Ogwo (Respondent) v. Taylor (Appellant)
JUDGMENT
Die Jovis 19° Novembris 1987
Upon Report from the Appellate Committee to whom was
referred the Cause Ogwo against Taylor, That the Committee
had heard Counsel on Thursday the 22nd day of October last
upon the Petition and Appeal of Robert Arnold Taylor, of 91
Laburnam Avenue, Hornchurch, Essex, praying that the matter
of the Order set forth in the Schedule thereto, namely an
Order of Her Majesty’s Court of Appeal of 16th December 1986,
might be reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioner might have such other relief
in the premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet; as upon the case of Michael
Chiagoro Ogwo lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side
in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of 16th December 1986 complained of in
the said Appeal be, and the same is hereby, Affirmed and that
the said Petition and Appeal be, and the same is hereby,
dismissed this House: And it is further Ordered, That the
Appellant do pay or cause to be paid to the said Respondent
the Costs incurred by him in respect of the said Appeal, the
amount thereof to be certified by the Clerk of the Parliaments
if not agreed between the parties.
Cler: Parliamentor:
Judgment: 19.11.87
HOUSE OF LORDS
OGWO
(RESPONDENT)
v.
TAYLOR
(APPELLENT)
Lord Chancellor
Lord Bridge of Harwich
Lord Elwyn-Jones
Lord Templeman
Lord Ackner
LORD MACKAY OF CLASHFERN
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Bridge of Harwich.
I agree that this appeal should be dismissed for the reasons which
he gives. I am glad to note that my noble and learned friend’s
reasoning accords with the opinion of Lord Guthrie in Flannigan v.
British Dyewood Co. Ltd. [1969] S.L.T. 223
LORD BRIDGE OF HARWICH
My Lords,
I shall refer to the parties to the appeal before your
Lordships as the plaintiff and the defendant. The defendant was
the occupier of a small terrace house on two floors in Hornchurch.
He attempted to burn off paint from the fascia boards beneath the
eaves of his house with a blow lamp and in so doing set fire to
the premises. The fire brigade were called and the plaintiff, an
acting leading fireman, arrived with the first fire appliance.
Smoke was coming from the house, but it was impossible to locate
the seat of the fire from outside. The plaintiff and a colleague
entered the house wearing breathing apparatus and the usual
fireman’s protective clothing and armed with a hose. In due
course they located the seat of the fire in the roof space. The
rafters to the rear of the house were well alight from the eaves
to the ridge. The two firemen were able, with the aid of a step-
ladder, to squeeze through a small hatch to get into the roof
space and in due course to bring the fire under control by playing
their hose on it. The heat within the roof space was intense until
they were able to relieve it by kicking out some of the roof tiles,
as they had been trained to do in such a situation. The plaintiff,
although he did not realise it until after he came down from the
roof, suffered serious burn injuries to his upper body and face
from scalding steam which must have penetrated his protective
clothing.
The plaintiff’s claim for damages was tried by Nolan J. who
had no difficulty in finding that the defendant had negligently
started the fire, but nevertheless dismissed the plaintiff’s claim on
the ground that the injuries he sustained were not a reasonably
foreseeable consequence of the defendant’s negligence. The Court
of Appeal [1987] 2 W.L.R. 988 (Dillon, Stephen Brown and Neill
L.JJ) reversed the judge and gave judgment for the plaintiff in the
agreed sum, inclusive of interest to the date of judgment, of
£14,402. The defendant appeals by leave of your Lordships’ House.
The finding of negligence is not challenged. Mr. Crowther
Q.C., for the defendant, expressly disclaimed any intention to rely
on the defence of volenti and accepted that the appeal turned
solely on the issues of foreseeability, proximity and causation. He
relied on the judge’s conclusion as a finding of fact which an
appellate court should not disturb.
I find it convenient to examine the issues first in the light
of basic and well established principles of general application and
only later to consider the authorities concerned specifically with
injuries sustained by professional firemen performing their duties in
fighting fires occasioned by negligence. It is important, however,
to emphasise at the outset that no suggestion of any kind is made
of fault on the part of the plaintiff and the chain of events
leading to his injuries must accordingly be considered on the
footing that he himself acted throughout precisely as was to be
expected of a properly trained and properly equipped fireman in
the circumstances which confronted him.
The trial judge expressed his conclusion on foreseeability in
the following passage:
“The question here is whether it could be foreseen that Mr.
