SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT PORTREE

B52/08

DETERMINATION

by

SHERIFF JANYS M SCOTT QC

in Inquiry into the circumstances of the death of

ALEXANDRA CARMEN MICHAELA SCHWENGER

under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976

APPEARANCES

For the Crown: Mr S MacIver, Procurator Fiscal Depute

For the Schwenger family: Mrs Renate Maria Theresia Schwenger-Stidl (save on 29 and 30 October 2008 when the family was represented by Katrin Schwenger)

For Christopher Tipping: Mr G Coll, Advocate, instructed by Anderson MacArthur, Portree

For Highland Council and

Highlands and Islands Fire and

Rescue Service: Miss L Kirkwood, Solicitor

PORTREE, December 2008

The sheriff, having considered all the evidence adduced and the submissions made thereon determines in terms of section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 as follows:

(a) Alexandra Carmen Michaela Schwenger died between about 03.00 am and 03.50 am on Sunday 16 April 2006 at the house known as "Bellevue", Meuse Lane, Kyleakin, Isle of Skye.

(b) The cause of her death was the ingestion of carbon monoxide, which was the product of a fire at said house.

(c) The single reasonable precaution whereby her death might have been avoided was the presence of a functioning smoke alarm within said premises at Bellevue.

(d) Her death did not arise in the course of employment. It is not therefore necessary to consider whether there was a defect in any system of working.

(e) The facts relevant to the circumstances of her death are set out in the following Note.

Alexandra Carmen Michaela Schwenger

[1] Alexandra Carmen Michaela Schwenger was born on 1 March 1983. Her parents are Mrs Renate Maria Theresia Schwenger-Stidl and Albert Schwenger. Katrin Schwenger and Christina Schwenger or Kolpin are her elder sisters. Tobias Schwenger is her younger brother. The family are German nationals from Weissach-in-Tal. Alexandra grew up in Germany but spent a year of her school career in the United Kingdom. She returned to Germany to study medical biology at Bonn University but elected to complete her undergraduate degree at Aberdeen. She loved Scotland and chose to remain to study for a PhD in medical biology at Aberdeen University. It was during a break from these studies, at Easter 2006, that she died in a fire on the Isle of Skye.

The witnesses

[2] The inquiry in this case was heard over ten days, 18 to 22 August 2008 and 27 to 31 October 2008. Mr MacIver, procurator fiscal depute, called Stacey Hearl who stayed at Bellevue with her children on the night of 15/16 April, Alexandra's sisters Christina Schwenger or Kolpin and Katrin Schwenger who were also at Bellevue that night, Richard Huntly who lived at Bellevue, Linda Murray who lived nearby, Stuart Mortimer a fire investigation expert, two firefighters Graham MacDonald and Neil Mackenzie, Temporary Assistant Chief Fire Officer John Donaldson, Roderick Mackinnon who is a building standards surveyor with Highland Council, Special Police Constable Alison Maclennan, Christopher Tipping the house owner, his stepson James Tipping and Seargeant Baird of Nothern Constabulary. The affidavit of Dr Mark Ashton, pathologist was read. In that affidavit Dr Ashton referred to the report of a post mortem examination carried out with Dr Rosaline Rankin, and the result of a toxicology report by Drs Stephen and Croal. Mr Coll called Professor Bussutil pathologist, Fany Caisse who was another resident of Bellevue and Iain Scade a fire investigation expert.

Bellevue

[3] In April 2006 Bellevue was a house with a living room, kitchen, bathroom and bedroom ("the downstairs bedroom") on the ground floor. Upstairs there was a master bedroom with an office leading off to the rear and an en suite bathroom, a further double bedroom ("the upstairs bedroom") and a box room. There was one staircase in the centre of the building rising opposite the front door, passing between the bathroom and the lounge, with a half landing allowing a one hundred and eighty degree turn to stairs to the upper floor. The upper part of the staircase lay over the bathroom and emerged opposite the box room and beside a cupboard. The upstairs bedroom lay to the right at the top of the stairs and the master bedroom to the left. There was a velux roof light over the stairs at the rear of the house.

[4] Viewing Bellevue from the Meuse Lane at the front, on the ground floor on the left there were the double windows of the downstairs bedroom, above which were the double windows of the upstairs bedroom. In the centre of the front wall was the front door, with the window of the box room over the door. To the right were the double windows of the lounge above which were the double windows of the master bedroom. Viewed from the back, there was an extension behind the lounge containing the kitchen, over which was the office and en suite bathroom leading off the master bedroom. The back door was at the right hand side of the extension viewed from the rear. It led to the kitchen via a small vestibule containing a fridge freezer. Set back in the original house was the bathroom window. Behind the downstairs bedroom there was a shed. There was a small caravan in the garden.

[5] Christopher Tipping and his then partner Carol purchased Bellevue in about May 2003. They lived there with Carol's two children James and Hazel and the one child of their relationship, also Christopher. Soon after the purchase James left to live in England. About a year later Carol left, taking the two remaining children. Mr Tipping remained alone in Bellevue. He slept in the master bedroom. He kept a dog, a collie/labrador cross, called Ben. His principal business was to supply bait to shops for anglers. Some bait he purchased and froze. He also dug live worms from the shore at low tide. He supplemented his income by letting rooms. In the latter part of 2003 and early 2004 he let the downstairs bedroom to a Mr Alan MacLeod, who applied for and secured housing benefit. In 2005 Mr Tipping decided that he would provide accommodation to tourists. He was encouraged to do so by another local resident, Anne Mackenzie. She offered to assist him in setting up the business and in changing beds. His work meant he was unable to provide breakfast, so the accommodation he offered was limited to provision of bed. A place that provides this type of "bare shelter" accommodation is commonly referred to as a "bunkhouse". He affixed a notice over the door at Bellevue saying "Bellevue Bunkhouse". After a time Mrs Mackenzie ceased to be involved. Over the winter of 2005 a few visitors responded to the notice, and stayed at Bellevue, principally at weekends. Mr Tipping charged £10 or £12 per person per night.

