CLARK FIXING LIMITED DUDLEY SECTION BENDERS LIMITED v DUDLEY METROPOLITAN BOROUGH COUNCIL [2001] EWCA Civ 1898

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, BIRMINGHAM DISTRICT REGISTRY
(Her Honour Judge Alton)
[2001] EWCA Civ 1898Case No Case No: A3/2000/3051/QBCMFVenue Royal Courts of Justice, Strand,, London, WC2A 2LL, Wednesday 12th December 2001
Between
CLARK FIXING LIMITED DUDLEY SECTION BENDERS LIMITEDRespondentsDUDLEY METROPOLITAN BOROUGH COUNCILAppellant
Before
Lord Justice HenryLord Justice Robert WalkerLord Justice RixM D de Navarro Esq, QC & G Eklund Esq(instructed by Messrs Wragge & Co for the Appellant)J Powell Esq, QC & H Evans Esq(instructed by Messrs Ferdinand Kelly for the Respondents)Date 12 December 2001

LORD JUSTICE HENRY:

This

[1]is the judgment of the Court. This is an appeal by Dudley Metropolitan Borough Council ("the council") from the order of Her Honour Judge Alton, who by her judgment on a preliminary issue on liability and causation gave the claimants judgment, with damages to be assessed, for the negligent failure of the council to prevent the spread of fire (by the mechanism of a shared timber roof) from their premises to those of the two claimants, which were virtually gutted as a result. Introduction[2]In the early 1990s, the council decided to construct a new town bypass, and for that purpose commenced the process of compulsorily acquiring the land. Some of this land was on an industrial estate at Peartree Lane in Dudley. There the council had acquired premises which the previous owners, Need Steels Limited, initially held over on licence until they vacated the premises in August 1995, after which they stood empty, but owned by the council. Adjoining those premises were two premises belonging respectively to the two claimants, each of whom occupied a metal fabrication factory there. The unifying factor over those three premises was a "Belfast roof" which covered all or part of each of the four premises. This was a curved timber-constructed roof, comprising a lattice work of timber supports supporting a timber lining, covered by bituminous felt. The likelihood was that the premises covered by the Belfast roof had originally been designed to be occupied by one occupant only. The roof itself was readily combustible.[3]When Need Steels ceased to occupy their premises they were left empty. Trespassers frequently entered those premises and various fires were started there. On 19 May 1996 one such fire ignited a timber sectional, portacabin-type building (described in more detail below) which had been used by Need Steels as an office and left behind by them in their factory unit. Once this structure had caught fire, the fire quickly spread to the Belfast roof, and all the premises wholly or partly covered by that roof were burnt out. The damage done is put at roughly £5 million. The claimants brought these proceedings to recover that damage. The judge, Her Honour Judge Alton, tried the issue of liability as a preliminary point. That issue of liability ultimately turned on a narrow point, namely whether the council should have identified the timber sectional building as a fire hazard, and specifically as a route for the spread of fire to the roof, thence to the adjoining properties, it being common ground that that was indeed the mechanism by which the fire spread. The judge found for the claimants, and the council now appeal. The Law[4]It is desirable to start with the law, even though there is ultimately no dispute as to the principles to be applied: as we will see, this is essentially an appeal on fact, with all the difficulties that the appellant faces in such an appeal.[5]The judge based herself firmly on Smith -v- Littlewoods Organisation Limited [1987] 1 AC 241. There the defendant purchased a cinema building with the intention of demolishing it and replacing it with a supermarket. After some initial work had been done, the cinema lay empty and unattended. The security of the building was from time to time breached by children, with attendant vandalism. There had been two attempts by trespassers to start fires, one in an adjoining close, one in the cinema itself. Then a fire was deliberately started in the cinema by children or teenagers, and that fire spread to damage neighbouring property (a café, a billiard hall and church) owned by the pursuers. The Lord Ordinary held that the lighting of a fire in the cinema by young trespassers was reasonably foreseeable, but on review the pursuers accepted that the defenders had had no knowledge of the previous attempts to start fires, so the appeal to the Inner House was allowed. The pursuers in their turn appealed, but their appeal was dismissed. We quote from the headnote:
" Held , dismissing the appeals, that whether an occupier of property owed a duty of care to adjoining occupiers in respect of acts of trespass on his property resulting in damage to adjoining properties depended on all the circumstances of the case and on socially accepted standards of behaviour; that cases in which such a duty would exist were likely to be rare; and that, since the defenders had not known of previous acts of vandalism in their cinema involving fire and since the cinema had not otherwise presented an obvious fire risk, the defenders had not been under any duty to the pursuers to anticipate the possibility of the cinema being set on fire by vandals by keeping the premises lockfast or otherwise taking steps to prevent their entry."
[6]Though the law ultimately was non-controversial, Mr Powell QC for the claimants originally put forward a novel and wide proposition summarised by

the judge at page 2 of her judgment:

"That there was a general duty, particularly upon those who use compulsory purchase powers to acquire properties for development purposes (which in turn creates a blight upon the area affected thus heightening the risk of vandalism burglary arson and the like as part of the 'spiral of decay' to which void properties are susceptible) to carry out a proper risk assessment by an appropriately qualified person of the properties so acquired and that had this been done by the defendant then the risks posed by the timber sectional building would or should have been readily recognised and eliminated either by rendering the property fully secure or at least by the simple expedient of dismantling and removing that structure at very modest cost; ..."
[7]This the judge rejected (judgment p 14) as such a duty would represent "... a very substantial extension of [the] categories of case in which such a duty has been held to arise but also a very substantial broadening of the responsibilities of persons for their property well beyond that envisaged by their Lordships in Smith . Indeed, as Mr Navarro [for the council] was to argue, recognition of the existence of such a wide and pro-active duty would be to disregard wholly the basis of their Lordships' decision in Smith. After all, were such a duty to be imposed on larger organisations quite simply as a consequence of acquisition of a void building then it would have been unnecessary for their Lordships' to examine the evidence in detail which they did in order to determine the extent to which Littlewoods actually knew or ought to have recognised that their property constituted a danger to adjoining properties by reason of third party intrusion and the setting of fire. It would, furthermore, lead to duties and hence liabilities being imposed upon owners of void properties - and particularly upon local authorities exercising compulsory purchase powers - as the norm rather than as something arising 'very rarely' (Lord Goff at page 274) or '... only in extreme circumstances ...' (Lord Griffiths at page 251C)."[8]Mr Powell initially sought to revive this proposition in his Respondent's Notice, but in the event he did not rely on the point before us. Accordingly the point need not detain us further.[9]Mr Powell succeeded on his second and narrower proposition of law, which

the judge accepted and set out in her judgment (page 14):