Ogwo, going up into the roof and remaining there, in
conditions of intense heat, would suffer the burns from
which he did suffer, even though he was a trained fireman
and had been sent to a fire without extraordinary features.
Here it seems to me that the plaintiff cannot succeed,
because it seems that neither the plaintiff himself nor his
colleague were able to foresee, looking into that apparently
ordinary loft of an ordinary house, the danger that
confronted them to the the extent of the injuries caused.
Of course they saw there was danger, but they did not
anticipate that Mr. Ogwo would come out badly burned, as
he was.”
The emphasis added is mine and the words emphasised demonstrate
where the judge appears to me to have fallen into error. The
proper question to be asked is not whether the particular injuries
sustained by the plaintiff were reasonably foreseeable, still less
whether they were actually foreseen. As Lord Reid put it in
– 2 –
Hughes v. Lord Advocate [1963] AC 837, 845, a negligent
defendant “can only escape liability if the damage can be regarded
as differing in kind from what was foreseeable.” Of course, the
plaintiff entering the loft did not foresee the nature or severity of
the injuries he was going to suffer. As the judge said, he could
see there was danger, but a man with the courage which a
fireman must constantly be called on to show has no time in such
a situation to reflect on the precise nature and extent of the risks
he is running. Looked at, as it should be, from the point of view
of the negligent defendant who started the fire in the loft, he
could foresee that the fire brigade would be called, that firemen
would use their skills to do whatever was both necessary and
reasonably practicable to extinguish the fire and that, if this
involved entering the loft and playing a hose on the fire, they
would be subject to any risks inherent in that operation, of which
the risk of a scalding injury was certainly one. This was a real
risk occasioned by setting fire to the rafters of a small terrace
house, a risk which the defendant could have avoided by
elementary care and without difficulty or expense to himself and
certainly not a risk which a reasonable man would brush aside as
far fetched. It therefore satisfies the criterion of foreseeability
posed as the test of remoteness by Lord Reid, delivering the
judgment of the Privy Council in Overseas Tankship (U.K.) Ltd. v.
Miller Steamship Co. Pty (The Wagon Mound (No. 2)). [1967] 1
A.C. 617, 643-4.
Mr. Crowther also sought to argue that the defendant owed
the plaintiff no duty of care. Here again, the case to me seems
to fall clearly within the principle enunciated in the classic
passage from the speech of Lord Atkin in Donoghue v. Stevenson
[1932] AC 562, 580. The plaintiff was a person so closely and
directly affected by the defendant’s act that the defendant ought
reasonably to have had him in contemplation as being so affected
when directing his mind to the acts or omissions called in
question, in this case using the blow lamp without taking care to
avoid setting the rafters alight.
So far as causation is concerned, no more need be said than
that the links in the chain of causation from the negligence which
started the fire to the injuries which the plaintiff sustained were
clearly continuous and unbroken.
On the face of it, therefore, this seems to me a
straightforward case of a plaintiff to whom the defendant owed a
duty of care suffering injury as a reasonably foreseeable
consequence of a breach of that duty by the defendant.
The principal theme by which Mr. Crowther sought to avoid
that conclusion was that, in the case of a professional fireman, a
distinction could be drawn between the “ordinary” risks inherent in
fire-fighting and “exceptional” risks created by some unusual
feature of the fire which arises from the nature or condition of
the premises where the fire occurs or in some other way. The
submission, as I understand it, is that the party who negligently
starts the fire is not liable to a professional fireman injured by
the “ordinary” risks of fire-fighting, but only to one injured by an
“exceptional” risk which the defendant could have foreseen and
avoided by warning or otherwise. If the submission is well
founded, Mr. Crowther has the advantage of a factual foundation
– 3 –
for its application here in findings by the judge that there was
nothing unusual about this fire, that there was no unusually
combustible material in the loft and that attending fires in terrace
houses was a regular part of a fireman’s duties.
The first case relied on in support of the submission is
Merrington v. Ironbridge Metal Works Ltd. [1952] 2 All E.R. 1101,
a decision at first instance of Hallett J. This was a claim by a
fireman injured in fighting a fire at a factory where the
defendants had allowed large quantities of fine dust containing
aluminium and carbon particles to accumulate. The plaintiff was
injured by a dust explosion caused, as the judge held, by the
defendants allowing their premises to be in a condition which
created “exceptional and serious risks” of fire and explosion.