[6] In about February 2006 Richard Huntly took up residence in the box room on the first floor at Bellevue. His aunt ran a shop for anglers. She had purchased bait from Mr Tipping. Mr Huntly stayed at Bellevue on the basis that he would dig for live bait, which he supplied to Mr Tipping. Mr Tipping took some bait as payment in kind for accommodation and paid for any surplus. At about the middle of March 2006 Fany Caisse took up residence in the upstairs bedroom. She is French Canadian from Quebec and a friend of an acquaintance of Mr Tipping. She worked as a barmaid in the Kings Arms Hotel in Kyleakin. She assisted Mr Tipping in changing and washing sheets when the downstairs bedroom was used by guests.

[7] Mr Tipping kept Bellevue clean and tidy. The house had a homely and welcoming appearance. The hall, the master bedroom and the office were lined with timber panelling. After the fire Mr Donaldson deduced from strap marks on surviving plaster board in the stairwell that the timber panelling had extended up the stairs, but there was little plaster board left and Mr Tipping's evidence was that the panelling stopped at the foot of the stairs. In the circumstances I am unable to find that there was wood panelling on the staircase itself. There was an ornamental "Billy Bass" singing fish robot on a plaque on the lower part of the stairs. There were "tilt and turn" windows, capable of swinging out from a horizontal axis, or opening along a vertical axis like a door. The latch on the upstairs bedroom door was faulty. The door did not always remain closed. Mr Tipping applied WD40 but that did not solve the problem. The front door was UPVC. Beside the front door, between the door and the lounge, were some coat hooks, where there were generally coats and jackets hanging and boots or shoes beneath. On 15 April 2006 there was also a tin of masonry paint beneath the coats. In common with many homes on Skye the front and back doors were rarely locked.

[8] Certain notices were posted around Bellevue. There was a "no smoking" notice on the kitchen window. There was a notice in the kitchen asking guests not to use the electric cooker. Other notices were posted, but the evidence conflicted as to what they said and where they were located. A friend of Mr Tipping had prepared the notices on a computer and they were printed on A4 paper. They were designed for guests and stated when they should pay for their accommodation. They either said that guests should pay on arrival or they should pay before they left. They may have said that guests should not smoke, save in the lounge and that they could not use the cooker. They may have given instructions about fire exits and where to meet in the event of fire, but the evidence on this was vague. There may have been a notice in the hallway on the wall between the bathroom and the stairs, or on the door leading to the lounge. There may also have been a notice in the downstairs bedroom, the upstairs bedroom and the boxroom. I accept there were notices but cannot in the circumstances make any finding as to what they said or where they were.

[9] One particular problem relates to the evidence of Richard Huntly. This is relevant to the notices and a number of other features of Bellevue. Mr Huntly gave evidence that the notices stated where fire extinguishers could be found. Later in his evidence said he did not believe there were any fire extinguishers. He maintained that the notices said where the nearest fire exit and mentioned the front door, the back door and the windows, but he could not remember what the notices said about windows. He asserted that the upstairs bedroom doors had a spring to make them close. This was inconsistent with the evidence of all other witnesses and with an examination of the doors after the fire. When pressed about whether there were springs in the doors he said he was unsure. His evidence in relation to smoke alarms was also unsatisfactory. This is a significant element of the case and I will return to it below. When Mr Huntly was asked whether he had discussed his evidence with Mr Tipping he denied this rather quickly. He remains friendly with Mr Tipping and it is inconceivable he had not discussed with him matters relating to the house and the fire. He purported to have no recollection of the "Billy Bass" robotic fish on the wall of the stairs. In the circumstances I have had to treat Mr Huntly's evidence with some caution.

[10] Mr Tipping maintained that he had two fire extinguishers. One dated from the time of his purchase of the house. It was a small extinguisher and he said he kept it in the office. He gave evidence that he had purchased another fire extinguisher in the year prior to the fire. Neither were found after the fire. It is not necessary to make a finding in relation to whether or not there were fire extinguishers in the house before the fire as even had there been fire extinguishers, they would not have prevented the tragedy in this case. Mr Tipping also maintained in evidence that he had treated the woodwork in Bellevue with in tumescent coatings. He did not mention this to the police, but Mr Scade found a rusty tin containing the remains of one of two necessary coats of flame retardant paint in the shed at Bellevue, lending some credibility to Mr Tipping's evidence. I was prepared to accept that Mr Tipping applied some in tumescent paint in Bellevue, but the only area in which this would have been relevant was the hall. Such paint has only a retardant effect. In this case the timber lining to the hall did catch fire and was consumed. In April 2006 Christopher Tipping had allowed his fire insurance at Bellevue to lapse. Prior to the fire he experienced financial difficulties. His bank did not honour a standing order in respect of premiums. He ignored letters from the insurance company.

Schwenger family

[11] Alexandra met her sisters Katrin and Christina and their friend Holgar Sommerfeldt at Prestwick airport on 14 April 2006. She intended to take them on a tour of Scotland. The four of them hired a car and travelled to Skye. They were looking for accommodation in Kyleakin and had some difficulty finding somewhere suitable to stay. They saw the sign "Bellevue Bunkhouse" and applied for accommodation. The downstairs bedroom was occupied that night by friends of Fany Caisse. Mr Tipping agreed that the Schwenger party could stay in the upstairs bedroom at a cost of £12 per person per night. No meals were to be provided. Mr Tipping put an extra bed into the room, so that it slept four persons. Fany Caise agreed to sleep in a caravan at the rear of the house. The next day, 15 April 2006, the Schwengers and their friend Holgar arranged to stay for a second night. They toured Skye. When they returned Mr Tipping had prepared a meal for them. This was an act of generosity. It was not part of the usual provision at Bellevue and there was no charge for the meal. The Schwenger sisters and Holgar retired at about 10.00pm and were asleep by 11.00am. Holgar occupied a bed under the window. Christina slept in a bed placed next to Holgar's. Katrin's bed was behind the door and Alexandra slept in a bed farthest into the room, against the outside wall of the house. The party left a backpack in front of the bedroom door to hold it closed as the latch was not functioning.

Hearl family

[12] On the afternoon of 15 April Mrs Stacey Hearl arrived in Skye with her children Tommy (age 9) and Sammy (age 5). They were intending to camp, but the weather was poor and Mrs Hearl decided to look for a hostel or bed and breakfast accommodation. She saw the sign "Bellevue Bunkhouse" and applied for a room. By then Fany Caisse's friends had vacated the downstairs bedroom and Mr Tipping agreed that Mrs Hearl and her sons could stay there at a cost of £12 per night for Mrs Hearl and £6 per night for each of the children. No meals were to be provided. Mrs Hearl and the children retired to bed and were asleep by 10.30pm. They placed their luggage on the single bed just behind the door and all lay down in the double bed adjacent to the back wall of the room.

