Appeal judges pour cold water on claim that fire service was liable in damages for failing to extinguish blaze

The pursuers argued that the fire brigade was liable in damages because the fire re-ignited after it had apparently been extinguished, but judges in the Inner House of the Court of Session ruled that the case, as pled, was “irrelevant” and should be dismissed.

Lady Paton, Lady Dorrian and Lord Drummond Young heard that the first pursuer AJ Allan (Blairnyle) Limited sought to recover damages on the basis of alleged negligence on the part of the defenders Strathclyde Fire Board.

The court was told that the first pursuer owned a farmhouse at Gartocharn, Alexandria, Dunbartonshire and the second pursuer, a director of the company, lived in a caravan but used the farmhouse kitchen.

On 31 October 2008, there was a fire involving the Rayburn stove in the kitchen and a chimney. The second pursuer called the fire brigade.

Firefighters arrived at the scene and after apparently extinguishing the blaze they left at about 3pm.

Subsequently however, in the early hours of the following morning the fire re‑ignited and the farmhouse burned down.

The pursuers averred that the fire re-ignited as a result of smouldering rotten timbers in the roof space.

It was averred that once the fire appeared to be extinguished, the fire fighters should have used a thermal imaging camera to locate any questionable areas.

Further, it was averred that the fire fighters should have maintained a regular check on the farmhouse to make sure that the fire was truly extinguished.

In September 2014, Lord Brailsford allowed a proof before answer, although the interlocutor of that date repelled the defenders’ preliminary pleas, prompting the defenders to lodge an appeal.

Senior counsel for the defenders submitted that while the fire service owed a duty of care to the public at large, including the pursuers, the scope of that duty was “restricted”, in that it was “a duty to take reasonable care not to make things worse”, in other words not to inflict a fresh injury.

As the fire service were not liable in damages if they failed to attend a fire, it would be “unprincipled” to suggest that a fire service which attended and sought to extinguish a fire could be liable in damages.

Counsel for the pursuers submitted that their case was based on ordinary principles of common law negligence, and was of the type described by Lord Hoffmann in the 2004 English case of Gorringe v Calderdale Metropolitan Borough Council, namely a case where the fire service had “actually done acts or entered into relationships or undertaken responsibilities which rise to a common law duty of care”.

What was criticised in the present case was the manner in which the fire service’s statutory duty was performed and it was argued that the facts as averred were sufficient to disclose an “assumption of responsibility” and a “relationship of proximity” between the pursuers and the defenders.

The case was “entirely in point” with the 2007 Outer House decision in Burnett v Grampian Fire and Rescue Services, which was “correctly decided”, and further support for the pursuers could be found in the 1995 case of Duff v Highlands and Islands Fire Board, it was submitted.

Moreover, the pursuers said the 1999 case of Gibson v Orr constituted a major problem for the defenders: if a duty of care was owed by the police, it was “inconceivable” that a duty of care was not owed by the fire service in the present case.

Therefore, on the basis of Burnett and Gibson, and to a lesser extent Duff, it was argued that the pursuers had pled a relevant case and were entitled to a proof, rather than a proof before answer.

Allowing the reclaiming motion Lady Paton – with whom both Lady Dorrian and Lord Drummond Young agreed – held that while the fire service owed a duty of care to the general public, including the pursuers in the present case, “that duty was to take care not negligently to add to the damage which the pursuers would have suffered if the fire service had done nothing”.

Accordingly, it followed that the court required to “disapprove” of the Scottish authorities of Duff, Gibson, and Burnett.

In a written opinion, Lady Paton said: “In this case, there are no averments that the defenders made matters worse or that they inflicted a fresh injury when they arrived at and dealt with the fire at the farmhouse. Nor are there any averments of circumstances which could, in my view, properly be categorised as an assumption of responsibility giving rise to a common law duty to exercise reasonable care.

“Further it seems to me that it would not be fair, just or reasonable to impose a duty of care of the scope contended for by the pursuers on the fire service. In the result, I am persuaded that the pursuers’ case will necessarily fail even if all the pursuers’ averments are proved – in other words, that the case as pled is irrelevant.”