Scottish Court of Session Decisions

In this action the pursuer claims damages in respect of injuries said to have been sustained in an accident on or about 28 August 1994. Damages, on the assumption of a finding of full liability, were agreed at £5,000 inclusive of interest. The proof before me accordingly was restricted to the merits.

Having regard to the pleadings a number of matters were not in dispute. The pursuer in particular was engaged in the course of his employment with the defenders on the date in question. He was based at the defenders' Clydebank Fire Station. He was a member of the crew of a fire appliance which had been called out to attend an emergency call (apparently a house fire) in the Knighswood area of Glasgow. The driver of the fire appliance was another employee of the defenders, Stephen McGeogh. The appliance, in Alderman Road and driving eastwards, approached a junction where the road was intersected by Lincoln Avenue in an approximately north-south direction. The junction was controlled by traffic lights. At the time the traffic lights were showing red for traffic approaching the junction along Alderman Road, including the said fire appliance. They were showing green for traffic proceeding along Lincoln Avenue. As the appliance approached the junction its warning lights were flashing, its two-tone horns were sounding and its headlights were on. Mr McGeogh reduced the speed of the appliance as it approached the junction. He proceeded to drive the appliance across the junction. As he was doing so he became aware of a private car which was being driven at speed along Lincoln Avenue towards the junction. It was proceeding along the nearside southbound lane and emerged from behind a van which was stopped on the offside southbound lane of Lincoln Avenue. Mr McGeogh braked to allow the car to pass ahead of the appliance and then continued to drive the appliance to the scene of the emergency.

On the evidence it appeared to me that a number of other facts did not appear to be in dispute. In particular, so far as was visible to the driver, traffic in Lincoln Avenue approaching the said junction from both directions had stopped prior to the fire appliance reaching the junction, no doubt in deference to the sight and sound of the approaching fire engine. The only traffic which the driver could see to his left in Lincoln Avenue was stationary, in particular there was a stationary van. The driver of the car which came across the junction appeared not to have been paying attention or to be looking. As Mr McGeogh began to cross the junction he could not see what, if anything, was in the inside lane of Lincoln Avenue to his left.

It was the pursuer's evidence that at the material time he was standing stooped in the rear cab of the fire appliance putting on his fire fighting tunic. He contended that the braking of the appliance was quite severe and further that he was as a result thrown forward ("catapulted") and he put his right arm out to stop himself coming into contact with a padded bulkhead which ran across the vehicle about one metre in front of him at about chest height, thereby sustaining injuries apparently to his shoulder (although it was apparent from the agreement on damages and accepted in his counsel's submissions that the injuries could not be regarded as particularly serious).

As to whether the pursuer was indeed standing and changing into clothing I accept his recollection on this, a matter which he would have more reason to remember than any others, albeit a question was raised in evidence as to whether the pursuer might not have changed already if, as some thought - although not clearly - the appliance had been called when already on its way to another incident. Mr Porter, a fellow fire fighter who was sitting beside the pursuer in the cab, at least thought that the pursuer was changing (albeit he thought it was a surcoat which the pursuer was putting on), although this was not a matter on which he had any very clear recollection.

I also accept that the pursuer's evidence to the extent that he did sustain injury when he was jolted to a degree forward when the appliance braked. As regards that he had the apparent support of Mr Porter who remembered a shout of, "Oh", or something like it and seeing the pursuer with his arm against the padded bulkhead.

I do not, however, find that the braking of the vehicle was the dramatic or severe event which the pursuer seemed to recollect. On this I prefer the evidence of the driver, Mr McGeogh. It was his evidence that although he required to stop the vehicle immediately when he saw the car encroach to his left and although no doubt his vehicle reacted to some degree it was not in any sense a severe or violent braking event. Mr Porter's recollection of the vehicle being subject to a jerking motion was it seemed to me consistent with this. I further accept that Mr McGeogh - who was the person in the best position to be aware of and to remember these matters - on seeing the encroaching car was able to bring the fire appliance to a halt within a few feet without any slewing or locking of the brakes - all sufficient to allow the vehicle to pass across in front of the fire appliance without itself braking or swerving. In these circumstances, although there was no direct evidence given of speed, it seems clear that the speed of the appliance cannot have been high. It seems plain even from the pursuer's evidence that if an appliance such as the fire appliance came to an immediate stop even at a slow speed some jerking motion would necessarily be caused. Although I accept that the weight of the evidence (in particular Mr Porter's evidence and Mr McGeogh's own earlier written statement) suggested that the fire appliance, after substantially slowing, had started to move on as it proceeded across the junction, that of itself does not cause me to find that the appliance was travelling at anything other than a slow speed when it braked. I did not think that the pursuer on this matter was being dishonest. Rather, it seems to me that his recollection, perhaps from his perspective within the vehicle but more likely as a result of reflection over a passage of time in the light of injury sustained, was of a more dramatic event than it was in fact. This is wholly consistent with the fact that there was no real mention of any dramatic event in the reports apparently made by the pursuer on the next day (reports where he spoke apparently of having sustained a pulled shoulder muscle) and also consistent with the pursuer's own evidence that, so far as he recollected, the appliance did not even halt after braking.