Tipping family weekend

[13] 15 April was Mr Tipping's birthday. On 14 April 2008 Mr Tipping's stepson James Tipping and James' wife Gemma came to stay at Bellevue for the weekend. They slept in the master bedroom, usually occupied by Mr Tipping. They brought their three dogs who were kept in the shed at the back of the house. Mr Tipping was to sleep on the sofa in the lounge. He does not sleep well and wakes every two hours or so. This is in part due to an accident about 25 years before which caused a serious leg injury. On 14 April 2008 Mr Tipping, James, Gemma and Richard Huntly went out to celebrate Mr Tipping's impending birthday. They went to the Kings Arms Hotel, where they all consumed alcohol. Christopher Tipping played pool. He usually played pool on Friday evenings. When the Kings Arms bar closed Mr Tipping, James, Gemma and Richard Huntly proceeded to Saucy Mary's pub at Saucy Mary's Hostel. There they met Linda Murray and her mother. Sometime after midnight the party returned to Bellevue with Linda Murray and her mother. More drink was consumed. The following day James had a hangover. Mr Tipping smelt of drink. He told the German family he had not slept that night.

[14] The Schwenger sisters bought Mr Tipping a bottle of wine to celebrate his birthday. They and he had a glass of wine when they ate dinner. On the evening of 15 April 2008 Mr Tipping, James, Gemma and Richard Huntly again went out to the Kings Arms Hotel. They stayed there until last orders at about midnight and then moved on to Saucy Mary's pub. When Saucy Mary's closed a party including Mr Tipping, James, Gemma, Richard Huntly, Linda Murray, two local girls identified as Ashleigh and her sister Laura, and someone called Kenny Whittle all walked to Bellevue. They reached Bellevue at about 1.00am. The party was joined by an Irishman called Martin. Fany Caisse was present in the lounge for a time and then retired to her bed in the caravan. Most of the group sat in the lounge at Bellevue. Some went into the kitchen. Some visited the downstairs bathroom. Members of the group continued to drink. Some members of the party smoked. The smokers in the party included Christopher Tipping who smoked roll-ups, Gemma Tipping, Fany Caisse, Linda Murray, Kenny Whittle and Martin. There were ashtrays in the lounge. It is also possible that ash was knocked out in the open fireplace. It would have been possible for one of the smokers to go out to the bathroom carrying a cigarette. The Irishman Martin was absent from the living room for some time. The party started to become noisy. Martin in particular was making a lot of noise. Christopher Tipping became concerned about waking his paying guests, particular the Hearl children. He asked members of the party to keep the noise down. He eventually requested that the party move to Linda Murray's house. The party then decamped to Linda Murray's house in Olaf Road, Kyleakin. They arrived at Linda Murray's house at about 2.00am. More alcohol was consumed.

[15] There was some confusion about what happened to the dog, Ben, when Mr Tipping and the others left Bellevue. Christopher Tipping initially told the police that he left Ben in the lounge. In evidence he said that that he put the dog upstairs in the master bedroom because there were people in the house and he was concerned that they could leave doors open and let Ben out. Immediately after the fire Linda Murray told the police that Christopher Tipping put the dog upstairs at the time the party left the house. In evidence she stated that she had not recalled the dog being in the lounge and had recalled Mr Tipping telling her that he had put the dog in the office as there were people in the house. Fany Caisse recalled the dog in the lounge during the party. Ben was later found in the office. It is most likely that Ben was taken upstairs and shut into the master bedroom and office area before Christopher Tipping left to walk to Linda Murray's house.

[16] Christopher Tipping was the first to decide to leave Linda Murray's house. He was tired. At about 2.30am he decided to go home. He walked back to Bellevue alone. It is not clear what he did when he got home. He claims to have gone upstairs to the master bedroom, changed into more casual clothing, taken Ben downstairs, taken his boots off and laid down on the sofa, with the light on, watching TV. He then fell asleep. It is unlikely that this account is entirely correct. Ben's body was found upstairs in the office after the fire. The dog appears to have died through inhalation of the products of combustion. The door to the master bedroom was closed during the fire. It is likely that Ben was upstairs behind that closed door throughout the fire. Ben was incapable of operating the round handles on the doors. He could not have opened the lounge door, closed it behind himself, gone upstairs, opened the upstairs bedroom door, gone into the bedroom and closed the door behind himself. On the other hand Christopher Tipping had changed from jeans and a shirt into track suit bottoms, a tee shirt and a fleece. Either he changed upstairs and closed the dog back into the master bedroom, or he had his casual clothing for sleeping down stairs and did not venture up the stairs. This is material as if he had gone upstairs it is possible that he may have noticed were there a smouldering object somewhere in the stairwell or hall. He was however tired and had been drinking. After the fire he was suffering from the effects of smoke inhalation and was very shocked. It is unsurprising if his account of events is confused.

Fire at Bellevue

[17] Christopher Tipping fell asleep in the lounge, lying on the sofa under the front window with his feet towards the door to the hall. He woke choking on smoke. It was dark in the room. He felt his way to the end of the sofa, opened the door into the hall and went out of the front door. As he did so he could feel heat at his back. The fleece he was wearing was scorched on the back and shoulders from the heat. He left the front door open, allowing air into the house. Smoke curled out of the door behind him. He found himself unable to shout, so threw chippings from outside the house at the windows of the upstairs and downstairs bedrooms.

[18] Mr Mortimer suggested that Mr Tipping might not have left through the hall. I accept that he did exit the lounge through the door to the hall and then went out of the front door. The lounge was filled with smoke. He could not easily have found his way across the room to the kitchen door. The smoke obstructed his vision. He was choking, had difficulty breathing and left by the nearest door. The back and shoulders of his fleece were scorched, consistent with his passing in front of fire in the hall as he left the house. The kitchen did not suffer any significant smoke damage, indicating that the kitchen door remained closed throughout. Mr Mortimer was inclined to reject Mr Tipping's account partly because he had formed the view that the seat of the fire was at the lounge door. It is my conclusion that the seat of the fire is more likely to have been on the stairs.