"Following the approach of the House of Lords in Smith I conclude that the imposition of a duty in relation to the unlawful acts of others must be based upon knowledge or means of knowledge of the relevant facts to include foreseeability, based on that knowledge, of the particular risk or risks being created on the property of damage to its neighbour. Obviously the risk foreseen must be a real one warranting the taking of such commensurate steps as are open to the property owner rather than some remote possibility in which event to impose a duty requiring the taking of steps may be unreasonable and disproportionate."
[10]As that quotation makes clear, the claimants relied on the law as set out by Lord Goff in Smith (above) at page 274 below D:
"There is another basis upon which a defender may be held liable for damage to a neighbour's property caused by a fire started on his (the defender's) property by the deliberate wrongdoing of a third party. This arises where he had knowledge or means of knowledge that a third party has created or is creating a risk of fire, or indeed has started a fire, on his premises, and then fails to take such steps as are reasonably open to him (in the limited sense explained by Lord Wilberforce in Goldman -v- Hargrave [1967] 1 AC 645 , 663-664) to prevent any such fire from damaging neighbouring property. If, for example, an occupier of property has knowledge, or means of knowledge, that intruders are in the habit of trespassing upon his property and starting fires there, thereby creating a risk that fire may spread to and damage neighbouring property, a duty to take reasonable steps to prevent such damage may be held to fall upon him. He could, for example, take reasonable steps to keep intruders out. He could also inform the police; or he could warn his neighbours and invite their assistance. If the defender is a person of substantial means, for example a large public company, he might even be expected to employ some agency to keep a watch on the premises. What is reasonably required would, of course, depend on the particular facts of the case."
[11]We now turn to the facts in detail, to answer the first two questions that the judge considered, namely: a) Precisely what was the prior history of intrusion and fires at the Need Steels property after it had been left unoccupied but owned by the council? b) To what extent was the council actually aware of such intrusion and fires?[12]We have seen that Need Steels vacated their premises in August 1995. It was left virtually empty. But in the older part of the premises under the Belfast roof, Need Steels had left behind a large timber sectional building which was approximately twice as long as a portacabin, stood approximately nine feet high (an eight feet high structure standing on one foot high blocks) and was 20 feet deep. Need Steels had used this timber structure as an office, and on moving out had no further need or use for it. It could easily and cheaply have been dismantled and moved. Certainly the council had no use for it. Apart from the timber sectional building there was a certain amount of rubbish (combustible and non-combustible) left behind and, more relevantly, electric copper cabling which was channelled into or attached to the walls and floor. All services were cut off.[13]The Need Steels premises were alongside a redundant railway track. Its fence had broken down, so the premises had become easily accessible to trespassers. From there they had access to the side of the Need Steels building, where cladding serving as a wall was old, brittle and vulnerable to break-ins. The judge was satisfied that this was the trespassers' route into the building, where once in they had total access to the premises. The judge found that the Need Steels premises was the major problem area for intrusion to set fires, intruders having started a number of fires on those premises.[14]The significance of that access came from the evidence as to the fires. The judge heard a lot of evidence on this subject. We have seen no reason to doubt her evaluation of that evidence. When she made allowance for unconscious exaggeration, the judge found that there had been four fires attended by the fire brigade and "a couple" of fires put out by the employees of the second claimant, without the need for the fire brigade, before the major fire on the evening of 19th May 1996. None of those fires was particularly severe until the last, but that of 10th November 1995 is relevant because it involved the timber sectional building, which caught fire. The fire itself was easily put out, but the fire brigade officers took what was intended to be the precaution of stripping out the plaster-board cladding from the building so that there should be no further "smoulder" between it and the timber structure. But the experts agreed that the result of the stripping out of the plaster-board increased the potential for the timber sectional building to catch alight and for the fire to spread. Both sides' experts agreed that "... if no stripping out works had taken place and in the absence of any loose combustible materials or accelerants, it would be difficult to conceive that a fire capable of spreading beyond a portacabin clad in plaster-board could occur." So the stripping of the plaster board to reveal the timber made the timber building fuel for the fire which consumed it.[15]The likely motive for lighting the fires, to be inferred from the evidence of the fires, was that they were started by thieves to facilitate the theft of the copper cable by burning off the insulation, thus exposing and freeing the cable. The judge found that this burning off of the copper cable was the more likely reason for the fires than the alternative explanation, that they were accidentally started. She found that the presence of valuable cabling was attracting at least some of the intruders. Its removal by the council would have been both simple and cheap, and would have removed the major (though possibly not the only) reason for the setting of fires in the building. But this did not happen.[16]As to the council's knowledge or means of knowledge that third parties had created or were creating a risk of fire, we deal first with complaints. After the November 1995 fire Mr Guy and Mr Clark, directors of the second and first claimants respectively, both made what the judge held to be respectively an "... attempt to complain ..." and "... a half-hearted complaint ..." of the fire risk. Each was made out of irritation, and neither complaint was then followed up. But after the 16th February 1996 fire, it is common ground between the parties that there were complaints. The judge found it likely that the complaints were made to Mr Bickerdike, who administered the council's repair and maintenance budget. Whoever it was that spoke to him made it clear that: a) intruders were illegally entering the council's premises in order to set fires to burn off the insulation around the electrical cables; b) there was concern as to the risk of such fires spreading; c) there had been previous fires.[17]Further, Mr Bevin, a director of the second claimant, contacted the council to chase up contractors to secure the premises and spoke to Mr Ruelle (the council's surveyor) to identify points of access. Mr Clark rang Sub-Officer Kernohan of the local fire brigade, concerned as to the "... possibility of fire spreading via roof to rest of premises ...", and the judge found that Mr Kernohan would have spoken to someone in authority at the council's highways department to pass on Mr Clark's concerns. The judge found that it was clear that by the end of March 1996 a council employee with apparent responsibility had been informed by Sub-Officer Kernohan that vandals had been breaking into and lighting fires in the council's premises the previous week, and so was aware that the problems of security had not been resolved. The judge found that Mr Kernohan would have told him there had been fires in the Need Steels building, and that the adjoining occupiers were worried as to fire spread. Despite all this activity, there is no documentary evidence kept by the council to show that any work on the security of the premises was done before the fire of the 19th May, and the judge concluded that no action was taken by the council. She was entitled to so conclude. If such work had been done "... at the minimum some record of money having been spent ..." would have survived.[18]From the above it will be apparent that the council had full knowledge that intruders were gaining access to its Need Steels premises, and had started fires there. The site was not secure.[19]The problem of fires in empty buildings was currently concerning Mr Whitehead, who was a Principal Engineer in the council's employ, currently seconded to the bypass project as deputy resident engineer. His concern had been triggered by a major fire at Scott's Green, and his anxieties were as to the safety of such properties and the absence of any clear line of reporting authority.

