Amber Valley Primary School was closed 6 months ago by Amber Borough Council (ABC), the local education authority, which owns all the land and buildings. The school has been standing empty while ABC attempts to find a buyer for the site. Although ABC placed fencing around the site, local residents reported that youths had broken into the site on a number of occasions. Last week a group of youths from a nearby young offenders institution, operated by Chigley Services Ltd (CS) under contract to the Home Office, broke into the disused school and set fire to it.
The youths had been clearing rubbish from a neighbouring stream and were supposed to have been under the supervision of Justin and Jason, both of whom are CS employees. However, Justin and Jason had gone for a cigarette break and left the youths unsupervised at the time the break-in occurred. The fire caused damage to neighbouring property including a baker’s shop owned by Mark. It is likely to be many weeks before the business can reopen and Mark stands to lose many thousands of pounds in lost profits. It later transpired that the fire would not have had time to spread to neighbouring property had the Fire Brigade acted more swiftly.
The Amber Valley Fire engine was unavailable at the time and another engine had to be dispatched from Leicester. The crew got lost on the way because they put the wrong address in the sat-nav (satellite navigation) device. Advise Mark in respect of any claims he may have (if any). In this question, we are asked to advise Mark as to the possible claims he might have. On the facts, the defendants are Justin and Jason, Chigley Services and the Fire Brigade. Several issues must be taken into consideration, we must determine on the facts whether there can be any possible claims on the economic loss that Mark has suffered due to the fire.
Also, we must decide whether the fire brigade’s omission and Justin and Jason’s act would amount to negligence. Besides, whether Chigley Services would be vicariously liable will be discussed below. On the facts, Justin and Jason who were supposed to be supervising the youths had gone for a cigarette break which ended up in the break-in of the school which later caused a fire to Mark’s shop. Based on this, Mark can try to sue Justin and Jason for negligence in tort.
The test of negligence was formulated by Lord Atkin in the landmark case of Donoghue v Stevenson1. For a successful claim of negligence to be established, four elements have to be proven. The four elements are duty of care, breach of duty of care, causation and remoteness. Thus, the first thing the courts need to do is to prove negligence in establishing a duty of care. As the law evolves, the current test for duty of care is now in the case of Caparo v Dickman2. The Caparo test is a threefold test which requires three elements to be satisfied.
The first requirement is that at the time of the negligent act, it must be reasonably foreseeable that damage or injury would be caused to the particular defendant in the case, or to a class of people to which he or she belongs, rather than just people in general. 3 Thus, foresight is always a critical factor and it will be objectively assessed. A good example of this can be seen in the case of Palsgraf v Long Island 1 Donoghue v Stevenson  AC 562 2 Caparo v Dickman  2 AC 605 3 C Elliott & F Quinn, Tort Law (8th edn Pearson, Gosport 2011) 22 Railroad4 where it was held that it could not reasonably be foreseen that pushing a passenger would cause harm to someone standing a few feet away thus there is no duty of care.
However, in the case of Bhamra v Dubb5, the Court of Appeal (COA) held that a duty of care is owed because a reasonable man would have foreseen that his act is likely to result in harm. Similarly, in our question, Justin and Jason who were in charge of supervising the youths did not carry out their duty properly. Moreover, the fact that the youths here are from an offenders institution further strengthens the likelihood of them carrying out offences while unsupervised.
Thus, it is highly likely that a reasonable man would have foreseen damage or injury could have occurred following his acts. The second requirement is that there must be a legal proximity, meaning that there must be in law a relationship between the claimant and defendant. However, we must be clear that the defendant does not necessarily have to know the claimant, this is explained in the case of Muirhead v Industrial Tank Specialities6 by Goff LJ.
He pointed out that it is the situation they were both put which determines whether the defendant could reasonably be expected to have foreseen that damage to the claimant could result from his or her actions. In the case of Watson v British Boxing Board of Control7, there was held to be 4 Palsgraf v Long Island Railroad 162 NE 99 5 Bhamra v Dubb  EWCA Civ 13 6 Muirhead v Industrial Tank Specialities Ltd  QB 507 7 Watson v British Boxing Board of Control .
