Below is Sir Joseph Canley’s summing up statement and findings in the form of a Court transcript from the test case brought by Susan Fletcher together with her son Martin and also David Britton, an officer on duty on the day of the fire.
The transcript is quite lengthy but is incredibly insightful. As this is just a text transcript, the photographic evidence mentioned is not available.
Fletcher and Others v Bradford City Football Club and Others
QUEEN’S BENCH DIVISION
SIR JOSEPH CANTLEY (SITTING AS A DEPUTY HIGH COURT JUDGE)
23 FEBRUARY 1987
RS Smith QC and A McDonald for the Appellants Susan and Martin Fletcher; EM Ogden QC and S Brown for the Appellant Britton; JRV McAulay QC and EJ Glasgow for the First Defendants; HBH Carlisle QC and JA Holdsworth for the Second Defendants; HK Goddard QC and MSE Grime for the Third Defendants
SIR JOSEPH CANTLEY
These two actions arise out of a tragic fire which occurred in the main stand during the football match on the afternoon of Saturday, 11th May, 1985, at the first defendant’s football ground in Bradford. It was a fire of horrifying proportions and severity. It spread through the whole of the stand within a period of not more than 5 minutes. The stand, which had a seating capacity of 2,119 was full of spectators and 56 persons who had been occupying seats in the stand lost their lives, and many others were seriously injured.
In the action by Mrs Susan Fletcher and her son Martin, Mrs Fletcher claims damages on behalf of the estate of her late husband, who died in the fire, and damages under the Fatal Accidents Act for the benefit of his dependants. Martin Fletcher claims damages for his personal injuries. In the action by Police Sergeant Britton, who was on duty at the football ground at the time of the fire, he claims damages for injuries he received while rescuing an elderly man who was trapped in the burning stand. In accordance with the pre-trial directions, I have tried both these actions together, concerning myself only with the issues of liability. Counsel for all the parties fully participated at the trial and I am very grateful to them for the assistance which they gave me in so many ways during the trial.
There is no dispute as to the cause of the fire. It was caused accidentally by a lighted match or a burning cigarette or some burning tobacco falling through a gap or hole in the floor between Row I or Row J in Block G somewhere between seats 141 and 143. There it ignited inflammable debris which lay in large quantities under the wooden floor.
Mr Alcock, who was in Seat 141 in Row I, gave evidence and he told me that someone drew his attention to flames under the floor and, looking through a hole in the floor, he could see that something which looked like rolled up paper was burning. The initial stages of the fire can be seen in photographs 1 and 2 in the album exhibit P1. During the trial I was twice given a view of a television recording made during the fire. It vividly and, indeed shockingly recorded the rapidity with which the fire spread over the whole of the stand, and the way in which people had become trapped.
The stand was a structure about 300 feet long, constructed of wood and with a close-boarded timber roof heavily bitumenised. The roof covered the whole of the stand including the walkway which led to the exits from the stand. It can be seen in photographs 1 and 2 in the album exhibit P2. The stand had been built about 1909 by the Bradford City Association Football Club (1908) Ltd. In 1983 that company had become hopelessly insolvent and was wound up. The football ground in 1983, including the stand, was taken over by a new club with a new chairman and a new board of directors. This club, called the Bradford City Association Football Club (1983) Ltd is the first defendant in these actions and has to be distinguished from the 1908 Club. I shall sometimes refer to the 1908 Club as the old club and the 1983 Club as the new club.
The stand was built on ground which slopes upwards from the level of the football pitch at an angle of about 15 degrees. The seating accommodation is divided into two longitudinal sections separated by a walkway. I shall call this walkway the middle walkway. The arrangement can be seen in the plan exhibit P3. The seating above the middle walkway — Rows I to Q — consisted of a staggered timber framework bearing footboards and square wooden seats nailed on to continuous planking. The footboards consisted of two parallel close-boarded planks. Shrinkage and usage in the passage of time had caused gaps to open between these planks. Each row of seats was raised above the row in front. There was a gap under each seat which was sealed off by a sloping board called a kick board but some of the kick boards became loose or damaged or lost in the course of a football season and, where that had happened, there was an open gap into a continuous void nine inches or more deep which extended under the whole of the floor of that part of the stand.
Mr Cooke, the senior forensic scientist in charge of fire investigation at the Home Office Forensic Science Laboratory at Wetherby, made an investigation immediately after the fire. He concentrated particularly on the area in and around the position of seats 141 to 146 in Rows I and J. He also looked at places higher up the stand. He saw the remnants of large quantities of inflammable rubbish lying in bands parallel with the lines of the seats. He made a minute examination in the area around Seat 141 in Row I and took away samples. There were hundreds of cigarette ends and the material identified included drink cans — 12 under seat 141 — cigarette packets, match stalks, match boxes, newspapers, programmes, tickets and confectionery wrappers. A large quantity of paper debris was intermixed with the other items and in places the charred remains were about 6 to 8 inches deep. His conclusion was that the fire had started in the manner I have already described and that the combination of an upward sloping fuel bed overlayed by the staggered wooden structure was an ideal situation for flames to spread rapidly up the slope, as they did.
This accumulation of inflammable rubbish was not recent. It had built up over the years. Several items could be identified as pre-1971/1972 because they bore price markings in pre-decimal money. Under another part of the stand, in C Block, there was a copy of a local newspaper dated November 4th, 1968.
There was other evidence that this was a fire hazard of longstanding. In September, 1980, Mr Laird, a Principal Inspector of the Health and Safety Executive, visited the football ground in consequence of a complaint from a member of the public about the condition of the surface of the terracing on the spion kop. Before doing so, he obtained and read the “Guide to Safety at Sports Grounds”, a Stationery Office publication of 1976 designed as a voluntary code of safety for football grounds. It is popularly called, “the Green Guide”, after its colour, and I shall so refer to it. Paragraph 8.11 of the Green Guide reads as follows:
“A common feature in the construction of stands which is a fire risk is the provision of voids under the seating. These voids become the resting place for paper, cartons and other combustible materials which can be ignited unnoticed by a carelessly discarded cigarette end. Wherever possible such spaces should be excluded but, where they exist, they should be sealed off so that paper, etc, cannot find its way into them.”
That is the end of that quotation.
Mr Laird met Mr Newman, the full-time secretary of the old club. They went round the premises together, including the main stand. Mr Laird recalls now, 6 years after the inspection, that he saw some damaged kick-boards and he told me that he thinks he probably looked into the holes. He must have done so because on 10th September 1980, he wrote the letter to the old club which is on page 1 of File A. I shall have to refer to this letter again when I deal with the case against the Health and Safety Executive. At this stage it is sufficient to read one part of it, and I quote:
“In the main stand the void area between the concrete supporting structure and the wood floor should, after removal of rubbish, be completely blocked off.”
That letter was received but never acknowledged by the old club and that club took no action to deal with it, although Mr Newman told me he showed the letter to a Mr Garside, a builder by trade who, according to Mr Newman, was the director responsible for the structural safety of the ground.
Mr Inglis is a freelance writer who wrote a series of articles about the football grounds of England and Wales. In March, 1983, he visited the Bradford ground and wrote an article about it, which is exhibit P11. In this article he wrote, and I quote:
“Underneath the seats are flaps which open to reveal piles of accumulated litter.”
In evidence Mr Inglis told me that he had lifted up a flap — he was referring to a kick-board — and it lifted up so easily that he thought it was hinged. He also told me that it occurred to him at the time that this litter was a fire risk. It appeared that he was going on to tell me that he spoke to a man whom he saw sweeping up in another part of the stand but at that point he was, no doubt properly, stopped from saying any more. Anyway, I have no doubt that he did think at the time that this was a fire risk, and he was not a fire expert.
Mr Shaw, a chartered engineer in the Engineering Department of the West Yorkshire Metropolitan County Council, the third defendant, visited the new club on 4th July, 1984, at the request of the club, to inspect the roof of the main stand. The club was anxious to put a new roof on the stand but could not afford to do so without financial help. It was seeking such help from the Football Grounds Improvement Trust which would need to be satisfied that the existing roof was a danger. If the Engineering Department of the local authority considered it was a danger, that would be a great help in the application. Mr Shaw inspected the roof. He was satisfied that its condition was a crowd safety hazard and wrote a letter accordingly, but I am not concerned with that letter.
It was during this visit, at a time when Mr Newman, who had accompanied him, had to go away for some other purpose, that Mr Shaw had a general look at the stand and, in an area to the right of the directors’ box — that would be in Block E — he noticed that in the void beneath the seats was what he called, “typical football ground debris”. He told me that he could see into the void under more than one of the seats and saw debris in the places where he looked. Either there were holes in the footboards or kick-boards were missing from under the seats.
Mr Shaw was a member of the Safety Team which dealt on behalf of the County Council with the certification of sports grounds under the Safety of Sports Grounds Act, 1975, and he knew the Green Guide. As a result, he sought to bring the fire hazard, among other safety matters, to the attention of the club, and the letter which is at pages 19 and 20 of File B was written and sent to the club. As this is an important letter for more than one purpose in this action, I will read most of it now. It was written from the West Yorkshire Metropolitan County Council and signed on behalf of the Executive Director of Engineering. I quote:
“Further to my engineer’s visit to your ground on 4th July, 1984, I am pleased to enclose a letter which may assist you in obtaining a grant from the Sports Ground Trust towards the cost of recovering the main grandstand roof. Nothing in that letter should be construed as implied approval of the condition or structural adequacy of the stand.”
The second paragraph, to which I shall constantly refer:
“As the West Yorkshire Metropolitan County Council is the licensing authority under the Safety of Sports Ground Act 1975, it may assist you to know what some of the Council’s other considerations would be should, at some time in the future, the provisions of the Act apply to Bradford City Ground. These are:
“1. Main Grandstand
(a) The unusual construction of this stand makes an appraisal of structural adequacy desirable.
(b) The timber construction is a fire hazard and in particular there is a build-up of combustible materials in the voids beneath the seats. A carelessly discarded cigarette could give rise to a fire risk.
(c) Egress from the grandstand should be achievable in 2.5 minutes.”
I break off from quotation there. There then follow observations about other stands, perimeter and crowd control fences, crush barriers and the terraces. The letter then goes on:
“These considerations are contained within the publication, ‘Guide to Safety at Sports Grounds (Football)’ published by HMSO.”
And the final paragraph:
“In concluding, may I point out that the above considerations would form part of the statutory consultation process required under the provisions of the Act. The County Council is obliged by law to have regard to other considerations, for example, fire safety precautions (Chief Fire Officer), crowd control supervision (Chief Constable), and local building control requirements (Bradford Metropolitan District Council).”
Other officials as well as Mr Shaw joined in the composition of this letter. Mr Shaw is not the author of the second or the final paragraphs, but what is said about the fire hazard in the main grandstand was written by Mr Shaw. Its importance at this stage of my judgment is (a) that the new club was informed about this build-up of a fire hazard under the floor in July, 1984, and (b) that this build-up of combustible materials in the void beneath the seats was visible even on a casual inspection, for Mr Shaw’s real concern when he was there was with the roof.
The letter was received by Mr Newman, now the full-time secretary of the new club, since its formation. He did not acknowledge receipt of the letter or reply in any way to the County Council about it, but he did read the letter and he gave the letter, or a copy of it, to Mr Tordoff, the Vice-Chairman of the new club who, according to Mr Newman was in general charge of ground improvements. Mr Newman says he gave the letter to Mr Tordoff so that Mr Tordoff could raise it for discussion at the next Board Meeting. It turned out that Mr Newman was wrong in thinking that Mr Tordoff was in general charge of ground improvements. Mr Tordoff told me, and the Chairman, Mr Heginbotham confirmed it, that Mr Tordoff was only in specific charge of two matters, namely the repair of the grandstand roof and the floodlighting of the football pitch. The fact is that no-one — no one person — was concerned with the general safety of the premises. Mr Heginbotham told me so.
Mr Tordoff did read the letter but he never raised it for attention at the next or any Board Meeting. He did not even show it or mention it to Mr Heginbotham, who never knew of its existence until after the fire. Mr Tordoff told me that when he read the letter he thought, “Well, that is not something we have to do immediately” and one must bear in mind the second paragraph. His view was that they would have to wait until the club could do something about the various items referred to in the letter. That, it appears, was the watering-down effect which the portentous second and final paragraphs of the letter had upon him. It appeared that the Council would not be concerned to trouble the club further about any of the defects referred to unless at some time in the future the club became designated under the Act of 1975 and had to obtain a safety certificate. Mr Tordoff did nothing about it at all. He did not even go to look at the build-up described as a fire risk in such clear terms. He told me that he did not know what a void was and thought the letter was referring to rubbish lying on the surface of the floor under the seats. I doubt whether this can be right. Mr Heginbotham has told me, and I accept, that the floors of the stand were, as a matter of routine, swept after every match and the resulting litter taken away in plastic bags. If Mr Tordoff knew that, or even if he did not know it but had thought about it, he should have realised that it would not, on his view of the matter, be more than a day’s work or less to sweep up all the rubbish and take it away. It would not be one of the things which had to be left until the club could do something about it. I am afraid Mr Tordoff gave far too little attention to this letter.
