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OGWO v TAYLOR [1988] AC 431

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OGWO v TAYLOR [1988] AC 431

HOUSE OF LORDS

OGWO v TAYLOR [1988] AC 431

November. 19 1987

Editor’s comments in red.

Full text

LORD BRIDGE OF HARWICH:

    ... The finding of negligence is not challenged. Counsel 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 ... It is important ... 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 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 ... 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 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 ... It therefore satisfies the criterion of foreseeability posed as the test of remoteness by Lord Reid, delivering the judgment of the Privy Council in The Wagon Mound (No 2), Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1966] 2 All ER 709 at 719, [1967] 1 AC 617 at 643644 [in the

    Library].

    Counsel for the defendant 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 at 580, [1932] All ER Rep 1 at 11. 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 counsel for the defendant 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,

    counsel has the advantage of a factual foundation 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.

     ...

    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.

    Counsel for the defendant 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.

    ...

    I would accordingly dismiss the appeal.

Full text

LORD MACKAY OF CLASHFERN LC:

    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, ante, p. 433G (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 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 Hughes v. Lord Advocate [1963] A.C. 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, 643-644.

    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] A.C. 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 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, Hallett J. said, at p. 1104:

    ‘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; Court of Appeal (Civil Division) Transcript No. 67 of 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. 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 those injuries and damages were recoverable by the plaintiff.’

    I would particularly wish to adopt and indorse a passage in the judgment where the judge said, at p. 1272:

    ‘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

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