Having considered and rejected a defence of volenti, the judge said
at p.
“This may be a convenient moment to say emphatically that
I do not accept the submission of leading counsel for the
plaintiff that, if a fireman sustains injury as the result of
performing his duty at a fire, he ipso facto becomes
entitled to recover compensation from any person whose
carelessness has caused the fire in question.”
This is the cornerstone of Mr. Crowther’s argument that negligence
in starting a fire to which the fire brigade have to be called can
never, per se, be sufficient to establish liability in damages to a
fireman injured by a hazard of a kind to which the inherent
dangers of the fireman’s profession necessarily subject him. There
must always, so it is argued, be some extraneous or exceptional
feature in the circumstances of the fire which imposes an
additional hazard for which the tortfeasor can be held responsible.
Further support for this view is sought in the decision of
the Court of Appeal in Hartley v. British Railways Board, The
Times, 2 February 1981. There a railway servant, responsible for
manning a station building, left it unattended without telling his
employers that he was doing so and left a coal fire burning inside
in an open stove. The stove was piled high with coal and a
burning coal fell from it and set fire to the building. When the
fire brigade were called by the railway authorities, they inquired
whether the building was occupied and were told that it was.
Consequently, on arrival at the scene, the plaintiff fireman was
sent in to search the building for the servant believed to be still
inside and in the course of the search he sustained the injuries
which were the subject of the claim. The Court of Appeal,
reversing the trial judge, held that the servant’s negligence was
responsible for the fire, but they founded their attribution of
liability to the employers on the additional element of negligence
on the part of the servant in failing to inform his employers that
he was leaving the building unattended at a time when he was
supposed to be on duty there. It was this failure, as the Court of
Appeal held, which led foreseeably to the unnecessary search of
the building by the plaintiff fireman and hence to his injury.
Of course I accept that not everybody, whether professional
fireman or layman, who is injured in a fire negligently started will
necessarily recover damages from the tortfeasor. The chain of
causation between the negligence and the injury must be
established by the plaintiff and may be broken in a number of
ways. The most obvious would be where the plaintiff’s injuries
were sustained by his foolhardy exposure to an unnecessary risk
either of his own volition or acting under the orders of a senior
fire officer. But, subject to this, I can see no basis of principle
which would justify denying a remedy in damages against the
tortfeasor responsible for starting a fire to a professional fireman
doing no more and no less than his proper duty and acting with
skill and efficiency in fighting an ordinary fire who is injured by
one of the risks to which the particular circumstances of the fire
give rise. Fire out of control is inherently dangerous. If not
brought under control, it may, in most urban situations, cause
untold damage to property and possible danger to life. The duty
of professional firemen is to use their best endeavours to
extinguish fires and it is obvious that, even making full use of all
their skills, training and specialist equipment, they will sometimes
be exposed to unavoidable risks of injury, whether the fire is
described as “ordinary” or “exceptional.” If they are not to be
met by the doctrine of volenti, which would be utterly repugnant
to our contemporary notions of justice, I can see no reason
whatever why they should be held at a disadvantage as compared
to the layman entitled to invoke the principle of the so-called
“rescue” cases.
Mr. Crowther suggested it would be anomalous that a
fireman should recover damages for injuries sustained in fighting a
fire caused by negligence when his colleague who suffers similar
injuries in fighting another fire of which the cause is unknown has
no such remedy. If this be an anomaly, it is one which is
common to most, if not all, injuries sustained by accident and is
inevitable under a system which requires proof of fault as the
basis of liability. The existence of the suggested anomaly is the
strongest argument advanced by those who support the introduction
of a “no fault” system of compensation. But it has no special
application to the case of firemen.
At the end of the day I am happy to find my views in full
accord with those expressed in the latest authority directly in
point, which is the decision at first instance of Woolf J. in Salmon
v. Seafarer Restaurants Ltd. [1983] 1 W.L.R. 1264. The facts and
the grounds of the decision are conveniently summarised in the
headnote, which I quote:
“The plaintiff fireman attended a fire at the defendants’
fish-and-chip shop, which had been caused by the failure of
the defendants to put out a light under a chip fryer before
closing the shop for the night. While in attendance at the
fire, the plaintiff was ordered by a senior officer to use a
ladder to obtain access to the second floor, via a flat roof.