QB 1134 sufficient proximity to give rise to a duty of care because the Board was the only body in the UK which could license professional boxing matches and thus giving them full control and responsibility for a situation that is highly likely to result in harm if reasonable care was not exercised. Lord Atkin quoted Lord Esher in Le Lievre v Gould8, ‘If one man is near to another, or near to the property of another, a duty lies on him not to do that which may cause a personal injury to the other, or may injure his property’.
As per the facts on our question, in that situation it is highly likely that it could reasonably be expected the youths might break into or cause damage to any of the property nearby, without the need of identifying the owner of the property. Moreover, Justin and Jason had complete control and responsibility of the youths’ performance. From here, it is very possible that the courts would be able to establish proximity between Justin and Jason with Mark. The third requirement is that it must be just and reasonable to impose a duty on the defendant.
This requirement often overlaps with the first and second requirement. For example, arguments relating to proximity could also be seen as arguments relating to justice and reasonableness. However, when the third requirement is specifically referred to, it normally means the foreseeability and proximity requirement are met but the claim could be denied based on public 8 Le Lievre v Gould  1 QB 491 9 From a speech made by Lord Atkin in Donoghue v Stevenson at 508 in producing the concept of neighborhood. policy grounds. In the case of McFarlene v Tayside Health Board10, a duty of care was denied on the grounds that it was not just and reasonable to give compensation for birth of a healthy child.
It is also established in Jain v Strategic Health Authority11 that it is not fair and reasonable to impose a duty when it conflicts with another duty owed to another party. As per the facts, it is fair and reasonable because Justin and Jason were hired to supervise the youths but they didn’t carry out their duty, thus resulting in damage to Mark’s bakery. It doesn’t make sense for there to be public policy reasons for denying a claim of duty of care on Justin and Jason. Thus, if the three elements of the Caparo test could be satisfied, a duty of care towards Mark can be established.
Assuming that a duty of care is established, we then need to prove breach in order to establish negligence. Breach of a duty arises when the defendant’s conduct has fallen below the reasonable standard expected of a reasonable man in that particular situation. The ‘reasonable man’ test is seen in the case of Blyth v Birmingham Waterworks. 12 This essentially means that it would not be relevant even if the defendant thinks that his conduct is fine. In our question, it must be shown that the standard of Justin and Jason’s conduct was unreasonable owing to the failure in supervising the youths. Here, two 10 McFarlene v Tayside Health Board  4 All ER 961.
11 Jain v Strategic Health Authority  2 WLR 248 12 Blyth v Birmingham Waterworks  11 Exch 781 questions must be asked, namely, what is the required standard and whether the conduct has fallen short of the standard. In terms of the first question, the legal standard is to take such care as would be taken by a reasonable man in that circumstances. This is explained in the case of Paris v Stepney Borough Council13 and is determined objectively. For the second question, Mark should be advised that the standard needed becomes whether Justin and Jason acted with the level of skill and competency that is expected from someone in their position.
According to common sense, the main purpose that Chigley Services hired Justin and Jason is to ensure that they supervise the youths and prevent them from doing damage or harm to others. On the facts, the break-in of the school occurred because Justin and Jason had gone for a cigarette break when they were supposed to be supervising. Since they defeated the main purpose of their recruitment, it is unlikely that they have acted according to a reasonable standard. If breach can be found, we need to establish causation next. This means that Justin and Jason’s breach must have caused damage to Mark’s baker shop.
The first issue we have to deal with is whether the damage would have resulted but for the breach of the duty, this is known as the factual causation or ‘but for’ test. A clear example can be seen in the case Barnett v Chelsea and Kensington Hospital Management Committee14, it was held that the defendants did owe a 13 Paris v Stepney Borough Council  AC 367 14 Barnett v Chelsea and Kensington Hospital Management Committee  1 All ER 1068 duty of care and had breached it, but causation could not be established because the claimant would still have died even though the duty of care was not breached.
To establish factual causation, we must be satisfied that damage would not have occurred but for Justin and Jason’s breach of duty. On the facts, it is clear that Mark’s baker shop would not have caught fire if Justin and Jason had been supervising the youths and preventing them from setting the fire. However, this will be determined on the balance of probabilities. There is still a very small possibility that even if Jason and Justin had been supervising the youth all the time, the youths might still act beyond their control. Nevertheless, this is quite unlikely thus it is highly likely that the but for test can be satisfied.
