Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 55

PD2425/13

OPINION OF LORD McEWAN

In the cause

JOHN MACKAY

Pursuer;

against

SCOTTISH FIRE & RESCUE SERVICE AND ANOTHER

Defenders:

Pursuer:  Allardice;  Thompsons

First Defenders:  Dunlop QC;  Reid Cooper

Second Defenders: Pugh;  Simpson & Marwick

7 May 2015

[1]        The pursuer sues the defenders in reparation for injuries sustained in 2010 when he was walking in a street in Dundee.  Snow, ice and metal fell from a roof and struck him.  At the time the weather was very severe.  Let me begin by looking in summary at what is averred on record.  The pursuer lives at 210 … Road, Dundee.   In article 5, the extreme winter conditions of December 2010 are averred.    Minus temperatures allowed ice to build up on the facade of numbers 206 to 210 with snow and ice also on the roof.  Both defenders inspected the properties there to establish the risk of injury and damage posed by the ice and snow.  It is then said that on 8 December these defenders after an inspection “…carried out removal of areas of ice and snow from the roof and façade areas of 206 to 210…”  Page 8 of the print discloses that there is a dispute in fact about precisely where snow and ice were removed, coupled with a duty to inspect and remove or at least report upon any hazardous ice at adjacent properties to 206.  It seems to be accepted that neither defender owned any of the properties.  The risk in question is said to be falling ice and debris. 

[2]        The answers show that then by day snow was melting and freezing again by night.  The second defenders did not have the equipment to access and inspect the roofs.  On 9 December it is alleged that the pursuer was walking on the pavement in front of 208 when ice and guttering fell on to him.  The breach of duty is found at page 7.  The duty is to identify the hazard, make an adequate inspection, then remove any ice and snow presenting a risk.  Also, and in particular, it is said there was a failure to remove ice from the guttering.  I pause to observe that in the argument before me it was said that when the clearance was done on 8 December, the street was cordoned off by the police.  Nowhere is this averred by any party. 

[3]        I was referred to a number of cases which I list here in approximate date order. 

Mersey Docks etc Trustees v Gibbs (1864) HLC 685

Virtue v Commissioners of Police of Alloa (1873) 1 R 285

Cameron v Inverness CC 1935 SC 493

East Suffolk Rivers Catchment Board v Kent [1941] AC 74

Anns v Merton London Borough [1978] AC  728

Caparo Industries v Dickman [1990] 2 AC 605

Duff v Highlands and Islands Fire Board 1995 SLT 1362 (Note)

Capital & Counties Plc v Hampshire County Council [1997] QB 1004

O’Rourke v Camden London Borough Council [1998] AC 188

Gibson v Orr 1999 SC 420

McConnell v Ayrshire and Arran Health Board 14/2/01

Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057

Burnett v Grampian Fire & Rescue Service 2007 SLT 61

Rowley &c v Secretary of State for Work and Pensions [2007] 1 WLR 2861

Mitchell v Glasgow City Council 2009 SC (HL) 21

X v Hounslow London Borough Council [2010] HLR 4

Furnell v Flaherty [2013] EWHC 377 (QB)

Ryder v Highland Council 2013 SLT 847 OH

A J Allan (Blairnyle) Ltd v Strathclyde Fire Board [2014] CSOH 135

STV Central Ltd v Semple Fraser LLP [2014] CSOH 82

Michael &c v Chief Constable of South Wales Police [2015] 2 WLR 343

 

[4]        Mr Dunlop opened by reminding the court that the whole circumstances arose from the very severe winter weather in 2010.  The pursuer had been struck by snow and ice falling from a tenement building in Dundee.  Having looked at condescendence 5 he turned to the provisions of the relevant statute (The Fire (Scotland) Act 2005) which provided for the setting up and continuation of fire and rescue authorities in local government areas.  He confirmed that in the present case his clients could only act under the powers conferred on them by statute.  In the context of what happened it was important to note that what was involved was a “power” not a duty.  It was not fighting a fire.  Because it was a power, they had no duty to act and if they had refused or been unable to act, no liability could have attached to them.  If they did act they would only be liable if they made things worse.

