Man injured by falling ice fails in damages action against Scottish Fire and Rescue Service

Lord McEwan held that that the Scottish Fire and Rescue Service, which had been working to remove snow and ice from the properties during the severe winter of 2010, were not under a “duty of care” and that to find them responsible would “open the floodgates”.

The pursuer John Mackay sought reparation from the defenders for injuries sustained as he was walking home on a street in Dundee on 8 December 2010 when snow, ice and metal fell from a roof and struck him.

The court heard that freezing temperatures allowed ice to build up on the facade of the houses numbered 206 to 210 with snow and ice also on the roof of the tenement building.

The defenders inspected the properties to establish the risk of injury and damage posed by the ice and snow and then “carried out removal of areas of ice and snow from the roof and façade areas”.

It was alleged that the following day the pursuer was walking on the pavement in front of 208 towards his home at 210 when ice and guttering fell on to him.

The pursuer claimed that the defenders were in “breach of their duty of care” to identify the hazard, make an adequate inspection, then remove any ice and snow presenting a risk.

It was argued that the facts of case showed an “operational activity” and there was “no good reason why a duty of care should not be imposed” on the defenders.

However, the defenders said that under the provisions of the relevant statute, the Fire (Scotland) Act 2005, the fire and rescue service could only act under the powers conferred on them by statute and that in the context of what happened what was involved was “a power not a duty”.

Because the defenders were not fighting a fire, they had no duty to act and if they had refused or been unable to act, no liability could have attached to them. If they did act they would only be liable if they made things worse, it was submitted.

The defenders did not make it worse and the pursuer was injured a day later when they were not there, therefore there was “no proximity or relationship between the parties”.

The judge observed that none of the cases cited to him was “sufficiently in point” to persuade him to allow a proof before answer.

In a written opinion, Lord McEwan said: “In my view the present case admits of only one answer on a matter of relevancy even when foreseeability is conceded. In the first place the first defenders were not performing any statutory duty to which it might have been easy to attach a common law duty. They were acting under statutory powers only. It is perfectly correct to observe that these powers give no exemption from liability.

“However, the operation concerned was not fire fighting nor was it routine. It was undertaken at a time of severe weather when the operation of nature and temperature must have affected matters. These factors alone distinguish it from the cases cited most of which are wholly different on their facts and involve different types of public authorities.

“It is also important to note that neither defender caused the problem nor is it or could it be said they made it worse. Had any of these things been the case it would be easy to see where duties could arise.

“I am also of the view that there is no proximity here or assumption of responsibility. There was a day of delay before anything happened and at a time when neither defender was present. In that situation to find a duty of care would open the floodgates to almost unlimited liability to an indeterminate class of people. Any member of the public might have been in the street at that time.

“I have already said that in a case like this any extension of duties of care should be incremental and clearly justified on the decided cases. There is no one single formula to arrive at the Caparo tests. For these reasons I will dismiss the action.”