Bermingham v. Sher Bros [1980] UKHL 16

UKHL

Bermingham v. Sher Bros

[1980] UKHL 16 · 1980-01-31

LORD DIPLOCK .—My Lords, for the reasons given by the Lord President in the Inner House of the Court of Session and by my noble and learned friend Lord Fraser of Tullybelton in this House, I would dismiss this appeal.

VISCOUNT DILHORNE .—My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Fraser of Tullybelton. I agree with it, and as he does with the judgment of the Lord President, and there is nothing that I can usefully add.

I, too, would dismiss this appeal.

LORD SALMON .—My Lords, I also would dismiss this appeal for the reasons set out by the Lord President in the Inner House of the Court of Session and by my noble and learned friend, Lord Fraser of Tullybelton in this House.

LORD FRASER OF TULLYBELTON .—My Lords, the appellant (pursuer) is the widow of a fireman who died from the effects of heat and suffocation while fighting a fire in the respondents' warehouse in Glasgow. Six other members of the Glasgow Fire Brigade also lost their lives on the same occasion. All these men, including the appellant's husband, were on the second floor of the warehouse or near the top of the stairs leading to the second floor, where they were overcome. The immediate cause of the tragedy was that the whole ceiling of the first floor, which was made of untreated hardboard, suddenly and unexpectedly caught fire and erupted in flames, causing a rush of smoke and hot gases up the stair to the second floor.

The appellant sues on her own behalf and as tutrix on behalf of her two pupil children. Her claim against the respondents was originally based on two grounds. First she said that the fire had been caused by the dropping of a lighted cigarette or match and that it was attributable to the negligence of the respondents in failing to take reasonable care for the safety of persons, including firemen, liable to be endangered by an outbreak of fire. The Lord Ordinary held that the appellant had not proved her averments of fact in support of this ground, and his view was upheld by the First Division. Their decision on this part of the case was not challenged in this House. The second ground, which alone was relied on by the appellant before your Lordships, was that the respondents were said to be liable as occupiers of the premises in which the fire occurred because they had negligently failed to take reasonable care to adopt and maintain adequate fire precautions. In particular it is said that they ought to have provided a fire screen separating the stair from the first-floor area in the warehouse. The respondents accept that Mr Bermingham would probably not have died if such a fire screen had been in position at the time of the fire, but they maintained that they owed no duty to him to erect and maintain it. The only question is whether they owed such a duty. The Lord Ordinary answered that question in favour of the appellant but his decision was reversed by the First Division. I should say at once that I am in complete agreement with the First Division. I find the opinion of the Lord President in particular entirely convincing, and I cannot hope to add anything substantial to what he has so clearly expressed.

The respondents' premises were used as a cash-and-carry warehouse mainly for clothing and drapery. They were on three floors. The public had access only to the ground floor. They were described by the Lord Ordinary thus:

"The ground floor included a loading bay and an area used for sales and display. The two upper floors were used for storage of stock. At the southern end of the first floor there were an office and toilet facilities. The walls of the building were of brick and the roof was of wood and slates. The attic floor was of wood on steel beams covered with a composition covering. The underside of the said floor which was the ceiling of the first floor was covered with hardboard sheets. The floor of the first floor was of concrete. The only stairway inside the building was at the south-west side and enclosed a lift shaft. This staircase was made of timber. The first floor, apart from the office and toilet facilities, was an open space in which the defenders stored quantities of clothing, mainly on racks, reaching to the ceiling. The attic was divided by a wooden partition into two areas known respectively as the east store and the west store, in each of which quantities of clothing were stored, some on racks and some in stacks of cartons. The stairway was not enclosed but gave direct access to the storage area on the first floor."

I would expand that description as follows. The staircase itself had a wall or partition on each side of it; on the right-hand side going up there was the casing of the lift shaft and on the left-hand side at some parts there was the outer wall of the building and at other parts an internal partition wall. But when a person ascending the stair from the ground floor reached the first floor he stepped out directly on to the storage space there, without going through any door; he would then have to walk round the lift shaft before he came to the beginning of the stair up to the second floor, and that stair had no door either at the bottom or at the top of it. So when the first-floor ceiling suddenly burst into flames there was nothing to prevent the smoke and heat from going up the stair towards the second floor with the stair acting as a sort of chimney. In addition to the internal staircase that I have described there was also an outside fire escape staircase at the north end of the building, but it was not used by the firemen on this occasion.

The fire occurred on the morning of 25th August 1972. About 11.25 a.m. the fire brigade were called and all the workers in the warehouse were safely evacuated. Three fire appliances arrived promptly, under the command of Station Officer Carroll. He immediately went up the internal staircase to appraise the situation. On the first floor he found there was no fire. On the second floor he found much smoke and he concluded that there was a fire on that floor near the north-west corner although he saw no flames. He instructed some of his men to put on breathing apparatus and to play water on the area of the fire. He also took certain other measures which I need not describe in detail. About 12 noon, that is about half-an-hour after the brigade had been called, an emergency tender arrived with a crew of four men one of whom was Mr Bermingham. He and another fireman, both wearing breathing apparatus, were taken by Carroll to the second floor to join in a search for a fireman named Rook who was then missing and was subsequently found buried under some of the stock on the second floor that had fallen over on top of him. On the way up, using the internal staircase, Carroll saw that the fire had spread to the ceiling of the first floor at the north-west corner, immediately below the place which he had judged to be the original seat of the fire. He gave instructions for water to be played on the ceiling, but he did not, and had no reason to, expect that the ceiling fire would spread with exceptional rapidity. He took Bermingham and the other fireman up to the second floor and reported to the Divisional Officer Quinn who was in command there that the first-floor ceiling was on fire. Quinn told him to deal with that fire and he returned to the first floor to do so. It was immediately after he returned to the first floor that the flames suddenly spread to the whole ceiling; there was a "whooshing" sound, and Carroll and two other men retreated to the stairs shouting to the men on the second floor to get out, but by then it was too late. Only one of the men on the second floor came out alive, and he had a miraculous escape by falling down the stair. It is a distressing feature of the case that, if Bermingham and the other men on the second floor had come down when Carroll did, they would probably have escaped, but at that time nobody anticipated the sudden spread of flames on the ceiling, and in any event they were resolved not to abandon Fireman Rook. He was found, but while being dragged out he and his rescuers were overcome in the tragedy.