[5]        He referred me to East Suffolk RCB, the Lord Chancellor at 84, 85, 87; Lord Romer 102.  They had no duty to go to the roof at all and it was counter intuitive to make them liable for attempting to help.  Counsel then took me to Gorringe v Calderdale MBC, a case where road markings had been rubbed out.  He referred in particular to the speech of Lord Hoffmann in paragraphs 17 to 32.  Next was Furnell and another v Flaherty, a single judge decision (Turner J).  It concerned E. coli at a pet farm.  The case stressed the need for a relationship; and various passages were highlighted between paragraphs 37 to 65.  O’Rourke v Camden London BC was referred to lightly, then Antonucci v Ayrshire Health Board, a decision of Lord Reed in the Outer House approving at paragraph 168 of East Suffolk.  Counsel then referred to at great length Capital and Counties Plc v Hampshire CC, a decision of the Court of Appeal concerning four different cases where fire damaged property.  These were cases involving a fire fighting duty.  There was a danger in accepting a limitless duty.  Passages were read between pages 1030 to 1038. 

[6]        Mr Dunlop then distinguished two cases which he accepted did not favour his argument about East Suffolk.  These were Burnett v Grampian Fire & Rescue Service and A J Allan (Blairnyle) Ltd and another v Strathclyde Fire Board both Outer House cases.

[7]        Four more cases were looked at which I note viz Mitchell v Glasgow City Council both in the Inner House and in the Supreme Court.  I have some familiarity with this case as I was the trial judge at what was originally a murder indictment.  I note twelve years on with some interest Lord Hope’s remarks on the ultimate disposal of the case on appeal (paragraph 1).  Proximity was an issue in that case.  There were finally three cases on assumption of responsibility viz Rowley v Secretary of State; X v Hounslow LBC and finally STV Central Ltd v Semple Fraser again an Outer House decision.  In his reply Mr Dunlop accepted what was contained in Mersey Docks pointing out that the case was referred to with approval in East Suffolk and Capital and Counties for example.  In this area the laws of Scotland and England ought to be the same.  That was said in Virtue and repeated in various places in Mitchell.  In Scots law there could be a difference between acts and omissions.  It could depend on control, and Gibson was a good example of control, whereas the facts of this case showed no control and it had to be emphasised that there could be no duty to clear away all the snow.  These defenders did not make it worse and the pursuer was injured a day later when they were not there.  Mitchell made it clear that a critical issue was the scope of the duty.  Here there was no proximity or relationship between the parties.

[8]        He concluded by looking again at Michael which he described as a narrower case and yet it had been “struck out”.  From it he took a number of salient points.  Capital and Counties had been approved and East Suffolk was not criticised (as it had been in Anns).  None of the Outer House cases had been expressly approved.  There was insufficient proximity and no assumption of responsibility.  The facts of the present case showed even less proximity. 

[9]        Mr Pugh for the second defenders adopted the argument for the first defenders and made the following other points.  These defenders did not own the building and had no control over it.  Any work done was on the day before any accident.  His clients were not the landlords of the pursuer as were the defenders in Mitchell.  He referred me to the Civil Contingencies Act 2004, sections 1 and 2; and the Local Government in Scotland Act 2003, section 20.  While these defenders had wide powers they had no duty to clear the roof. 

[10]      Counsel for the pursuer moved me to allow a proof before answer against both defenders.  The issue was not what the law was in the English cases.  This was simply common law negligence.  Foreseeability was conceded and the proximity was the people on the “cordoned off” street when the defenders were there.  The argument that statute gave immunity had been tried and rejected in several Scottish Outer House cases.  He referred me to Aitken, Allan, and Gibson v Orr. 

[11]      When the case resumed Mr Allardice developed a slightly different argument with new authorities.  Referring back to the law in 1830 he said that a case in that year had held that if there were statutory powers there could be no common law claim in fault.  However, with the Mersey Docks case the law changed and common law claims could be admitted against a statutory body.  The case of Virtue confirmed that Mersey Docks was good law in Scotland.  Counsel referred extensively to passages between pages 291 to 296.  In the present case the defenders were seeking to impose the old rule.  These cases, he said, were binding on me as was Cameron (he referred to pages 496 to 498).  Ryder was another helpful example (page 859 onwards). 