As to Board Meetings, Mr Heginbotham said that fire risks had never been considered there. Mr Heginbotham was an admirably candid witness and he admitted that he knew there was a fire risk under the stand and he agreed that if he had applied his mind to it he would have foreseen that it was always possible that a carelessly discarded match or cigarette could drop through the floor and start a fire. Unfortunately, he did not apply his mind to it. Both he and Mr Tordoff said — and I believe them — that if they had really appreciated the gravity of the risk, they would have done something about it. Mr Tordoff said that he would have imposed a ban on smoking in the stand, which struck me as a precaution of dubious efficacy in a crowded football stand.
Mr Heginbotham knew, as Mr Tordoff apparently did not, that dealing with the accumulation of litter under the floor of the stand and taking measures to prevent any recurrence would be a major and expensive operation, probably involving the taking out of the existing seating and part of the floor. He said that if he had properly appreciated the risk, he would have obtained an estimate of the cost of doing the necessary work and then gone to the Bradford City Council for financial help. He thinks he would have received such help. I think he probably would have received help from the Council if it had been satisfied that it was necessary to do the work in order to avoid closure of the main stand. That is consistent with the evidence which I had from Mr Moore, the Chief Executive of the City Council. Mr Heginbotham went on to say that if help had not been forthcoming, the Club would have had to close the stand, or very drastically reduce its capacity.
In his final submission to me, Mr Glasgow conceded that the Club was at fault in not finding a way to clear the void of flammable material. They could, as I have already indicated, have done so with assistance from the City Council. It was a proper and, I think, inevitable concession. However, the duty of the Club at common law and under the Occupier’s Liability Act 1957, goes beyond finding a way to make the stand safe. If an occupier has a stand which he uses for the accommodation of 2,000 spectators, of all ages and conditions, and he knows, or ought to know, that the state of affairs in the stand is such that there is a real and constant risk of a fire starting and developing under them, he cannot be absolved from his duty towards them by establishing that he is not able to find, or not able to afford, a way of removing the danger from the stand. He must not expose the spectators to the danger, even if it means that he must take the stand entirely out of use, as Mr Heginbotham said.
Mr Inglis had recognised the danger in March, 1983, and he was not a fire expert. Mr Shaw reported it as a danger in very specific terms in July, 1984, and he is not a fire expert. At the enquiry before Popplewell J, Mr Heginbotham said that any child would know that such litter was a fire hazard. In his evidence before me, he was referred to paragraph 8.11 of the Green Guide and he said he does not recall reading it but what it says there is common sense.
There was no system of clearing the void of litter and it would be difficult to devise one without reconstructing the seating in the stand. The litter had therefore built up over the years. I was told that damaged kick-boards were repaired or replaced during the closed season and that when that was done, the workmen would clear out as much of the litter as was within their arms’ length. That would do very little to deal with the general situation under the floor. Moreover, there was no system of checking the state of kick-boards during the season, and this fire occurred near the end of the football season.
The omission of the club to take any action to deal with this dangerous situation of which it had notice and knowledge, and of which it should have been aware without notice from outside parties, is enough in itself to establish the claim of the plaintiffs against the first defendant.
It is only right that I should say that I think it would be unfair to conclude that Mr Heginbotham, Mr Tordoff, the Board of Directors, or any of them, were intentionally and callously indifferent to the safety of spectators using the stand. They were at fault, but the fault was that no-one in authority seems ever to have properly appreciated the real gravity of this fire hazard and consequently no-one gave it the attention it certainly ought to have received.
The Board had many other problems to contend with. The new Club had taken over a distinctly ramshackle set of premises. The main stand needed a new roof. The terraces were in disrepair to an extent that could be dangerous. Almost everything needed attention. Mr Heginbotham told me that it was obvious in 1983 that no repairs had been done in the previous 10 years. In addition, the new Club was immediately and chronically short of money. The old Club had accumulated debts of over £400,000. The new Club was obliged to undertake to pay in full all debts owing by the old Club to the bank and to the Football League and, in addition, to pay 60% of all debts owing by the old Club to unsecured creditors. The new Club was greatly assisted by the Bradford City Council, with a loan of £200,000 on the security of the Club property and at commercial rates. In its first year the Club forecast a loss of £100,000. They had to avoid all expenditure which did not seem to them to be immediately necessary.
So far as I know, and I think I can confidently assume it, there had never been a fire under this stand until the terrible fire of May, 1985. Even so, if item 1(b) of the letter of the 18th July, 1984, had stood alone, it would have shouted for attention. Unfortunately, it was preceded by the paragraph which said that this item was one of the various matters which the Council would have to consider in the future if the Bradford City Council ever became designated under the Safety of Sports Grounds Act 1975, and the letter ended with another paragraph about other “considerations” as they were called, which the Council would have to take into account if the Club became a designated club. Even the reference to the Green Guide was a reference to it as the source of what were called “these considerations” which would arise in connection with the Bradford Club if at some time in the future it became a designated club under the 1975 Act.
As apportionment of responsibility between defendants may have to be considered, I should at this stage deal with some of the other allegations against the first defendant.
I do not consider that the fire-fighting equipment referred to in the Statement of Claim would have stopped this fire, having regard to the exceptional speed with which it engulfed the whole stand. As to portable fire extinguishers, if they had been readily available for immediate use in the vicinity where the fire started, they might have at least retarded its spread, but all the witnesses who were asked about portable fire extinguishers being readily available for use in the stand agreed that these articles would inevitably be appropriated and misused or vandalised by the brutal or irresponsible hooligans who tend to infest football grounds.
However, there were other precautions which, if they had been taken, would have prevented all or at least most of the deaths and injuries which occurred. The people who died in the stand had been trapped there and those who were only injured had been unable to escape from the stand in time to avoid injury. John Fletcher was trapped and died in the stand. Sergeant Britton was injured because, with the instinctive action of a brave man, he went to the rescue of a man who was trapped and burning in the stand. Accessible and sufficient exits which could be reached easily from any part of the stand and a properly established evacuation system for emergencies would have made all the difference. The Club had no emergency evacuation system, and the exits were insufficient and not easily reached from all parts of the stand. Some of the exits which existed were not open for use at the time of the fire.
In paragraph 8.3 of the Green Guide, the recommended evacuation time for a stand which is not of non-combustible and fire-resisting construction is two and a half minutes. Chief Inspector Morton has long experience of this stand in the course of his duty and was one of the police officers present on the day of the fire. He told me that even when all the exits from this ground are open, it takes a considerable time — much more than two and a half minutes — to clear 2,000 out of this stand. And even when there are less than 2,000 people, it is a slow process. Incidentally, he pointed out — and I think he is probably right — that the period of two and a half minutes does not allow for the aged, disabled and people accompanied by young children.
The only way out of the stand to the street is via the walkway shown at the top of the stand in the plan exhibit 3. I will call this walkway the top walkway. The middle walkway between Rows F and I has no exits at the end on the right of the plan. At that point there is a fence of iron railings about 5 feet high. At the other end, this walkway opens on to steps which lead up to the top walkway. The only routes to the top walkway from Rows A to F are by first entering the middle walkway and then going via the steps or via one of the two gangways which can be seen on the plan between seats 44 and 45 and seats 107 and 108 in Row I and thereby getting in the top walkway. There is a continuous wooden barrier in front of Row A and beyond that there is a continuous brick or concrete wall about 4 feet high separating the whole of the stand from the pitch.
For the occupants of Rows I to Q there are seven gangways, including one shared with the Directors’ Box, which lead on to the top walkway.
Thus the top walkway at one point or another is used by all the people who are going out of the stand. This walkway was totally enclosed within the roof and, measured on the plan, it is 7 feet wide. During the fire this walkway was filled with black smoke and crowded with people before the black smoke ignited.
A large number of spectators escaped on to the pitch. For those in Rows A to F, this would involve climbing over the continuous wooden barrier in front of Row A and then proceeding across the paddock and climbing over the wall which separated the stand from the pitch. The pitiable difficulties of some who took this route can be seen horribly illustrated in photographs 4 and 5 of album P1.
Some of those, if any, who escaped from Rows I to Q on to the pitch would first have to get over an additional barrier in order to reach the middle walkway and there were further barriers presented to them by the compartmentation of the blocks of seats. Paragraph 7.9 of the Green Guide advised that gates or other access points should be provided in the pitch perimeter wall for use in an emergency.
In case I am misunderstood, I should make it clear that I am not using the Green Guide as if it were law. It has no legal force. It is expressed to be a voluntary code devised for improving spectators’ safety at football grounds to provide a reasonable degree of safety. It is recognised in the Code itself that the problem of crowd safety in football grounds is complex and further complicated by the rampant pestilence of hooliganism.
The various exits from and entries to the stand are shown on the plan which also shows, numbered and marked in colour, where the various dead bodies were found. I will now deal with the condition of the exits when the fire broke out by reference to the plan, where the exits and doorways are numbered.
Turnstile number 1. This was never used and was not in working order. Doorways A and Z led into the clubhouse. These doors were open. Door B is a small wooden double door opening outwards. One of the doors was open and the other was closed but not locked. Door C is a wooden doorway which was boarded up. Door D is a wooden opening into South Parade. This was boarded up. Door E was a large double door which opened outwards. These doors were opened at the outbreak of the fire by a police sergeant who undid the top bolt and pushed open the doors. Door F was in fact unlocked but it was physically kicked open during the fire by a police officer. Door G was also unlocked and was also kicked open by another police officer.
Turnstiles 2 and 3 are from floor to ceiling and are not capable of being reversed.
Turnstiles 4 and 5. These were secured by chain and padlock at the start of the game. The doors were secured with a padlock on the inside. It was possible to climb over these turnstiles but the padlocked doors then prevented any means of escape into South Parade. Doors K. These were double doors opening inwards. They had been closed and locked by bolts and with a padlock. They were burst open during the fire by pressure efforts from outside and kicking from the inside. Door M. This was a boarded-up doorway and so, too, was opening N.
Turnstiles 6 and 7, 8 and 9 and openings O and P. The turnstiles were waist high and fastened by a chain and padlock. Each turnstile was fitted with a door on the outside which led into South Parade. These doors were locked with bolts and padlock. During the fire, doors 6, 8 and 9 were forced open. Door R was a single wooden door opening outwards. It was closed and locked with bolt and padlock but was forced open during the fire. Door X was bolted on the inside but not locked and was opened upon the outbreak of fire. Opening S. These were double wooden gates which opened outwards and they were open at the time of the fire.
There are, of course, real difficulties in providing exits which can be freely opened by anyone inside in an emergency. They could be, and would be, used by hooligans or dishonest persons who have friends waiting outside to get in without paying. Anyone could open such a gate or door and let others in unless there is an effective guard on the gate to prevent it. If doors have to be locked, there should be some official readily available to open them in an emergency, but this is not a perfect solution, for I was told that there have been cases where hooligans have taken keys off a steward by threats or force. Those in charge of football grounds have many serious problems, but in the end the reasonable safety of the public in an emergency must have priority and there should be an effective emergency procedure for the evacuation of a stand. There was none at Bradford City. Mr Heginbotham told me that the Club had never even considered an evacuation procedure. Indeed, the Board never specifically considered safety at all as an item on its agenda. The exits were not manned. There were some stewards — loyal and trusted supporters of the Club — who had the keys of the various doors. Their practice was to open the gates in South Parade in the second half of the match but at all other times they were stationed in the vicinity of the players’ entrance, no doubt ready to open gates in an emergency — if they could get to the gates in an emergency, which I doubt. I should add that the fire occurred shortly before half-time and, therefore, not in the second half.
The allegations in sub-paragraphs (vii), (xii) and (xiii) are made out and are, in my view, relevant to the casualties which occurred. I doubt whether the other matters alleged in this part of the re-amended statement of claim made much, if any, difference in the rapidly developing fire and the resulting panic. During the fire, brave policemen in uniform, standing on seats and shouting directions, were largely ignored in the confusion and panic.
I respectfully agree with the conclusion in Popplewell J’s interim report that this tragedy, with its appalling number of casualties, was caused by the devastating effects of a rapidly developing fire and by the available exits being insufficient to enable the spectators to escape. For both these causes, the first defendant must be held responsible.