[19] Upstairs Christina Schwenger woke up and smelled smoke. She woke Holgar and then her two sisters. Holgar and Katrin ran to the windows. Christina opened the bedroom door to see if she could go down the stairs. Smoke poured into the room. Christina tried to push the door closed, but it would not close. Alexandra shouted to put something over their mouths so as not to breath the smoke. Katrin took one breath in the smoke and became aware that she could not breath again in the room. She was unable to open the tilt and turn window nearest the door. Holgar managed to open the other window. He climbed out. Katrin jumped out. As she jumped she had the impression that Alexandra was behind her. Christina's breath was also taken away by the smoke. The heat from the landing entering through the open door burned Christina's left eye. She rushed to the window and jumped. As she did so her pyjamas melted onto her back. She suffered burns to her left side on her back, arm and hand. Holgar, Katrin and Christina shouted to Alexandra to jump, but she did not appear.

[20] Downstairs Stacey Hearl heard scuffling noises, which she thought were in the hall. There was then a banging noise. She got up, opened the bedroom door and saw that the hall was in flames. There was smoke outside the bedroom door. She quickly closed the door and went to wake her sons. She tried to open the windows. She was unable to get the windows open. She tried to operate the light switch, but the lighting did not function. Mr Tipping, who by then was outside the house, brought a plank of wood. He and Holgar broke one of the windows. Mrs Hearl handed out Sammy. Sammy suffered superficial cuts to his head and back as he was passed out through the broken glass. Holgar cut his hands on the broken window. Someone then managed to reach in and open the window. Tommy and Mrs Hearl climbed through the open window. Outside she became conscious that there were people panicking about someone still in the upstairs bedroom. She decided to take Sammy and Tommy away from the scene. She went to find a friend who lived nearby but when there was no reply at the friend's door Mrs Hearl returned to Bellevue and took refuge with a neighbour.

[21] After Stacey Hearl and her children had escaped Christopher Tipping walked round the house in a clockwise direction. He awoke Fany Caisse, who was asleep in the caravan and brought her round to the front of the house.

[22] Christopher Tipping had left James, Gemma and Richard Huntly at Linda Murray's house. At about 3.30am James and Gemma started to walk back to Bellevue. On their way back they met Stacey Hearl, Sammy and Tommy, fleeing from the fire. They then saw smoke. Finally they arrived at the house and saw people outside, including Christopher Tipping with his face blackened by smoke and his fleece "bubbly with heat". A crowd was collecting on the area of grass opposite Bellevue. At that point no flames were visible outside the house. Flames emerged shortly afterwards. Some of the bystanders outside the house took photographs as the fire developed. The fire brigade arrived. The firemen and James Tipping between them moved James' car that was parked on the roadway outside the downstairs bedroom and was impeding access to Bellevue. Heat from the fire damaged had the nearside wing mirror. James then went to release his dogs from the shed. The dogs ran from the shed into the kitchen, through the back door, which was standing open. James saw one or two men in the kitchen area. A man was taking items out of the fridge freezer in the vestibule and throwing them on the floor. James was preoccupied with his dogs. He rounded them up and took them to his wife who was sitting near the wall of the adjacent house.

[23] Richard Huntly remained at Linda Murray's house. Linda Murray's mother received a telephone call to say that Bellevue was on fire. Richard Huntly then returned to Bellevue. By that time the emergency services were in attendance and Christopher Tipping was in an ambulance. Christina Schwenger had taken refuge at Saucy Mary's. As she rested in the doorway a number of residents left the building carrying their luggage. She was taken into the hostel and remained there until taken to an ambulance. Katrin had hurt her feet jumping out of the window and she too required to be taken to an ambulance. Holgar required treatment for the cuts to his hands. Christopher Tipping, Christina Schwenger, Katrin Schwenger and Holgar Sommerfeldt were all suffering the effects of smoke inhalation.

[24] Alexandra remained in the upstairs bedroom. She was found covered by a mattress. She must have pulled the mattress on top of herself. It is not clear whether she took hold of the mattress with a view to pushing it out of the window to cushion her landing or to protect her body from the heat within the room. She was overcome by inhalation of carbon monoxide which caused her to lose consciousness. Within a few minutes of losing consciousness she died.

Attempts to extinguish the fire

[25] The first attempts to fight the fire were made by neighbours who brought fire extinguishers and directed these in through the front door. By that time the fire had taken hold and the fire extinguishers were ineffective. A number of extinguishers were found outside the house after the fire. One was found in the kitchen. The extinguisher in the kitchen and those outside the house came from adjoining premises. They were identified by Mr Scade who checked the labels with the relevant suppliers.

[26] The Highland and Islands Fire and Rescue Service were contacted at 3.52am. The fire service for Skye is manned by retained firefighters, who have other principal occupations. Messages were relayed to firefighters in Kyle of Lochalsh and in Broadford at 3.53am. They had to proceed to the fire stations, dress for firefighting, board the fire engines and drive to the fire. Five firefighters attended from Kyle of Lochalsh. They were mobilised and driving to the fire by 3.58am. They could see the flames at Bellevue from the secondary bridge to Kyleakin, indicating that there was an intense fire. The Kyle of Lochalsh fire engine arrived at 04.00am. Six firefighhters boarded the Broadford fire engine. They were mobilised and driving to the fire by 3.57am. They arrived at 04.04am. Other firefighters from Broadford attended by private car. The fire service is to be commended for its prompt and professional response to the emergency. They reached the fire at the earliest possible opportunity. Sadly, they were not alerted in time to save Alexandra.

[27] Two firefighters from Kyle of Lochalsh were instructed to don breathing apparatus and try to mount the stairs. They entered through the space where the front door had been, spraying water. Steam restricted their visibility. Within a few minutes they found that there was a hole in the staircase about half way up the stairs and they could not continue. They continued to dampen the fire from within the house for about 15 minutes. A ladder was placed against the front wall of the house. Firefighters entered the upstairs bedroom. The ceiling in the room had collapsed and visibility was restricted to about ten inches. Feeling their way across the room the firefighters found Alexandra's body under a mattress. It was clear to them that she was not alive. Later that morning firefighters assisted in removing Alexandra's body from the upstairs bedroom. They also removed the body of Ben the dog from the office.

Police inquiries

[28] The first police officer to arrive on the scene was Special Police Constable Alison Maclennan, who was returning home from night duty. She arrived at about 4.00am. She spoke Christopher Tipping who was coughing. He was wearing a dark top, tracksuit bottoms and socks, but no shoes. She also spoke to the Schwenger sisters and to Holgar Sommerfeldt. Christopher Tipping and the three Germans and were taken by ambulance to Broadford Hospital.