[12]      He then turned to Gibson on the question of acts or omissions.  There the damage to the bridge had not been done by the police.  They had attended then left.  It was a simple omission.  This could be compared with the fire brigade cases where they did not search for other sources of fire.  The test was one of common sense.  If what happened in Gibson was negligence then the facts of the present case were a fortiori.  Counsel read extensively from pages 429 to 434.  Gibson was approved in Mitchell he said.  Counsel then looked at Burnett and how the Lord Ordinary had distinguished the English cases especially Capital and Counties.  The next Outer House case of Allan had followed Burnett.  As far as East Suffolk was concerned the important point was that the damage had not been caused by the Board nor had they created any additional damage.  For present purposes, much of what was said was obiter.  It established no principle which could be applied in Scots law.  The English cases referred to by the defenders were all different on their facts.  There was no place in Scots law for assumed responsibility.  Mitchell was a case where there was not enough proximity and there was no assumption of any responsibility and the recent case of Michael was similar to Mitchell.  Counsel looked in some detail at Michael and maintained that Burnett and Duff had not been disapproved. 

[13]      The facts of this case, he concluded, showed an operational activity and there could be no good reason why a duty of care should not be imposed on both defenders. 

[14]      The Fire (Scotland) Act 2005 provides as follows inter alia:

“13       Power to respond to other eventualities

      (1)     A relevant authority may take any action it considers appropriate—

               (a)     in response to an event or situation that comes or is likely to come—

                        (i)   a person to die, be injured… or

                        (ii)  harm to the environment (including…the fabric of buildings); or

               (b)     for the purpose of enabling it to take action in response to such an event or situation…

 

  14      Provision of other services

(1)     A relevant authority may provide—

(a)     the services of any persons employed by it; or

(b)     any equipment maintained by it,

to any person for any purpose that appears to the authority to be appropriate…”

 

Section 9 provides for the local authority making the necessary provision for its fire services and in particular includes: “(2)(a) … the provision of the personal services and equipment necessary to meet efficiently all normal requirements;”.  The Local Government in Scotland Act, 2003 provides inter alia:

“Section 20

 

(1)        A local authority has power to do anything which it considers is likely to promote or improve the well being of -

(a)        its area and persons within that area …

 

(2)        The power under subsection (1) … includes power to -

(c)        enter into arrangements … with any person …”

 

The Civil Contingencies Act 2004 provides inter alia section:

 

“1(1)    … “emergency” means -

(a)        an event or situation which threatens serious damage to human welfare

 

2(1)      ,,, A [Local Authority] shall

(d)        maintain plans … for the purpose of -

(i)         preventing the emergency

(ii)        reducing, controlling or mitigating its effects”.

 

[15]      I want now to look at some of the cases beginning with those in England.  The cornerstone of the defenders’ argument is that East Suffolk RCB v Kent is good law in Scotland and should be followed. 

[16]      The facts are well known.  A very high tide broke the sea wall of the River Deben and the respondents’ dairy farm land was flooded.  The Board under their statutory powers undertook a repair.  It was badly done and flooding continued for 178 days causing damage to the farm land.  Done properly, it could have been repaired in 14 days.  At the trial and on appeal the Board were held liable.  In the House of Lords it was held that when the statutory authority embarks on the execution of the power to do works, the only duty owed to any member of the public is not to add to the damage they would have suffered if the authority had done nothing.  That is particularly clear from the speech of Lord Romer at 102.  There was thus no liability. 

[17]      Looking next at Capital and Counties Plc, a decision of the Court of Appeal, it is to be noted that the decision in East Suffolk was binding.  These were four cases, heard together, where a fire authority had failed to extinguish a fire.  In the Basingstoke cases, an official referee found liability established when a building was destroyed in two hours.  On arrival, the fire officer had turned off a sophisticated sprinkler system too soon, only to turn it on again too late.  In the London case a twenty minute fire was on land adjacent to premises.  Firemen attended but failed to check the adjacent land.  The Yorkshire case involved a Mormon chapel.  In spite of fifteen fire engines attending it burned down.  The water supply was inadequate.  Seven hydrants were in the area; four did not work and the others could not be found due to lack of signage and undergrowth.  Water was eventually used from a dam half a mile away.  The judge found no liability for breach of statutory duty.  East Suffolk was criticised in the argument (1017) but was quoted (minus the dissent) with approval at 1032 and, reasoning by analogy, followed in the first two cases where the fault of the fire officer seems obvious. 

[18]      It has to be said that each of these cases is wholly different from the case before me.  They turned on their facts and on the principles in Caparo of foreseeability, proximity and what was fair, just and reasonable.  (See 1041 onwards to the end for the actual results).  It is interesting to note the analysis from 1039 onwards on many topics, eg the risk to morale of finding liability, satellite inquiries into procedures, floodgates arguments, public policy and insurance (1044).  Many professions and occupations were looked at especially those charged with their duties by Parliament. 

