Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 40
PD172/07	OPINION OF LORD BONOMY in the cause MARGARET VALENTINE AND ANOTHER (AP) Pursuers; against THE MINISTRY OF DEFENCE Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: H H Campbell, Q.C., Marshall, Solicitor Advocate; Thompsons

Defender: Webster; Morton Fraser, WS

18 March 2010

Introduction

[1] Sapper Robert Thomson of 35 Regiment, Royal Engineers, was killed in a tragic accident during his fourth tour of active service in Iraq on 31 January 2004, when he was buried and crushed by the collapse of earth within a trench from which he and another sapper were engaged in recovering soil samples. In this action his mother and brother seek damages from the Ministry of Defence under various heads. In the event that the Ministry are held to be responsible for Sapper Thomson's death, the sums to be paid as damages have been agreed.

Uncontentious Facts

[2] Many of the facts are uncontentious. At the time, Sapper Thomson was attached to 62 Works Group Royal Engineers located at Basra Palace. He was instructed by then Staff Sergeant, now Warrant Officer, Craig Lee Dutton to assist Sapper Craig Douglas Price who was tasked by Dutton to excavate a trench or trial pit, in order to obtain soil samples from various depths, using a light wheeled tractor similar to a JCB. These were required in connection with a proposal to build a jetty at the Shatt al'Arab Waterway. The digging was done within fifteen metres of the Waterway.

[3] Dutton described Thomson as a banksman to Price in retrieving soil samples. He was involved simply because he was available. He was to assist Price as well as act as eyes and ears for hazards, for example, any hazard he spotted in the course of executing the work or any person approaching the site. The task involved using the extending arm of the digger, with a bucket or hoe on the end of it, to dig out a trench which would be the width of the bucket (600mm or 750mm, no one was sure) or a bit more, and was in fact somewhere between 600mm and 1000mm wide, to the maximum depth that the digger could go, which was around three metres. It initially took around 30 minutes to complete the task. That involved identifying apparent changes in the soil composition and taking samples and measuring the depth where these occurred. Price operated the digger. He placed the bulk of the spoil to one side of the trench and sufficient, somewhere between a bucket and two bucketfuls, to the other side whenever a change occurred, for the deceased to shovel into a black plastic bag as a sample. When the task was completed, the area which had been dug out was reinstated by backfilling the spoil into the trench. The sample bags were then taken to the headquarters. When Dutton checked them, about half an hour later, he noted that what was apparently the deepest sample was too small. He directed Price and Thomson to go and get another sample at that depth. They realised that they had messed it up and readily went off to do so.

[4] It is not entirely clear whether they simply dug out the original trench again and took a further sample from the bottom, or dug a fresh one nearby. I consider that it does not actually matter in the end of the day, but tend to the view that, at least in part, what they dug out was a separate trench. I shall refer to that further at a later stage in this opinion. When Thomson signalled to Price that they had reached the maximum depth for the machine, Price stopped digging, moved the boom of the unit to the left away from the hole, and placed the buckets onto the ground to make it safe. He then pulled the seat lever to rotate the seat so that he was facing forward in the cab. His back was to Thomson as he began to dismount from the cab on the far side of the JCB from Thomson. By the time he was dismounting, no more than a minute after he had last seen Thomson standing one to three metres from the trench, Thomson was at the bottom of the trench trapped under clay material which had become dislodged from a point in the wall of the trench about one metre down and below. Frantic efforts to rescue Sapper Thomson ensued. Sadly these proved futile. No one saw how he came to be in the trench.

The Pursuers' Case

[5] It is against that background that the pursuers present their case at common law, that Sapper Thomson died through the fault of the Ministry of Defence on account of their failure to provide a safe place of work, and keep it so, and their failure to devise and institute a safe system of work for the task in hand. Reliance was placed upon United Kingdom statutory provisions, the application of which has not been extended to Iraq, in particular Regulation 3 of the Management of Health and Safety at Work Regulations 1999 and Regulation 12 of the Construction (Health, Safety and Welfare) Regulations 1996, as having a bearing on the standard of reasonable care in the circumstances in light of the policy of the Ministry of Defence to apply United Kingdom standards on sites abroad where reasonably practicable. I shall return to that issue when I deal with the applicable law.