[29] One of the Broadford firefighters was instructed to reconnoitre the rear of Bellevue. He found a man in the vestibule taking items out of the fridge freezer. This appears to be the same man who was encountered shortly before by James Tipping. The man gave the impression that he was under the influence of something. The firefighter asked him to leave the premises immediately, but he was reluctant to move. He said he was looking for something to drink. The firefighter took him by the forearm and coaxed him out of the building. He resisted accompanying the firefighter away from the house. The firefighter managed to lead him away and handed him over to Special Police Constable Alison Maclennan. She ascertained that his name was Shane Ziebell and tried to note an account of what he had been doing, but was unable to extract a coherent and consistent story. She passed him to Detective Constable Baird who arrived at the scene in the course of the morning.

[30] Mr Ziebell agreed to stay and assist police with their inquiries. He was fully co-operative. He was an Australian citizen in his early 20s, on a bus tour to Skye on the weekend of 15/16 April 2006. He was booked into the international hostel. He and two friends had been drinking. He had limited recollection of events. Police were able to trace his movements to closing time at Saucy Mary's pub. He thought he had come across the fire when he left Saucy Mary's, but this could not have been the case. He had returned to the hostel, as he was seen there between about 2.00am and 3.00am. He was observed pestering other residents and was put into the television lounge, where he remained until after fire had broken out at Bellevue. He then left the hostel with his two friends and went to Bellevue. Mr Ziebell claimed to have gone to the rear of Bellevue with a fire extinguisher and smashed the kitchen window. This is consistent with the fact that the kitchen window had been smashed from the outside, and a fire extinguisher from the hostel was found inside. Mr Ziebell told police that he had climbed into the kitchen through the window, but there was no sign of him being cut. He suggested he used his jacket to put over the glass, but a photograph of him at the scene shows he was not wearing a jacket. His jacket was handed in later. There was no sign of the broken glass being disturbed by anyone climbing through the window. He gave an account that when inside the building he could not see, so he went to leave by the rear door, and then thought he could "salvage" items from the fridge freezer in order to assist the householder.

[31] Mr Ziebell provided samples for DNA testing, finger prints and handed over the clothing he had been wearing. The police checked whether he could have used accelerants to start the fire. No trace of accelerants were found. He was interviewed three times over 16 and 17 April. His family in Australia was contacted. He had no criminal history save for drink driving. The police decided that he was not implicated in starting the fire and that he had been in the kitchen in a drunken and misguided attempt to help. They allowed Mr Ziebell to leave at about 4pm on 17 April.

[32] There were some curious features of the scene of the fire. After the fire an undamaged carton of milk was found in the downstairs bathroom. It appeared to have been thrown through the bathroom window, where the glass had failed during the fire. No explanation was found for its presence. It was unlikely to have had anything to do with the fire. Sometime after the fire there was considerable disturbance of Mr Tippings possessions in the master bedroom and office. This has not been explained. It is not however directly related to the fire.

[33] The fire was reported to the police at about 4.00am. A police vehicle was despatched and arrived at about 4.04am. The case was rapidly identified as a serious incident and a senior investigating officer appointed. The case was transferred to the IMPACT system where details were logged. It was then transferred to HOLMES (Home Office Large Major Enquiry System). This system allows the collation of large amounts of information accumulated during a major investigation. The case was treated as a potential murder inquiry. Extra officers were drafted in. House to house inquiries were conducted. Two hundred and fifty statements were taken from nearly two hundred individuals. Every person in Kyleakin on the night of the fire was accounted for. Police inquiries covered the persons seen by Christina leaving Saucy Mary's with their luggage.

[34] The police did not find who, if anyone, had started the fire. They were unable to find any motive for a deliberate fire. The local community was well disposed towards Christopher Tipping. The only possible antipathy was a previous quarrel between a member of Christopher Tipping's family and a doorman, but this was discounted as a motive for attacking Bellevue.

The fire damage

[35] Initial investigations by John Donaldson then Divisional Officer with the Highland and Islands Fire Brigade and an independent fire investigator Stuart Mortimer concluded that the fire had commenced in the hall, or possibly at the entrance to the lounge. Mr Scade, instructed for Mr Tipping, considered it more likely that the fire commenced on the stairs at the half landing. I have found that the fire commenced on the stairs but cannot say whether this was towards the foot of the stairs, or on the half landing.

[36] Mr Donaldson arrived at Bellevue at 5.56am on 16 April 2006. Mr Mortimer was there on 19 April 2006. Information about the progress of the fire was available from photographs taken by bystanders while Bellevue was burning. Photographs were also taken immediately after the event by the police and fire service. Mr Mortimer took further photographs when he attended. Mr Scade did not inspect the locus until 14 February 2007 but had the benefit of the photographs taken by others.

[37] Photographs taken by bystanders before the fire service arrived showed fierce flames at the front door, and the downstairs bedroom, but not the lounge. This tended to indicate that the fire did not commence in the lounge. Photographs of the exterior of the house after the fire showed heat patterns over the front doorway and downstairs bedroom windows consistent with the venting of flames from the hall and downstairs bedroom. Soot marks over the boxroom and upstairs bedroom windows were consistent with smoke, but not flames emerging upstairs. Little damage was evident to the right and to the rear of the house.

[38] Inside, the kitchen was devoid of significant signs of damage. The lounge was extensively damaged by fire but the damage was at a higher level. Parts of the furnishings at a lower level survived. The pattern of damage to the door to the hall and its frame indicated that the door was open during the majority of the fire. The hinges were fused in the open position. The damage is consistent with Christopher Tipping escaping through that door, and leaving it open. The tin of masonry paint was still there between the lounge door and the front door, swollen but not exploded. Extensive damage to the downstairs bedroom was consistent with spread of fire from the hall. The downstairs bathroom door was not burned at the point it rested in the frame, indicating the bathroom door was shut during the fire. This was consistent with lack of damage to the combustible bath panel. Higher up in the bathroom there was severe damage. The underside of the plaster had fallen off and exposed the remains of the burnt staircase. The staircase was severely damaged by fire. The plaster on both sides of the staircase was largely missing.

