Fire brigade duty of care upheld

Court allows proof in damages claim based on failure to ensure fire put out

News, 10 January 2007

Firefighters may owe a duty of care to a property owner to ensure that a fire they tackled has been properly put out, even if in an adjoining property.

Lord Macphail in the Court of Session yesterday ruled that previous Scottish cases support such a rule even though a decision of the Court of Appeal in England appeared to be against it.

Before him was an action by Derek Burnett against Grampian Fire and Rescue Service. In 2000 Mr Burnett was the owner of a third floor flat in a tenement in Aberdeen when the flat directly below his went on fire. The brigade attended and appeared to put out the fire. They forced entry to Mr Burnett's flat as he was out, to check that the fire had not speread upwards, and observed smoke damage.

Mr Burnett claimed that they failed to make a proper search for traces of fire or possible causes of re-ignition. The following day fire broke out again and his flat was extensively damaged.

The fire service argued that the action should be dismissed, as no duty of care was owed by a fire brigade in answering a call or in fighting a fire, except where some additional danger is created by the brigade's own negligence. This was held in the English case of Capital & Counties plc v Hampshire County Council, and Scots law was the same.

Lord Macphail first of all rejected an argument for the defenders that the action was irrelevant because it concerned alleged omissions. He also noted that the case was brought at common law, despite the existence of statutory duties on the brigade: Mr Burnett's case was "that the alleged carelessness arose from the practical manner in which the acts done were performed".

No sound foundation

Turning to Capital & Counties, Lord Macphail commented: "I regret that I am unable to regard it as representing the law of Scotland." Its reasoning was unclear, and it was "difficult to discern a sound foundation in principle" for the point at which it tried to draw the line of liability.

Lord Macphail observed that if the firefighters were not assuming a responsibility to Mr Burnett, it was difficult to understand why they were in his flat. "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."

Considering the other emergency services, he added: "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."

He therefore allowed Mr Burnett's case to go to proof.

Lord Macphail's decision can be read at http://www.scotcourts.gov.uk/opinions/2007CSOH3.html .