[19]      In Gorringe the claimant, on a sharp crest on a country road in Yorkshire, seeing a bus approaching braked and skidded into the bus.  Some years before there had been a “slow” sign on the road but that had disappeared due to repairs.  She sued the highway authority at common law and for breach of statutory duty.  The trial judge found in her favour but a majority of the Court of Appeal allowed the defendants’ appeal.  The Lords refused the plaintiffs appeal. 

[20]      I move now to consider some of the Scottish cases, beginning with Duff. This was only referred to in passing.  A chimney fire was attended to by the fire brigade but restarted after they had left causing the destruction of the house.  Two points arise.  In the first place, the case is different from the present in that it involved fire fighting which was a duty imposed on the defenders.  The second point to notice is that the Lord Ordinary expressed disapproval of East Suffolk.  He agreed with the view of it expressed by Lord Salmon in Anns.  In Burnett a fire broke out in a second floor flat in Aberdeen.  The defenders attended and put out the fire.  While there, they forced entry to the pursuer’s third floor flat to check.  They failed to make a thorough check and the fire reignited causing damage.  It was inter alia argued that the principles of English law should apply and that there was no proximity.  The Lord Ordinary in allowing a proof before answer held that in Scots law there was no distinction between acts and omissions; that proximity could exist and that there was a duty of care at common law.  Once again the factual basis of the case is different from the present.  The Lord Ordinary agreed with the view in Duff about East Suffolk (paragraph 48 onwards).  He also did not appear to follow the reasoning in Capital and Counties.  Lord Macphail’s analysis of the many cases in Scotland and England is most impressive.  Gibson v Orr was a case where the common law duties of the police were in issue.  In December mid-afternoon a bridge carrying a public road collapsed in heavy rain.  The police were told and within minutes the north side was coned off.  The police remained for an hour with an illuminated vehicle.  They then left without any check to see if similar safety steps had been taken on the south side.  None had, and minutes later a car came from the south and went into the river with fatal results. 

[21]      Foreseeability was not an issue, and in finding the case relevant the Lord Ordinary decided that the facts showed sufficient proximity of relationship.  The Caparo tests were also satisfied.  There was a very careful and detailed analysis of many authorities particularly in relation to policy matters and the police. 

[22]      Cameron v Inverness CC was canvassed at some length as was Ryder v Highland Council.  Both cases concerned roads and authorities having certain duties towards their maintenance.  In Cameron the roads to an isolated sheep farm were cut off for over four days resulting in the death of livestock.  The action was one for breach of statutory duty said to be an absolute duty.  The case was treated as a matter of relevancy and was dismissed.  Ryder on the other hand was decided after proof and again the action failed.  The case was based on negligence when there was a fatal accident in winter on an ungritted road.  It was not a matter of relevancy and the Lord Ordinary accepted that whatever statutory duty there was, a common law case was not excluded.  However, on the facts it failed. 

[23]      I want to look now at Mitchell.  The facts are straightforward.  Mitchell was a tenant of a local authority house.  A near neighbour was a man Drummond.  Drummond was a troublesome tenant anyway but also had a hatred of Mitchell whom he had previously threatened to kill.  Drummond had had warning letters from his landlords, the defenders.  In July 2001 they held a meeting with him to tell him he might have to be evicted and the meeting became intemperate.  Following that meeting he killed Mitchell.  The pursuer’s case was narrowly based and concerned a failure to warn Mitchell that they were having a meeting and that, at it, Drummond had been abusive and ill-tempered.  The case was dismissed as a matter of relevancy.  There was no duty to warn of the risk of a criminal act by a third party and the defenders had not assumed responsibility for their tenant’s safety. 

[24]      A number of matters should be noted from this case.  In the first place it is an analysis of the obvious to say that the facts materially differ from the present.  Also the defenders were under a number of statutory duties and powers (see Lord Rodger paragraph 50 onwards to 63).  They had no resources to protect tenants (Lord Rodger paragraphs 69 and 70).  None of the Scottish fire brigade cases were cited in the House of Lords and Gibson was only referred to for the Caparo formula (Lord Hope paragraph 25).  It was stated that the test for liability in this area would be the same in Scotland and England given the way that the law had developed (Lord Brown paragraph 80).  The Court was agreed that foreseeability alone was not enough (see eg paragraph 21). 