The judge found his concern to be justified:

"Mr Whitehead's concern was fully justified. It is obvious that there was no identified (or even clearly identifiable) individual or section charged with responsibility for the safety and security of void properties after acquisition or even for the receipt of complaints or queries in respect of such properties. There was plain confusion in the minds of the various witnesses who gave evidence before the court as to who, if anyone, was responsible. The point is not simply academic. Due to the lack of any clear reporting lines or responsibility aggravated by the absence of any system for recording or monitoring complaints, it would appear that such complaints as I find were made were either not dealt with at all or were dealt with effectively as an isolated incident rather than as an indicator of the existence of some potentially greater problem. I have already referred elsewhere in this judgment to the fact that though Mr Bickerdike was plainly aware that the complainants with whom he had spoken were concerned as to the risks of fire and in particular fire spread to their adjacent buildings that information and concern does not appear to have been communicated to Mr Ruelle despite the acknowledged urgency and concern Mr Bickerdike felt. It matters not whose fault that was. The result was that Mr Ruelle, at the time of his visit was focused essentially on issues of security rather than safety. It would not appear that Mr Ruelle was given the responsibility of making any form of general enquiries with either of the claimants with a view to ascertaining the detail of the problems which had been encountered with intruders or establishing the reasons why there was concern as to fire spread to their properties, a concern which Mr Bickerdike acknowledged had been communicated to him and which he had found alarming and urgent. Nor was this concern or urgency communicated upward either to those in charge of the bypass scheme or of properties generally. Thus, those who might have been in a position to take a wider view of the problem - for example Mr Whitehead - were unaware of the developing situation at Need Steels and no-one had applied their minds to the safety of the Need Steels building, particularly in the context of the risk of fire. Nor was any assessment made of that risk. It appears undoubted that had such information been communicated to Mr Whitehead he would have taken action to arrange a safety inspection by the Defendant's safety officer, as he was to do in relation to the Scott Green building."
[20]The judge was entitled to reach the conclusions she did on those facts. The original complaints from the complainants were to Mr Bickerdike, a principal building surveyor administering and controlling the repair and maintenance budget for the scheme. Those complaints included concerns as to fire on the former Need Steels property spreading to the claimants' property via the roof. That concern and urgency does not seem to have reached Mr Ruelle. He was concentrating on security, not fire spread. So no-one from the council applied their minds to that aspect of the safety of the Need Steels building, namely the risk of fire spread. Had the facts been put before Mr Whitehead, the engineer, he would have taken action to arrange a safety inspection by the council's safety officer (who had, in fact, been the reporting officer who had identified the risks at Scott's Green). Mr Whitehead had embarked on the task of listing empty premises where there might be dangers, but this task was overtaken by events in the form of the fire before he had reached the Need Steels premises.[21]The third question that

the judge was to ask herself was:

"To what extent the defendant was actually aware of any circumstances giving rise to the risk of fire spreading from the Need Steels building to the claimant's premises via the roof and, to the extent that they did not appreciate the risk, the extent if at all, that they ought to have done having regard to their state of knowledge at the time. Specifically it is necessary in this context to consider the extent to which the defendant ought to have appreciated the risks posed by the timber sectional building as a potential route for fire spread to the roof."
[22]We have described the timber sectional building in paragraph 12, but so far we have not described the fire and its path. The fire was a major and devastating one (though not as large as the Scott's Green fire). It was caused, so the judge found, by human agency, whether deliberate or careless. The parties were agreed as to the mechanism of the fire, as the judge records on the first page of her judgment. First, the timber sectional building caught. After that it was likely that the fire spread to involve the Belfast roof in ten to fifteen minutes, and once established in the Belfast roof, the fire spread very rapidly over the claimants' premises.[23]The judge, in addressing her mind to the critical issue, identified the demolition of the timber sectional building as the surest and cheapest way of avoiding the risk of fire spreading to neighbouring premises:
"... assuming a duty of care did arise in this case to protect the adjoining occupiers from fire then the relevant risk was capable of swift, cheap avoidance by the instruction of Mr McCall or an equivalent firm to dismantle and remove the timber sectional building at a cost of a couple of hundred pounds. That one simple step would, as a matter of fact, have removed any risk of fire spread to the claimants' premises it being agreed that, having regard to the height of the roof, it was wholly unlikely if not impossible for small fires lit on the floor to generate sufficient flame to result the belfast roof catching fire. Obviously, were an intruder to import very large quantities of inflammable materials indeed, so as to build a high bonfire, then the risk might arise. However, it would be wholly unlikely that any intruder would do so, that risk being so remote as not to warrant the taking of any let alone any expensive or extensive steps in order to make the building secure."
[24]The first question