Reserved Question of Relevance of Certain Evidence

[6] A substantial quantity of the evidence was heard under reservation of its admissibility in light of an objection by the defenders that it related to matters for which there was no record and was thus irrelevant. In statement 4 the pursuers aver that Sapper Price, "found that Robert Thomson had entered and come to be at the bottom of the trench". The defenders maintained that that was a case of deliberate entry into the trench, and excluded other possibilities such as simply falling in or somehow coming in contact with the digger. The defenders pointed to later averments in statement 4 in these terms: "Explained and averred that Robert Thomson was not warned by Staff Sergeant Dutton or by Sapper Price not to enter the trench. He was given no instructions by either Staff Sergeant Dutton or Sapper Price regarding entry to the trench". That was said to support the view that the case was confined to deliberate entry.

[7] The defenders relied also on the circumstances in which that came to be the pursuers' position and in which they later unsuccessfully endeavoured to change it. The word "entered" had been introduced to the pleadings by minute of amendment in which "fell into" was deleted. Then in December a further minute of amendment was presented to which adjustments were added in January. The minute of amendment was presented with a view to recovering records of the post mortem of the deceased, the Coroner's Inquest and a Board of Inquiry into his death. The adjustments, which the Lord Ordinary had refused to allow to be received on 29 January, set out three possible explanations for the deceased coming to be at the bottom of the trench, namely voluntary entry, being knocked in by the hoe of the tractor, and losing his footing and falling into the trench. They went on to state specifically that he did not enter the trench voluntarily, but he may have been knocked in by the hoe or may have fallen in. There were further averments about the deceased having to work close to the trench, the dangers that existed there, and the failure to carry out a suitable or sufficient risk assessment or take measures to protect him from falling. The pursuers also sought to add averments about Regulations 5 and 6 of the Construction (Health, Safety and Welfare) Regulations 1996, Regulation 12 being the only one mentioned previously. Mr Webster, counsel for the defenders, explained that the receipt of these adjustments was opposed on the ground that they introduced a new case and came much too late. He insisted that the adjustments would not have been presented unless considered necessary. In relation to the averments which I have quoted above about the absence of instructions regarding entry to the trench, he submitted that they must relate to voluntary entry because you could not instruct someone not to fall in.

[8] Both counsel referred to events at the pre-trial meeting. I did not consider that what happened on that occasion provided assistance in determining what the pursuers' case was to be on record; apart from anything else Mr Webster's version of events and that of Mr Campbell, QC were not entirely at one. Mr Campbell's submission was that the original amendment to introduce the averment that the deceased "had entered and come to be at the bottom of the trench" was made to broaden the case. That enabled the pursuer to rely on the three possibilities referred to above, and was appropriate because of the absence of direct evidence of how the deceased came to be in the trench. He had not been responsible for that particular amendment. When he had come to consider the papers towards the end of last year in preparation for the forthcoming proof, he had sought to improve the presentation of the pursuers' case by making the ill-fated adjustments. In relation to the averments of the absence of instruction not to enter the trench, my attention was drawn to the defenders' positive case in answer 4 that the deceased "had entered the trench of his own accord".