I now turn to the case against the Health and Safety Executive. It is a statutory public body exercising its relevant functions under the Health and Safety at Work Act 1974, and I have to apply the principles laid down by the House of Lords in the case of Anns v Merton London Borough Council  AC 728,  2 All ER 492 and Home Office v Dorset Yacht Company Ltd  AC 1004,  2 All ER 294.
Like most statutes relating to public authorities, the Health and Safety at Work Act contains areas of discretion, where the decision as to what to do and what not to do is for the authority or its officers to make. A Judge is not entitled to substitute his discretion for that conferred by the statute on the authority. If a discretionary decision is made responsibly, it cannot involve the authority in liability in a civil action merely because the Judge considers that the wrong decision was made. To succeed in an action for damages for negligence, the plaintiff must prove not only that what was done or omitted was negligent but that it was also outside the limits of a discretion responsibly and bona fide exercised. It is in that background that I have to consider the relevant provisions of the Health and Safety at Work Act 1974.
It is clear from the preamble and from ss 1, 2 and 3 that the object of the Act of 1974 is to provide for the health and safety of specified classes of persons: persons at work and also certain other persons. Section 3 provides that it shall be the duty of every employer — the Bradford City Football Club was an employer — to conduct his undertaking in such a way as to ensure so far as is reasonably practicable that persons not in his employment are not thereby exposed to risks to their health and safety. That includes the spectators in the main stand at Bradford Football Club.
Section 18 provides that it shall be the duty of the Executive to make adequate arrangements for the enforcement of the statutory provisions, except to the extent that some other authority is by any of those provisions made responsible for their enforcement. The “relevant statutory provisions” are the provisions of Part 1 of the Act of 1974 and various other statutes specified in Schedule 1 of the Health and Safety at Work Act 1974. The Fire Precautions Act, 1971, and of course the Safety of Sports Grounds Act 1975, are not in Schedule 1.
Section 18 imposes a statutory duty upon the Executive. The Executive’s function is supervisory. The statutory duty to provide so far as is reasonably practicable for the safety of the spectators in the stand is laid by the statute upon the Club and not the Executive.
Under Section 19, the Executive may appoint Inspectors for carrying into effect the relevant statutory provisions.
Under Section 20 such an Inspector may enter any premises which he has reason to believe it is necessary for him to enter for the purposes of carrying into effect any of the relevant statutory provisions, and may make such examination and investigation as may be necessary for those purposes.
Under Section 21, an Inspector may, if he is of the opinion that a person is contravening one or more of the statutory provisions, serve an Improvement Notice on him requiring him to remedy the contravention within a specified time.
Under Section 22, if an Inspector is of the opinion that any activity as carried on will involve a risk of serious personal injury, he may serve a Prohibition Notice directing that the activity shall not be carried on unless the matters referred to in the notice have been remedied.
By Section 23, it is provided that before an Inspector serves an Improvement Notice or a Prohibition Notice likely to lead to measures affecting the means of escape in case of fire, he must first consult the Fire Authority.
It will be seen that while s 18 creates a duty, ss 19, 20, 21 and 22 merely confer powers on the Executive and its Inspectors which involve the exercise of a discretion.
S 3 of the Act greatly increased the area of authority of the Executive’s Inspectorate. The Executive had to consider what resources it could make available for its increased tasks; for example, how many additional Inspectors it would need; what inspections should be made; how frequently they should be made and to what extent they should be made.
Mr Hammer, the Deputy General of the Health and Safety Executive, told me that in 1975 a decision was taken to increase the Inspectorate by one half over a period of 5 years. Unfortunately it has not been possible to maintain this increase and the field force is now about what it was in 1975. With its resources, the Inspectorate has to maintain a balance between preventive and reactive inspection and special investigations. It has to keep in balance the attention given to an enormous range of premises. It was for this purpose that they calculated how many visits they can do in a year and devised an inspection rating scheme, to which I shall have to refer later, which, with the aid of a computer, indicates when premises which have been inspected become due for another inspection.
As to the depth and scope of an inspection, Mr Hammer told me that it is important to give a considerable discretion to the Inspector. He exercises his own judgment in the circumstances as he sees them. If every judgment he made were to be open to challenge and revision in litigation, he would in self-defence be drawn into detailed investigation of everything, even if he himself considered that to be unnecessary, and to taking vigorous enforcement action in every case without first, as is commonly, sensibly and successfully done, seeking to obtain his objective by advice and persuasion in cases where he believes that course will suffice.
In relation to fire risks, there is an overlap between the powers of the Executive and the powers of the Fire Authority under the Fire Precautions Act and the powers of the local authority under the Safety of Sports Grounds Act 1975. As a result of this overlap, the Executive issued a memorandum of advice or policy to Inspectors in 1978. It is document 9 in File E and I quote parts of it. Paragraphs 8, 9 and 10 deal with the relationship between the Health and Safety at Work Act 1974 and the Safety at Sports Grounds Act 1975.
Paragraph 8 states that the Act and subordinate legislation is designed to protect the public and enforcement is the responsibility of local authorities. This is a reference to the Safety at Sports Grounds Act 1975. There could be, however, an overlap with the Health and Safety at Work Act 1974, s 3.
Paragraph 9 states that the key to the application of the Health and Safety at Work Act, s 3 in this area lies in the risks arising from the way in which the undertaking is conducted, and it follows that the risks must be specifically generated in this way: Risk of injury from violence among spectators would not be covered by s 3. On the other hand, ground capacity, means of exit, crash barriers, hand rails, fencing, the construction and strength of stands, etc, could be within its scope.
Paragraph 10 states that the Safety of Sports Grounds Act 1975 specifically deals with such matters and, where it can be applied, there should be no reason for the Health and Safety at Work Act 1974 to be invoked. Any cases of difficulty which arise because the local authority has been unable to take remedial action under the Safety of Sports Grounds Act 1975 should, in the first instance, be referred to the Area Director.
In February, 1977, the Inspectorate issued a memorandum of advice to inspectors in relation to the dual jurisdiction of the Fire Authority under the Fire Precautions Act 1971, and the Health and Safety Executive under the Health and Safety at Work Act 1974. I quote paragraphs 5 to 8 inclusive from this document, which is in File E at 10. For the assistance of counsel, I shall have a certain number of copies that I can give you later on, which will help and will contain more or less everything I have said. I am not doing it now otherwise you would read them and look to the end and not listen to the judgment at all! I quote paragraphs 5 to 8 inclusive from this document, File E, 10.
“Paragraph 5. Because of the very broad terms of the Health and Safety at Work Act, Inspectors have authority to deal with all aspects of safety, so there will inevitably be a certain dual responsibility for fire safety. It must, however, be borne in mind that the enforcing authority under the Fire Precautions Act has the prime responsibility and that the provisions of that Act should be used wherever possible. Inspectors must avoid any appearance of interfering in the Fire Authority’s duties.
Paragraph 6. Inspectors will not normally inspect general fire precautions when undertaking inspections in premises other than those subject to the Fire Certificate (Special Premises) Regulations. However, occasions will arise when an Inspector sees general fire precautions which are, or appear to be, inadequate.
Paragraph 7. If the matters are of serious concern but no immediate risk to life is involved, they should be discussed with the appropriate officer of the Fire Authority. If the Authority requests any assistance, this should be given but the initiative in respect of further action to rectify the inadequacies must be left with the Fire Authority. Inspectors should not, without consultation with the Area Director, issue Improvement Notices in respect of general fire precautions in premises in which the prime responsibility rests with the Fire Authority.
Paragraph 8. Where an immediate risk to life is involved, the possibility of issuing an immediate prohibition notice should be considered. If it is decided to issue such a notice, the Inspector should telephone the Fire Authority with a view to taking joint action. When joint action is not possible in the time available, a notice should be issued and the Fire Authority advised by the quickest practicable means. However, Inspectors are reminded of the obligations placed on them by s 23(4) of the Health and Safety at Work Act 1974 to consult Fire Authorities before serving a notice requiring or likely to lead to the taking of measures affecting the means of escape in case of fire.”
Similar advice in relation to dual responsibilities was given in a document issued in December, 1980, which is also in Part 10 of File E. This stated in paragraph 7 that the prime responsibility for general — as distinct from process — fire precautions will rest with the Fire Authority under the Fire Precautions Act 1971. I should make it clear that the present case is not concerned with process fire precautions.
Mr Laird, a Principal Health and Safety Inspector, is the author of the letter which is in File A at page 1. I have already referred to it briefly. Mr Laird visited the football ground on the 5th September, 1980, in consequence of a complaint he had received about the condition of the spion kop, but while at the Club he had a look at the premises generally and, among other things, he saw that there was some inflammable litter in the void under the floor of the main stand. His letter to the old Club dated 10th September, 1980, is an important document in the plaintiffs’ cases and I also find it relevant to my assessment of the substance and quality of Mr Laird’s oral evidence. I had better read the whole of it:
“Dear Sirs, Health and Safety at Work Act 1974. At a recent visit at which Mr TF Newman, Club Secretary, was seen, I enquired into the arrangements for the safety of employees and members of the public in so far as they were affected by the Club’s activities. I noted in particular that attention was paid to the stability of retaining walls and to electrical safety, particularly with respect to floodlighting. In specific areas, however, I think further consideration should be given to improving health and safety.
1. Parts of the terracing at spion kop were very badly broken and the surfaces of the gangways at the end of the ground were not level.
2. The access from spion kop to the Midland Road exit was extremely steep and the access from spion kop to the opposite side of the ground was across the uneven terracing.
3. The toilet arrangements behind the Midland Road stand were in my opinion unhygienic.
Other matters which I noted which do not present the same degree of hazard to those referred to above included cracks in the wall between Midland Road stand and the pitch, the lack of some crush barriers at the Bradford end and the maintenance of barriers at that end of the ground. Arrangements for the painting of the Bradford end roof structure should be made. In the main stand the void area between the concrete supporting structure and the wood floor should, after removal of rubbish be completely blanked off. In the office area some form of fire warning should be considered.
I have not attempted to outline the ways in which your facilities differ from the standard set in the ‘Guide to Safety at Sports Grounds’ published by the Stationery Office. I think that the preparation of such a list is best left to yourselves. The foregoing matters, particularly the numbered ones, are my opiniion as to the order of seriousness of the matters observed. I would suggest, therefore, that you consider these matters and we arrange to meet in about one month’s time in order that we may discuss possible action.”
What I find striking and significant about this letter is the position in what he calls “the order of seriousness” which he has chosen for the presence of rubbish in the void. This item is placed next to the end of his list, even after the painting of the roof.
In evidence, Mr Laird told me that he thought that the presence of this rubbish was a hazard which came within s 3 of the Health and Safety at Work Act 1974 because it was reasonably practicable for the Club to deal with it. He said he had the impression that Mr Newman would take up all these matters in the letter with the Board of the Club. It may be that Mr Laird understated in his oral evidence what Mr Newman had said to him at the time, because in his evidence before me, Mr Newman said, of the letter of the 10th September, that it did not tell him anything he did not already know and he had agreed to act upon it.
Mr Laird told me that he did not regard this rubbish as a matter of serious concern to be reported to the Fire Authority. Had he so regarded it, he would have reported it. He told me that at the time he thought it inconceivable that the Fire Bridage did not inspect the Club and he was anxious not to tread on the toes of the Authority which was primarily concerned with fire matters.
With hindsight, of course, it seems obvious that Mr Laird’s assessment of the gravity of this risk was wrong and that it ought to have been reported to the Fire Authority. However, I do not know and he could not tell me how many holes he looked into or how much litter he saw. That he did, in fact, think that what he saw was not a matter of serious concern seems to me quite clear from the terms of his letter, which was written at the time and when he had no interests of his own to serve. He did not strike me as at all a foolish or irresponsible person and if what he saw had given him any indication or suspicion of the extent of this deposit and the difficulties in removing it and preventing recurrence, I cannot believe that he would have permitted himself to think that this was not a matter of serious concern. His letter to the Club would have been quite different. He did consider the situation as he saw it and made his decision. It will appear from the later history, to which I shall refer, that he does not seem to have thought of the litter again or suspected that it might still be there. Although he might at the time have made further investigation and inquiry which would have altered the opinion he formed, I certainly do not feel justified in holding that he made his decision irresponsibly or otherwise than in good faith.
Miss Layton, the Area Director of the Executive for West Yorkshire and North Yorkshire, and Mr Hammer, to whom I have already referred, each told me that they would not, in Mr Laird’s position, have identified the presence of this litter as a matter of serious concern. That may be right, but I was not impressed by that part of their evidence. They do not know just what Mr Laird saw, any more than I do. They have merely read a copy of the letter he wrote which shows that he saw something which at the time did not strike him as serious.
