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by Victoria Walne
The second defendant was liable to the claimants firefighters and police officers who were injured (two fatally) in a fire. The workplace regulations apply to firefighters and there is no fireground immunity of suit. There was sufficient proximity between the firefighters and police officers for the latter also to be owed a duty of care by the second defendant. In breach of common law and statutory duty, there was a failure on the part of the second defendant to recognise the risks of storing fireworks in bulk. Had such risks been identified, there would have been better training and information available to the firefighters, which in turn would have led to earlier and effective evacuation of the site prior to the explosion.
High Court, Queen's Bench Division
30 July 2013
The claims arose from a large explosion of fireworks stored in a container on Marlie Farm, occupied by the first defendant, in East Sussex on 3 December 2006. The claimants attended as part of the emergency services' response to the fire. Two men died in the explosion: Geoffrey Wicker, a firefighter, and Brian Wembridge, a video technician employed by the second defendant. The other claimants, who were firefighters or police officers, pursued claims for injuries and the consequences of those injuries.
The claimants argued that the second defendant was liable both in common law and for breach of four regulations: the Provision and Use of Work Equipment Regulations 1998, the Control of Substances Hazardous to Health Regulations 2002, the Dangerous Substances and Explosive Atmospheres Regulations 2002 and the Management of Health and Safety at Work Regulations 1999. The second defendant argued that the regulations did not apply to firefighters. It was held that the Workplace Regulations do apply to firefighters: they apply to all employees unless specified to the contrary. The second defendant also sought to rely on fireground immunity. However, whilst firefighters accepted the risks which were inherent in their work, they did not accept risks which the exercise of reasonable care on the part of those who owed a duty of care could avoid. It was fair, just and reasonable that the second defendant owed a duty of care to the police officers also who were working in such close physical proximity to firefighters.
It was held that the second defendant was at fault in not recognising fully the risks of fireworks stored in bulk. The risks from inadequate knowledge and training were obvious. Better training on this issue would have led to an earlier and effective evacuation of the fireground. This failure was negligent and a breach of the Hazardous Substances Regulations and the Dangerous Substances Regulations. There was a failure to ensure that Marlie Farm was not only properly inspected, but that information was available for attending firefighters. Had this knowledge been available, it would have had a material effect on decision-making on the ground. Prior knowledge of poor local water supply would have meant a higher degree of caution in fighting the fire. There was a negligent failure to pass on the information that significant explosions were reported from Marlie Farm before the fire service arrived at the scene. Negligently and in breach of the Hazardous Substances Regulations and the Dangerous Substances Regulations, there was in any event a failure, by the Incident Commander for whom the second defendant was vicariously responsible, to take an earlier decision to evacuate, given all that was in fact known, and, after the order to evacuate, a failure to effect evacuation. There is no authority or requirement for the application of the higher ‘Bolam' standard of duty of care to the decision of the Incident Commander. However, even if there were, no reasonable and responsible body of incident commanders would support the failure to effect the decision to evacuate. The second defendant's allegation of contributory negligence against Mr Wembridge, a firefighter whose job was to record video footage of the fire was rejected: if he was prone to place himself near risk areas, then that practice was condoned by the second defendant.
The claimants were granted judgment against the second defendant, for damages to be assessed.
On the issue of immunity from suit, Irwin J commented, ‘there is no established "battle immunity" in relation to decisions taken in the heat of the moment by those in charge in the emergency services...it appears highly desirable...that the courts are free to consider the detail of what was done, bearing keenly in mind the inherent difficulties, rather than having to apply or dis-apply a blanket immunity to suit...Questions [as to decisions made on the ground] are better answered by applying flexibility of the test of reasonableness, rather than having resort to a black and white test as to the existence of duty of care.'