the judge then addressed herself to was whether:

"Given the apparent ease and simplicity of elimination of the risk posed by the timber sectional building as a source of fire spread to the roof and hence the claimants' premises, it becomes academic to consider what further security measures, if any, ought reasonably to have been taken assuming duty and breach. So far as that risk is concerned however Mr Navarro argues that no duty arose on the basis that not only were the defendants unaware that intruders were 'in the habit' of starting fires but also the defendant neither knew or ought to have appreciated that the presence on site of the timber sectional building created a real and foreseeable risk of spread of any such fire to the Belfast roof."
[25]Both the Fire Service and insurers had recognised the Belfast roof as susceptible to fire development - and the more so since the plaster-board cladding had been removed after the fire of 11th November 1995, when it was stripped to minimise the risk of smoulder. That made the building much more susceptible to fire, and there does not seem to have been anyone either asking himself whether the risk of the timber sectional building catching fire was increased by that (as clearly it was) or answering that question. So the increase in risk went unremarked.[26]The work of removing the cladding had been supervised by Station Officer Homer. He had over 25 years' experience in the Fire Service, eight to nine as a Station Officer. He was not a fire safety officer. There is no evidence one way or the other as to whether he had attended a fire prevention course, which is a specialist long-term course at the Fire Service College (see Officer Branmeier, at 209A).[27]Mr Homer said that in the ordinary course of events he would make a conscious or unconscious assessment of any risk of further fire, and would notify the building owner if he was concerned. Here he would have made an unconscious assessment and in the event he did not notify the building owner of any change in risk. He clearly did not see any such change.[28]Sub-Officer Kernohan, again from the local Fire Service, would also have known what the state of the Need Steels premises was without recognising or alerting the council to any risks of fire.[29]He had attended with Mr Clark at the site at the end of March. Mr Clark had referred to his fears as to the spread of fire. Sub-Officer Kernohan's note of the 29th March 1996 recording the conversation reads:
"Mr Clark owner of the site expressed concern over empty premises as fire service called to two fires lit by vandals in empty units last week, possibility of fire spreading via roof to the rest of premises."
[30]Sub-Officer Kernohan's responsibility was the fire certificate. It had not occurred to him to ask for the timber sectional building to be removed - he did not direct his mind as to whether it posed a fire risk. His concern was that there was an adequate means of escape for everybody who worked at the premises (which clearly there was). He too said nothing about whether he had had fire prevention training. He expressed the opinion that there was nothing that needed to be done other than to make the place secure though in fact, as we have seen, the building was not resecured (or, as the judge alternatively found) if it was resecured, that was to a very low standard, as the premises were plainly not secured on the 19th May, the date of the fire.[31]It is plain that Sub-Officer Kernohan's evidence was that he, an experienced fire officer who for four years had been Station Fire Safety Officer, did not appreciate the risk posed by the timber sectional building and the need to remove it. He cannot have asked himself the question whether the timber building was combustible. There was no evidence that he had had fire prevention training, and his fire certificate concern would have been to satisfy himself that there were adequate means of escape for all working within the building, which there plainly were on this single storey building. In his inspection he just walked past the timber sectional building. He did not claim to have directed his mind as to whether the timber sectional building constituted a fire risk. He was never asked that question.[32]The judge found that the council knew of the condition of the property through Mr Ruelle. He said the timber sectional building did not strike him as a fire risk to the neighbouring buildings, but there was no evidence that he had any expertise. He was certainly not the appropriate person to look at risk so far as the engineer Mr Whitehead was concerned.[33]Mr Jones was the council surveyor in charge of the by-pass project. He had inspected the premises and was aware of the existence of the timber sectional building, and while he had not specifically applied his mind to fire, had not recognised it as a safety hazard.[34]Next we come to the expert evidence. Neither side derived much assistance from their experts. The defence did not call either of theirs, and the claimants' experts disagreed on a fundamental point, namely whether the risk posed by the presence of the timber sectional building would have been obvious to anyone.[35]The size of the problem was this - once the timber sectional building had caught fire, then the question was whether that would give the potential of flame size sufficient to ignite the Belfast roof some 4.57 to 4.87 metres above the source of the fire, namely the timber sectional building. That in fact was what happened. The experts instructed by the claimants had been Mr Hammond and Mr Kidd. The former initially gave evidence that, because of the phenomenon of flame elongation, lay-people might not recognise the possibility of the fire jumping the gap, but surveyors or fire investigators would. But in cross-examination he was to go further and assert that the ability of flames to jump the gap (as this flame had) was basically common sense, common to all who had lit bonfires. This contradicted his earlier position where (in context of agreeing to disagree with Mr Calley - instructed by the defence) he said that a person without specialised knowledge or particular awareness of the spread of fire:
