Do the Fire Services as employers owe duties under health and safety regulations or at common law, or does a ‘fireground immunity’ exist? These questions were dealt with by Irwin J in the tragic case of the Wembridge Claimants and others v East Sussex Fire and Rescue Service and others  EWHC 2331. Two fire-fighters were killed and a number of people were injured when a container containing fireworks (estimated to have the equivalent to 190/300 kilograms of TNT) exploded. A farm was used for the storage of fireworks near Lewes which has the reputation of the fireworks capital of the UK. Two Mr Winters ran the outfit. One of the Mr Winters was inserting a detonator into a firework when it went off. He dropped it and ran and it then set light to other fireworks in his van which exploded and set fire to other parts of the farm. Alarmed nearby residents heard massive explosions and called the fire brigade.
The Mr Winters were acting in breach of the relevant licensing conditions. When fire officers arrived they spoke to Messrs Winter. One made it plain that if fire reached a particular container then no one should be around when it did. The other Mr Winter tried to cover up and said that his brother didn’t know what he was talking about and that the container only contained wood. The Winters were subsequently convicted of manslaughter by gross negligence and one was sentenced to 7 and the other 4 years imprisonment.
It was argued on behalf of the Fire Service that as the obligations imposed on them under the Fire and Rescue Services Act 2004 were not intended to give rise to civil liability for breach, the same should apply to the regulations made under the Health and Safety at Work Act 1974. It was also argued that the health and safety regulations were ultra vires when applied to fire-fighters. This was rejected by Irwin J who was of the view that breach of regulations was actionable except when the 1974 Act expressly excluded them. The Act did not do so for fire-fighters but did do so for the police. Some narrow exceptions were expressly made for fire-fighters under the Work at Height Regulations 2005 which would not have been made if they did not apply generally to fire fighters.
Of particular interest given the pending general abolition of civil liability for breach of health and safety regulations was the argument that the Framework Directive 89/3914/EEC excluded application of domestic legislation to fire fighters. This will prove particularly interesting when the Enterprise and Regulatory Reform Act 2013 is brought into effect: many emanations of the state will be sued for breaches of EU Directives rather than the UK regulations. The fire service will then be able to argue immunity. For the time being member states are able to impose more onerous duties than those required by EU Directives and thus this argument did not assist the Fire Service.
As to the duty at common law, the judge rejected the concept of a ‘fireground immunity’. He relied heavily on the dicta of Hale L.J. in Sussex Ambulance Trust v King  EWCA Civ 953 where she said that the starting point was that an Ambulance Service owed the same duty of care towards its employees as does any other employer. She said that there was no special rule in English law qualifying the obligations of others towards fire-fighters or police officers, ambulance technicians and others whose occupations in the public service were inherently dangerous. Such public servants accepted the risks inherent in their work but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care could avoid. Irwin J. thought it better that judgments were made on the facts about finely balanced decisions taken on the ground and failure to follow established practices rather than the blanket application of an immunity.
The Fire Service was found in breach of duty for failure to recognise the risk of fireworks stored in bulk. It was found that there was inadequate knowledge and training. Had that not been so the site would have been evacuated earlier and the deaths avoided.
The case is part of a general trend of the courts over the past 15 years of shying away from general immunities.