer House. There, his Lordship applied the tripartite test in Caparo and held that police officers owed a duty of care to a passenger in a car which had driven off a collapsed bridge after the police had left it unprotected by any barrier or warning. His Lordship said (at page 435D-E) that if police constables, having the function of the protection in a civil context of life and property, in furtherance of that function take control of a hazard on a public road, they are "in a sufficiently proximate relationship with road users likely to be immediately and directly affected by that hazard as is sufficient for the purposes of the existence of a duty of care to such road users." His Lordship also held (at page 437G) that in the circumstances of that case it was fair, just and reasonable to hold that a duty of care was owed by the police constables in question to persons such as the pursuer.

[68] Counsel for the defenders submitted that Gibson was distinguishable from the present case. There, the police officers had had control of the hazard: here, the fire officers had not been aware of the hazard. There, the duty was owed to a limited class: here, the duty was allegedly owed to a large class. The background of Scottish authority as to liability for the state of the roads made it easy to impose a duty on the police where they had control of the roads. Further, the present case was concerned only with damage to property, while Gibson was an action of damages for personal injuries which was concerned with a situation that presented a grave and immediate risk of death or serious injury and resulted in the death of two people and injury to the pursuer. That was an important distinction. In Stovin (at page 955A-C) Lord Hoffman had had in mind damage to property. If there had been a risk to people, and the fire officers could see the risk and had then walked away, there could be room or a duty of care, which might have been breached. Gibson was not inconsistent with the defenders' propositions: on the facts of Gibson, the same result might have been reached in England. However, counsel criticised Lord Hamilton's willingness (at page 435) to base the imposition of a common law duty of care upon the existence of a statutory duty.

[69] In my opinion the distinctions founded on are immaterial. In the present case, according to the pursuer's averments, the fire officers were in control of the investigation of the state of the pursuer's flat, and were in a position to discover the hazard if they had exerted themselves to take reasonable care to do so. I have already indicated my views that the duty contended for was not owed to a large class of people, and that in the case of a fire brigade no distinction can be drawn between the risk of injury or death and the risk of damage to property. I respectfully agree with Lord Hamilton's entire analysis. The result is that once the police take control of a hazardous situation, they owe a duty of care to those who are likely to be immediately and directly affected by the hazard.

[70] The position of ambulance services was considered in Kent v Griffiths [2000] QB 36, a decision of the Court of Appeal to which I drew attention in the course of the hearing. In that case an ambulance service accepted a 999 call from the claimant's doctor asking for an ambulance to take her to hospital immediately. They failed to arrive within a reasonable time, for no satisfactory reason. The claimant suffered a respiratory attack which probably would have been averted if they had arrived within a reasonable time. An ambulance had been available. Lord Woolf CJ said (at paragraph [49]):

"The fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance, when there was no reason why it should not be provided, is important in establishing the necessary proximity and thus duty of care in this case. In other words, as there were no circumstances which made it unfair, unreasonable or unjust that liability should exist, there is no reason why there should not be liability if the arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case established the duty of care."

The Court distinguished Capital & Counties apparently on the grounds that a fire service's obligation is to the public at large and that an ambulance service provided services of a different category from those provided by a fire service (paragraph [45]). I would respectfully suggest that an obligation to the public at large is not inconsistent with an obligation towards those likely to be immediately and directly affected by the emergency with which the service is dealing; and that it is not easy to see a clear distinction in principle between an ambulance service on the one hand, and a police or fire service on the other, once a call has been accepted and responsibility assumed for dealing with the emergency with the result that those likely to be immediately and directly affected are dependent on the efficient performance by the service of its professional skills. I therefore would not agree that an analogy between an ambulance service, on the one hand, and police and fire services on the other, should be rejected. In any event, the Court considered that there a duty of care was owed by the ambulance service in the circumstances of that case.

[71] The Court also equiparated the position of ambulance staff with those of doctors and nurses employed in the National Health Service. Lord Woolf CJ said (at paragraph [45]):

"Here what was being provided was a health service. In the case of health services under the 1977 Act [the National Health Service Act 1977] the conventional situation is that there is a duty of care. Why should the position of the ambulance staff be different from that of doctors and nurses?"

In Capital & Counties the Court said (at page 1035A-B):

"There is no doubt that once the relationship of doctor and patient or hospital authority and admitted patient exists, the doctor or the hospital owe a duty to take reasonable care to effect a cure, not merely to prevent further harm. The undertaking is to use the special skills which the doctor and hospital authorities have to treat the patient."