[9] The pursuers' case has always been dependent exclusively upon circumstantial evidence. From the outset there were three broad possibilities as to how the deceased came to be in the trench, namely deliberate entry, falling, or contact with the digger. The least productive line for the pursuers was always likely to be the notion of deliberate entry. Whether the deceased fell in or entered deliberately was an issue at the Board of Inquiry. Earlier the Coroner had found as a fact that the deceased fell in. From all I have come to know of the history of the case, it does not make sense to restrict the case to one of deliberate entry. However, my reason for deciding that the pursuers' case is not confined to deliberate entry, and for taking into account the evidence presented in relation to all three possibilities, is two-fold. Firstly, I accept the submission for the pursuers that "entered" is a neutral term that covers all three and is not a statement confined to voluntary conduct. As Mr Campbell pointed out, in pleading the positive case that the deceased entered the trench, the defenders' averment is that he had "entered the trench of his own accord". If "entered" is seen as language which confines the case to one of voluntary entry, then "of his own accord" is tautologous. It is also difficult to understand why the defenders also aver in answer 4: "He would have known to be careful around the edge of the trench not to fall into it". Regulation 12(6), on which the pursuers rely, does not fit easily with the notion of voluntary entry. The other averments about the absence of instruction not to enter can be seen to relate to the positive case pled by the defenders and do not in my opinion confine the interpretation of "entered" to voluntary entry. Secondly, even if the case was confined to one of voluntary entry, it would inevitably involve the exclusion of other possibilities about which evidence would require to be heard. To confine consideration of the case to the question of voluntary entry is quite simply unrealistic. Coincidentally, I am reassured by the knowledge that following that course is the only way to secure justice in this case. The defenders do not claim to be prejudiced in any way, except possibly by the potential award of just and fair compensation to the pursuers.

Applicable Law

[10] The pursuers' claim is presented at common law. The defenders do not dispute that the normal common law rules apply to the circumstances of the accident. Where the parties part company is in relation to the relevance of United Kingdom construction safety legislative standards to the circumstances. The pursuers contend that United Kingdom standards apply on account of the declared policy of the Ministry of Defence to apply these standards to construction sites abroad where reasonably practicable.

[11] The defenders make two submissions. The first is that the pursuers have failed to prove what the policy is and in particular that it was the intention of the Ministry in making the policy that a right of action should be conferred in respect of losses through failure to observe the enhanced standards. The second submission was somewhat vague and I hope I reflect it accurately. I invited parties to make written submissions on the applicable law and in these the defenders appear to argue that, even if the pursuers had led adequate evidence of the policy, that would not disclose a basis in law for finding that the statutory provisions were incorporated into the common law. The only additional proposition, beyond the submission about failure to prove the policy made in the written submissions, was that statutory duties are formulated in terms that do not sit happily in the context of duties to take reasonable care. However, when Mr Campbell made it clear that he did not suggest that the statutory duties could be applied in terms, but merely invited me to consider them as part of the whole circumstances which go to determine what amounts to reasonable care, Mr Webster stated that he had no counter submission to make. He confined himself to the submission that, in the absence of full details of the policy having been proved, no finding could be made.

[12] As to the first question whether the policy has been proved, I am entirely satisfied that it has. In statement 6, after stating that the claim is based on the fault at common law of the Ministry of Defence Overseas, the pursuers aver the following:

"The Ministry of Defence Health and Safety policy is to apply UK standards where these are reasonably practicable. Said standards include the Health and Safety at Work Act 1974 and the regulations made there under including the Construction (Health, Safety and Welfare) Regulations 1996. The Ministry of Defence failed to fulfill these standards in terms of said Regulations in respect of excavations being Regulations 12(1), (2), (3), (4), (5), (6), (7). They also failed to carry out a risk assessment of the obvious hazards in respect of the said works in terms of Regulation 3 of the Management of Health and Safety at Work Regulations 1999".

The defenders' answer is as follows:

"Admitted that, overseas, the Ministry of Defence Health and Safety Policy is to apply UK standards where reasonably practicable. The Construction (Health, Safety and Welfare) Regulations 1996 and the Management of Health and Safety at Work Regulations 1999 are referred to for their terms beyond which no admission is made".

Dutton, who was the equivalent of Clerk of Works on the site and gave both sappers their instructions, said that he approached the task in exactly the same way as he would have done in Edinburgh, subject always to the availability of appropriate resources. There was no combat in the vicinity at the time and no specific threat was immediately anticipated. There was no reason to apply other than the same care as would be appropriate in civilian works in the United Kingdom. Dutton knew that he was expected to work to these standards and claimed to have done so. He therefore assessed the foreseeability of risk as he would have done in the United Kingdom in the full knowledge of the applicable statutory regulations. There was no evidence at all about what the sappers involved understood the position to be, other than the existence of the policy.

