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Cite as: [2004] ScotCS 218

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Wood v Lothian and Borders Fire Board [2004] ScotCS 218 (28 September 2004)

OUTER HOUSE, COURT OF SESSION

A/322/03

OPINION OF LORD HARDIE

in the cause

DAVID WOOD

Pursuer;

against

LOTHIAN AND BORDERS FIRE BOARD

Defenders:

________________

Pursuer: H H Campbell, Q.C.; Thompsons

Defenders: Heaney; City of Edinburgh Council

28 September 2004

Introduction
[1] The pursuer is a 42 year old fire-fighter employed by the defenders. He seeks damages from the defenders in respect of an alleged accident that occurred on 30 May 2002 in the course of his employment with the defenders. Prior to the commencement of the Proof a Joint Minute was lodged in terms of which it was agreed that damages, inclusive of interest to 6 July 2004, and on the basis that full liability is established, amount to £7,400. In the course of his concluding submissions counsel for the defenders tendered a Minute of Amendment seeking leave to add an additional plea-in-law in the following terms: "The accident having been caused by the sole fault of the pursuer, the defenders should be assoilzied." Counsel for the pursuer did not object to the amendment. Accordingly I allowed the Record to be amended to include the additional plea-in-law for the defenders. The issue for my determination was the question of liability for any injuries sustained by the pursuer on 30 May 2002.

Pursuer's Case
[2] The pursuer alleged that on 30 May 2002 he was instructed along with other fire-fighters to attend at the Balmoral Hotel, Princes Street, Edinburgh in connection with a training exercise in one of the sub-basements of the hotel. The exercise involved the use of three teams each comprising three fire-fighters who were required to search different rooms in the sub-basement for an unknown number of casualties in an environment in which there was heavy smoke logging due to a lack of ventilation. To simulate the smoke effects the exercise was to be undertaken in dark rooms, without the assistance of electrical lighting or the use of fireman's torches. Breathing apparatus was to be worn by all crew members and the three-man crew of which the pursuer was part, had a thermal imaging camera. The pursuer and his colleagues had to use a recognised search and rescue technique known as the "BA shuffle". This involved the crew moving slowly round the room in a methodical manner, maintaining physical contact with each other or being linked together with tie ropes. As they did so, the members of the crew, other than the camera operator, slowly moved their hands up and down in front of them from a point above their head to their waist while at the same time keeping their weight on the back foot and slowly moving the front foot forward while sweeping it from left to right above floor level and tapping it up and down on the floor. The purpose of this movement was to alert the fire-fighter to any obstruction in front of him as he moved forward. It also alerted the fire-fighter to any gaps in the floor ahead of him. By maintaining pressure on the back leg the fire-fighter was able to avoid stepping into any holes in the floor or colliding with any obstructions. The camera operator was in the middle of the crew. He was able to perform the shuffle as far as the feet movements were concerned, but did not perform the hand movements because of his use of the camera. The thermal imaging camera was able to identify objects which had a different heat differential from other objects in the room. Thus hot spots in a fire or human beings, as well as other objects, could be identified by use of the camera. In the exercise involving the pursuer's crew, the camera operator was the witness fire-fighter, Neil Turner, who was able to identify the casualty by use of the camera. The role of the casualty was played by sub-officer Andrew Daly, who was also the safety officer. Fire-fighter Turner directed the crew to the casualty, who was rescued by the crew. After the rescue the crew were instructed to return to the room to check for other casualties. It was in the course of this part of the exercise that the pursuer alleges that the accident occurred.

[3] The pursuer maintained that as he and the other members of the crew moved forward within the room, doing the BA shuffle, his foot became trapped underneath an object causing him to trip and be thrown off balance. Thereafter the pursuer and the other two members of the crew completed the exercise. After the exercise when the lights were put on in the room the pursuer was able to identify the object which had caused him to trip. It was a triangular shaped angle iron which was on castors or a bogey. Each arm of the triangle was between 12 and 18 inches long and the angle iron was on short legs which were about 3 or 4 inches long. The pursuer relied upon the alleged breach by the defenders of their common law duties to take reasonable care for his safety, to provide him with a safe place of work, to devise, institute, maintain and enforce a safe system of work and to devise, institute and enforce a training exercise that could be undertaken without risk of injury to the pursuer. In addition the pursuer relied upon the alleged breach by the defenders of their statutory duties in terms of regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992.

