On 7 May 2015 Lord McEwan’s Opinion was issued in the case of John Mackay v Scottish Fire and Rescue Service and Dundee City Council 2015 CSOH 55 where Reid Cooper represented the Fire Service.

Following a legal argument in the Court of Session Lord McEwan reserved his decision and has now issued it in writing, dismissing the Action as raised against the Scottish Fire and Rescue Service (and Dundee City Council).

The Pursuer, on 9 December 2010, was walking on the pavement in front of 208 Strathmartine Road, Dundee, when a combination of snow, ice and guttering fell from the roof and struck him, causing injury.  He stayed at 210.

In December 2010 there were extreme weather conditions.  On 8 December there was a substantial build-up of ice and snow, at least from 206 to 210.  Neither the Fire Service nor the City Council owned any of these tenement buildings.

The City Council appreciated there was a potential hazard to members of the public.  They did not have the necessary equipment to attempt to remove any snow and ice and accordingly the Fire Service attended on 8 December and removed snow and ice from at least 206.

The averments for the Fire Service and the City Council were to the effect that during the day snow was melting but was freezing again at night.

The duty of care pled by the Pursuer on the Defenders was that having undertaken work to remove snow and ice that posed a material risk to the safety of members of the public, they didn’t do so properly.  They failed to remove all the snow and ice that presented a material risk.

The argument on behalf of the Fire Service was to the effect that they could only act under the powers conferred on them by Statute, that being the Fire (Scotland) Act 2005.  In this particular case the Fire Service were exercising a “power”, not carrying out a duty.  They were not fighting a fire.  They had no duty to act at all 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 matters worse, which they had not done.

The submissions on behalf of the Fire Service contained a detailed analysis of the law in both Scotland and England.  There was reference to East Suffolk Rivers Catchment Board v Kent 1941 AC 74 where the Lord Chancellor had taken the view there was no duty to go on to a roof at all and it was “counter intuitive” to make the Defenders liable for attempting to help.

Counsel for the Fire Service, Roddy Dunlop QC went on to distinguish two Scottish cases which appeared to contradict the position in East Suffolk.  These two cases were Burnett v Grampian Fire and Rescue Service 2007 SLT 61 and A J Allan (Blairnyle) Limited v Strathclyde Fire Board 2014 CSOH 139 (with the Allan case being currently under Appeal as at May 2015).

The Pursuer argued that the case should be allowed to go to a Proof Before Answer (a hearing of the evidence being necessary before the legal points could be answered).  The contention was that the Pursuer’s case was simply one of common law negligence, that foreseeability had been conceded and that proximity was simply anyone on the street when the Fire Service were present on 8 December.

A further argument was put forward to the effect that common law claims could be admitted against a statutory body.

In his Opinion Lord McEwan considered the significant number of authorities cited to him but pointed out it was difficult to reach a conclusion by analogy because the facts of the various cases differed.

The statutory duties similarly differed and in the current case there was no statutory duty on the Fire Service or the City Council.  He did not consider that any of the other statutes referred to led him to any contrary conclusion.

He did make the point that it could be said that the statutory powers given did not expressly exclude claims.  The 2005 Act did not say “no action shall lie”.

In the current case he said there was no case precisely on point and many of the older cases were against the background of roads and other construction at the time of the industrial revolution.

He said the Defenders were arguing against a broad extension of delictual liability against a Fire Brigade who, at the material time, were not fighting a fire.

In his view extensions of liability on this area “ought to be incremental on Caparo tests” otherwise there was a risk of “indeterminate” liability.  He pointed out that no common formula had been found to indicate the nature of any extension as noted in the Supreme Court case of Michael v Chief Constable of South Wales Police 2015 2WLR 343.  The majority of the Supreme Court had held that the Police had a duty to the public at large and not to a family in relation to any harm caused by a third party for whom “the State” was not responsible.

Lord McEwan also noted that the majority in Michael had “cast no doubt on the soundness of East Suffolk or of Capital and Counties.”

He then went on to refer to two Scottish cases, including Burnett, said that they hadn’t attracted the approval of the Supreme Court and sat uneasily with Mitchell.  (Mitchell v Glasgow City Council 2009 SC(HL) 21).  He referred to Lord Hope in Mitchell stating that negligence had developed on common lines in Scotland and England.

He took the view that he did not consider the East Suffolk principle was wrong.  It had been approved in Michael by the Supreme Court and he expressed the view it would be unfortunate if Scots Law in this area of powers and duties were to develop in a different way.

He then summed up by saying “Also, Michael is a clear break on the creeping extension of liability on public bodies unless clearly justified on the facts of the case and binding authorities.  I have the greatest respect for all the Outer House cases cited to me but in the end of the day none is sufficiently on point to persuade me to allow any Proof Before Answer.”

He went on to say in the current case there was only one answer on relevancy, even with foreseeability conceded.  The Fire Service weren’t performing any statutory duty to which it was easy to attach a common law duty.  They were acting under statutory powers only although it was true to say these powers didn’t give any exemption from liability.  The operation concerned was not firefighting and it wasn’t routine.  It was being done in a period of severe weather.  The circumstances distinguished it from many of the cited cases which were completely different on their facts and involved different types of public authorities.

Finally he said that there was no proximity or assumption of responsibility.  The accident happened the next day and neither of the Defenders 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.”

He dismissed the Action as irrelevant.

This Decision is of considerable significance.  At this point in time (May 2015) the Outer House Decision in Allan v Strathclyde Fire Board (above) is on Appeal before the Inner House of the Court of Session (The Scottish Appeal Court).

Allan did involve a Fire Service and firefighting duties but the Fire Service argument in the Allan case is on similar although not identical lines.

As Lord McEwan said, to extend duty of care to cover the circumstances in the present case would be “to open the floodgates”. The Fire Service in exercising a power which carried no ostensible duty and carrying out an operation which did not make a situation worse, would become liable simply because something happened after their attendance.

Further, if such a duty did exist, were they then obliged to attempt to clear every roof in Dundee and Tayside in case snow and ice fell and injured someone?

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