[13] As to the second question whether the policy confers a right of action, that does appear to me to be the effect of it. The very adoption of such a policy in relation to work sites where their staff are engaged is indicative of an intention to assume responsibility for implementation and breach thereof. The objective of the regulations in issue is to enhance safety on work sites, and a major element of that is the safety of workmen such as the deceased. United Kingdom criminal sanctions would not ordinarily apply. The remedy or sanction for failure to observe such standards is compensation for those who suffer loss. Where injury to a member of staff on a site abroad is foreseeable to the Ministry and they are aware of a recognised precaution which is required on United Kingdom sites in terms of a regulation, then it seems to me to be fair, just and reasonable that the Ministry should be required to take account of that in determining what the relevant hazards are and what precautions are appropriate in the fulfilment of the duty to take reasonable care in the circumstances. That is as far as Mr Campbell's submission went. I was not asked to consider whether the policy resulted in the incorporation of obligations which were equivalent to United Kingdom statutory obligations into the law applicable to works undertaken by the Ministry of Defence abroad.

[14] No argument was advanced on behalf of the defenders to indicate any basis for regarding Mr Campbell's submission as unsound in the event that the policy was proved. I accordingly consider that United Kingdom statutory provisions not strictly applicable to work sites of the Ministry of Defence outwith the United Kingdom are relevant factors to be taken into account in assessing whether the Ministry and those for whom they are responsible acted with reasonable care in any particular situation. In the event I have been able to reach my conclusion in this case on the basis of my understanding of the applicable common law without enhancement from the effect of the policy.

The Witnesses

[15] In my assessment of the evidence little turns on credibility. I have reservations about part of the evidence of Dutton. I find it strange that he, who instructed the men, could not remember that the job involved taking samples at various depths and recording the depths at which each was taken. For reasons which I shall explain shortly, I am satisfied that measurements were taken. The unsatisfactory nature of that part of his evidence has a significant bearing on the adequacy of the risk assessment he made.

[16] One other significant issue relating to assessment of evidence is the reliability of, and the weight to be given to, hearsay evidence. The pursuers anticipated that Sapper Price would be available as a witness. He has left the Army and could not be found. His statements made in the course of the Military Police inquiry into the incident on 1 and 14 February 2004 and the transcript of his evidence before the Coroner's Inquest on 11 February 2004 were available for me to consider. They do not indicate that he saw what happened, but they are the principal evidence about the execution of the task and what the deceased was doing and where he was shortly before he ended up in the trench. Along with the evidence of Dutton they are also the principal evidence in relation to the arrangements made for the execution of the work. In evaluating Price's evidence I have borne in mind that there are minor discrepancies among the various recorded accounts, that his account has not been subject to cross examination, and that only before the Coroner was he on oath.

[17] I also heard evidence from the first named pursuer and from the following persons. Stephen Paul Johnston, then serving in the Royal Engineers, was mooring a boat at the adjacent waterside and took part in the frantic efforts to save Sapper Thomson when alerted to the accident by Price. He was with a colleague, Andy Bowman, who did not give evidence but who had given a statement to the Military Police, part of which was referred to in evidence. Staff Sergeant, now Warrant Officer, Lee Young was the Military Police officer in charge of the inquiry. Ian Rowley was a sapper colleague who knew and trained with the deceased and gave some evidence about that. Sidney Lenford Greasly, consulting engineer, had prepared a report into the circumstances of the accident and the precautions which should have been observed and gave evidence as an expert in construction safety. Professor Anthony Busuttil, Regius Professor Emeritus of Pathology at Edinburgh University, had studied the post mortem findings and other information about the circumstances of the accident and had prepared a report which dealt with certain matters relating to quantum which was subsequently agreed, but also addressed the question how the accident happened on which he gave evidence. The defenders called no witnesses.

[18] One feature of the way in which the evidence was presented does concern me. There have already been two inquiries, namely the Army Board of Inquiry which reported on 6 September 2004 and the Coroner's Inquest into the circumstances, at which evidence was given by Dutton and Price as well as others on 11 February 2004. The transcripts of both are among the productions. Parties were agreed that I should confine my reference to both to what therefrom was presented as evidence in this case. I find that approach unsatisfactory as artificially restrictive. However it continues to be part of our adversarial system, that has not essentially changed since Lord Justice Clerk Thomson compared the role of a judge to that of a referee at a boxing match in Thomson v Corporation of Glasgow 1962 SC (HL) 28 at 52, that the parties choose what material comes before the judge whose role is essentially confined to seeing that "the rules are kept and count(ing) the points".

