Capital & Counties v Hampshire CC [1997] 3 WLR 331

Key point

  • Applying the act vs omission distinction in negligence liability, it was found that a fire brigade is liable for a positive act worsening the damage but not for failing to extinguish the fire


This is a consolidated appeal involving 3 separate actions:

  • Hampshire case: Station Officer Mitchell ordered C’s sprinkler system to be turned off, this was a negligent mistake that had an adverse effect on restraining the fire and led it to spread and destroy the entire building
  • London case: C’s industrial premises were showered with flaming debris from nearby explosion, fire brigade left the scene without inspecting, fire later broke out
  • West Yorkshire case: C’s chapel was destroyed by a fire, fire brigade failed to extinguish; alleged negligence for failing to ensure that fire hydrants were working

Held (Court of Appeal)

  • Negligence was found in the Hampshire case as there was a positive act that increased the extent of damage
  • Negligence was not found in the London and West Yorkshire cases as there was no duty for omissions

Stuart-Smith LJ

Hampshire case

  • Switching off the sprinklers was a positive act of misfeasance which foreseeably caused the fire to get out of control and causing its spread which otherwise would not have occurred

London and West Yorkshire cases

  • There is no common law duty to answer calls to fires or take reasonable care to answer them
  • The police also have no duty of care to answer to calls, even if there is a burglar alarm that calls the police automatically: Alexandrou v Oxford
  • There are specific situations where there is sufficient proximity due to an assumption of responsibility giving rise to a duty of care
    • Kirkham v Chief Constable: C’s husband’s death while in custody and information about his suicide risk was not passed on by police to prison authorities (holding a person in custody results in an assumption of responsibility to the person in custody)
    • Barrett v Ministry of Defence: officer not liable for preventing deceased from abusing alcohol but after assuming responsibility for his care, the lack of supervision and not summoning medical assistance fell below the reasonable standard
  • However, in the present cases, there was not a sufficiently proximate relationship even though the senior officer assumed control of the fire fighting operation

No public policy immunity

  • The floodgates argument not persuasive, the Bolam test is a guard to excessive litigation
  • The prospect of defensive conduct is unrealistic, the potential threat of litigation not in a rescuer’s mind when making split second decisions