[25]      What the speeches do show is that there are certain categories where the law has recognised common law duties.  Lord Hope gave examples at paragraphs 22 and 23 viz where the defender creates the source of danger; where the person causing the damage is under the supervision or control of the defender; where there is an assumption of responsibility to the pursuer.  (All of these of course differ from the normal master and servant, and road traffic cases (paragraph 16).  Lord Scott (paragraph 40) writes to a similar effect.  I should make the following other comments on Mitchell.  In the Outer House (2005 SLT 1100) only Gibson was cited.  In his very carefully reasoned opinion Lord Bracadale dismissed the action.  In the Inner House (2008 SLT) Lord Reed in his dissent agreed with the Outer House judge.  His opinion is very detailed and has fully analysed all the cases both on their facts and principles arising.  He also emphasised the importance of retaining the power to dismiss without proof (“strike out” in England) (pointing historically to the famous cases where this has happened in the development of the law).  In the Inner House Gibson was only referred to in argument.  By contrast Burnett only appears in paragraph 87 of Lord Reed’s powerful dissent and not with any approval. 

[26]      A J Allan directly concerned the duties of a fire brigade performing their duty to fight a fire at a farm.  The fire was extinguished but a visual check of a neighbouring building failed to find smouldering timbers.  The fire later reignited and destroyed the farmhouse.  What the defenders were doing was a routine operation to contain and extinguish a fire.  It was held to be an assumption of responsibility to exercise reasonable care to perform a statutory duty.  Clearly there was also proximity between the parties.  The Lord Ordinary found the case to be indistinguishable from Burnett and followed the earlier case.  He found no difficulty in applying also the Caparo tests when allowing proof before answer. 

[27]      I want to say a word about what I call the historical argument which came halfway through the debate.  I do not think it was seriously challenged but out of respect to counsel I shall narrate what I think to be its effect.

[28]      Duncan v Findlater was not cited to me but can be found in (1837) 15 S 1304 and in the House of Lords in (1839) McL and Rob 911 and, importantly, in (1839) 6 Clark and F.       What happened was this.  A coal merchant driving his gig at night in Perth ran into an unlit pile of stones.  The result was a fatality and injuries to the merchant.  At a trial the Lord President presided and a jury awarded damages.  The First Division adhered to the verdict but the matter was reversed in the House of Lords.  In Scotland the basis of the case was at common law but the Lords held that there could be no liability on Trustees gratuitously administering funds appropriated by statute for the upkeep of roads; and thus the matter stood until 1864 when the two appeals in the Mersey Docks cases were heard by the House.  The cases concerned damage to a ship and its cargo in Liverpool.  The two cases by the cargo owner and ship owner proceeded via a favourable jury verdict to the Exchequer Chamber and then to the House and before giving judgment the Lords took the opinion of the English judges given by Blackburn J.  The rule in Duncan was reversed and an action was allowed against the statutory trustees.  That law was to apply to Scotland and England.  Then in 1873 came Virtue a case where there were three powerful and, I may say, patriotic dissents. 

[29]      The facts concerned a road.  The pursuer in his horse and cart hit an unlit trestle left in the road, during the hours of darkness.  He sustained injuries.  A claim was made which would have to be paid from the trust funds of the Commissioners of Police of Alloa.  In a very good and clear opinion the sheriff substitute allowed a proof before answer.  The sheriff adhered and a majority of the Second Division with three consulted judges affirmed both sheriffs.  There was a serious dispute with the dissenting three judges about whether the Mersey Docks case should be followed or await a decision in what was truly a Scottish case.  It seemed to be the case that the court thought (probably correctly) that in Mersey the judges and the House had been misled by the law report which they consulted in Duncan (6 Clark & F) and, in purporting to decide the case on the exception to the judge’s charge, in fact decided it as a matter of relevancy (see eg 292 and 295).

[30]      Be all that as it may, what has happened since is that it seems to me the law in this area has taken a common course down to the present time and should be the same especially now as European jurisprudence often has to be considered.  The Supreme Court remains for both countries.  Sometimes, inevitably, the expression of the principles differs in each country, but the substance is the same.

[31]      The last case I want to look at is Michael v Chief Constable of South Wales Police.  The facts were that a woman, Joanna Michael, phoned the police to report threats by her former partner to kill her.  For a variety of reasons the police response was delayed.  She called again, was heard to scream and by the time the police came they found her murdered.  The claim in negligence was struck out and an appeal to the Supreme Court failed.  (There were two dissents.)  The majority held that the duty of the police was to the public at large and there was no duty to the family for harm caused by a third party for whom the state was not responsible, and that such a duty could not be rationally confirmed.  Here there was no close or special relationship, nor any assumption of responsibility.