How Did the Accident Happen

[19] So hampered, but conscious of my role, I turn now to assess the evidence relating to the three possible ways in which Sapper Thomson came to be in the trench. Since neither party has seriously advanced the contention that some contact between the deceased and the digger was the cause, since Price's statements are clearly to the effect that the digger was not at the time being manoeuvred at all and was not close to the deceased, since Professor Busuttil thought it highly unlikely in the absence of signs of more serious injuries than there were, and since there is nothing else to suggest that that happened, I reject that as a possible cause. That leaves two realistic possibilities - that he entered voluntarily or fell in. In relation to both, and also to the possibility of contact with the digger, it is notable that, when the deceased's body was recovered, his shovel was beside him. That appears to me to be a significant indicator that, whatever happened, it happened in the course of the task he was undertaking, albeit it may be a neutral factor in determining whether he chose to go in or fell.

[20] In support of the case that he fell, Mr Campbell pointed in particular to what he described as the wet, slippery and disturbed condition of the ground around the trench. Mr Webster understood that the principal case being advanced for the pursuers in evidence and submissions was that Sapper Thomson fell in because of the slippery conditions around the trench. The pursuers' case was undoubtedly broader than that, as I have indicated. Indeed he went on to say that we shall never know precisely how he came to fall.

[21] There was no clear, reliable evidence that the area around was wet and slippery. Mr Campbell put it to a number of witnesses that that would be the state of the ground. He suggested that the area would be awash with sticky wet material. There was agreement by Dutton and Young that there could have been wet and slippery parts, but no one had any clear recollection of that as a feature. Dutton recognised that the possibility of wet and slippery material or areas of ground was a factor that might have a bearing in a risk assessment, a matter to which I shall come in due course. When the accident happened, Price alerted other colleagues working at the waterway to come to assist. One of them, Johnston, described the ground conditions coming up from the waterway embankment to the trench as "pretty dry". Although the rescue operation was later to be bedevilled by rising water within the trench and the soil finally dug out at the maximum depth of the trench was clay, I am not satisfied that there were any areas that were wet or slippery to the extent that I could pinpoint that alone as the likely cause of a fall.

[22] The second trench was either in more or less the same place as the first one or dug fairly close to it. The evidence from Young was that the underfoot conditions were a little difficult because of the nature of the surface, which was simply rough, though flat, ground, which had been disturbed by the digging work from which some of the spoil could be seen around the area of the trench. Dutton remembered that the edge of the trench was in a "mangled condition". However the evidence was clear that there were no signs that the edge round the trench had collapsed. That mangled condition was simply a reflection of the rough nature of the ground the JCB had dug into. The evidence about ground conditions thus went no further than indicating the possibility that there was mud or roughness of the ground that could possibly have contributed to the deceased falling.

[23] Professor Busuttil identified a number of recent injuries that were consistent with a fall. There were minor abrasions and bruising around the area of the hairline at the forehead, and a small purple bruise on the back of the right shoulder blade. These are sites commonly injured in a fall. The injuries were sustained before death. The fairly frantic rescue operation could have caused the minor head injuries, but would not explain the bruise on the shoulder blade. The post mortem report considered by Professor Busuttil made no reference to any hand injuries or material in finger nails that might have indicated an attempt to grab the side of the trench as the deceased fell.

[24] The deceased uttered something before he succumbed. In his statement given on the following day, Price said that he was alerted to the incident as he climbed to the ground and heard the deceased shout, "Help". He added that, when he looked into the trench, he thought Rab then said something like, "Get me up". At the inquest he said that, as he was climbing out of the machine, he "heard a scream like". That evidence would tend to indicate a fall, were it not for the fact that, immediately after the deceased was in the trench, part of the side wall collapsed on top of him, which might just as easily have been the trigger for the sounds he made.

