Capital & Counties Plc v Hampshire County Council [1997] EWCA Civ 3091 (14 March 1997)

Fire brigades attended fires at various premises. In the Hampshire case, a fire officer negligently turned off sprinklers, causing greater fire damage. The Court of Appeal held fire brigades owe no general duty of care when attending fires, but are liable if their positive acts create or increase danger.

Facts

This appeal consolidated three cases concerning the liability of fire brigades for negligence. In the Hampshire case, a fire broke out at the Crescent in Basingstoke, a modern building with automatic sprinklers. Station Officer Mitchell ordered the sprinklers turned off before the fire was located, causing the fire to spread and destroy the building. In the London Fire Brigade case, debris from a deliberate explosion fell onto the plaintiff’s premises; the fire brigade attended but left without inspecting the premises, and a fire later broke out. In the West Yorkshire case, a fire at a chapel could not be effectively fought due to defective hydrants which had not been properly maintained.

Issues

Primary Legal Questions

1. Whether fire brigades owe a common law duty of care to property owners when attending fires.

2. Whether such a duty arises from assuming responsibility once the brigade arrives at the fire ground.

3. Whether Section 13 of the Fire Services Act 1947 creates a private right of action for breach of statutory duty.

4. Whether public policy considerations exclude liability.

Judgment

No General Duty to Attend

The Court held that fire brigades are not under a common law duty to answer emergency calls or take care in doing so. Following Alexandrou v Oxford, there is no sufficient proximity merely because an emergency call is made.

No Duty Once Attending

The Court rejected the argument that fire brigades assume a duty of care by attending fires and taking control of operations. The assumption of responsibility doctrine from Henderson v Merrett does not apply because the fire brigade’s duty is owed to the public at large, not individual property owners.

Liability for Creating Danger

However, where a fire brigade by positive negligent act creates or increases the danger, liability arises. In the Hampshire case, Station Officer Mitchell’s act of turning off the sprinklers was a positive act that substantially increased the risk and caused additional damage. This distinguished the case from East Suffolk Rivers Catchment Board v Kent, where the authority merely failed to prevent damage rather than creating fresh danger.

Statutory Duty

Section 13 of the Fire Services Act 1947 does not create a private right of action. It is a general administrative duty for the benefit of the public at large, not a limited and specific duty for a particular class.

Public Policy

The Court found that arguments for excluding liability on policy grounds were not persuasive. Fire brigades do not enjoy blanket immunity, and the analogy with police immunity for investigating crime is not close.

Implications

This case establishes that while fire brigades owe no general duty of care to property owners merely by attending fires, they will be liable if their positive acts create or increase danger. The distinction between misfeasance (creating danger) and non-feasance (failing to prevent damage) is critical. The case confirms that emergency services generally have no duty to respond to calls, but once they intervene, they must not make matters worse through positive negligent acts. The decision aligns fire brigade liability with general principles applicable to rescue services whilst recognising the unique statutory framework governing fire-fighting operations.

Verdict: The Hampshire County Council's appeal was dismissed; the fire authority was held liable for the negligent act of turning off the sprinklers which caused additional damage. The appeals in the London Fire Brigade case and West Yorkshire case were also dismissed, but on the basis that no duty of care existed in those circumstances.

Source: Capital & Counties Plc v Hampshire County Council [1997] EWCA Civ 3091 (14 March 1997)