[32]      At the outset I should observe that the majority cast no doubt on the soundness of East Suffolk (paragraph 75) or of Capital and Counties (paragraph 71 onwards).  On the other hand Anns is clearly not followed (paragraphs 38 and 107).  Anns has been departed from.  Accordingly it seems to me to be correct that Lord Salmon’s severe criticism of East Suffolk (p 764 of Anns onwards) cannot now be followed in England. 

[33]      The Scottish cases of Duff and Burnett were referred to at paragraph 76 onwards.  They have not attracted the approval of the Supreme Court and seem to sit uneasily with Mitchell.  In Mitchell Lord Hope said that negligence has developed on common lines in Scotland and England.  In the minority I do not read Lord Kerr’s opinion at paragraphs 164 and 179 as being in any way critical of Capital and Counties.

[34]      At paragraphs 113 to 114 Lord Toulson said this (inter alia) “…the provision of … services … aimed at protecting the general public from physical … harm caused by … (natural disasters)…” is so extensive that to compile a comprehensive list would be virtually impossible.  He went on “… It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the … burden”.

[35]      From the many cases cited to me it is not easy to reason by analogy when the facts differ.  The statutory duties explained in the many cases differ and in the present case there is no statutory duty (my emphasis) on the first or second defenders.  The three Statutes quoted to me, referred to earlier, do not in my opinion lead to any contrary conclusion.  Of course it can also be said that the statutory powers given to them do not expressly exclude claims against them however framed.  There is no formula of “no action shall lie…” to be found.  What I have called the historical argument (Virtue) makes it clear that a common law remedy can exist alongside a statutory duty.  (Neither of the defenders disputed that to be the law of Scotland).  The difficulty (though not the answer) to reconciling these is well expressed in the speech of Lord Steyn in Gorringe at page 1059. 

[36]      In the case before me there is no case precisely in point and the nineteenth century cases have to be seen in the context of roads and other infrastructure proceeding apace in the United Kingdom at the time of the industrial revolution.  I do not think that the first defenders here are wanting to go back to the days of Duncan v Findlater but rather to argue against a broad extension of delictual liability against a fire brigade who at the time were not fighting fire.  In my opinion in this area extensions ought to be incremental on Caparo tests otherwise there is a risk of the “indeterminate” liability spoken about by Lord Bridge in that case quoting (page 621) Cardozo CJ in the leading American case.  No universal formula has been found to guide this extension (Michael paragraph 103). 

[37]      There is another general dimension to this about which I want to comment.  I do not think that the principle stated in East Suffolk is wrong.  It has the approval of the recent case of Michael in the Supreme Court and I think it would be unfortunate if Scots law in this area of powers and duties were to develop in a different way.  That is not what Mitchell decided, see for example paragraphs 25, 39, 78 and 80, and if one goes back to Virtue cited by the pursuer, common development is something to be encouraged.  Also Michael is a clear brake on the creeping extension of liability on public bodies unless clearly justified on the facts of the case and binding authorities.  I have the greatest respect for all the Outer House cases cited to me but in the end of the day none is sufficiently in point to persuade me to allow any proof before answer.

[38]      In my view the present case admits of only one answer on a matter of relevancy even when foreseeability is conceded.  In the first place the first defenders were not performing any statutory duty to which it might have been easy to attach a common law duty.  They were acting under statutory powers only.  It is perfectly correct to observe that these powers give no exemption from liability.  However, the operation concerned was not fire fighting nor was it routine.  It was undertaken at a time of severe weather when the operation of nature and temperature must have affected matters.  These factors alone distinguish it from the cases cited most of which are wholly different on their facts and involve different types of public authorities.

[39]      It is also important to note that neither defender caused the problem nor is it or could it be said they made it worse.  Had any of these things been the case it would be easy to see where duties could arise. 

[40]      I am also of the view that there is no proximity here or assumption of responsibility.  There was a day of delay before anything happened and at a time when neither defender was present.  In that situation to find a duty of care would open the floodgates to almost unlimited liability to an indeterminate class of people.  Any member of the public might have been in the street at that time.

[41]      I have already said that in a case like this any extension of duties of care should be incremental and clearly justified on the decided cases.  There is no one single formula to arrive at the Caparo tests.  What I have said applies to both defenders, and I emphasise that the second defenders were not the owners of the building.  For these reasons I will dismiss the action.