[39] On the bathroom side of the stair wiring was exposed. The insulation on the wiring was intact. The state of the wiring and the wall beneath the plaster indicated that the fire had not started in the wall void between the bathroom and the stairs. Insulation to the lighting on the hall ceiling was burned away, but showed no sign of arcing, tending to show that the light in the hall was off during the fire. Police photographs of the main electrical distribution board and meter in the upstairs cupboard showed a modern design with circuit breakers. There was damage consistent with fire attacking from outside, rather than a fault within the distribution board and meter. There was no indication of the fire being caused by an electrical fault.

[40] Upstairs unburnt timber in the frame and door of the master bedroom where this met the frame indicated that the master bedroom door was closed during the fire. The bed and furnishings were damaged by smoke. There was fire damage to the ceiling. Smoke damage to the door between the master bedroom and the office showed that the door there had stood open during the fire. The office suffered significant smoke damage. Protection patterns on the carpet indicated where the body of Ben, the dog, had been found. Smoke damage at the doorway of the en suite bathroom was consistent with that door remaining open during the fire. Candles in the bathroom had softened and sagged in the heat of the fire. The upper part of the boxroom was severely damaged, but the carpet and items at a lower level were relatively unburnt. There was no sign of the sliding door to the room. The damage was consistent with the door being closed, protecting the room, but then succumbing to the fire, which entered the room and burnt the room at the higher level. The damage to the upstairs bedroom was more severe towards the window. Damage to the floor confirmed that the door had been partially open during the fire. A pattern at the base of the external surface indicated that something had fallen against the door, protecting it from fire. The ceiling in the upstairs bedroom, the landing, the boxroom and the master bedroom had failed. Insulation material and items stored in the loft had fallen, particularly in the area of the staircase.

[41] The police removed timber from the hall at the foot of the stairs to check for accelerants. No sign of any accelerant was found. Debris was collected from the hall and landing. No smoke alarms or parts of smoke alarms were found. In the experience of Mr Donaldson and Mr Mortimer the sounder or the battery terminals often survive a fire, although the plastic parts of the alarm may melt or be consumed. The remains of two C cell batteries were recovered from the debris. These were not smoke alarm batteries. They could have come from the "Billy Bass" robot, or from the front door bell. They could have come from a battery powered item stored in the upstairs cupboard or loft.

[42] Mr Donaldson advised that the damage to the first few treads of the stairs indicated a pattern of fire that started at or near the bottom of the stairs and progressed up the stairs. Mr Mortimer was inclined to think that the fire had started at or near the lounge door. He appears to have had in mind the coats hanging between the lounge door and front door and the items standing on the floor in that area, which could have provided a combustible basis for the fire. Mr Donaldson and Mr Mortimer reasoned that when the front door was opened the fire had travelled up the staircase, venting through the upstairs bedroom or through the velux roof light which failed. The wall of the staircase on the lounge side was destroyed by fire, resulting in the upper part of the lounge wall disappearing. I have accepted the evidence of Mr Tipping that he left Bellevue through the front door. This tends to indicate that the fire did not commence between the lounge door and the front door, as he was able to escape past this area. The paint pot located between the lounge and hall doors was still there and had not exploded. The back of Mr Tipping's fleece was scorched, suggesting that when he left the house, the fire was behind him on the stairs.

[43] Mr Scade, instructed for Mr Tipping pointed out that the half landing had largely been burnt away. He suggested that the fire started there, and burned down through the half landing. He explained that timber burns at approximately one fortieth of an inch per minute. The tread of the stair was likely to have been about three quarters of an inch thick. It would have taken about half an hour to burn through. The fire could have smouldered on the stair producing products of combustion, but no flame, until the outside door was opened. There would then be a blast of radiated heat and flames. Heat would then have radiated down to the hall. Mr Scade had conducted research on UPVC doors and found that they ignited and burned fiercely. His view, based on photographs of the door burning was that the door had first ignited at the top. He pointed out that his theory accounted for the exposure in the downstairs bathroom of the underside of the staircase and the fact that flames destroyed the upper part of the wall to the lounge. His theory was not entirely consistent with Mr Donaldson's evidence that he found the remains of the UPVC door, that had fallen into the house and shielded the floor in the hall beneath.

Cause of fire

[44] The evidence tends to exclude an electrical fault causing the fire at Bellevue. Mr Mortimer's background is as an electrical engineer and particular reliance can be placed on his observations of the wiring. The most likely cause of the fire is human agency, either deliberate or accidental. The available evidence did not permit a finding as to whether the fire was started deliberately or accidentally.

[45] In order for such a fire to start accidentally there would require to be some combustible material and a source of ignition. Mr Mortimer suggested that one possible cause of the fire may have been carelessly discarded smokers materials. A dropped cigarette would not by itself cause a fire. It could cause scorching, but not flame, unless trapped inside combustible material such as in a garment or under a cushion. The only obvious place in the hall where a cigarette could have been trapped was in the coats or footgear between the lounge door and the front door. It is however unlikely that this was the seat of the fire, given the circumstances of Mr Tipping's exit from the building and the presence of the unexploded paint tin. There is no evidence of any accumulation of combustible materials at the foot of the stairs or on the half landing. The only potentially combustible object in that area disclosed by the evidence was the ornamental "Billy Bass" singing fish. An accidental fire could have been caused by an unusual train of events. Mr Scade mentioned the remote possibility that an alcoholic drink was spilt on the stairs and a lighted cigarette then produced a "wick" effect.

[46] The alternative explanation is that the fire was started deliberately. There was a suggestion on behalf of Mr Tipping that it was possible to draw an inference in favour of an intruder deliberately setting a fire. An intruder could have entered through the unlocked front door. There were visitors to Skye behaving in a bizarre manner, in particular Mr Ziebell. Although the police had taken steps to satisfy themselves in relation to his activities, his movements were not wholly accounted for. During the fire persons had left the adjacent hostel with their luggage. The police had however accounted for all the persons in Kyleakin that night. Following the fire there had been further odd incidents including the appearance of an undamaged plastic milk container in the bathroom, and, following the initial police investigation, the disturbance of objects in the house. The fire service and police checked carefully for traces of accelerants and found none. They were however focusing on the hall and foot of the stairs. They did not take samples of material from the half landing. Even if they had done so, the level of damage there was such that there would have been little to examine. Deliberate action by an intruder appears unlikely but cannot be entirely excluded.

