Submitted by SWFBU on
TO: ALL MEMBERS
Dear Brother/Sister
MARLIE FARM FATAL INCIDENT 2006: LEGAL DEVELOPMENTS AND IMPLICATIONS FOR THE FUTURE OF THE FIRE AND RESCUE SERVICE IN THE UK
Members will have read our previous reports on the issues arising from the fatal incident at Marlie Farm in 2006. This circular updates members on recent developments and the implications of the actions being taken by East Sussex Fire Authority (East Sussex does not refer to itself as a Fire and Rescue Authority).
Background
On 3 December 2006 fire crews were mobilised to a fire at Marlie Farm located near Ringmer in East Sussex. The incident involved a complex of buildings at which a large volume of fireworks were being stored. The presence of such vast quantities of these explosives was not known to the Fire and Rescue Service (who had not carried out an inspection of the site under section 7(2) (d) Fire and Rescue Services Act).
As a consequence of the development of the fire, what safety measures were in place failed to protect the explosives from becoming involved in the fire and an explosion occurred killing two firefighting personnel – one a Watch Manager and the other a retired firefighter working as a video technician - and injuring at least nine others. The explosion was not the first that had occurred that day but it was the first which was made known to crews.
There were two principal legal cases that followed the incident. The first was a criminal case, the outcome of which was that the owners of the site were prosecuted and were convicted of gross negligence manslaughter. The two defendants - a father and son - received sentences of 7 and 4 years respectively.
The second case was litigation in the civil courts for compensation on behalf of the families of those killed and also for those who were injured (who included several police officers as well as the firefighters). The court case in respect of compensation was heard at the High Court before Mr Justice Irwin over 10 days in early 2013. Judgment was given in the firefighters’ favour at the end of July 2013. Legal representation by the FBU was provided for the family of the deceased video technician, Brian Wembridge, and for all of the injured firefighters.
The substance of the defence made by the Fire Authority
The lawyers for East Sussex Fire Authority entered a defence consisting of three key broad arguments:
1. One, was an argument of fact, based on expert evidence, that there were no relevant failures in pre-planning including training and inspection of the site or in the communications between Control and the fireground, that the incident commanders had done all they reasonably could be expected to do in difficult circumstances where the occupiers had not been co-operative or frank with the firefighting operations and that they had therefore not been negligent, and
2. Secondly, they argued that, the specific facts of this case aside, the Workplace and other regulations which place a responsibility on employers to protect the health, safety and welfare of their employees simply did not apply to the Fire and Rescue Service, in their words that there exists “a Fire Service immunity” from actions on the fireground in the same way as military commanders are not held responsible in the civil courts for their actions on the battleground.
3. East Sussex Fire Authority also sought to maintain a rather distasteful claim that Brian Wembridge had contributed to his own death by his own negligence in entering and remaining on the site despite the obvious risks in so doing.
A shocking defence
The Fire Authority’s arguments to the court came as a shock to almost everyone in the Fire and Rescue Service as well as to the families and the injured. The employer’s case went far beyond arguing for mitigation of its liability because of the arrangements and actions it had put in place in this particular case.
It was immediately apparent to the FBU legal team and the Fire Brigades Union that the employer’s defence, if successful, would have the effect of tearing up all health and safety legislation and regulation particularly as it applies to firefighters. A successful outcome for the employer would have meant that there was no redress in future for injured or killed firefighters against any Fire and Rescue Service even if they had failed to take any reasonable precautions to protect firefighters on any incident ground.
It demonstrated the disregard the Fire Authority has toward the safety and well-being of its employees. At the same time revealed an utter disrespect for all firefighting personnel who work tirelessly to prevent and resolve incidents day in and day out, ensuring the protection of firefighters whilst at the same time saving the lives, health and property of the public across the UK.
The outcome of the case
On 30 July 2013 the judge, Mr Justice Irwin handed down his verdict on the case. His key findings on the issues of fact can be summarised as follows:
1. East Sussex Fire Authority failed to train staff on the risks of a significant explosion with fireworks stored in bulk and the correct manner in which to approach explosives incidents.
