Wembridge Claimants & Ors v Winter & Ors

Fire and rescue authorities owe employees a common-law duty to take reasonable care for their safety. That duty is not excluded by a general fireground or combat immunity. Health and safety regulations may also apply to firefighters, even where the primary legislation imposes non-actionable target duties.

Operational decisions must be assessed flexibly against the circumstances known, or which ought reasonably to have been known, at the time. The central inquiry is the calibration of risk against gain. Courts should distinguish finely balanced emergency judgments from failures to follow established safety procedures.

The claims arose from the deaths and injuries caused by the explosion of fireworks stored in an ISO container at Marlie Farm, East Sussex. The claimants included firefighters, a fire-service employee and police officers attending the incident. The claims against the East Sussex Fire and Rescue Service alleged negligence and breaches of workplace health and safety regulations.

The principal issues were whether the statutory duties and regulations applied, whether the fire service enjoyed immunity for fireground decisions, whether the applicable standard incorporated the Bolam test, and whether failures in risk knowledge, site inspection, communications, firefighting decisions and evacuation caused the losses.

1. Liability and causation. The claimants succeeded against the East Sussex Fire and Rescue Service, subject to individual causation and assessment of damages. The service’s failures materially contributed to the deaths and injuries.
2. Application of health and safety legislation. The general duties under the Fire and Rescue Services Act 2004 were target duties and were not themselves actionable. That did not prevent workplace health and safety regulations from applying to firefighters. The structure of the Health and Safety at Work etc. Act 1974, including sections 15, 47 and 53, supported that conclusion. The express exclusions and modifications made for other emergency services reinforced it.
3. No fireground immunity. There was no established immunity from suit for decisions made by fire-service employees during an emergency. The court applied the approach in Sussex Ambulance NHS Trust v King, recognising the ordinary employer’s duty to provide safe systems, training, equipment and supervision. A duty also existed to the police officers because their close operational relationship with the fire service made it fair, just and reasonable to recognise proximity.
4. Standard of care. The court declined to treat Capital and Counties plc v Hampshire County Council as requiring the Bolam test. Emergency decisions required allowance for pressure, speed and complexity, but the court could examine whether the decision was finely balanced or instead involved failure to follow a clear and established procedure.
5. Operational findings. The service should have recognised the significant explosion risk from fireworks stored in bulk, provided appropriate training, inspected Marlie Farm and prepared a risk card, and passed on reports of earlier explosions. By about 14.20 the proper course was evacuation. The evacuation ordered at 14.29 was correct but was not effectively communicated or completed. Those failures were negligent and breached identified provisions of the hazardous-substances and dangerous-substances regulations. There was no breach concerning the suitability or provision of firefighting equipment.
6. Contributory negligence. The claim of contributory negligence against Mr Wembridge was rejected. He had withdrawn from one area when instructed, had not been ordered to leave the site or stop filming, and received no effective warning about the container’s danger.