Regarding the last requirement of negligence, even though Justin and Jason were the factual cause of damage to Mark’s baker shop, they must also be the legal cause. It means that the damage must be a type that could reasonably be foreseen and not too remote. This is explained in the case of Wagon Mound No. 115 where a test of remoteness was applied. This test requires that the damage is foreseeable and if so, the defendant would be liable to the full extent of the damage even though that extent might not be foreseeable.
On the facts, it is arguably foreseeable that any damage could arise if the youths were left unsupervised. The damage to Mark’s baker shop is 15 Wagon Mound No. 1  AC 388 also unlikely to be remote. Therefore, it appears that Mark has a valid claim of negligence against Justin and Jason. However, Mark should also be advised that he has an alternative of pursuing his claim against the Home Office and Chigley Services under the doctrine of vicarious liability. This would be more desirable because there is better guarantee of compensation if won.
This doctrine renders employers legally liable for the acts of their employees. This is justified because employers normally have better insurance and also benefits from their employees’ action, it is acceptable for them to run the risk of taking responsibility for actions of their employees. However, as per the facts, Chigley Services was under a contract to the Home Office. Applying the principle stated by Lord Widgery in the case of Salsbury v Woodland16, Chigley Services had been employed by the Home Office as independent contractor that does work on its behalf, therefore the Home Office will not be liable for any tort committed by the contractor in the course of employment.
Whereas, Chigley Services and Justin and Jason had a contract of services which renders themselves vicariously liable for their acts. Therefore, a claim against Chigley Services would be more likely to succeed than a claim against the Home Office. In order to establish vicarious liability, the person who committed the tort must be an employee of the defendant. 17 As per the facts, it is 16 Salsbury v Woodland  1 KB 191 17 Available at http://www. lawteacher. net/free-law-essays/vicariousliability. php accessed 17 January 2014 clear that Justin and Jason are employees, so the first hurdle is cleared.
The issue here is whether the tort is committed in the course of employment. In the case of Century Insurance v Northern Ireland Road Transport18, Lord Wright held that the negligent act was done for the employee’s own purposes but that doesn’t prevent the employer from being vicariously liable because it was nevertheless part of his job, even though not done in the way the employer had wanted. 19 Applying this on our facts, Justin and Jason were performing their job by supervising the youths, but they went for a cigarette break on their own convenience. According to case law, this is nevertheless to be considered to be done in the course of employment even though not in the way intended by the employer. Another case which bears a similar facts of failing to supervise is the case of Dorset Yatch Company Ltd v Home Office20.
The Home Office in this case was liable and therefore responsible for the damage caused. Therefore, it is highly likely that Chigley Services would be vicariously liable for the tort on the same grounds, Mark can choose to sue them directly. Furthermore, there’s a possibility that Chigley Services might argue that their employees were acting on the ‘frolic of his own’ and thus not within the course of employment. However, this is probably harder to be proved although it would eventually be decided by the court. Lastly, because vicarious 18 Century Insurance v Northern Ireland Road Transport .
1 All ER 491 19 Hepple and Matthews’, Tort Cases and Materials (6th edn OUP, New York 2009) 1079 20 Dorset Yatch Company Ltd v Home Office  AC 1004 liability is a form of joint liability, Mark can also try sueing Justin and Jason at the meantime even though in practice usually only the employer is sued. Besides, the Home Office might want to use the fire brigade as defence, by trying to argue negligence on the part of the fire brigade. On the facts, the fire would not have had time to spread to neighbouring property had the fire brigade acted more swiftly. The issue to be discussed here is whether negligence can be established on the fire brigade.
Thus, the first step in establishing negligence is to determine the existence of a duty of care. However, the issue here is that there has been no positive acts on the part of the fire brigade. In the case of Smith v Littlewoods Organisation Ltd21, Lord Goff held that the general rule in negligence is that a duty to act will not be imposed in relation to a failure to act.
22 However, there are a number of exceptions in which the judge held that there is a positive obligation to act and could give rise to breach of duty if not acted upon. In our question, the fire services is involved. There have been a number of case laws regarding this aspect, we need to look into it in deciding whether a duty of care is owed. Mark might want to argue that by answering the call, the fire brigades have assumed responsibility and thus have a duty of care. However, the court is likely to reject this idea on the grounds that Mark 21 Smith v Littlewoods Organisation Ltd  AC 241 22 S Deakin, A Johnston & B Markesinis, Markesinis And Deakin’s Tort Law (7th edn OUP, Hampshire 2013).