Smoke alarms

[47] Had there been a functioning smoke alarm at Bellevue then Alexandra's life could have been saved. A smoke alarm would have given the occupants of the house earlier warning about the fire and better opportunity to escape. Mr Scade advised that in his experience as a fire investigator annual incidences of death from fire in Strathclyde halved when smoke alarms became common. There was no sound from any smoke alarm in this case. There are three possible explanations. There were no alarms installed, or there were alarms but they were not maintained in working order, or the alarms had been disabled.

[48] Mr Tipping claimed that there were battery operated smoke alarms on the hall ceiling at the foot of the stairs and on the landing. He described the alarms as round, and white, with a switch on the side for testing. He said he had replaced the batteries about three weeks before the fire and had tested the alarms and found them to be functioning. He described the batteries as being "small and squarish". He claimed to have been assisted in changing the batteries by a Czech man staying in the house at the time.

[49] Richard Huntly stated that there were smoke alarms in the hall to the left of the stairs and directly above the stairs. He said there was a button in the middle of the alarms to test them and that he was aware of them being tested by Mr Tipping. He had previously told the police that there had been just one alarm, at the top of the stairs. He also told police that he did not know if the alarm was working as he had never heard it being tested. When asked about his previous statement to the police he was clearly uncomfortable. He said he had remembered the second alarm three or four weeks after speaking to the police. He also said in evidence that he had believed the alarm he had spoken about to the police to have been tested because he had noticed some dust cleaned off, although he had not seen it being cleaned. As already indicated I found Mr Huntly's evidence incredible in a number of respects. I did not find his evidence in relation to smoke alarms reliable.

[50] Fany Caisse was called for Mr Tipping. She too said there were smoke alarms, but was vague about where they were. Ms Caisse did appear to be doing her best to assist, but her memory of the house was incomplete. She was inaccurate about details such as the direction in which the upstairs bedroom door opened. She had occupied that room and it is more likely she would have had an accurate memory of the door of her bedroom than smoke alarms elsewhere in the house. She did remembered a Czech couple staying at Bellevue. She and Mr Tipping had left Skye together a few days after the fire. She accompanied him to Blackpool, where James and Gemma Tipping lived. She had at some stage returned to Canada, but by the date of the Inquiry she was again living in Kyleakin. It is inconceivable that she did not discuss smoke alarms with Mr Tipping, and in all probability James and Gemma Tipping. I was not confident that she was a reliable witness.

[51] No remains of smoke alarms were found after the fire. It is possible that all evidence of two smoke alarms was destroyed by the fire. It may be that remains of smoke alarms were buried by firefighters who turned over debris to dampen the fire in its latter stages. The police searched the debris, but this was not a "fingertip" search. For Mr Tipping it was argued that no remains of the "Billy Bass" had been recovered either, suggesting that the fire had been fierce enough to destroy other battery operated installations. On the other hand the "Billy Bass" may have been located where the fire was fiercest. Police did look for remains of smoke alarms and it is not reassuring that there was no sign at all of either of the two smoke alarms said to have been in the building.

[52] Looking at the possibility that the smoke alarms were there but malfunctioned, this might be accepted for one alarm, but becomes less likely were there two alarms installed. Mr Scade suggested that a person intent on setting a fire could have disabled both smoke alarms. This would have meant that someone entered the house without being heard by any of the eight persons sleeping there, hunted for smoke alarms and found them on ceilings, managed to reach the hall ceiling and the ceiling at the top of the stairs and to remove the batteries or disable the alarms in some other way. It is unlikely that a person who was intoxicated could have achieved this. Police inquiries did tend to exclude a malicious intruder. In these circumstances the most likely explanation for no sound from a smoke alarm is that there were no alarms installed or that there were alarms but these had not been maintained in working order. This conclusion finds some support from the absence of any part from an alarm after the fire. Taken as a whole the evidence suggests that Mr Tipping, Mr Huntly and Ms Caisse should be disbelieved in their assertion that there were functioning smoke alarms prior to the fire.

Other fire safety measures

[53] There is one other relevant consideration in relation to the upstairs bedroom in which Alexandra died. The latch on the bedroom door was failing to catch in the door frame. Had it been possible for Christina to close the door, then this would have limited the amount of smoke entering the upstairs bedroom and given all the occupants a better chance of escape. The doors were sufficiently solid to give a measure of fire resistance. It is not however clear that the difficulty was solely a result of the defective latch. Christina felt pressure on the exterior of the door. After the fire it was apparent from a protection pattern at the foot of the door that something had been resting against the outside of the door during at least part of the fire. While the door could have been protected by insulation material falling from the loft as the ceiling in the landing failed, or by an object falling out of the loft, these materials are unlikely to have been present at the stage when Christina opened the door. No finding can be made at this stage in relation to what prevented Christina closing the bedroom door. It cannot be said with any certainty that a functional latch would have allowed her to close the door.

[54] Mr Mortimer considered whether a self-closing fire door would have assisted, but if there was an obstruction at the doorway, then it is likely that the door would not have closed in any event. A number of other possible safety measures were canvassed in the course of the inquiry. Doors that were fire resistant for 30 minutes, with in tumescent seals that expanded into the door frame in case of fire would restrict the spread of fire. The doors at Bellevue were however of reasonably solid construction and fitted well into their frames. Stacey Hearl and her children were able to escape from the downstairs bedroom, despite the fire in the hall. In tumescent flame-retardant paint could be used to treat timber linings. Christopher Tipping's evidence was that he used such paint but that timber lining was confined to the hall, master bedroom and office. Emergency lighting could have been installed to indicate fire exits. Mr Mortimer in his report suggested that this would have directed occupants of the building down the stairs to the front door. In this case such directions would have led occupants directly into the fire. In the case of a dwelling house with a single staircase the occupants might have to make a judgment call about how to leave the building. Exits from the building should not be locked from the inside with a key. There should be a means of opening doors and windows from the inside without requiring a key. In this case the doors were not locked and it was possible to open the windows, albeit the guests were unfamiliar with the way in which the windows operated and had difficulty opening them when in a state of panic. Fire extinguishers could have been available and would have required to have been regularly serviced. In this case by the time the fire was discovered fire extinguishers were ineffective. Smoke detectors could have been placed in each bedroom. They could have been mains operated smoke detectors with battery back up, but any functional smoke detectors would have served to give the necessary warning in this case.