As the plaintiff stood footing the ladder on the flat roof an
explosion occurred, caused by the heat from the fire melting
seals on gas meters on the premises and allowing gas to
escape. The explosion caused the plaintiff to be thrown to
the ground and sustain injury. He brought an action for
damages for personal injuries alleging that the fire had been
started by the defendants’ negligence and that he had been
injured as a result of that negligence. The defendants
denied that they owed a duty of care to the plaintiff.
– 5 –
On the question as to the duty owed by an occupier to a
fireman attending at his premises to put out a fire:-
Held, that notwithstanding the special training received by
firemen to deal with the dangers inherent in fires, the duty
owed by an occupier causing fire on premises to a fireman
attending that fire extended to the ordinary risks and
dangers inherent in a fireman’s occupation and was not
limited to a requirement to protect the fireman only against
special, exceptional, or additional risks; that the fireman’s
special skills and training were relevant in determining
liability but, where it was foreseeable that a fireman
exercising those skills would be injured through the
negligence of the occupier, the occupier was in breach of
his duty of care; that as the fire had been caused by the
defendants’ negligence and since it was foreseeable that the
plaintiff would be required to attend the fire and would be
at risk of the type of injuries he received from the
explosion which was caused by the negligence, the
defendants were liable for the those injuries and damages
were recoverable by the plaintiff.”
I would particularly wish to adopt and endorse a passage in
the judgment at p. 1272, where the judge said:
“Where it can be foreseen that the fire which is negligently
started is of the type which could, first of all, require
firemen to attend to extinguish that fire, and where,
because of the very nature of the fire, when they attend
they will be at risk even though they exercise all the skill
of their calling, there seems no reason why a fireman should
be at any disadvantage when the question of compensation
for his injuries arises.”
There was some discussion in argument before your
Lordships as to whether in the phrase “because of the very nature
of the fire” the definite article which I have emphasised might not
have been superfluous and unintended. It is perhaps arguable that
any fire, once out of control, may put firemen at risk and that
accordingly it is “the very nature of fire” which makes the risk
foreseeable. But I prefer the view that the judge was using
language with his usual precision and accuracy and recognising that
there may be some fires which, although calling for the services
of the fire brigade, pose no foreseeable risk to firemen acting
with due skill and care.
The appellant’s written case indicated an intention to rely
on what is known as the “fireman’s rule” as applied in the
jurisprudence of some of the states of the United States of
America and cited as the rationale of the rule the following
passage from the judgment of the Supreme Court of New Jersey
delivered by Weintraub C.J. in Krauth v. Geller (1960) 157 2d 129,
130-131:
“That the misfortune here experienced by a fireman was
well within the range of foreseeability cannot be disputed.
But liability is not always co-extensive with foreseeability of
harm. The question is ultimately one of public policy, and
the answer must be distilled from the relevant factors
– 6 –
involved upon an inquiry into what is fair and just … it is
the fireman’s business to deal with that very hazard [the
fire] and hence, perhaps by analogy to the contractor
engaged as an expert to remedy dangerous situations, he
cannot complain of negligence in the creation of the very
occasion for his engagement. In terms of duty, it may be
said there is none owed the fireman to exercise care so as
not to require the special services for which he is trained
and paid. Probably most fires are attributable to
negligence, and in the final analysis the policy decision is
that it would be too burdensome to charge all who
carelessly cause or fail to prevent fires with the injuries
suffered by the expert retained by public funds to deal with
those inevitable, although negligently created, occurrences.”
In oral argument, however, Mr. Crowther did not feel able to
derive any assistance from this source and, as I think prudently,
did not pursue the matter.
In the Supreme Court of California in Walters v. Sloan
(1977) 571 2d 609 the “fireman’s rule” was affirmed in the
majority judgment delivered by Clark J., but was exhaustively
analysed, criticised and rejected as unsound in the dissenting
judgment of Tobriner Acting C.J. Having read those two
judgments, I am left in no doubt whatever that the American
“fireman’s rule” has no place in English law.
I would accordingly dismiss the appeal.
LORD ELWYN-JONES
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Bridge of Harwich.
I agree with it and for the reasons given by him I would dismiss
this appeal.
LORD TEMPLEMAN
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Bridge of Harwich.
I agree with it and for the reasons given by him I would dismiss
this appeal.
– 7 –
LORD ACKNER
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Bridge of Harwich.
I agree with it, and for the reasons which he gives I would dismiss
the appeal.
– 8 –
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