At the date of the fire it was not generally known that there was a serious danger with untreated hardboard, such as that used in the first-floor ceiling, that when part of its surface had been pre-heated, the whole surface might suddenly ignite within a few seconds. Apparently this danger was only discovered by the Fire Research Station at Boreham Wood at about the date of this fire, and the Glasgow Fire Brigade had not been informed of the risk by 25th August. The respondents also were of course not aware of the risk.

The respondents had been informed that a fire screen at the first-floor level was required in order to comply with the requirements of the Offices, Shops and Railway Premises Act 1963, section 28. Their premises had been visited on several occasions by officers of the Fire Brigade either to familiarise themselves with the layout or to report on the necessary fire precautions. By a letter dated 8th February 1972 the respondents had been formally required to provide a screen at first-floor level "arranged in such a fashion as to separate the stairway and the lift shaft from the remainder of the floor area." The respondents were perfectly willing to comply with that requirement and they had in fact instructed some work on the structure of the building including the provision of a brick wall round the staircase which would have complied more than adequately with the requirement. But for unexpected delays, including a strike by building workers, the work would probably have been completed by 25th August 1972. It must of course be emphasised that the respondents were called on to do this work in order to comply with the Act of 1963 and it does not at all follow that the provision of a fire screen was required in order to discharge their duty at common law to take adequate precautions for their employees in the upper floors of the building. The Lord President said, and I respectfully agree, that "there is room for doubt whether it was established that the existing means of escape for employees were not reasonably safe and satisfactory in the absence of a fire screen." I am prepared however, like the Lord President, to assume, without deciding, that the respondents owed a duty to their employees to erect and maintain a fire screen at first-floor level. But that does not answer the different question of whether, as the appellant maintained, they owed the same duty towards firemen.

The argument for the appellant started from the Occupiers' Liability (Scotland) Act 1960, section 2 (1) which fixes an occupier of premises with a duty to show towards a person entering there "such care as in all the circumstances of the case is reasonable" to see that he will not suffer injury or damage from any danger due to the state of the premises. In the light of that provision it is necessary to consider the circumstances in which firemen enter the respondents' premises and the respects in which they differ from the circumstances in which workers in the warehouse enter it. The obvious difference is that workers enter when the warehouse is not on fire, and in the event of a fire occurring while they are in the warehouse they seek to escape as soon as possible, whereas firemen enter it after it has caught fire and they remain there for the purpose of controlling and extinguishing the fire. It is therefore very unlikely that the duty of care owed by the occupier to workers is the same as that owed to firemen. No doubt a fireman is a "neighbour" of the occupier in the sense of Lord Atkin's famous dictum in Donoghue v. Stevenson , 1932 SC (HL) 31 , 44, so that the occupier owed him some duty of care. For example, he may well have a duty to warn firemen of an unexpected danger or trap of which he knows or ought to know—see Hartley v. Mayoh & Co. , [1954] 1 Q.B. 383, a decision which I think is unaffected by the (English) Occupiers' Liability Act 1957. But assuming that a duty to that effect rests upon an occupier, it has no relevance to this case because the risk of a very rapid spread of the fire in the hardboard ceiling could not have been foreseen by the occupier.

It would in my opinion impose an impossible burden on an occupier if he had to take reasonable care to provide firemen with an escape route which will continue to be adequate during the whole time that they are on his premises fighting a fire. An escape route which is adequate for employees leaving the premises in the early stages of a fire, is clearly liable to become inadequate if the fire spreads, and so creates the very circumstances in which firemen will remain there. The occupier cannot foresee how a fire will develop or how long the firemen will need a means of access and egress. Nor can he foresee what means they will select. Yet the duty for which the appellant contends would seem to imply that the means of egress must remain adequate until the fire has been extinguished. Firemen have the right under section 30 of the Fire Services Act 1947 to break into a burning building, if necessary, without the consent of the occupier, and they have available ladders and other equipment for gaining access by any route that they may select. Moreover they are a skilled and disciplined force who could be expected to be fully alive to the danger of being trapped inside a burning building and to the need for protecting their escape route. In fact they were taking steps to protect the route in this case and, but for the unexpected danger arising from the unknown properties of the hardboard, the steps would no doubt have been effective. In short the whole operation of fighting a fire, and all decisions about the means of approach and withdrawal and the tactics to be employed, are entirely within the discretion of the officers of the fire service, and entirely outside the control of the occupier. It would therefore be quite unreasonable to expect the occupier to foresee the course of events, and in particular the probability that a particular means of egress will be used.

For all these reasons I am of opinion that the respondents, as occupier of those premises, owed no duty to firemen such as the appellant's deceased husband who entered the premises for the purpose of fighting a fire there, to provide them with a means of access and egress which would remain safe during the fire.

I would dismiss this appeal, and find the appellant liable for the respondents' costs in this House.

LORD KEITH OF KINKEL .—My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Fraser of Tullybelton. I agree that for the reasons given by him this appeal should be dismissed.