Bermingham v. Sher Bros

An occupier owes a fireman entering burning premises such care as is reasonable in all the circumstances. The duty reflects the fireman's specialised role, skill, equipment and control over firefighting tactics. It therefore differs from the duty owed to employees who need to escape during the early stages of a fire.

An occupier is not required to provide firefighters with a means of access and egress which will remain safe throughout the fire. The occupier cannot reasonably foresee the fire's development, the duration of the operation or the route selected by the fire service. A duty may arise to warn firefighters of an unexpected danger or trap which the occupier knows or ought to know, but it does not extend to an unforeseeable risk.

The pursuer's husband, a Glasgow fireman, died from heat and suffocation while fighting a fire in the respondents' warehouse. Untreated hardboard covering the first-floor ceiling suddenly ignited, sending smoke and hot gases up an unenclosed internal staircase. The exceptional risk associated with the hardboard was not then generally known.

The pursuer alleged that, as occupiers, the respondents had negligently failed to provide a fire screen separating the staircase from the first-floor storage area. Such a screen had been required under section 28 of the Offices, Shops and Railway Premises Act 1963, and would probably have prevented the death. The Lord Ordinary upheld this ground of claim, but the First Division reversed his decision.

The appeal concerned whether the respondents owed firefighters entering the burning premises a duty to provide a means of access and egress which would remain safe during the fire.

1. Appeal dismissed unanimously. Lord Fraser of Tullybelton delivered the leading speech. Lord Diplock, Viscount Dilhorne, Lord Salmon and Lord Keith of Kinkel agreed that the appeal should be dismissed for the reasons given by Lord Fraser and, as applicable, by the Lord President.

2. Per Lord Fraser, section 2 (1) of the Occupiers' Liability (Scotland) Act 1960 requires an occupier to show such care as is reasonable in all the circumstances towards a person entering the premises. Those circumstances include the entrant's purpose and capabilities. Employees enter premises when they are not on fire and seek to escape if fire occurs. Firefighters deliberately enter after fire has begun and remain to control and extinguish it. The duties owed to the two classes are therefore unlikely to be identical.

3. Per Lord Fraser, a firefighter is the occupier's neighbour in the sense discussed in Donoghue v Stevenson, 1932 SC (HL) 31. An occupier therefore owes some duty of care and may have to warn firefighters of an unexpected danger or trap which the occupier knows or ought to know. That possible duty did not assist the pursuer because neither the respondents nor the fire brigade could reasonably have foreseen the exceptionally rapid ignition of the untreated hardboard ceiling.

4. Per Lord Fraser, an occupier owes no duty to provide firefighters entering to fight a fire with a route of access and egress which will remain safe throughout the fire. Such a duty would impose an impossible burden. The occupier cannot foresee how the fire will develop, how long firefighters will remain, or which route they will choose. Firefighters are a skilled and disciplined force, possess specialist access equipment, and control their own approach, withdrawal and operational tactics. Section 30 of the Fire Services Act 1947 also permits them to break into burning premises where necessary.

5. Per Lord Fraser, the statutory requirement to install a fire screen under section 28 of the Offices, Shops and Railway Premises Act 1963 did not establish an equivalent common-law duty towards firefighters. The House assumed, without deciding, that such a duty might have been owed to employees. That assumption did not answer the distinct question concerning firefighters.

6. The appellant was found liable for the respondents' costs in the House.

1. House of Lords: The pursuer's appeal was dismissed unanimously. The First Division's decision was upheld.
2. First Division of the Court of Session: Reversed the Lord Ordinary's decision that the respondents owed the deceased firefighter the alleged duty.
3. Lord Ordinary: Rejected the allegation that the respondents had negligently caused the fire, but held in the pursuer's favour on the occupiers' liability ground.