Wembridge Claimants & Ors v Essex Fire and Rescue Service & Ors [2013] EWHC 2331 (QB)

The Fire Service, Police and other Emergency Services should ensure that they identify specific risks existing in the areas in which they operate. They should ensure that contingencies are made, and training given, so that employees (and others working closely alongside them) are aware of the dangers associated with those specific risks and can react appropriately when faced with them. The Fire service remains subject to Health and Safety law when putting its officers into dangerous situations.

Where emergency service employees and those that work closely with them are injured, their employer may be in breach of various health and safety regulations and at common law if they cannot show they took appropriate steps to prepare for such specific eventualities. The Court will make "every allowance" for the difficulty faced by those in command when making emergency response decisions. However, there is no blanket "battlefield immunity" to shield emergency services from the consequence of their emergency response actions, where negligent, if such actions result in harm. The assessment of breach will be based on a consideration of the reasonable responses that could be taken based on the facts known at the time of the incident, but also on the specific potential risks that should have been identified beforehand.

This was the decision of the High Court in a case brought against East Sussex Fire and Rescue Service and others by fifteen firemen and police officers who were injured (two fatally) when fighting a fireworks fire at a farm in East Sussex.

Facts of the Case

The claims arose out of a massive explosion which occurred at Marlie Farm, a fireworks factory in East Sussex, in December 2006. As firefighters were fighting the blaze a steel shipping container filled with fireworks exploded with a force later estimated to be equivalent to 190/300 kilograms of TNT, killing one fireman and a video technician employed by the Fire Service and seriously injuring 15 others. The farm was close to the town of Lewes, known as "the Fireworks Capital of England" and East Sussex is well known for the storage and sale of fireworks.

Summary judgment had been obtained against the First Defendant, the owner of the Farm. The case therefore focused on the liability of East Sussex Fire and Rescue Service for putting their employees at risk. In particular whether its actions breached the common law duty it owed to its firefighters, and police working alongside them, and whether it was in breach of 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.

Liability under Health and Safety Legislation

Section 47 of the Health and Safety at Work Act 1974 provides that a breach of health and safety regulations would be actionable save where the contrary is expressly provided for.

The Fire Service pointed in its defence to the fact that the Fire and Rescue Services Act 2004 imposed only "target duties", the breach of which did not give rise to a claim under the civil law. It therefore argued that the Health and Safety at Work Act 1974, and therefore various heath and safety regulations, were not actionable against the Fire Service insofar as the duties they imposed overlapped with these non-actionable "target duties".

Rejecting this argument, the Court found that, as a matter of construction, section 47 Health and Safety at Work Act 1974 applied so that breaches were actionable against the Fire Service. Given that the Police Service was explicitly excluded from some provisions of the 1974 Act, it was in "the highest degree" unlikely that any exclusion Parliament had intended firefighters to have would not have been made similarly explicit. As such the Court found there had been a breach of various provisions of 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 fact that both of the 2002 Regulations proceeded on the assumption that the employer was in control of the "work place" did not prevent them being construed to cover the actions of firefighters in the firefield.

Common Law Duties: No "Battlefield Immunity"

The Court found that there is no principle of "battlefield immunity" which exempts the Emergency Services from liability at common law for harm caused to their employees by their

negligence. However, the Court recognised the high degree of pressure that commanding officers may be under during an emergency response and the fact that there may be a range of reasonable responses in dealing with an emergency incident. The Court therefore concluded that, in deciding whether a breach of duty of care was established, it was incumbent on the Court to make "every allowance" for the difficulty of exercising command and making swift decisions on the fireground.

Specific Criticisms of Preparation and Conduct

In criticising the East Sussex Fire and Rescue Service, both for its decision-making in the incident itself and in its prior preparation, Irwin J found that:

  1. There was a lack of institutional knowledge in Essex Sussex Fire and Rescue Service on the risks associated with fireworks and specifically the risk of firework explosions, despite the high prevalence of fireworks manufacture and storage in East Sussex. There was no evidence that the Fire Service centrally or locally had concluded that the fireworks industry within its area represented a specific risk for this fire service or that members of the service required special training in the risk which might be associated with it. As a result an aide memoire relating to explosives and important guidance - an HSE approved Code of Practice addressing the risk of explosives, including fireworks - had not been properly communicated to firefighters. Had these documents been properly disseminated, firefighters should at the least have been aware of the risk of a significant explosion resulting from fireworks held in bulk.
  2. The Fire Service should have had a better knowledge of Marlie Farm, particularly as the it had specifically been informed in the previous year that Marlie Farm was licenced to hold more than 2000kg of explosives. Had a proper prior inspection been carried out and a s1(i)(d) "risk card" been kept on file, firefighters would have been aware of the limited water supply and the specific risks on the site.
  3. There did not appear to have been any effort to alert fire crews attending the scene to the risk of explosions, despite many of the initial calls to the emergency service reporting "huge" explosion.
  4. Given the identifiable risk of explosions, the decision to evacuate rather than tackle the fire should have been given sooner, it was not within the range of reasonable responses for the commanding officer to wait as long as he did to issue the order to evacuate.
  5. The order to evacuate had not been sufficiently decisive or well enough communicated - the commanding officer had allowed others around him to behave in a way which communicated ambiguity about the order to evacuate and this was probably influenced by the fact that the commanding officer himself had not been trained clearly enough as to the hazards posed by fireworks stored in bulk.

In light of these failings, Irwin J found that Essex Sussex Fire and Rescue Service had breached the duty of care owed to its employees, and the police officers working with them in close proximity, and were also in breach of the 2002 and 1999 Regulations.

Identification of specific risk

This judgment should be of wider interest to all emergency response organisations who operate in locations were specific local risks are evident. For example, the judge referred with approval to evidence that firefighters in the borders region are trained about the dangers of peat bogs. Organisations should ensure such localised risks are identified and contingencies made for dealing with them. Further, it demonstrates that negligent decisions taken in an emergency situation are not immune from civil action (nor from compliance with health and safety legislation), in particular where they have failed to take into account facts known or easily obtainable which show those decisions to be objectively unreasonable and in breach of any duty of care owed.