The old Club did not acknowledge the letter of the 10th September. Mr Laird visited the Club again on 15th January , 1981. Mr Newman was not available and Mr Laird looked round and recorded on the document on page 5 of File A that the only work which had been done was to repair some of the terracing on the spion kop. He made a telephone call to Mr Newman on 26th January and this also is recorded on page 5 of File A where Mr Laird has written, and I quote: “Mr Newman said that the Midland Road exit was not used. Toilet accommodation would be reviewed at a meeting in April. Other matters would be attended to as time and funds became available.” There is no note about rubbish under the stand.
Mr Bennett, another Inspector, after two unsuccessful attempts to see Mr Newman, managed to see him in the end on the 16th July, 1981. He made what he calls a basic inspection of the Club. Mr Bennett has left the service and now works somewhere in the Middle East, so I have only his notes on page 6 of File A and his letters. His note on the 16th July, 1981, reads as follows:
“Basic inspection of this Association Football Club. Progress is being made on some of the matters identified by Mr Laird at the beginning of the 1980/1981 season. For example, repairs to the spion kop terracing are continuing, additional crash barriers have been installed and the re-decorating done. The most serious outstanding matter is undoubtedly the very steep exit to Midland Road from the corner of the spion kop/Midland Road stand. Mr Newman said that application had been made for planning permission to redevelop the Midland Road side of the ground but this depended on finance becoming available. In view of the Club’s present league position (Division 4) I do not think this will be in the immediately foreseeable future. After Mr Laird’s visit last September the Club did in fact have one full house when they played Liverpool in the League Cup. The police set the ground capacity at 16,000. I propose to write to the Club asking them to consider the Green Code and draw up plans for compliance with it. I also think it might be useful to visit during a match and a PSV is therefore proposed for an evening early in the season.”
That is the end of the note.
On 22nd July, 1981, he wrote the letter which is on page 2 of File A in which he said:
“I refer to my recent visit to your premises when I discussed with Mr Newman the requirements of the Guide to Safety at Sports Grounds Code of Practice in the light of your own circumstances at Valley Parade. There were a number of areas in which you did not comply with the recommendations of the Code and I would therefore ask you to consider these and draw up proposals and a time-scale for implementing suitable modifications. In my opinion the most serious area is the very steep exit from the corner of the spion kop/Midland Road stand to Midland Road. This should therefore be given priority.
I would also ask you to consider the evacuation procedure for the main stand. This is largely constructed of wood and from paragraph 8 of the Code you will see that it should be capable of evacuation in 2 1/2 minutes.
Please consider the above points and write to me detailing your proposals.”
It will be noticed that there is no mention of the litter in this letter or the note which he had made which I have already read. There was no reply to the letter of the 22nd July so he wrote again on 2nd November, 1981, and Mr Newman replied in an undated letter which was received on 6th January, 1982. It was a short letter and an inadequate reply to the letter of 22nd July. All it said was:
“With reference to your letter of 22nd July and 3rd November last, it is our intention to make Midland Road into Executive Private Suites for next season and therefore the entrances will be modified appropriately. Yours sincerely.”
These visits were to the old Club.
On 16th April, 1984, Dr Hartley, another Inspector, visited the new Club and his note reads as follows. This is on page 7 of File A:
“Mr Newman, Club Secretary, was seen. Unfortunately Mr Newman was rather busy when I visited. He briefly explained that the Club have plans for repairs and modifications to the ground over the summer and asked me if I would visit again off season. I took the opportunity to look round the premises. The new floodlight towers have been erected but very little seems to have been done about the steep exit to Midland Road from the corner of the spion kop/Midland Road stand.”
Mr Laird visited in August, 1984. His note is on page 8 of File A. There is no mention of litter under the floor in his note or Dr Hartley’s and Mr Laird told me he does not think he looked under the floor. This was the last visit from the Executive before the fire.
I must now refer to the Executive’s Inspection Ratings. I made a passing mention of inspection ratings when referring to the evidence of Mr Hammer. These are printed forms for internal use in connection with all varieties of premises. By entering a figure in various boxes on the form, a total number is arrived at. This number is fed into a computer which automatically adds a further number of units each year. When the total reaches a prescribed figure, the premises are on the list for another inspection. That is the function of it.
I need only refer to some of the entries on the form. They are copied in File A at pages 11 and 12. Paragraph 2(2) on page 12 says: “If you have indicated some danger to the public, indicate the most likely sources.” That has been done by putting an appropriate tick in a box on the form which specifies various sources of danger. A tick has been placed on this form against, “fire/explosion”, “place of work” and “means of access”.
In paragraph 3, to the question, “What confidence do you have in the management’s ability to maintain suitable standards in the foreseeable future?” the answer is a tick in the box which means “a little confident”.
In paragraph 2(1) is the question, “If the worst happens, what would be the size of the problem in terms of public at risk?” The answer is a tick in the box meaning “substantial”.
Mr Bennett had completed this form after his visit in July, 1981. Mr Laird, after his visit in August, 1984, updated or confirmed the same form by repeating or arithmetically correcting Mr Bennett’s figures in his own handwriting. It seems to have been a very perfunctory performance by Mr Laird on his return from inspecting the football ground and he was severely but properly cross-examined about it. He said his whole operation on the form only took him about ten seconds. He told me that the danger he was referring to was “means of access” and the entry for “fire” was what he called “a bit of an aberration”. This seems to me at first to be an uncharacteristic and pert answer but it turned out that he may have been technically right. I have read the official instructions for the completion of these forms. They are on pages 13 to 16 of File F. Paragraph 12 specifies risks which can be ignored for the purpose of inspection rating on the form and among them are stated, “those for which the Inspectorate is not responsible for enforcement, for example, means of escape in case of fire as opposed to process fire risks”.
However, a fire risk was recorded whether it needed to be or not. It probably did refer to the fact that the stand was of timber construction and not to the presence of litter under the floor, for Mr Bennett, who initiated the form, never mentioned this feature in any of his notes or letters and there is no evidence that he ever knew of it.
The result of Mr Laird’s updating of this form was that the Club became due for a further visit as from January, 1985, but in fact none was made before the fire occurred on May 11th.
I now turn to some of the pleaded allegations against the second defendant.
1. It is alleged that the Health and Safety Executive failed, in breach of its statutory duty under s 18, to make adequate arrangements for the enforcement of the provisions of the Act. No particulars are given of the respects in which it is alleged that there was failure to make adequate arrangements. Mr Hammer and Miss Layton gave me detailed evidence of the arrangements which were made, including arrangements for reporting in writing to the Fire Authority any fire risk which was considered to be of serious concern. I do not consider that any failure to make adequate arrangements has been established. The substance of the real complaint against the Executive is that there was negligence in regard to a perceived danger by subordinates who were carrying out the arrangements. In any event, I very much doubt whether a breach of s 18 could successfully found an action for damages by a member of the public.
2. It is alleged that the first defendant, the Club, was not advised or warned as to the extreme rapidity with which the fire would be likely to spread. Mr Eastham, a retired Chief Fire Officer of great experience, who was called on behalf of the plaintiffs, told me that an expert would have appreciated the possibility of a very rapid spread of fire but that an intelligent layman would not have expected it. Mr Karran, the Chief Fire Officer of the West Yorkshire Metropolitan County Council, told me that the rapid spread of this fire was a surprise to him. Mr Laird was not an expert on this topic at all and in addition Mr Eastham was speaking of the fire which had occurred and I assume that the expert referred to would have known more about the extent of the debris and the construction of the floor than Mr Laird did. Mr Laird knew it was a fire risk and that was all.
3. It is alleged that having concluded in 1981 and 1984 that there was a substantial risk of injury through fire, that fact was not communicated to the first defendant or anyone else. This must, I think, be founded on the Inspection Ratings to which I have just referred. It is also true that in the letter of the 10th September, 1980, to the Old Club there was no mention of fire risk from the presence of rubbish under the floor except perhaps indirectly by reference to the Green Code in the final paragraph. There was no further communication about fire risk to either Club after that. Mr Laird had decided, erroneously as I think, that the action he had taken was sufficient.
I should add that in the allegation as pleaded there is some degree of misunderstanding of the precise significance of the entry “substantial” in paragraph 2(1) of the Inspection Rating form. In paragraph 2(2) the most likely sources of danger were stated as “fire” and “means of access”. I think the word “explosion” ought to be ignored for no-one has suggested there was ever any danger at all from explosion. In paragraph 2(1) the question is, “What would be the size of the problem if the worst happened?” not “What is the risk that the worst will happen?” and the word “substantial” does not apply to the risk. I should add that in the instructions for completing the form (they are in File E at page 15) a risk is to be described as “substantial” if there is a severe risk to several members of the public.
4. It is alleged that adequate steps were not taken to ensure that the existence of a substantial risk of injury through fire was understood by the Club and not minimised. In the case of the Executive, I take it that this allegation related to Mr Laird’s letter to the old Club in September, 1980, to all of which I have referred. It is true that he gave the presence of rubbish in the void a surprisingly low place in the order of seriousness which, I think, was wrong. That was, in my view, an error of judgment, but it was still an exercise of judgment by Mr Laird.
5. It is alleged that Mr Laird failed to appreciate the gravity of the fire risk to members of the public and as a result — and here I paraphrase — failed to take direct action by asking the Club to close the stand to spectators until the debris had been removed and a recurrence adequately prevented and by making a further inspection to ensure that this was done. All this is true.
6. It is alleged that he failed to give proper consideration to his statutory powers under ss 21 and 22. I do not think he did consider using his statutory powers. The policy decision by the Executive in the instructions to an Inspector, to which I have already referred, was that if he thought the matter to be of serious concern but no immediate risk to life was involved, he should deal with the appropriate officer of the Fire Authority. If the Authority requested his assistance, he should then give it, but the initiative should be left with the Fire Authority. Inspectors should not issue Improvement Notices without consultation with the Area Director in premises where the prime authority rested with the Fire Authority.
I consider that policy decision to be a reasonable one and Mr Laird’s duty was to carry it out. He did not report it because he considered the matter not to be of serious concern. That was the judgment he had to exercise and he did so. In the case of Dorset Yacht Company v Home Office  AC 1004,  2 All ER 294, at  AC 1004, p 1031 Lord Reid said that where Parliament confers a discretion then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. Lord Reid went on, and I quote:
“There must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the power Parliament has conferred. The person purporting to exercise his discretion has acted in abuse of excess of his power.”
Having seen and heard Mr Laird, I do not consider myself justified in holding that he acted so carelessly and unreasonably that he acted in abuse or excess of his power.
I have come to the conclusion that the action against the second defendant must fail. In case I am wrong in so holding, I must also consider whether it could be established that actionable negligence attributable to the Executive was a cause of the fire which occurred in May, 1985. I do not consider that this could be established as a probability. Mr Laird knew his instructions and if he had judged the matter to be of serious concern, the action he would have taken would have been to report the situation at once to the Fire Authority, that is the County Council, the third defendant. He would report it to the Fire Authority for the Fire Authority’s consideration and any necessary action.
I have already referred to the letter of the 18th July, 1984, which is on pages 19-20 in File B, from the West Yorkshire Metropolitan County Council itself to the first defendant which included a description in the clearest possible terms of the hazard beneath the seats of the main stand. It is convenient to quote it again, and I quote it:
“The timber construction is a fire hazard and, in particular, there is a build-up of combustilbe materials in the voids beneath the seats. A carelessly discarded cigarette could give rise to a fire risk.”
Not just rubbish, but a build-up of rubbish, and that build-up in a void.
The County Council was the Fire Authority under the Fire Precautions Act 1971, and also the local authority for the purposes of the Safety of Sports Grounds Act, 1975. A copy of that letter was sent to the Chief Fire Officer and is said to have been received by Divisional Officer Byrom, the Deputy Fire Prevention Officer. No action whatever was taken except to file the letter. The Deputy Fire Prevention Officer did not even mention it to the Chief Fire Officer, or discuss it with Mr Shaw, the Engineer who had visited the ground. On that performance, the probability is that the same thing would have happened to Mr Laird’s communication, but Mr Laird would not have known of that.
I must deal with some additional grounds on which Mr Carlisle submitted that liability cannot attach to the Executive.
1. He submitted that it is plain from the wording of the Health and Safety at Work Act 1974 that it was intended that no civil liability should be incurred by the Executive. The only duty imposed upon it is in s 18 to make adequate arrangements for the enforcement of the relevant statutory provisions. The duty to comply with s 3 is the duty of the employer, not the Executive. He referred me to ss 19, 20, 21 and 22, to which I have already referred myself, and to s 26 and s 47 and s 71.
Section 26 enables the enforcing authority to indemnify an Inspector who incurs liability in respect of an act done in the execution or purported execution of any of the relevant statutory provisions if he honestly believed that the act complained of was within his powers and his duty.