178 could have at least taken some precautions to prevent the fire from spreading while the fire brigade was on its way. Moreover, in the case of Capital & Counties PLC v Hampshire County Council23, Stuart-Smith LJ held that the fire brigade is not under a common law duty to answer calls for help and is not under a duty to take care to do so either. Furthermore, the common law has never really accepted the existence of a common law duty to go, proactively, to the assistance of needy members of the general public.
24 In the case of Kent v Griffiths25, a distinction between public services, namely the ambulance and fire brigades, was drawn. It was argued that the ambulance service generally owes a duty of care, unlike fire brigades that generally do not owe a duty of care. This is on the basis that for ambulance service normally the number of casualties and extent of injury is known or predictable, and thus a duty of care should be upheld. In the case of firefighting, it is agreed that fire spread very fast and the number of people and property that might get affected is uncertain and unpredictable, thus imposing a duty of care on fire brigades is unfair and would lead to a floodgate of litigation.
26 Nevertheless, In the case of Capital & Counties PLC v Hampshire County Council which was mentioned above, a duty of care was found, but it could be 23 Capital & Counties PLC v Hampshire County Council  QB 1004 24 M Vranken, ‘Duty to Rescue in Civil Law and Common Law’ (1998) 47 Int’l & Comp. L. Q.
934-942 25 Kent v Griffiths, Roberts and London Ambulance Service  2 WLR 1158 26 Available at http://www. johnhardcastle. co. uk/2013/09/02/the-duty-of-care-owed-by-a-fire-service accessed 18 January 2014 distinguished with the other cases. It was held that a duty of care could be imposed in certain circumstances, for instance when additional danger was created by the negligence of the fire brigades. 27 As per our facts, the fire brigades were late because not enough vehicles could be dispatched at that time and the vehicle from Leicester lost its way hence causing the delay in arrival. As opposed to Kent v Griffiths, here there’s a good reason why the fire brigade was late. Besides, there is no evidence of the fire brigades causing additional danger.
Lastly, there are policy reasons28 why a duty of care should not be owed in general, this was shown in the case of John Munroe v London Fire and Civil Defence Authority29. It was argued that imposing a duty of care on fire brigade will not improve its efficiency but instead it may lead to defensive firefighting. In the case of The Church of Jesus Christ of Latter-Day Saints (Great Britain) v West Yorkshire Fire and Defence Authority30, it was held that imposing a burden of emergency services will only distract it from the proper task of fighting fire. Above all these, one should also look at the ‘value of the activity’, when it involves cases of fire services.
This was found in the case of Watt v Herdford 27 Available at http://www. independent. co. uk/news/people/law-report-no-duty-owed-to-owner-by-atte nding-and-fighting-fire-1266268. html accessed 18 January 2014 28 Available at http://sixthformlaw. info/01_modules/other_material/tort/1_duty/5_duty_fair_just. htm accessed 18 January 2014 29 John Munroe Ltd v London Fire and Civil Defence Authority  QB 983 30 The Church of Jesus Christ of Latter-Day Saints (Great Britain) v West Yorkshire Fire and Defence Authority  2 All ER 865 County Council31 which argues that duty should not be imposed because of public benefit that is involved in the activity.
Moreover, it can be argued that there is no sufficient proximity between Mark and the fire brigade because firstly the fire brigade is not a local one and secondly, in contrast with the case of Capital & Counties PLC v Hampshire County Council, the fire brigade were not negligent in making the situation worse. Hence, applying all these on our question, it is highly likely that a duty of care could not be found. Since a duty of care could not be found, there won’t be a breach of duty. Accordingly, the third and fourth element of negligence could not be established, meaning that it is impossible for negligence to be established on the part of the fire brigades.
Now the last issue is whether Mark can have any redress on the economic loss which was incurred through the negligent act of Justin and Jason. With regards to economic losses, it is a matter of policy. The position is clearly represented in the case of Spartan Steel & Alloys Ltd v Martin & Co32. It was decided that only physical damage to property and economic loss arising from damage to property can be recovered. Pure economic loss cannot be recovered in tort. Applying this on our case, the losses that Mark might want to recover are probably losses he is expected to suffer before his baker shop gets back into business.