The Defenders' Case
[4] Although the defenders admitted that the pursuer had injured himself between the time of his arrival at the Balmoral Hotel and his entering the fire tender prior to departure for the fire station at the end of the exercise, the defenders did not admit the circumstances of the accident as averred by the pursuer. No witnesses other than the pursuer testified about the circumstance of the accident and the pursuer made no complaint about injury until he was in the fire tender after the exercise was concluded. At that stage the watch commander and the safety officer visited the room. They noted an item made of angle iron which had the appearance of a coat rail and was about four or five feet tall. Fire-fighters using the BA shuffle properly would have identified such an object which would not be a hazard.

Discussion
[5] It did not seem to be in dispute that the pursuer sustained an injury at some stage between his arrival at the Balmoral Hotel and his entering the fire tender immediately prior to departure at the end of the exercise. However the manner in which the pursuer sustained any such injury was not the subject of agreement. Accordingly, it appeared to me that the first issue to determine was whether I was satisfied on a balance of probabilities that the pursuer had sustained injury in the course of the exercise and in the manner described by him. In evidence-in-chief the pursuer gave his evidence in a relatively straightforward manner. He described the exercise up to the point of the rescue of the casualty. The pursuer and his fellow fire-fighters took the casualty to the BA control point and were thereafter instructed to return to the room to complete the search. The positions adopted by the members of the search team were identical to those prior to the rescue of Mr Daly. Fire-fighter McIntyre was in position No 1. This was the position nearest to the wall of the room in which the fire-fighter would maintain contact with the wall using his hand nearest to the wall to enable him to guide the search team round the room following the contours of the wall. Fire-fighter Turner was in position No 2 which was in the middle of the three fire-fighters. He was operating the thermal imaging camera but, according to the pursuer, could maintain contact with fire-fighter McIntyre by using the neck strap of the camera to free his hand nearer to fire-fighter McIntyre. He could place that hand on fire-fighter McIntyre's shoulder. The pursuer was in position No 3 which was on the other side of the camera operator and nearest to the middle of the room. He was in physical contact with fire-fighter Turner throughout the operation. Fire-fighter Turner stated that he had been positioned at the door of the room and was operating the camera and directing the other two fire-fighters round the room. In fairness to this witness he stated that he was not asked about the incident until about a year later. Fire-fighter McIntyre was also vague about the precise procedure adopted by the three fire-fighters. On balance I preferred the account given by the pursuer concerning the manner in which the crew members moved around the room. In the second stage of the exercise after the rescue of the casualty the pursuer stated that the same procedure was adopted for searching the room. The search team commenced the search where they had left off and they continued moving round the room guided by fire-fighter McIntyre who maintained contact with the wall. When they came to a point in the room where the wall turned towards the right, fire-fighter McIntyre held his position and the pursuer and fire-fighter Turner pivoted. As they did so, the pursuer tripped and was thrown off balance. The pursuer stated that at that point he was still doing the BA shuffle but his foot caught on the underside of an obstacle which he later identified as an angle iron after the lights in the room had been switched on. At the time when he tripped the pursuer was holding on to fire-fighter Turner and the pursuer was aware that he had been hurt. He could not recall whether he cried out but he remembered a few seconds of excruciating pain which thereafter vanished. He arrested his fall by holding on to fire-fighter Turner and each asked the other if he was all right. Thereafter, they completed the exercise. At the conclusion of the exercise the lights were switched on. At that point the pursuer was able to identify the object which had caused him to trip. It was a triangular shaped angle iron which was on castors or a bogey. Each arm of the triangle was between 12 and 18 inches long. It had short legs and it stood about three or four inches above the floor. In his evidence-in-chief the pursuer questioned whether sub-officer Daly was in the room during the second stage of the exercise when the accident occurred and in cross-examination he became more emphatic, asserting that sub-officer Daly was not in the room. He confirmed that he was not simply saying that he did not see the sub-officer there. Although the pursuer appeared to give his evidence in a straightforward manner during his evidence-in-chief, his demeanour changed in cross-examination. He asked questions of counsel and at times appeared to be evasive. In my view he also appeared to exaggerate. For example, in cross-examination when he was describing the room which was being searched he stated that it was "full of debris". When I sought clarification from him he altered his position to state that there was debris in the room. More significantly, his account of the accident was not supported by either of the fire-fighters who were present with him. Although fire-fighter Turner was not asked about the incident until about a year afterwards, I would have expected him to recall the pursuer stumbling and holding on to him for support and also to recall each other enquiring whether everything was in order. Fire-fighter McIntyre stated in evidence-in-chief that he was not told in the course of the exercise that the pursuer had hurt himself. He first became aware of the problem when they returned to the fire station and understood that the pursuer had hurt his knee but it did not appear to be a major issue.