[72] Let it be supposed, accordingly, that a serious accident occurs to which the fire, police and ambulance services are called. All attend, the ambulance staff being accompanied by doctors and nurses employed in the National Health Service, and all go into action in their respective spheres of responsibility. It is difficult to see why the fire service should not owe a duty of care to those whose lives and property are at risk, while the police and ambulance services, and the doctors and nurses, all owe a comparable duty. That would mean that one of the public rescue services who responded to a call to an emergency had no duty of care towards a member of the public who was dependent upon them for the preservation of his or her life, health or property. It seems preferable to adopt the pragmatic and incremental solution of applying to the fire service the duty of care owed in such circumstances by the other emergency services. In the cases of the other services, it is clear that those employed by the relevant statutory authority to exercise a particular skill or profession as part of the fulfilment of the authority's statutory duty may owe a duty of care in the exercise of their skill or profession to people who it can be foreseen will be injured or will suffer damage to their property if due skill and care are not exercised; and if the duty of care is broken and injury or damage is shown to have resulted, the authority is vicariously liable. In my opinion the same must be true of the fire service.

 

Conclusion

[73] I have therefore reached the view that, in the circumstances averred by the pursuer, the defenders, having responded to a call to the fire in Flat 2R, owed to the pursuer a common law duty of care not only to take all reasonable steps to extinguish that fire but also to take all reasonable steps by way of the measures averred to establish whether circumstances existed which, if not eliminated, constituted a risk either of a re-ignition of the fire in, or of its extension to, the pursuer's flat above. Those duties to the pursuer arose from the fact that it was reasonably foreseeable that the pursuer's flat and its contents would be exposed to the immediate and direct hazard of the spread of the fire from Flat 2R; and from the proximity of the relationship between the pursuer, as the owner of his flat, and the defenders' firefighters who, in the exercise of their skills in the course of carrying out the defenders' statutory functions, forced entry to it in order to check that the fire had not spread upwards to it and would not be a source of any damage to it. In these circumstances it is in my opinion fair, just and reasonable to treat the firefighters, for whose conduct the defenders are vicariously liable, as subject to the common law duties of care averred by the pursuer.

 

Other cases

[74] Lest it be thought that I have overlooked them, I refer to the other cases cited in argument which I have not discussed in this Opinion. Kilboy v South Eastern Fire Area Joint Committee 1952 SC 280, was concerned with the question whether a fire authority was vicariously responsible for the negligence of members of the brigade when on duty, and not with whether the defenders owed any duty of care to the pursuer. OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 is an application of the decision in Capital & Counties. Like Lord Hamilton in Gibson (at page 437F-G), I respectfully disagree with the dicta in Forbes v City of Dundee District Council 1997 SLT 1330 relative to the third element of the Caparo test. Counsel were agreed that Sutradhar v Natural Environment Research Council [2006] UKHL 33, [2006] 4 All ER 490, which I mentioned during the hearing, and McCafferty v Secretary of State for Scotland 1998 SCLR 379 did not help to resolve the issues in the present case.

 

Proof before answer

[75] It follows from the foregoing discussion that I am unable to affirm that the pursuer's action would necessarily fail even if all his averments were proved. It rather appears to me that if these averments are proved, it will follow that the defenders owed the pursuer a duty of care which extended to the duties averred, and was not restricted to a duty not to make the situation more dangerous by some positive act. As to whether the inquiry should be by way of proof or proof before answer, I am aware that it has been said that in reaching a decision of this kind there should be "a detailed examination of all the relevant circumstances" (Caparo, per Lord Bridge of Harwich at page 618B-C). In the present case, however, the scope of the inquiry will be determined by the averments in the closed record, and the defenders do not state any objection to any lack of specification in the pursuer's averments relating to the merits of the action. The defenders argued strongly for dismissal, and their subsidiary motion for a proof before answer was not supported by any separate argument as to facts and circumstances which might emerge at inquiry, other than a reference to the pursuer's averment, in his condescendence relating to damages, that he had suffered substantial inconvenience in consequence of the damage to his flat and the destruction of its contents. That averment was said to be of doubtful relevancy and lacking in specification. On that ground alone I shall allow inquiry by way of proof before answer.

 

Result

[76] I shall accordingly repel of consent the pursuer's third plea-in-law which, as I have noted in paragraph 9, is not insisted in. Quoad ultra I shall allow a proof before answer.

 

 


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_03.html