It is perhaps arguable that the section visualises, among other things, something done or omitted by an Inspector in good faith and in the course of his employment but outside the ambit of his discretion, and this will only be actionable against the Inspector himself. I do not think this is a necessary interpretation of the section. If Parliament had intended to confer such immunity on the Executive, it could easily have done so in clear terms. The Executive already has very extensive privileges not accorded to the ordinary defendant and it should be content with those.
The Health and Safety at Work Act 1974, s 47 refers to ss 2-7 which impose specific duties on specific persons and none on the Executive. It also refers to s 8. Section 8 deals with mischievous or irresponsible persons who interfere with or misuse things provided in pursuance of the relevant statutory provisions in the interests of health, safety or welfare. It is, of course, impossible to contemplate the Executive contravening s 8. Sub-section (4) preserves any liability for tortious conduct by these various specified persons which exists apart from the provisions of the Health and Safety at Work Act 1974. “In respect of” can have a very wide meaning but I do not see why sub-section (1)(a) should be strained in this section to include conduct by the Executive or its employees which would otherwise be actionable in common law simply because it is connected with a breach of statutory duty by someone else. I have read s 71 and I do not consider this carries the submission any further forward.
2. Mr Carlisle also submitted that the Executive is immune from civil liability in this action because it was in the position of a prosecutor when the various inspections were made. In support of this, he cited the decision of Drake J in Evans v London Hospital Medical College  1 All ER 715,  1 WLR 184 who, applying and I think extending what was said in the Court of Appeal in the case of Marrinan v Vibart  1 QB 528,  3 All ER 280 held that the immunity which protects witnesses before the court extends to conduct which can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated. It is true that Mr Laird thought that all the matters set out in his letters were technically breaches of the Health and Safety at Work Act 1974, s 3 which he might, as a last resort, have to prosecute. Indeed, after the fire occurred he wanted to institute a prosecution of the Club but was stopped from doing so.
I have read both the two cases to which I have just referred and do not, of course, presume to doubt the correctness of either. The result is obviously right on the facts of each. In each case there was a prosecution and in Evans’ case the conduct of the defendant was initiated for the very purpose of finding out whether there should be a prosecution. For Mr Laird and Mr Bennett, prosecution was a last resort and inspection was not for that purpose. It was never even threatened, neither was an Improvement Notice nor a Prohibition Notice. What they were doing was to inform the Club of the various shortcomings they had detected in the hope, and I think the expectation, that it would eventually put its house in order. When that had been done, they would have been content. In January, 1981, Mr Newman had told Mr Laird that the Club would deal with all the matters in his letter, as time and funds became available. I am not ambitious to extend the principle propounded in Evans’ case any further on the facts of this case.
Now I turn to the West Yorkshire Metropolitan County Council.
The third defendant was the Fire Authority for the purposes of the Fire Precautions Act 1971. It was also the local authority for the purposes of the Safety of Sports Grounds Act 1975.
The Fire Precautions Act 1971 is entitled, “An Act to make further provision for the protection of persons from fire risks” — persons, not property. The spectators occupying the main stand at the Bradford City Football Ground were obviously persons within the ambit of the Act, as appears from the sections to which I shall refer.
Under s 18 of the Act, it was the duty of the County Council, as Fire Authority, to enforce the provisions of the Act within its area and to appoint Inspectors for that purpose. Sections 19 and 20 provide that an Inspector appointed undder s 18, or an officer of the Fire Brigade maintained by the Fire Authority authorised in writing by such an Inspector, has power for the purpose of carrying the Act into effect to enter various premises and inspect the whole or any part of them. By s 10(1)(a) and s 1(2) the premises referred to include any premises used for the purposes of entertainment or for the purposes of any club or — and this is s 1(2)(e) — for any purpose involving access to premises by members of the public whether on payment or otherwise.
Other provisions of the Act are mainly concerned with premises which are put to a use which has been designated by the Secretary of State under s 1. Such premises require a Fire Certificate. A Fire Certificate contains conditions to ensure safety and is only issued after an inspection to ascertain that the premises can be safely used. The Bradford City Football Ground was not within a designated use and so did not require a Fire Certificate. The Fire Authority was, therefore, not under a statutory duty under s 5 sub-section (3) of the Act to cause an inspection of the football ground to be carried out.
Section 10 provides that if, as regards any premises to which the section applies, the Fire Authority are satisfied that the risk to persons in case of fire is so serious that until steps have been taken to reduce the risk to a reasonable level the use of the premises ought to be prohibited or restricted, the Fire Authority may apply to a Magistrates’ Court for an Order prohibiting or restricting the use of the premises until steps have been taken to reduce the risk to a reasonable level.
This section, and ss 19 and 20, did apply to the Bradford City Football Ground. These sections are not restricted in their application to premises for which a Fire Certificate is necessary.
These ss 10, 19 and 20 confer statutory powers as distinct from statutory duties on the Fire Authority. The Authority is entrusted with a discretion as to when and whether to use its powers in any particular case or circumstances. However, a public authority operating under a statute must make its discretionary decisions responsibly. It must give proper consideration to the question of whether to use a power or not, having due regard to the purpose for which the power is given. In the present case the power was given for the protection of persons from fire. The discretion of the Fire Authority is not a mere unbridled liberty. However, if, acting responsibly and in good faith, the Authority makes a decision which has unfortunate, or even disastrous, consequences to members of the public, it incurs no legal liability in damages, even if a Judge is of opinion that the decision was wrong. The decision was for them, not for him.
The Safety of Sports Grounds Act 1975, which is entitled, “An Act to make provision for safety at sports stadia and other sports grounds”, confers similar powers on the County Council as local authority. As with the Fire Precautions Act, this statute contains important provisions which unfortunately did not apply to the Bradford City Football Ground. Under s 1, a sports stadium which has accommodation for more than 10,000 spectators may be designated by the Secretary of State as a stadium requiring a safety certificate. A safety certificate will contain terms and conditions designed to ensure reasonable safety at the stadium. The Bradford City Football Ground, which had accommodation for 20,000 spectators or more, was not designated because the Club was not in the First or Second Division. It was, at that time, in the Third Division. The new Club had made such progress that it was due for promotion to the Second Division but, unfortunately, not until after the end of the season in which the fire occurred.
However, s 10 and s 11 of the Safety of Sports Grounds Act did apply to the Bradford City ground whether it was designated or not.
Section 10 is described in the marginal note as “emergency procedure” — slightly differently worded from s 10 of the Fire Precautions Act 1971 but substantially the same. It provides that if a Magistrates’ Court is satisfied on the application of the local authority that the risk to spectators at a sports ground is so great that, until steps have been taken to reduce it to a reasonable level, their admission ought to be prohibited or restricted, the court may by order prohibit or restrict the admission of spectators to the whole or any part of the ground until steps have been taken to reduce the risk to a reasonable level.
Section 11 provides that any person authorised by the local authority may, on production if so required of his authority, enter a sports ground and make such inspection of it and such enquiries relating to it as he considers necessary for the purposes of the Act.
These two sections each confer a discretionary power on the local authority. This is clear from the wording of the Act but, for good measure, a letter from the Home Office dated 29th August, 1975, was sent to the Chief Executive of the County Council. It is document 12 in File E and I will read part of it. It is paragraph 2 which states as follows:
“The Home Secretary has now made an order under s 19, sub-section (6), bringing the whole of the Act into force with effect from 1st September, 1985. From that date, therefore, local authorities would be able to exercise, if necessary, the powers of entry and inspection in respect of sports grounds conferred on them by s 11. It will also be open to them, in an emergency, to apply to a Magistrates’ Court for an order under s 10 prohibiting or restricting the admission of spectators to the whole or any part of the sports ground. It will be noticed that these two sections are concerned with sports grounds generally.
That is the close of the paragraph.
In a note by the Home Office circulated in August, 1975, and sent to the County Council, there is some useful advice as to what is to be expected of a local authority. It is in paragraph 23 in document 13 in File E and I will read it.
“Section 10 is an important emergency power. Should a Magistrates’ Court on the application of a local authority consider that the risk to spectators at any sports ground is so great that their admission should be prohibited or restricted until remedial action has been taken, the court may make an order accordingly. This power applies to any sports ground, whether or not it is required to have a safety certificate. In the case of a small football stadium, for example, not subject to the designation order procedure, consultations between the local authority and the Club concerned are expected to procure the provision of a reasonable standard of safety on a voluntary basis.”
I call attention to the word “consultations”.
I think I had just finished at the adjournment by reading paragraph 23 of document 13 in File E.
Mr Warden was the Assistant Clerk (Special Services) of the County Council and among other duties was Clerk to the Fire Committee. According to the minutes of a meeting of that Committee on 5th March, 1976, the Committee recommended that responsibility under the Safety of Sports Grounds Act be vested in the Fire Committee under its terms of reference which were:
(a) the safety of premises and of the persons who may resort to them, and
(b) public safety (other than fire).
On the 2nd June, 1976, this committee, by then entitled the Fire and Public Protection Committee, resolved that the Executive Director of Engineering and the Director of Administration, or their nominees, be designated authorised officers under s 11 of the Safety of Sports Grounds Act 1975, and that the Director of Administration, in consultation with the Chief Constable and the local building authority be authorised to issue safety certificates under that Act.
It was pointed out to me that so far as any minutes produced to me are concerned, the Committee appears to have delegated these powers of the County Council to itself, but I think I ought not to make that assumption. Discovery on the part of the County Council was an embarrassingly continuous process throughout the trial, a situation only explainable by the fact that the County Council had by then ceased to exist as an operating organisation. I have found that the initial statement prepared by the County Council after the fire — a copy is at page 1 in File B — states that this recommendation that the County Council’s responsibilities under the Safety at Sports Grounds Act 1975 should be discharged by the Fire Committee was subsequently accepted by the County Council. I think I ought to accept that. The Committee certainly operated as if by the authority of the County Council from this time onwards, and it is incredible that it should have done so without the authority of the County Council. I apply the presumption of regularity.
The actual work under the Act of 1975 seems to have been done by a working party called the Safety Team. Mr Warden told me that this working party consisted of the following four officers of the County Council:
(1) a representative of the Executive Director of Engineering. That was Mr Shaw.
(2) The Deputy Fire Prevention Officer. That was Divisional Officer Byrom.
(3) The Assistant Clerk (Special Services). That was Mr Warden, and
(4) An Administrative Officer from the Department of the Chief Executive and Clerk of the County Council.
Mr Warden told me that the Safety Team was appointed by what he called “a team composed of the Chief Officers of the County Council”. It was not appointed by any formal resolution. Evidence of the Safety Team’s origins and legal status is scanty and it has been submitted to me that its acts and omissions must be treated as things ultra vires the discretionary powers of the Council. After some initial hesitation, I have come to the conclusion that I should assume its lawful status as a body of officials of the Council acting with the authority of the Council on its behalf in relation to the safety of football grounds. There is some evidence in support of that assumption. I will refer to two such matters.
Mr Warden told me that by 1981 and 1982 the Team felt that they had built up expertise in safety which could be of advantage to those football grounds which were not yet designated and required to have a safety certificate. The Team had already done all the work in connection with the issue of a safety certificate to the Leeds United Football Club and the investigations they made and the requirements they imposed before they were satisfied that it was right for the County Council to issue a safety certificate had occupied them for 67 man days, during which they must have learnt a lot. Accordingly, the Team decided to offer free advice to certain other football clubs on the standards to which they would have to conform in the event of their having to apply for a safety certificate. This offer was made in an official letter dated 3rd August, 1982, from the Chief Executive and Clerk of the County Council in which the Safety Team was referred to simply as “officers of the County Council”. That letter is at page 17 of File A. A copy was sent to the Bradford City Club, that is the old Club, and also to the Huddersfield Football Club and the Halifax Football Club. Both the latter clubs responded to the invitation and were given advice. The old Club did not even acknowledge receipt of the letter.
I also had evidence that a fee of £3,000 was charged to and paid by the Leeds United Club in respect of the activities of the Safety Team in preparing for the issue of the safety certificate. That fee was, of course, paid by the club to the County Council.
Mr Glasgow submitted that the County Council had no power to delegate its powers. I do not think that is correct as an unqualified proposition. The County Council can only do some things through its members and officials. It has normally to delegate matters such as the making of a safety inspection or the decision whether, and to what extent, to make an inspection in a case where there is a power but no statutory duty to make one, or a decision whether a state of affairs exists which calls for the exercise of its powers under section 10 or section 19 of the Fire Precautions Act 1971 or under section 10 or 11 of the Safety of Sports Grounds Act 1975. Of course, it is the Council which has to proceed under those sections for the powers belong to the Council and not to its officers or committees, but it is only prudent to entrust many of the matters relating to the exercise of those powers to persons who are, or should be, suitably qualified. It can, and in practice in many cases must, delegate the exercise of some of its powers, but that does not mean that it is thereby relieved of legal responsibility for what is done which ought not to have been done, or not done which ought to have been done, by its delegates.
