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Scottish fire brigade not liable for damages when fire re-started, court rules


Strathclyde Fire Board was not liable in damages when a fire that was believed to have been extinguished re-ignited and burned down a farmhouse in Dunbartonshire, Scotland's highest appeal court has ruled.

The decision by the Inner House of the Court of Session effectively overturns three previous Scottish cases involving fire and rescue bodies by the lower court, the Outer House of the Court of Session. It also follows a line of argument adopted by the Supreme Court last year, in a case in which the family of a murder victim attempted to sue the chief constables of Gwent and South Wales Police for negligence.

Commercial litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that the decision considered major issues about the liabilities of public authorities and would therefore be of interest to a wide range of businesses and property owners.

"On a narrow basis, it is a clear discouragement to anybody who may think that the poor performance of police or fire services, causing them loss, should lead to a claim for damages," he said. "Within public authorities' core areas it seems clear that there will be no liability unless they add a new hazard or make matters worse than not turning up at all."

"On a wider basis, the decision is part of a trend which seems to discourage all who think that failings by public authorities exercising statutory functions should lead to liability. Particularly with its emphasis on very restricted circumstances in which liability will arise for omissions and the stress on policy, such claims may often prove much more challenging," he said.

The owners of the farmhouse in this case had attempted to argue that the fire brigade owed them a duty of care after it attended the property to extinguish a fire involving the Rayburn stove in the farmhouse kitchen. The fire re-ignited in the early hours of the following morning, which the owners claimed occurred as a result of smouldering rotten timbers in the roof space. The owners argued that the fire fighters should have used a thermal imaging camera to ensure the fire was fully extinguished, and should have maintained a regular check on the property.

All three Inner House judges agreed with lawyers for the fire brigade, who argued that although it owed a duty of care to "the public at large, including [the farmhouse owners]", this was merely a duty "to take reasonable care not to make things worse, in other words not to inflict a fresh injury". The House of Lords, as predecessor to the Supreme Court, had previously held that the fire service was not liable in damages if it failed to attend a fire, so it would be "unprincipled" to suggest it would be liable if it had attempted to extinguish the fire, the fire brigade's lawyers said.

In her leading judgment, Lady Paton said that although Strathclyde Fire Board had been given "certain statutory powers to enable them to deal with fires, floods, road traffic accidents and other emergencies", it did not owe the sort of statutory duty to private individuals that would give rise to a private claim for damages.

"It is my opinion that the carefully developed, policy-based, more restrictive approach currently approved and adopted by the Supreme Court must be followed by the Scottish courts," she said.

"The suggestion that the fire service have voluntarily 'assumed responsibility' on the basis of answering a 999 call or attending the scene of a fire or taking steps to extinguish a fire or to save lives or property is, in my opinion, inaccurate. Those actions represent, in my opinion, the fire service carrying out their statutory functions and public duty ... In so doing, the fire service are not, in my opinion, carrying out acts or entering into relationships or undertaking responsibilities 'giving rise to a duty of care on an orthodox common law foundation'," she said.

Her decision was also based on public policy considerations, and the fact that "it would be unfortunate if a defensive approach were to be adopted by the fire service as a result of an appreciation that their efforts might be followed by actions for damages", she said. It was also relevant that Scots law contained "no general duty to rescue", she said.

"In this case, there are no averments that [Strathclyde Fire Board] made matters worse or that they inflicted a fresh injury when they arrived at and dealt with the fire at the farmhouse," she said. "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 farmhouse owners] on the fire service. In the result, I am persuaded that [the owners' case] will necessarily fail even if all [their] averments are proved - in other words, that the case as pled is irrelevant," she said.

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