[55] The broader consideration that arises from the incident in this case is that the fire safety measures at Bellevue were haphazard at best. The house was being used to take paying guests. Members of the public were staying in a building with which they were unfamiliar. They were not members of a family in residence in the building who would be best placed to take care of one another were there a fire. In circumstances such as these more forethought is required about the safety of guests in the event of fire.

Regulatory framework

[56] Bellevue was known to the Highland Council as a domestic dwelling. A building warrant for the extension to the rear of the house on the ground floor at the kitchen and on the first floor the office plus en suite bathroom had been issued in the late 1980s and the extension constructed early 1990s. Before 1 May 2005 building regulations permitted an occupier to take in 6 paying guests without registering a change in use. On 1 May 2005 the Building (Scotland) Act 2003 came into force. Section 8(1)(b) of that Act required a building warrant for any "conversion" of a building. If Bellevue had ceased to be a "dwelling" it would have required a building warrant. The building as converted would have required to comply with building regulations, including standards relevant to the outbreak of fire.

[57] A "dwelling" is defined in regulation 2 of the Building (Scotland) Regulations 2004 as:

" a unit of residential accommodation occupied (whether or not as a sole or main residence)-

(a) by an individual or by individuals living together as a family; or

(b) by not more than six individuals living together as a single household (including a household where care is provided for residents),

and includes any surgeries, consulting rooms, offices or other accommodation, of a floor area not exceeding in the aggregate 50 square metres, forming part of a dwelling and used by an occupant of the dwelling in a professional or business capacity"

A unit of residential accommodation that provides bed and breakfast facilities not exceeding two double bedrooms for no more than half the year was not and is not treated as ceasing to be a dwelling. Christopher Tipping would have been at liberty to accommodate bed and breakfast guests in both the upstairs and downstairs bedrooms for up to six months each year without requiring a building warrant. He was not however providing bed and breakfast. He had two individuals living with him as a single household, albeit both had joined the household over the preceding few weeks. He was offering bare shelter to others on an ad hoc basis. The arrangements at Bellevue did not clearly fall within the requirement for seeking a building warrant for conversion of the building.

[58] In April 2006 certain premises required a fire certificate under the Fire Precautions Act 1971. The premises that required a certificate were designated by the Fire Precautions (Hotels and Boarding Houses) (Scotland) Order 1972. A certificate was required where there was provision of accommodation "in the course of carrying on the business of a ... boarding house keeper". Provision of "board" involved provision of at least one meal (see Smith v Berry 1984 SLT 79). Christopher Tipping did not provide board. Mr Donaldson explained that in these circumstances Bellevue did not require a fire certificate.

[59] The lack of any regulatory provision to protect the safety of members of the public staying in a small 'bunkhouse' such as Bellevue is a cause for concern. The regulatory framework was changed by the Fire (Scotland) Act 2005, which did not come into force until 1 October 2006, too late to have any effect on this case. It is however relevant to consider whether the new regime is adequate to prevent a death in similar circumstances.

[60] Under the Fire (Scotland) Act 2005 a person who has control of "relevant premises" must comply with certain duties. Purely domestic premises are not "relevant premises". Premises where sleeping accommodation, including "bunkhouse" or "bare shelter" facilities, is provided are now "relevant premises" under the 2005 Act. Persons who control small premises that provide sleeping accommodation must carry out duties imposed on them by section 54 of the Fire (Scotland) Act 2005. Section 54(2) states that they must:

"(a) carry out an assessment of the relevant premises for the purpose of identifying any risks to the safety of relevant persons in respect of harm caused by fire in the relevant premises; and

(b) take in relation to the relevant premises such of the fire safety measures as in all the circumstances it is reasonable for a person in his position to take to ensure the safety of relevant persons in respect of harm caused by fire in the relevant premises."

This means that a person in Mr Tipping's position must now carry out a fire safety risk assessment of his premises, identify the fire safety measures necessary as a result of the risk assessment and implement those measures. He must arrange for ongoing control and review of the fire safety measures, comply with any fire safety regulations, keep the risk assessment and measures he takes under review and keep records relating to the assessment and measures.

[61] A document entitled "Practical Fire Safety Guidance For Small Premises Providing Sleeping Accommodation" has been produced by the Scottish Government's Police and Community Safety Directorate, HM Fire Service Inspectorate for Scotland, the Scottish Building Standards Agency and the Health and Safety Executive. This can be downloaded from the internet (www.infoscotland.com/firelaw/files/SSAP-rev1.pdf). While the guidance is helpful it is a lengthy document extending to over 50 pages. A lay person who has no experience in relation to fire hazards may have difficulty in preparing a risk assessment. A lay person may not be aware of all the measures available to reduce the risk of fire or to restrict the potential for harm in the event of fire.

[62] The fire service was formerly available to assist in advising on fire safety measures, but found there was a conflict between their role as advisors and their role as a policing authority. They are now firmly cast in the role of enforcing authority. They may take steps such as the issue of a prohibition notice under section 63, an enforcement notice under section 64, or an alternations notice under section 65 of the 2005 Act. The fire service will give general advice about fire prevention but will not assist in the preparation of risk assessments.

[63] The provisions of the Fire (Scotland) Act 2005 would now address the danger that resulted in the death of Alexandra Schwenger. Had the 2005 Act been in force, and had it been complied with, then Christopher Tipping would have had functional smoke alarms. The presence of such an alarm was the single significant factor that could have prevented Alexandra's death once fire had broken out. Mr Tipping would also have been required to attend to other measures to reduce the risk that persons would be exposed to risk of harm by fire.

[64] In the course of their submissions Mr McIver, Mr Coll and Miss Kirkwood expressed concern that the requirements of the Fire (Scotland) Act 2005 should be more widely publicised in order to prevent another death. Proprietors such as Mr Tipping needed to be aware of their obligations and also needed to know where to find help in meeting those obligations. There was a publicity campaign at the time the Act came into force, but there were concerns about the current level of awareness. The Act will only be effective if it is known about and complied with. With this in mind, and in order to reduce the risk of another similar tragedy consideration should be given to:

a) Further publicity in relation to the obligations imposed by the Fire (Scotland) Act 2005 on those who provide sleeping accommodation in their own homes.

b) Preparing and publishing a short and accessible summary setting out what is required of persons who make such provision.

c) Identifying and publicising a list of persons able to assist with the preparation of a risk assessment and the implementation of fire safety measures.