Mr Warden said that the Team did not consider it any part of its task to visit undesignated grounds unless invited to do so. He said this was decided on as a matter of policy by the Fire and Public Protection Committee. It was not, he said, a formal decision; it was just something said in answer to a question someone asked at a meeting of that Committee. So far as I know, there is no reference to it in the minutes of any meeting. In cross-examination by Mr Smith, Mr Warden conceded, however, that there was no policy to ignore known defects in a non-designated ground. That would certainly have been a startling policy to be laid down by any committee calling itself the Fire and Public Protection Committee.
Mr Warden was referred to paragraph 23 of the Home Office Note on the Safety of Sports Grounds Act, which I have read already. He said the Team considered this but they did not feel that there was any sports ground where the hazard was so great as to warrant using the procedure of section 10. He said no-one gave any reason for this feeling and that, so far as he knew, no-one at this stage had seen any of these grounds.
Throughout Mr Warden’s evidence I had the clear impression that the Team was concerned exclusively with the Safety of Sports Grounds Act 1975. That was the origin of the creation of the Team, but not the Fire Precautions Act 1971. The Council and the Fire and Public Protection Committee had wider interests. The Fire and Public Protection Committee had kept separate files of minutes dealing with fire precautions and minutes dealing with the Act of 1975.
On July 4th, 1984, Mr Shaw went to examine the roof of the main stand at the invitation of the new Club which hoped for the Council’s assistance in support of its application for a grant from the Football Grounds Improvement Trust towards the cost of repairs to the roof. I have already referred to Mr Shaw’s evidence in some detail. He examined the roof and subsequently made a helpful report about it, but he also noticed while in the stand that there was litter lying in the void beneath some of the seating in Block E. He would, of course, only see it where there was a hole or gap through which he could see it, and there was evidently more than one such hole.
Mr Shaw was in an understandably unhappy situation in the witness box. He admitted that he found it difficult to come to terms with the fact that what he had seen was part of the very danger which had caused this awful fire. This, I think, accounts for the fact that at one stage in his evidence he even said that he had not envisaged the possibility that a discarded cigarette could have resulted in setting the litter on fire, or that the litter, if set on fire, could have set fire to the timbers of the floor. It was pointed out to him that that was the very risk he had identified and described in Item 1(b) of the letter of 18th July, a risk which he had quoted from the Green Guide, which he knew. Mr Shaw was only part author of the letter of the 18th July, but he was the author of that part. Mr Warden contributed the second paragraph of the letter, and the letter was sent as from the County Council by the Executive Director of Engineering. I do not know who was the author of the final paragraph. It was not Mr Shaw.
Mr Shaw ultimately admitted that he had recognised the risk of fire from what he had seen on 4th July. He gratefully accepted, in re-examination, that he had not assessed the gravity of the risk at all, and I think that may be true. Litter under the floor is not recorded in the notes he made at his inspection. It was simply a matter which came back into his mind when drafting the letter to be sent to the new Club.
A copy of the letter of 18th July was sent to the Chief Fire Officer. I have been told that it would go, in fact, to the Deputy Fire Prevention Officer, Mr Byrom. Mr Byrom was also the representative of the Chief Fire Officer on the Safety Team. All I know about what happened to it after it got to Mr Byrom is that it was filed somewhere in the Fire Prevention Department. Presumably Mr Byrom read it before it was filed away. It was sent to him as the Deputy Fire Prevention Officer, and it would be his business to read and consider it. However, I have no evidence that he did read it, or that he considered it, if he read it. I have had no evidence from Mr Byrom. I enquired whether he was alive and well and was told that he was and had already been seen in the court building on the previous day. However, the only member of the Fire Service who gave evidence was Mr Karran, the Chief Fire Officer. He had not seen or heard of this letter until after the fire occurred. This was not through any fault on his part but because the Registry would automatically send that letter to Mr Byrom’s department as a fire prevention matter.
Mr Warden told me that so far as he knows, and he ought to know for he was a member of the team as well as being secretary of the Fire and Public Protection Committee, after the visit of Mr Shaw on 4th July, 1984, the Bradford City Club was not visited or even mentioned until after the fire. After the letter of 18th July there were three or four meetings of the Fire and Public Protection Committee, which met every six weeks. There was never any mention of this letter.
He told me that all the members of the Safety Team saw the letter but it did not occur to any one of them to follow it up although, for all they knew, the Club might not have received it because the Club had not acknowledged its receipt. No-one even asked a question about it. Mr Warden said that if any of the team had felt that a note from any discipline was of such a serious nature that a meeting should be convened to consider it, a meeting would be convened. No such meeting was convened. He said the reason for that was that it was not felt to be a matter of serious concern. Asked how he knew it was not felt to be a matter of serious concern, he replied that his reason was because no meeting was convened. The point was dropped at that stage.
He said that he himself did not know that what was described in the letter was a serious fire hazard. He thought there was no emergency because it was the closed season for football. It was a non-designated ground. It was for the Club to deal with it. His words were:
“If they did not remove it” — meaning the litter — “it was a matter for them.”
That is what he thought. Mr Shaw told me that he was not aware of any policy not to follow up a known hazard. I accept that they had no such policy as that.
Mr Karran was the Chief Fire Officer of the West Yorkshire County Council and is a very experienced officer. The West Yorkshire Fire Service had 1,867 whole-time operative personnel and 450 part-time officers. There are 38 officers specifically employed on fire precautions when the establishment is complete, but each of them also has an operational role.
The Chief Fire Officer had the duty, on behalf of the Council, of administering the Fire Services Act, 1947, the Fire Precautions Act, 1971, and the provisions of the Safety of Sports Grounds Act, 1975, so far as they affected the safety from fire of spectators in the stand. As Chief Fire Officer, he had a discretion as to how to utilize the resources available to him and, in particular, what to devote to fire fighting and what to devote to fire precautions. He gave me statistics from which it is clear that the various activities which arose would keep his resources well stretched. His policy was not to inspect premises other than certificated premises or non-certificated factory premises unless requested to do so. That may have been a reasonable policy as a general rule but to such a general rule there have to be some very obvious exceptional cases, and I am satisfied that his resources were quite sufficient to enable an inspection of the stand to be made if information was received which a responsible fire officer considered called for further investigation and, if neessary, the exercise of compulsory powers in the interest of public safety. Indeed, Mr Karran did not contend otherwise. He said that his general rule would not result in failure to take appropriate action if the Fire Service received information from any source which caused serious concern. What surprised me was his evidence that he would have taken no action if he had received and read the letter of July 18th, 1984; he would simply have filed it, as Mr Byrom appears to have done.
He said the letter had informed the Club of what needed to be done, and that is the sort of letter the Fire Service would have written. He regarded this as a housekeeping job to be left to the Club to do, and which he would expect them to attend to. The Fire Service would not follow up to see whether the danger had been dealt with because that would involve unnecessary use of resources. To this practice also I think there could be obvious exceptions.
Item 1(b), particularly if considered with item 1(c) as it should be, certainly identified a fire danger in very clear terms. The risk identified was a constant one, present whenever the stand was occupied by spectators, and it obviously could cause, and it eventually did cause, a catastrophic fire in a large, wooden, enclosed stand holding 2,000 people. When considering the significance of any risk of fire, as of other potential dangers, it is essential to take account not only of the chances of a fire happening, but also of the gravity of the potential consequences if it does happen.
Any reasonable Fire Officer reading and properly considering this letter would, in my view, realise that here was a danger which must not be allowed to continue and should be followed up, and this letter was not addressed to a responsible Fire Officer; it was addressed to an impecunious Third Division Football Club by the authority responsible for administering the statutory provisions for the protection of persons from fire risks and for the safety of spectators at any sports ground and it did not say, as it easily could have done, that this danger must not be allowed to continue.
What paragraph 2 said was that this was one of the things which the Council would consider if at some time in the future provisions — meaning the certification provisions — of the Safety of Sports Ground Act 1975 applied to the Bradford City ground. When Mr Tordoff read the letter he thought, “Well, this is not something we have to do immediately; we will have to wait until we can do something about it”. He was quite wrong, of course. He should have considered the letter more carefully, but he told me what his reaction was and I believe him. I appreciate, of course, that this letter was composed by officials of the County Council who were not fire experts, and that Mr Shaw had only gone to the stand to inspect the roof. That is no doubt why, in accordance with a sensible routine precaution, a copy of the letter was sent to the Chief Fire Officer for his information and any necessary action.
In cross-examination, Mr Karran agreed that if he had gone to the ground and seen an accumulation of inflammable litter under the wooden floor, the risk of a fire would have been obvious to him and that any fire under the feet of 2,000 spectators would be dangerous. He would have been principally concerned with the means of escape, and the means of escape were not satisfactory.
He said that if he had receied a serious communication from the Health and Safety Executive, he would have taken it seriously. He agreed that if Mr Laird had notified him in the terms used in Item 1(b) of the letter of the 18th July, Mr Laird could not have been more specific.
He said that if Mr Byrom had been with Mr Shaw he would have had authority to do whatever he thought appropriate. Several courses would have been open to him. Indeed, they would have been. He could have told the Club that the litter must be cleared and the void completely sealed before the next football season began. If the Club appeared reluctant to comply with this, he could have threatened that, unless it was cleared and the stand made safe from this danger before the season started, court proceedings would have to be taken for an order prohibiting admission of the public to the stand. He could, if the Club had been recalcitrant from the first, have taken steps for the Council to obtain a court order. Mr Karran agreed that no officer of his, in Mr Shaw’s position, would have just walked out of the stand after seeing a fire hazard, which is what Mr Shaw did.
He agreed that voids can constitute a serious fire problem and that in a void it is important to insert fire stops very carefully. He agreed that unless that is done, fire can travel at a remarkable speed along a horizontal void. I interpolate here that this was a horizontal void and it had no fire stops and the fire did spread very rapidly.
He agreed that if information is received from any source — and I emphasise any — which causes a Fire Officer concern, his duty is to assess the risk in a competent manner and take whatever action a competent Fire Officer would consider necessary.
He agreed that the letter says that there is a risk that the timber stand might catch fire and that there are combustible materials in voids beneath the seats. He said a Fire Officer reading the letter would not know anything more about the voids than the letter stated, but he agreed that voids are a cause for worry. He agreed that, for all the officer would know from the letter, the voids could be such that fire would spread very rapidly. He agreed that the Fire Officer would certainly have to look at the report and make an assessment of the danger.
I can add to all this that the officer would not know the extent of the build-up of combustible materials under the stand unless he made an inspection, although he would already know that it was a build-up and not just a recent deposit. As to the void, a cause for worry, he could get any further necessary information about that by going to look at it and by asking about the structure under the floor.
I reject Mr Karran’s evidence that this letter called for no further action and that he himself would have read it and simply caused it to be filed. It does not seem to me to be consistent with his evidence to which I have already referred. The kindest thing I can say is that loyalty to his subordinates has clouded Mr Karran’s judgment and he has persuaded himself that they were not negligent.
Mr Hammer, who was not a fire officer but has been through every rank of the Factory Inspectorate up to Deputy Director General said, when in the course of his evidence he was referred to the letter of the 18th July, and I quote:
“I realise that the resources available to a Fire Authority is a relevant matter, but I would expect such a report to trigger a visit at least.”
The present action is not one where the allegation is that a statutory authority with a power, as distinct from a duty, to inspect premises did not do so and in consequence failed to discover a serious danger to the public of which it had no previous knowledge. If that were all that could be said against the third defendant, the plaintiffs would be in obvious difficulties.
In the present case, one of the officials of the Engineer’s Department, a responsible person, had discovered the danger and so the letter of the 18th July was sent to the Club. I consider that letter to be inadequate and potentially misleading as far as the Club is concerned for reasons which I have already stated. A number of officials, but not one from the Fire Department, had contributed to the contents of that letter. I do not think it could be said that these officials did not consider, according to their lights, the information set out in the letter, or that they did not act in good faith, or acted outside the bounds of their own discretion, for they sent a copy of the letter to the Chief Fire Officer. They themselves were not fire experts but they sent the copy to the experts for information and any necessary action on the basis that it would be read and responsibly considered. There could be no sensible purpose in sending it to the Chief Fire Officer so that it could merely be added to a collection of documents in a file.