31 Watt v Herdford County Council  1 WLR 835 32 Spartan Steel & Alloys Ltd v Martin & Co  1 QB 27 This is considered as pure economic loss as it is losses that does not directly result from personal injury or damage to property. However, as confirmed in the case of Londonwaste v AMEC Civil Engineering33, pure economic loss is not recoverable. Pure economic loss is speculative and thus tort does not protect speculative interest. There are two reasons why the law of negligence is reluctant to allow claims for pure economic loss. Firstly, this would open the floodgate to litigations.
Moreover, the possible economic loss may be astronomical and incalculable. Secondly, contract was the means by which economic loss is to be compensated and the courts are unwilling to interfere with this. Nevertheless, Mark should be advised that he might also try recovering losses arising from the damaged bread and the profit for the damaged bread. This is probably recoverable as the damage is the kind that is foreseeable.
Thus, it is highly likely that Mark will be able to recover his losses except for pure economic loss. In conclusion, it is highly possible that negligence can be established on the part of Justin and Jason. However, because of the doctrine of vicarious liability, Mark is also able to sue Chigley Services which is vicariously liable. In practice, normally only the employer is sued but it is still possible for Mark to pursue his claims from both. As for the fire brigade, it is unlikely that a duty of care is owed, thus negligence will not be established. Lastly, although pure economic loss 33 Londonwaste v AMEC Civil Engineering  83 BLR 136 is not recoverable, he can still bring a claim against Justin and Jason and Chigley Services for other economic losses he suffered.
Bibliography Books Elliott C & Quinn F, Tort Law (8th edn Pearson, Gosport 2011) Deakin S, Johnston A & Markesinis B, Markesinis And Deakin’s Tort Law (7th edn OUP, Hampshire 2013) Hepple and Matthews’, Tort Cases and Materials (6th edn OUP, New York 2009) Articles Vranken M, ‘Duty to Rescue in Civil Law and Common Law’ (1998) 47 Int’l & Comp. L. Q. 934-942 Electronic Sources Hardcastle J, ‘The Duty of Care Owed by a Fire Service’ http://www. johnhardcastle. co. uk/2013/09/02/the-duty-of-care-owed-by- a-fire-service accessed 18 January 2014 O’Hanlon K, ‘No Duty Owed to Owner by Attending and Fighting Fire’.
http://www. independent. co. uk/news/people/law-report-no-duty-owed-to -owner-by-attending-and-fighting-fire-1266268. html accessed 18 January 2014 Mike Souper, ‘Fair Just & Reasonable or Policy Considerations’ http://sixthformlaw. info/01_modules/other_material/tort/1_duty/5_duty_ fair_just. htm accessed 18 January 2014 Law Teacher, ‘Vicarious Liability’ http://www. lawteacher. net/free-law-essays/vicariousliability. php accessed 17 January 2014 Table of Cases United Kingdom Cases Barnett v Chelsea and Kensington Hospital Management Committee  1 All ER 1068 Bhamra v Dubb  EWCA Civ 13
Blyth v Birmingham Waterworks  11 Exch 781 Capital & Counties PLC v Hampshire County Council  QB 1004 Caparo v Dickman  2 AC 605 Century Insurance v Northern Ireland Road Transport  1 All ER 491 Dorset Yatch Company Ltd v Home Office  AC 1004 Donoghue v Stevenson  AC 562 Jain v Strategic Health Authority  2 WLR 248 John Munroe Ltd v London Fire and Civil Defence Authority  QB 983 Kent v Griffiths, Roberts and London Ambulance Service  2 WLR 1158 Le Lievre v Gould  1 QB 491 Londonwaste v AMEC Civil Engineering  83 BLR 136.
Muirhead v Industrial Tank Specialities Ltd  QB 507 McFarlene v Tayside Health Board  4 All ER 961 Paris v Stepney Borough Council  AC 367 Palsgraf v Long Island Railroad 162 NE 99 Salsbury v Woodland  1 KB 191 Smith v Littlewoods Organisation Ltd  AC 241 Spartan Steel & Alloys Ltd v Martin & Co  1 QB 27 The Church of Jesus Christ of Latter-Day Saints (Great Britain) v West Yorkshire Fire and Defence Authority  2 All ER 865 Wagon Mound No. 1  AC 388 Watson v British Boxing Board of Control  QB 1134 Watt v Herdford County Council  1 WLR 835.