"... may have realised that [a fire could develop from the timber sectional building to the Belfast roof]."
Mr Hammond made it clear that he had used "may" deliberately. Mr Kidd, when giving evidence on the same point, said that some people would recognise the risk and others would not "... depending on their education, background, training and experience."[36]He amplified this and the judge's finding on his evidence was:
"When asked whether in his experience a layman would have recognised it his response was that it depended on the layman but 'the answer is probably no', albeit he would expect somebody with experience of buildings, building construction and building methods to have recognised it . (Day 6, page 24 line 8 to 25). The latter proposition he reinforced by outlining the nature of training seminars with which he had been involved and which attracted building surveyors to include those in local authority employment. Though Mr Kidd's evidence has been subjected to criticism having regard to his rejection of the suggestion that a fire officer or fire safety officer might be competent to advise on fire risk and fire prevention I do not consider such criticism to be justified in this context. After all, as I have already recorded, the question of fire prevention is seemingly of sufficient complexity in the view of the fire service as to require specialised training which even an experienced fire officer or fire safety officer may not have. Ultimately Mr Kidd was to say that the level of security measures required are dependent on the perception of the person doing the risk assessment, risk being 'a very subjective thing'. See also the agreed statement of Mr Kidd and Mr Hack to the effect that: 'Another area of risk proved to be the portable building which may not have been recognised as a hazard'. I do not accept Mr Hammond's late evidence to the effect that the risk posed by the timber sectional building would be obvious to anybody, including lay people who might be involved in building bonfires. I accept that on this particular topic Mr Kidd is more likely to be correct in saying that in all probability the risk would not be identified by a layman. I further find that the risk might or might not have been recognised by the ordinary run of fire officers or building surveyor/ engineers dependant on their particular job duties and responsibilities, training experience and expertise. However, I reject any suggestion that it would only be obvious to the most highly specialist experts such as Mr Kidd or Mr Hammond and find that the risk would or should have been obvious to any person whose job involved responsibility for the carrying out of safety assessments particularly in the context of fire prevention."
[37]Accordingly, the judge concluded that the risk would or should have been obvious to any person whose job involved the carrying out of safety assessments. Mr de Navarro first submits that that conclusion is simply an assumption, there being no evidence as to the training and/or qualifications of local authority safety officers. There was before the judge the basic evidence that fire prevention courses require lengthy and detailed specialised training. And the judge was clearly right to recognise that the risk was obvious. Timber is combustible, and fire is notoriously unpredictable. No-one who recognised the fire risk could do anything other than conclude that because the spread of fire is so uncertain, and because the risk could be so easily and cheaply avoided by dismantling the timber sectional building and removing the wood from which it had been built. That neither the council nor the fire service identified the risk reflected the fact that they were not asked.[38]The judge was entitled to conclude that on the facts of this case, the risk of fire spread would or should have been obvious to any person whose job included responsibility for the carrying out of safety assessments for, inter alia, fire risks. She knew that the council employed a safety officer (Mr Faulkner) to whom Mr Whitehead would have looked to obtain a risk assessment.[39]The exercise that would be undertaken can be divided into two parts. First, there was the need to recognise that the timber sectional building was combustible. Clearly timber is, and it was the only material present in the Need Steels building that could fuel a substantial fire. That it would catch would be plain to anyone. This is the surprising thing about the events in this case: no-one identified wood as being combustible.