I have no evidence that it was even read, let alone considered, by the Deputy Fire Prevention Officer, who is alive and well and available, and was said to have received it. It must, of course, have been looked at by someone, however briefly, if only to find out which file to put it in. If it was filed without having been first brought to the attention of Mr Byrom, or whatever competent offer was at the time standing in his place, that would have been a gross and disastrous omission by some subordinate which would have been quite outside the ambit of any discretion which could reasonably have been given him.
If it was read by Mr Byrom, it was certainly not given proper and reasonable consideration as to whether to file it or to take further action. Items 1(b) and 1(c) cried out for further action, and the more so in view of what the Club was told in paragraph 2. That paragraph would not have misled an experienced and competent fire safety officer who read on and came to Items 1(b) and 1(c) and properly considered the risk referred to. My conclusion is that either the letter was not considered at all, or that an irresponsible decision was made without proper consideration. In either case, it was not a valid exercise of discretion and was negligent. If it was an exercise of discretion at all it was, to quote Lord Reid, “exercised so carelessly or unreasonably that it was no exercise of the discretion that Parliament conferred.”
Mr Goddard, on behalf of the County Council, conceded, very properly in my opinion, that on common law principles there was a sufficient relationship between the County Council and members of the public to establish a prima facie duty of care by the Council towards members of the public. The declared object of the Fire Precautions Act 1971, is the protection of persons from fire risks and under section 18 it was the duty of the Council, as Fire Authority, to enforce its provisions. I have already referred to section 10(1)(a) and section 1(2)(e) from which it is clear that the spectators in the main stand were included among the persons to be protected. The Safety of Sports Grounds Act 1975, is not an Act for the protection of sports grounds. Its declared object is safety at sports grounds, and s 10 is specifically directed to the safety of spectators at sports grounds.
However, there are a number of submissions by Mr Goddard which I have not already covered and with which I must deal.
He submitted, as Mr Carlisle had done on behalf of the Safety Executive, that the County Council was a prosecuting authority if it went to the court for an order under s 10 of either Act, or, I suppose, if it instituted proceedings for one of the offences created by those Acts, and that this gave the Council an immunity from civil proceedings such as this. He cited the case of Evans v London Hospital Medical College  1 All ER 715,  1 WLR 184, to which I have already referred, and R v Metropolitan Police Commissioner  1 All ER 63, in which, with respect, I have not found much, if anything, relevant to the present case. I think it is sufficient to say, with reference to the case of Evans, that the County Council in the present case never prosecuted, never made preparations to prosecute, and never contemplated prosecuting the Football Club.
He further submitted that the death of Mr Fletcher and the injuries of Martin Fletcher and Sergeant Britton were too remote a consequence of any negligence attributable to the Council because the continuing negligence of the Football Club was what he called a “novus actus interveniens” breaking the chain of causation. He would have been on somewhat stronger ground if the letter of July 18th, which was the only action the Council took, had not included paragraph 2, and on stronger ground still if the Club had acknowledged the letter and promised to remove the danger and prevent its recurrence before the next football season began. However, the Club did neither and the County Council did nothing at all in relation to the Club after the letter was sent out.
The primary duty was, of course, that of the Club and the County Council’s function was only a supervisory one, but one which was supervisory in the interests of the public, not in the interests of the Club. They embarked on it but they left it unfinished. It was at all times foreseeable to a competent Fire Officer, or, I would have thought, to any intelligent person, that if the Club did not take proper action before the season started, a fire might start at any time during the season, as in fact it did. If the proper, and in my view obvious, action had been taken by the Fire Prevention Department, as it should have been, they would have exercised their powers of inspection and discovered the nature of the void, and a sufficient indication of the extent of the inflammable deposit to realise that item 1(b) of the letter, although alarming enough in itself, referred to a quite appalling danger. They could, of course, have threatened or even taken action under s 10 of either of the statutes, but that would probably have been unnecessary. It might even have been sufficient in the case of this Club to have told the Club firmly, without making an inspection at once, that this danger must not be allowed to continue into the next season and that compulsory powers would have to be used if it was not dealt with before the season began. It would also have had to make it clear that it was quite beside the point whether the Club was designated under the Safety of Sports Grounds Act 1975 or not. I have already referred to the Home Office memorandum to the County Council of August 1975, which said in relation to s 10 of the Act of 1975, and I quote:
“In practice it is not expected that this power would often need to be exercised. In the case of a small football stadium, for example, not subject to designation, consultations between the local authority and the club concerned are expected to secure the provision of a reasonable standard of safety on a voluntary basis.”
If that advice had been read and understood and followed, the strong probability is that no further action would have been necessary.
It my view, the continuing negligence of the Club and the continued inaction or indifference of the County Council through its various departments and in both of its capacities, after it had been alerted to the existence of the danger, were concurrent causes of this disaster, and I hold both of them to be liable in damages to the plaintiff.
There only remains the apportionment of responsibility between the first and third defendants. As I have already stated, the primary duty was on the Club and the functions of the County Council were supervisory and its liability is for negligent breach of a common law duty arising out of the way in which they dealt with or ignored their statutory powers. That duty was not a duty to the Club but a duty to the spectators and other persons in the stand. However, the responsibility of the Club is, in my view, very much the greater and I apportion responsibility between the two defendants as to two-thirds on the first defendant and one-third on the third defendant.
MR OGDEN: My Lord, in those circumstances, the first thing I do is to respectfully ask on behalf of David Britton for judgment against the first and third defendants.
SIR JOSEPH CANTLEY: Yes.
MR SMITH: My Lord, we ask for judgment against the first and third defendants on behalf of both plaintiffs.
MR CARLISLE: My Lord, I ask for judgment on behalf of the Health and Safety Executive, the second defendants, against the plaintiffs, my Lord, with costs.
MR OGDEN: My Lord, that then leads me to rise again to say that, of course, I ask your Lordship to order that those costs be paid by the first and third defendants. My Lord, in the circumstances of this case, I would ask for a direct or Sanderson Order rather than a Bullock Order.
SIR JOSEPH CANTLEY: Anybody object to that?
MR CARLISLE: My Lord, I think the proper order is that they should be paid — my costs should be paid by the plaintiff but they should recover them from the defendants, my Lord, and if my friend is content with that, my Lord, it will go through the plaintiff.
MR OGDEN: Of course —
SIR JOSEPH CANTLEY: That would be a direct order, that the costs recoverable by the plaintiffs against the first and third defendants include the costs incurred in the action against the second defendant.
MR OGDEN: My Lord, yes.
MR CARLISLE: And include my costs which I recover against the plaintiff?
SIR JOSEPH CANTLEY: Yes, that’s right. In order to make it simple, it is better to put it in more than one sentence, then it does not get mixed up. The costs recoverable by the plaintiffs against the third defendant — no against the defendants, first and third, include the costs of the plaintiff in the action against the second defendant and the costs awarded to the second defendants in the action.
MR OGDEN: My Lord, that is so and if your Lordship would be good enough to add — and the form of order can be agreed between counsel very readily but it should be a direct or Sanderson Order so far as taxation is concerned.
SIR JOSEPH CANTLEY: Yes, a direct order, I think, is appropriate.
MR CARLISLE: My Lord, I accept what my friend says.
MR OGDEN: My Lord, I wonder, in the circumstances, since there are over 250 potential plaintiffs in the wings, so to speak, if your Lordship would just allow me to say this: that as a result of the conclusions which your Lordship has reached in your judgment, it does mean that because the third defendants have also been found liable all these plaintiffs will now receive compensation in full, even if the Club’s insurance cover proves inadequate so far as their share is concerned, which I am sure will be a matter of great comfort to a lot of people who are not present in court.
MR SMITH: My Lord, we would make a similar application for costs on behalf of the first and second plaintiffs.
SIR JOSEPH CANTLEY: Yes, of course, you seek the same order —
MR SMITH: My Lord, yes, if your Lordship pleases.
SIR JOSEPH CANTLEY: — that Mr Ogden has just had. Yes.
MR GLASGOW: My Lord, I submit to those judgments and that order, of course. There is only one qualification which I respectfully seek to raise and that is in respect of the second defendants’ costs. There are, of course, no circumstances in which I am entitled to any relief at all against the party whom I blamed and who have been acquitted, rightly, on your Lordship’s judgment. However, there is one matter which, in my respectful submission, ought to be considered by your Lordship as entitling us to contend for some relief against those costs. It is sensitive; it always is in a case where it sounds like sour grapes from a party who has lost, but your Lordship saw fit to make some criticism of the discovery that had been given in this action, of course, by the local authority. Your Lordship did not cover, because it was unnecessary for the purposes of your Lordship’s judgment, a similar state of affairs — a precisely similar state of affairs — which existed in the case of the Health and Safety Executive.
As your Lordship knows, although you were not burdened with all the correspondence on the matter, it was not until the sixth and into the seventh day of the hearing of this action before your Lordship that my learned friend Mr Carlisle’s junior actually took upon himself the task of completing discovery. I can tell your Lordship that because my learned friend Mr Carlisle very properly pointed the matter out —
SIR JOSEPH CANTLEY: Yes.
MR GLASGOW: — and in his typically candid and helpful way accepted fully that until that operation had been completed none of the other parties in this case had had proper discovery from the Health and Safety Executive.
My Lord, the relevance of it is this: that the primary allegation that I instigated against the Health and Safety Executive and which was adopted — and it was a case where it was adopted by others; I made the running — was that there was improper liaison or a breakdown of the exercise of the function between the two and your Lordship kindly referred to that in your judgment as being the primary allegation which had been pleaded both originally and by adoption.
Of course, that was entirely in line with the finding which had been made at the inquiry by Popplewell J and it was with very considerable surprise that everybody who sat here learnt that — of course innocently; nobody was suggesting impropriety — innocently we had all been misled because we subsequently learnt that not only had there been considerable liaison but that it had been at a very high level and extremely well organised.
SIR JOSEPH CANTLEY: And in precise terms.
MR GLASGOW: My Lord, yes, and those documents, as I say, were finally produced, I think I am right in saying, on the seventh day of the hearing before your Lordship.
My Lord, in order not to be guilty of overstating my case, I have got to face head on the fact that I cannot responsibly say that my attitude towards the advice which I gave or the joining of the second defendants would necessarily have been very different, even if I had had those documents from the start, and that is an obstacle and, therefore, in no way do I say that it is the sort of impropriety in the conduct of litigation which entitles me to some relief. Of course I do not put it that high. What I do say, my Lord, is that when one is conscious of the responsibility on this particular party to assist us all in what was a horrifically difficult case to advise in and to conduct, for them to recover in full their costs against another defendant who has been found to be partially responsible would be oppressive in the extreme. I would ask —
SIR JOSEPH CANTLEY: Well — Sorry. They are not recovering costs against you, are they?
MR GLASGOW: My Lord, yes.
SIR JOSEPH CANTLEY: How?
MR GLASGOW: Because they are recovering their costs from the plaintiffs and, my Lord, your Lordship has just ordered — May I say, I make no complaint about it; of course, there is no reason why the plaintiff —
SIR JOSEPH CANTLEY: From the defendants, yes, that is right.
MR GLASGOW: — should in any way be penalized, and if I fail in this application —
SIR JOSEPH CANTLEY: I have got it; I see what you mean.
MR GLASGOW: — I do not suggest that the plaintiffs be penalized. I must pay those costs if anybody has got to.
What I do ask, having given the rather elaborate preamble so that your Lordship might be reminded of the facts which occurred some time ago, is that I should be relieved to some extent from those costs.
SIR JOSEPH CANTLEY: What is it you are asking me to do?
MR GLASGOW: That is a matter in your Lordship’s discretion and —
SIR JOSEPH CANTLEY: I can see merit in saying that you should not recover — should not pay any costs attributable to the late discovery.
MR GLASGOW: My Lord, yes.
SIR JOSEPH CANTLEY: But that is the most you can really claim, is it not?
MR GLASGOW: My Lord, it can only be put this high: the failure to give proper discovery in a case where there are three defendants concerned in that exercise clearly pollutes the whole difficulty that we face and we would say that it disentitles that defendant to some of his costs and I know not but my learned friend Mr Goddard, who bears some responsibility for them as well, may have a similar application. I am fully content that having taken my submissions on board to the extent that they appeal to your Lordship, you should make some rough rule of thumb because that is all that can be done.
SIR JOSEPH CANTLEY: In a taxation there obviously would be an element which is caused by the time spent on filing these other documents and so on.
MR GLASGOW: It is a little more than that, with respect, because until a party gives full discovery of such crucial matters that go to the primary allegation that is mounted against it, it is exceedingly difficult for all the other parties in that litigation to see where they stand, and, in my respectful submission, it would probably be more helpful and more simple in a case where the costs exercise in taxation is going to be mammoth on any view, if your Lordship were simply to make some assessment in percentage terms by saying that the second defendants should be deprived of some percentage of their costs to reflect that without —
SIR JOSEPH CANTLEY: I would not know what the proper percentage was without seeing the bill brought in for taxation. Then I could look at the items and see what should be disallowed.
