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

A fire brigade attended several fires. It was held they owe no general duty of care to extinguish a fire or attend an emergency. However, they are liable for making a fire worse through a positive negligent act, such as turning off a sprinkler system.

Facts

This Court of Appeal judgment concerned three conjoined appeals testing the extent of a fire brigade’s duty of care in negligence when attending fires.

Capital and Counties Plc v. Hampshire County Council

A fire broke out in the plaintiffs’ commercial premises, which were equipped with a sprinkler system. The fire brigade attended and the Chief Fire Officer ordered that the sprinkler system be turned off. The evidence suggested that turning off the sprinklers caused the fire, which had been contained, to spread and destroy the building. The trial judge found the defendant Council liable in negligence.

Church of Jesus Christ of Latter Day Saints v. West Yorkshire Fire and Civil Defence Authority

The fire brigade attended a fire at the plaintiffs’ church hall. It was alleged that the brigade failed to ensure an adequate supply of water was available to fight the fire, allowing it to destroy the building and an adjoining chapel. The plaintiffs’ claim was struck out by the Master as disclosing no cause of action.

John Munro (Acrylic Sprayers) Ltd v. London Fire and Civil Defence Authority

A fire broke out in industrial premises near the plaintiffs’ property. The fire brigade attended but allegedly failed to inspect the surrounding premises for fire spread. As a result, smouldering debris from the initial fire caused a secondary fire that destroyed the plaintiffs’ building. This claim was also struck out as disclosing no cause of action.

Issues

The central legal issue across all three appeals was whether a fire brigade owes a duty of care in negligence to the owner of a property that is on fire. Specifically, the court considered:

1. Whether a duty of care arises when a fire brigade responds to an emergency call.
2. Whether a distinction exists between an omission (failing to fight a fire effectively) and a positive act (making the situation worse).
3. Whether it is fair, just, and reasonable to impose a duty of care on a fire service for its operational conduct at the scene of a fire.

Judgment

The Court of Appeal, in a leading judgment by Stuart-Smith LJ, held that there is no general common law duty on a fire brigade to answer a call for help or to take care to do so. The Judge reviewed the statutory powers of a fire brigade under the Fire Services Act 1947, concluding they were not the source of a private law duty of care. The core of the judgment rested on common law principles of negligence and public policy, applying the three-stage test from Caparo Industries Plc v Dickman.

Stuart-Smith LJ stated that policy considerations militated against imposing a duty of care for merely attending and fighting a fire. Such a duty could lead to defensive practices and divert resources from firefighting to litigation. He articulated the general principle of non-liability for omissions:

In my judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.

However, the court drew a crucial distinction between an omission (failing to confer a benefit) and a positive act that makes the situation worse. Where a brigade’s intervention actively causes harm or exacerbates the danger, a duty of care arises. Stuart-Smith LJ explained:

But where the rescue/protective service itself by negligence creates the danger which caused the plaintiff’s injury, there is no reason to give the volunteer a blanket immunity from suit… The same is true if the rescuer, not creating the danger, but carelessly fails to deal with it and so makes it worse.

Applying this principle to the three appeals:

Hampshire Appeal

The act of turning off the sprinkler system was a positive act that made the fire worse. The sprinkler system was containing the fire, and its deactivation directly led to the building’s destruction. This was not a mere failure to help, but an affirmative act of negligence. Therefore, the fire brigade was liable. The Council’s appeal was dismissed.

West Yorkshire and London Fire Appeals

In both of these cases, the alleged negligence was a failure to act effectively—failing to secure an adequate water supply and failing to inspect neighbouring premises. These were categorised as omissions or failures to confer a benefit (i.e., the benefit of a successfully extinguished fire). The brigade did not create the fire or make the situation worse than it would have been had they not attended at all. It was not fair, just, and reasonable to impose a duty of care in these circumstances. The appeals against the strike-out orders were therefore dismissed.

Implications

This case is a landmark authority on the liability of emergency services in the UK. It establishes that while fire brigades (and by extension, other emergency services) do not owe a general duty of care to attend or resolve an emergency, they do owe a duty not to cause further harm or make the situation worse through a positive act of negligence. The decision balances the public interest in allowing emergency services to operate without fear of litigation for every operational decision against the private right to compensation where an individual is harmed by a direct, positive negligent act. It clarifies the application of the ‘fair, just and reasonable’ test for public bodies engaged in protective services.

Verdict: In the Hampshire County Council appeal, the appeal was dismissed and liability against the fire brigade was upheld. In the West Yorkshire and London Fire Authority appeals, the appeals were dismissed, confirming that the claims against the fire brigades were correctly struck out and they were not liable.

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