[40]Had they asked themselves that question, then the next question is clear: is the Belfast roof at risk? Fire is notoriously unpredictable. Any safety officer faced with that question would have recognised the timber sectional building as presenting the risk of it providing fuel for the flames, and given the size of the timber sectional building, could only have concluded that there was such a risk. As the judge said "In any event in this case the defendant had been notified of the concerns of adjacent occupiers, it had had confirmation that the complaints - certainly as to the setting of fires and the reasons therefor - were well founded, it knew the complainants were anxious about fire spread, specifically via the roof and it knew that the roof was a shared timber one which, if it caught fire on their part of the premises, was likely to result in rapid fire spread to their neighbours' premises. It knew that there was a large timber structure on the premises lying in part below that timber roof and it knew that timber is a combustible material. In that combination of circumstances, bearing in mind that it was also aware that the property remained insecure despite a previous attempt to board it up (and would remain insecure in the event of a repeat boarding which could be at most a deterrent and not a bar) and that there continued upon the property cabling which was proving attractive to thieves who were in the habit of entering and setting fires in the process of stealing the cores, the only prudent course would, if the building was not to be made completely secure was at minimum to instruct a properly qualified person to assess and report on the potential fire hazard if any which such fire setting posed to the neighbours. I reach that conclusion bearing in mind the devastating consequences if the complainants were proven right (as they were though not by an expert) and there was a major fire with all the risks to life and property which could in consequence arise. I do not know what the cost of instructing such a person would be but am sure that it would pale into insignificance compared with the financial consequences of a major fire." To this, the judge added her approval of Mr Powell's submission as to the "egg-shell skull building". "Mr Powell's further submission in this context was to the effect that there was a plain and obvious risk firstly of the timber sectional building setting alight in the event of the setting of deliberate or accidental fires by intruders and secondly, of fire, if it gained access to the Belfast roof, spreadly rapidly to adjoining premises. With both propositions I agree - indeed they were not in real dispute. The only remaining question was, can the fire get from one to the other? Mr Powell submits that, at latest once a property owner is alerted to the fact of fires being set in what he describes as an 'eggshell skull' building having regard to the susceptibility of the timber roof to fire then it is incumbent upon that property owner without the knowledge or expertise to assess the extent to which the fires might pose a danger to others either to proceed on the basis of assuming the worst ie that there is a real fire risk in which event the property must be made secure against those intruding and setting fires or, if they wish to avoid the potentially high costs of so doing then they should seek the opinion of somebody with the necessary expertise. In such circumstances, says Mr Powell, if you do not know positively that there is no risk then you cannot take any risk. That submission seems to me to be particularly appropriate in the case of fire which is by definition unpredictable and uncontrollable."[41]We turn to the appellant's skeleton. Paragraphs 1 to 3 warn against hindsight. The judge had reminded herself that it should not be used. Nor did she use it. No hindsight is involved in the fact that timber is combustible and fire unpredictable.[42]As to paragraphs 4 to 7, dealing with the evidence of Sub-Officer Kernohan and Station Officer Homer, no-one sought their opinion on the safety of the building, either formally or informally at the time. The council only relied on their evidence after it had decided not to call its expert evidence. The witnesses "assessments" were unconscious, in that they were not asked at the time, but simply asked years later whether they had at the time seen anything untoward. For reasons given by Mr Whitehead, the council should itself have assessed the risk through its safety officer. The risk was plain once responsibility for allotting the risk was given to them. Then the problem and its solution were straightforward.[43]Paragraphs 9 to 11 depend on facts not found by the judge, and are inconsistent with the facts found by her. The premise that they believed security to be satisfactory is simply unreal.[44]As to paragraphs 12 and 13, the judge made it perfectly clear what she expected of the council's safety officer, and her analysis cannot be faulted.[45]Paragraphs 16 to 20 are of no substance, for the reasons set out in this judgment.[46]As to the law, the judge kept precisely to the basis set out by Lord Goff in Smith quoted in paragraph 10 above. The council had both the knowledge and the means of knowledge of intruders creating fires on its property, the Need Steels building. It had the knowledge or the means of knowledge of that risk. Knowing that, it should have investigated and removed all readily moveable combustible material. The timber sectional building clearly fell within that definition. It could have been easily removed at trifling expense.[47]For those reasons we would dismiss this appeal.

Order

appeal dismissed with costs on an indemnity basis, those costs to be assessed immediately; stay of proceedings lifted. (Order does not form part of the approved judgment)

Cited in 1 later judgment