MR GLASGOW: My Lord, I would not dream of suggesting that your Lordship should conduct a contested taxation.
SIR JOSEPH CANTLEY: I would not dream of accepting the task, either.
MR GLASGOW: But any indication that your Lordship can give would be helpful. Provided that I may hereafter refer to it, I thought it right to raise the matter before your Lordship.
SIR JOSEPH CANTLEY: Yes. I had better ask Mr Goddard what he thinks. Do you want to add anything to that, first of all? Except to say, “Hear, hear”, I suppose.
MR GODDARD: My Lord, with respect, the third defendants are in a rather different position to the second defendants — to the first defendants so far as a claim for contribution by the plaintiff in respect of the second defendants’ costs are concerned, for this reason: that the third defendants have never blamed the second defendants, either in a pleading or in the conduct of the case. My Lord, the second defendants were, it would appear, only brought into this action because of the nature of the defence of the first defendants and in those circumstances, my Lord, our submission is that the first defendants should be wholly responsible for the second defendants’ costs in so far as your Lordship —
SIR JOSEPH CANTLEY: I do not know. Surely the way to look at this, which I have to look at it — not the way you are looking at it — how I have to look at it is this: were the costs of bringing in the two defendants reasonably incurred? That is the point. Never mind who started it and saying, “Well, I did not blame him and he is not blaming me and so we ought to get a bonus for that.” So much the worse for you, not blaming one another. The point is: were these costs reasonably incurred by the plaintiffs?
MR GODDARD: Certainly, my Lord.
SIR JOSEPH CANTLEY: I think they were. Let us take — Here is a catastrophic fire. There are two local authorities, either of which could, if only they had known more or taken better action — I am not saying I have let out the first defendants. You find a fire has happened and there has been no supervision by either of two — effective supervision — by either of two supervising people. Now, why not sue them both and see what happens?
MR GODDARD: My Lord, I quite agree, my Lord, that so far as the reasonableness of the plaintiff is concerned, that is one matter, but the question as to who is to pay the costs of the second defendants — We are not suggesting — no-one suggests that the plaintiff should pay the costs; he is entitled to recover. Our submission is that the defendant who was responsible for the introduction of the second defendants into the action effectively which is the first defendant by his defence, he is the one who should be responsible for the costs.
SIR JOSEPH CANTLEY: He was right to introduce them —
MR GODDARD: My Lord, as it turned out —
SIR JOSEPH CANTLEY: He would gladly accept the responsibility and say he was proud of it. There is no reason why he should apologise for it. It was a reasonable thing to do.
MR GODDARD: My Lord, with respect, the second defendants have won the action.
SIR JOSEPH CANTLEY: Yes.
MR GODDARD: So far as that is concerned, the reasonableness of the other defendant blaming them, my Lord, it would only be reasonable if, in fact, they had succeeded in getting some contribution from that defendant. So far as the plaintiff is concerned, my Lord, I would suggest entirely different considerations apply. As far as the plaintiff is concerned, it is entirely reasonable that he should have joined the second defendants because they were blamed in the defence of the first defendants but a decision was taken by the third defendants not to blame the second defendants; they were not blamed in the pleadings; they were not blamed in the course of the action and accordingly, in our respectful submission, whilst the question of whether the plaintiff was reasonable in joining the second defendants, or any defendants, is entirely a very relevant matter as to whether or not they should pay any of the costs of the successful defendant, my Lord, that is one matter. So far as the other matter is concerned, here you have a defendant — the first defendants — who have, in effect, by their conduct brought in the second defendants; they have lost the action, the claim for contribution against the second defendants. In our submission, in the ordinary course of events they should be responsible for the whole of the second defendants’ costs and the third defendants, who have in no way blamed the second defendants, should not have to bear any part of those costs whatsoever. My Lord, that is our submission.
SIR JOSEPH CANTLEY: I am afraid I don’t accept it. I will tell you why, briefly. I may be wrong but the question is whether the costs were reasonably incurred by the plaintiff. You concentrate on seeing who blamed somebody else. The plaintiff could have sued these two without either of you blaming anybody else and perhaps should have done so. It was reasonable — What if they had? Would it then have made all the difference to your argument if nobody had blamed the Executive — no defendant had — only the plaintiff?
MR GODDARD: My Lord, I have already made my submissions, my Lord. With respect, different considerations would apply in those circumstances.
SIR JOSEPH CANTLEY: Yes. Well, doing the best I can, I do not think I am going to do that. What do you say?
MR CARLISLE: My Lord, what I say is this: one has to look at the position of the first defendants, Mr Glasgow, and, my Lord, what he says about discovery has to be viewed in the light of the action. My Lord, he blamed the second defendants and the third defendants. As a result they were brought in. My Lord, he has succeeded against the third defendants; he has lost against the second defendants. Now, my Lord, the reality is this — and he was candid enough to say so — that the late discovery of one or two documents, my Lord, certainly he says did not affect any of the advice that he gave and, my Lord, it was apparent to your Lordship that it in no way affected the time taken in the trial and, my Lord, I say this: that it is apparent — and he concedes — that it was no more than inadvertance; he is not suggesting there was anything sinister behind the failure to disclose —
SIR JOSEPH CANTLEY: No, indeed. He expressed his appreciation of what you had done to enable proper discovery to be given.
MR CARLISLE: My Lord, the effect of the lateness was, if to prejudice anyone, to prejudice me because I had to have witnesses having a document which I, of course, had not been able to take instructions upon. My Lord, I took the view it was right to make sure there was proper discovery. I sent Mr Holdsworth off to do it. My Lord, I do not think anyone has suggested we were in any way improper in that. On the contrary, there was a time when Mr Glasgow was giving us plaudits for it.
SIR JOSEPH CANTLEY: No, you and your learned junior started off with a rather ramshackle set of instructions.
MR CARLISLE: My Lord, I do not think I would want to endorse that.
SIR JOSEPH CANTLEY: Now, that is not your fault, but why should anybody else pay for any delay made by that?
MR CARLISLE: My Lord, there was no delay, as your Lordship appreciates —
SIR JOSEPH CANTLEY: I do not know. Look at all the files we had. Very often — I have been working on this judgment, I do not say all the time since I last sat, but I often had — I would write something down from one file and then to see what happened I would go to another file altogether. Now, if there had been discovery in time we would have saved a lot of time and had far fewer files.
MR CARLISLE: My Lord, it does not follow that those documents would not have come before your Lordship —
SIR JOSEPH CANTLEY: Oh no, but it would have saved time in the trial.
MR CARLISLE: With respect, not, my Lord. My Lord, the only witness who was re-called was Mr Laird and he was re-called to have some documents put to him that he had not dealt with before and, my Lord, had he in fact had to have those documents put to him earlier, my Lord, the same time would have been taken. My Lord, what I therefore say is, looking at the thing in the round, my Lord, this is a situation which Mr Glasgow was candid enough to say has not affected the course that he has taken at any time and, my Lord, the action certainly has not been increased in any way by it and, my Lord, this is in reality an insurers’ action in which insurers for the first defendants have sought a particular line; they have been successful against the insurers for the third defendants. My Lord, those two insurers should end up by paying. That is what I say. My Lord, that is the reality of this case.
SIR JOSEPH CANTLEY: I have seen that sort of — There have been instances — first instance and in the Court of Appeal — where the existence of insurers has somehow been regarded as evidence of liability —
MR CARLISLE: My Lord, I say it because my friend Mr Ogden has mentioned it himself and he was talking of the realities and, my Lord, I have now talked of the realities as well because, as a matter of policy, the first defendants sought to blame extra parties and, my Lord, they have failed against one; they have won against the other and, my Lord, costs ought to follow the event.
SIR JOSEPH CANTLEY: Yes, I see. No, Mr Glasgow, I am going to leave the order as originally.
MR GLASGOW: My Lord, the only other order that anybody requires, I think, is — formally, the only live contribution proceedings that are left are mine against the third defendants. That follows the event but, for what it is worth, I do ask for the formal order that I recover —
SIR JOSEPH CANTLEY: You will get an order for contribution of one-third.
MR GLASGOW: And for the costs of those proceedings in so far as they are not otherwise covered.
SIR JOSEPH CANTLEY: Yes, any costs attributable to the third party proceedings you can have.
MR GLASGOW: My Lord, I am very much obliged.
MR CARLISLE: My Lord, so far as the third party proceedings against me, I ask that they be dismissed with costs.
SIR JOSEPH CANTLEY: Yes, quite so.
MR CARLISLE: I am grateful.
SIR JOSEPH CANTLEY: That is the lot, is it?
MR GODDARD: My Lord, I rise again with some diffidence. My Lord, this has been, your Lordship may feel, a very unusual case with many and varied and complex issues and, my Lord, I am instructed to ask for a stay.
SIR JOSEPH CANTLEY: Why do you need it?
MR GODDARD: Because, my Lord, the questions of quantum have yet to be dealt with. My Lord —
SIR JOSEPH CANTLEY: Here you are. You have got — You can have one of these presentation copies of the uncorrected judgment.
MR GODDARD: Much obliged, my Lord.
SIR JOSEPH CANTLEY: And that is more than most people have at the end of the hearing.
MR GODDARD: Certainly, my Lord.
SIR JOSEPH CANTLEY: You want a stay. How long?
MR GODDARD: My Lord, a stay for the 28 days — the normal period.
SIR JOSEPH CANTLEY: What is it they are going to consider? What they are going to consider is whether to contest — whether to go to appeal, which they can quite reasonably do so, by all means. Never stop anybody going to the Court of Appeal, but that is all you have to decide. Quantum does not enter into this at all.
MR GODDARD: My Lord, I would be asking for a stay for the 28 days during which time the matter could be considered and, if advised, notice of appeal served and thereafter a stay until the hearing of the appeal, assuming that it is prosecuted with reasonable diligence.
SIR JOSEPH CANTLEY: Would not 14 days do for that? Why should there be any delay beyond that? I would have thought — and I bet you have thought too, already, “Well, if we go down we will try our luck in the Court of Appeal” and it does not take 28 days. You can have 14 days.
MR GODDARD: Fourteen. I was going to suggest a possible compromise of 21.
SIR JOSEPH CANTLEY: No, I think 14. Fourteen is enough.
MR GODDARD: A stay for 14 days, my Lord.
SIR JOSEPH CANTLEY: A stay of 14 days on the usual terms, that is to say that if notice of appeal is served within that 14 days the stay will continue until trial of the appeal.
MR GODDARD: I am obliged, my Lord.
SIR JOSEPH CANTLEY: It is important now, if you are going to do it, you had better get on with it.
MR GODDARD: Certainly, my Lord, I follow that.
My Lord, one further matter in relation to your Lordship’s order in respect of the payment of the costs of the second defendant, or part of them, by the third defendant, my Lord, I would respectfully ask for leave to appeal against that order.
SIR JOSEPH CANTLEY: Do you need to have leave to appeal?
MR GODDARD: Yes, against an order for costs, my Lord.
SIR JOSEPH CANTLEY: All right, you can have leave to appeal.
MR GODDARD: I am much obliged, my Lord.
SIR JOSEPH CANTLEY: There is something I want to say before we leave this case. I want to say something in justice and also in tribute to the late Roy McAulay, QC.
He, as many people here will remember, was leading counsel for the Bradford City Football Club, and it must have been noticed that, for some reason unknown at the time by anyone who noticed it, he left the case during the latter part of the trial and never came back. There was no public explanation for his departure because at the time it would have been wrong, for many reasons, to have revealed the cause of his departure. It is only right and fair that it should be revealed now because some people might even have thought that he had selfishly abandoned his client. That was something which those who knew him know well Roy McAulay could never have done, for above all his other fine qualities, he was outstandingly a very conscientious man, noted for his fidelity and his devotion to duty.
The fact is that he was suffering at the time from the fatal illness from which he died on the 22nd January this year. That fact was unknown to me until after his departure from the case. Until then his skilful and attractive conduct of a very difficult case was such that it had never occurred to me that there was anything wrong with him at all. He knew he had not long to live, but he had taken on the case and believed he could carry it through to the end with his powers undiminished and accordingly that it was his duty to do so. Sadly, the progress of his illness overcame even his fortitude and self-control, and he decided that he must, again in duty to his client, leave the conduct of the rest of the case in the capable hands of his experienced junior. That is what he did and he went home to die.
He was a brave and admirable man.
Judgment for the plaintiffs. Liability apportioned two-thirds on the First Defendant, one-third on the Third Defendant Back to Top