It was generally accepted (and in particular by Mr McGeogh) that, broadly, the proper approach of the driver of a fire appliance in such circumstances was as described in the Manual of Foremanship, Book 11 (production 15/5) and in particular in a passage which indicates:

It was submitted on behalf of the pursuer that I should find it proved on the evidence that the pursuer's injuries were caused by the failure of the driver, Mr McGeogh, to exercise reasonable care. It was submitted that he knew, or ought to have known, that fire fighters within the vehicle might be changing and that they would be vulnerable to sudden and unexpected movement. In the circumstances it was it was submitted his duty, first of all, not to have proceeded through the road junction at all when he could not see what was in the inside lane to his left. It was his duty, it was submitted, to wait at the traffic lights, if necessary until they were green for his vehicle. By not so waiting he had not, it was said, given way. Secondly, even if that was not right, it was submitted that it was nevertheless his duty to proceed across the junction at a very slow speed which would have obviated the need for him to execute an immediate or emergency stop.

I have come to the view that neither of these cases has been proved. In the first place it seems to me that the first duty said to have been incumbent upon Mr McGeogh is too strict. It is not so much that the statement of the duty appears to me almost to equiparate a discretion to treat the red traffic light as if it was a give way sign with a duty to stop at that point. Rather, it seems to me that it cannot be said, against the background that the purpose of the journey was to respond to an emergency house fire call, that in the exercise of reasonable care the driver (though no doubt right to be alert to the possibility of moving traffic in Lincoln Avenue) was bound, in the circumstances which prevailed, to halt at the lights if he could drive forward in such a way as to enable himself to see whether any vehicles were approaching the junction from the inside lane to his left and at a speed which, so far as he could reasonably judge, would allow him to stop and avoid any such vehicle (should it seek, unlike all the other traffic, to cross the junction) without involving any obvious or material foreseeable risk to those within the fire appliance (one or more of whom might be changing but all of whom, it seems to me on the evidence, would have known from experience to expect from time to time a degree of jolting on a journey such as that being undertaken). In the circumstances which prevailed in this case I do not find it proved that Mr McGeogh was not reasonably entitled to drive forward in that way. Indeed I find it proved that he did just that. Apart from his own evidence, the whole tenor of Mr Porter's evidence was that in what Mr McGeogh did he treated the approach to the junction and its crossing with caution and care.

As regards the second basis of alleged fault I do not find it proved that such a duty was possible. It seems to me that on the evidence Mr McGeogh could not see the inside lane to his left without moving forward to some degree and I am not satisfied that it could be said that if he moved forward at all, having regard to the short distances involved, it would have been safe for him to try to bring his vehicle to rest without an immediate braking action if any vehicle did approach from his left. Further, I am not satisfied that the exercise of reasonable care imposed (for reasons already given) a duty on Mr McGeogh as tightly drawn as that contended for. In particular I am not satisfied that it could be said that immediate braking in the circumstances involved any obvious or material foreseeable risk to those within the fire appliance.

My finding that the pursuer's injury was not caused by Mr McGeogh's negligence is I observe wholly consistent with the complete absence of any suggestion of blame from any of the witnesses who gave evidence in this case. There was not a shred of evidence to suggest that anyone within the vehicle immediately thought that something had happened which should not have happened or that there was any reaction that the driver was at fault. There was no mention of any driving failures in the pursuer's own reports of the accident. The pursuer in evidence referred to Mr McGeogh as a good driver. Against that background it was no surprise that Mr McGeogh looked somewhat startled when informed in the course of giving his evidence, apparently for the first time, that the pursuer was blaming him for his injuries.

Although I was referred by counsel for the defenders to an unreported decision of Lord Sutherland on 16 December 1998 in the case of Stephen Doyle and another v Strathclyde Regional Council, I agree with counsel for the pursuer that the circumstances of that case were very different.

Although there was a case of contributory negligence made on record (broadly blaming the pursuer for an alleged negligent failure to wear a seat belt) this was not, rightly in my view on the evidence, insisted upon by the defenders at the end of the evidence.

In the whole circumstances I shall sustain the second and third plea-in-law for the defenders, repel the first pleas-in-law for the pursuer, of consent repel the fourth and fifth pleas-in-law for the defenders and pronounce decree of absolvitor.