2. East Sussex Fire Authority failed to make adequate planning (i.e. to carry out standard inspections and build their findings into an emergency response plan) for an explosives incident at Marlie Farm, despite warnings about the site, the evidence of poor water supplies and their knowledge of the widespread, bulk storage of fireworks in Sussex.
3. East Sussex Fire Authority, through the Mobilisation and Communications Centre, failed to pass on information received in calls they received; for example, that a “huge explosion” or “large explosions” had taken place.
4. East Sussex Fire Authority failed to order an evacuation even once the presence of large fireworks in the shipping container was strongly suspected and the risk of explosion and consequent injury was therefore clear.
5. East Sussex Fire Authority failed to execute the evacuation properly once it was belatedly ordered, leaving firefighters working very close to the ISO container which eventually exploded.
The court rejected the claim of contributory negligence on the part of Brian Wembridge.
Finally, and of service-wide significance, the court rejected the Fire Authority’s arguments that it has no responsibility towards its firefighters and owes them no duty of care - and therefore has no liability when a firefighter is injured or killed.
Appeal
The Fire Authority’s request to appeal was rejected by Mr Justice Irwin on 2 October 2013. As a consequence the Authority then submitted a request to the Court of Appeal. On 6 January 2014, an Order was signed by the Right Honourable Lord Justice Lewison of the Court of Appeal granting leave to appeal for the following reasons: “The grounds of appeal raise important issues which ought to be considered by the full court”. The court has directed that the appeal will be heard over 2 days starting on either 28 or 29 July 2014.
Implications
The Court of Appeal has made its decision to allow the appeal to be heard. The FBU has an opinion on that, but we note that the decision to hear an appeal is very much different to determining the outcome of such an appeal.
We are appalled however that East Sussex Fire Authority has registered its appeal. If successful, the effect of doing so would have the following affects do three things:
• To withhold compensation for the families of the deceased and from those who were injured.
• To undermine and effectively scrap the requirements made of Fire and Rescue Authorities to make satisfactory arrangements to ensure the provision of effective plans, equipment and procedures to ensure that fires and other incidents can be resolved; and
• To remove duties and responsibilities of all Fire and Rescue Authorities to protect the health safety and welfare of its workforce, in other words to make firefighters expendable.
The FBU will keep members informed of developments and will of course continue to provide legal representation.
Given the wide-ranging implications of this case which challenge the fundamentals of Fire Service provision and firefighter safety we are appalled but not surprised that there has been no comment from the LGA or CFOA condemning what East Sussex Fire Authority is doing. Their approach has implications for every single Fire and Rescue Service in the UK and for every single firefighter – in whatever role.
Following these developments, the Executive Council agreed that the FBU should write to the Fire Authority. I wrote to the Chair of the Fire Authority on 7 August 2013 to register the Union’s concerns directly and to seek a meeting with the Authority. Our offer was not taken up and no such meeting has taken place.
We are also aware that East Sussex Fire Authority members were subsequently written to by Mr Dave Dowling, an ex-Area Manager in East Sussex FRS, at the end of November 2013 who informed them: “Having read the transcript of the outcome of the court case, it reminds me of the same findings identified in the Interim Report I produced as the Investigation Team Leader before I left East Sussex Fire and Rescue Service in 2007”.
Mr Dowling went on to say: “From my unique perspective, there are no grounds for an appeal and I am contemplating why the current stance has been taken by East Sussex Fire and Rescue Service. I, like many others, am not convinced the insurers have influenced the decision”.
The FBU agrees with the view of Mr Dowling, whose pleas went unheard by the Fire Authority: “As the 7th anniversary approaches, it would be reassuring to hear that a decision has been made to bring this chapter to a close and do the right thing by the families who were affected by the sad event”.
Should you wish to read any of the publicly available documents in connection with the case please visit the FBU website at: www.fbu.org.uk
I am sure that all members will appreciate the significance of these developments. We shall therefore ensure that members are kept fully informed at each stage.
Best wishes.
Yours fraternally
MATT WRACK
GENERAL SECRETARY