[6] Leading fire-fighter James Saunders was involved in the planning of the exercise and was present during it. He gave general evidence about the practice of briefing crews at the fire station and at the location of the exercise prior to the commencement of the exercise as well as the practice of a "hot debrief" which took place immediately after the end of the exercise. The purpose of the hot debrief was to confirm that everyone was fit and well. On this occasion the hot debrief took place at the BA control point in the Balmoral Hotel before the crew returned to the fire tender. At the hot debrief the pursuer did not mention having sustained any injury. Leading fireman Saunders first became aware of the allegation of injury after the crew had returned to the fire station.

[7] Sub-officer Daly testified that he was the safety officer supervising the exercise being undertaken by the pursuer and his crew. Sub-officer Daly was the casualty who was rescued in Stage 1 of the exercise. He instructed the crew to return to complete the search of the room. He stated that he returned to the room and stood at the door watching the crew completing the exercise. He had sufficient light from the corridor to see the shapes of the crew as they moved around the room. The light switches for the room were at the door and in the event of any difficulty, he could switch them on. He could also hear the crew talking to each other. He confirmed that the crew may have been unaware of his presence and they may even have suspected that he had taken up a different position in the room as a casualty. While he was observing the crew in Stage 2 of the exercise, he was not aware of any of them stumbling. He did not see anyone falling. He did not hear anyone crying out and generally there were no signs of any incident indicative of a possible injury being sustained by a crew member. If he had been aware of such an incident, he would have switched on the room lights.

[8] In all the circumstances I did not believe the pursuer in his account of how the accident occurred. I considered that sub-officer Daly and leading fireman Saunders were reliable and credible witnesses. If the accident had occurred in the manner described by the pursuer, it would have been witnessed by sub-officer Daly and fire-fighter Turner would have recalled the pursuer stumbling against him using Turner's body for support. He would also have recalled the discussion between him and the pursuer to confirm that each of them was all right. Moreover, if the accident occurred as averred by the pursuer, I would have expected the pursuer to mention it at the hot debriefing. As I do not accept that the accident occurred in the location or in the manner described by the pursuer, I shall grant decree of absolvitor.

[9] I would simply add that had I accepted that the pursuer had been injured by tripping over an object in the room which was being searched by him and his fellow crew members, I would not have accepted that it was caused by the angle iron described by the pursuer. In that regard I accepted the evidence of watch commander Gray and sub-officer Daly who testified that they returned to examine the room after the crew had commenced "make up", which involved putting the equipment back into the fire tender. At that stage watch commander Gray became aware of an allegation of an accident involving the pursuer and an angle iron. Both he and sub-officer Daly described a coat rail which appeared to be made of angle iron. It was about four or five feet tall and sub-officer Daly described the base or bracing bar as being 10 or 12 inches above the ground. Commander Gray was an impressive witness and was not criticised in the submissions of counsel of the pursuer. I considered him to be a careful senior officer who would have noted an angle iron of the description given by the pursuer in his evidence. If I had believed the pursuer about his tripping over an object which had an angle iron as part of its structure, I would have concluded that he tripped over the coat rail. In that situation it was accepted on behalf of the pursuer that the defenders were not liable at common law. Even if that concession had not been made, I would have reached the same conclusion because the coat rail described by commander Gray and sub-officer Daly was an item which ought to have been identified by the pursuer if he had been carrying out the BA shuffle in a proper manner. Moreover, had I required to determine the statutory case, I would have concluded that it was not reasonably practicable in the context of a realistic training exercise for experienced fire-fighters, to remove all items of furniture from the room, including the coat rail, particularly when a safety officer was present in the room overseeing the exercise.

Decision
[10] For reasons already explained I shall repel the pleas-in-law for the pursuer and sustain the second and third pleas-in-law for the defender.