[25] While Price was noted by Bowman in his statement in the course of the Military Police inquiry to have said that the deceased fell in, it is clear from Price's first witness statement that that was no more than his conclusion or belief.

[26] There was conflicting evidence about the orientation of the deceased's body within the trench. He was towards the end away from the digger. Warrant Officer Young's recollection was that he was in a more or less upright position. The various measurements given by Young run counter to that notion, since they put his head at a depth of 2.3 metres and his height at 1.8 metres, thus indicating a depth of trench significantly greater than the 3.1 metres recorded at the time. Professor Busuttil's opinion was that the deceased's body was likely to have been supine, in view of the distribution of post mortem lividity which was posterior; in the case of an upright body it was likely to be circumferential. However, it was not possible for him to be certain since lividity becomes fixed over a period of time, which Professor Busuttil reported as 4 to 5 hours. The recovery of the deceased's body was probably completed less than 4 hours from his death; Warrant Officer Young indicated a period of up to 31/2 hours. I find the evidence relating to the position of the body to be inconclusive. I also do not see how the position of the body assists in this case in determining how it reached that position, bearing in mind that whatever caused the deceased to be in the trench was followed immediately by the collapse of more than a tonne of material from the side of the trench.

[27] The evidence considered so far relating to the condition of the ground, the injuries, what was said at the time and the orientation of the deceased's body does not point clearly in the direction of either voluntary entry or a fall. I turn therefore to look at the whole circumstances more broadly to see if that gives a clearer indication of how the deceased came to be in the trench.

[28] I look first at the significance of the fact that the exercise had to be repeated, at least in part. It was the clear evidence of Dutton that the two sappers had been instructed to return to the site and obtain at least a further sample at the deepest point. It is clear from Price's statement of 14 February that in his statements and the transcript he was recounting what happened when they returned to dig a trench for the second time. Warrant Officer Young thought that there was only one trench which had been backfilled and reopened. Price was unsure. Indeed he thought, oddly enough following speaking with Young (presumably when giving his second statement), that it was a second separate trench, since he had to break through a layer of tarmac as he had to do on the first occasion. As in the case of the first dig, the second probably took about half an hour. Whether it was a new trench or the reopened first trench does not indicate any basis for thinking that he went in voluntarily.

[29] Once Price had parked the digger, there was still work to be done. According to Price, the procedure throughout when a sample had been taken was to measure the depth at which it had been taken. Although he does not say so in terms, it is likely that that what he was about to do. He was not switching it off and parking it for good, since the trench had still to be backfilled. His evidence in both statements and transcripts is clear that there was no reason for the deceased to go into the trench. A number of possible reasons were canvassed in the evidence and discussion before me. Dutton said that retrospectively he could think of a number of reasons for him to go in voluntarily - curiosity, messing about, boredom, he dropped something in, something fell in. It is interesting that he did not suggest the possibility of the deceased going in to undertake any part of the work. On the other hand it was submitted for the defenders that that was a possibility.

[30] Bearing in mind that the job was not complete since the trench had yet to be refilled, I find it inconceivable that Sapper Thomson would elect to go into the trench without alerting Price. That applies to all possible reasons for voluntary entry in connection with the job. There was equally no evidence to indicate that he was likely to do so for any reason unconnected with the task. Both Dutton and Price were clear that there was no reason for him to go in. It would be very difficult to do any work in the trench since it was so narrow. Price considered that he would have needed a ladder to get out. There was evidence that at the end of the trench to which the digger pulled the material being dug out there was a bit of a slope into the trench rather than a vertical side. However getting in by that route would have been extremely difficult and, according to Young, getting out without assistance would have been hard. Johnston needed a hand to get out. Mr Greasly found it difficult to understand why the deceased would want to go in and considered that it would have been difficult to get out without assistance, even allowing for a bit of a slope at one end of the trench caused by the digging arc of the JCB. If Thomson had dropped something into the trench, then it is equally inconceivable that he would not alert the otherwise unaware Price. As Dutton said, no one with an awareness of his own safety would have gone in because it was deep, narrow and there was no way out. Dutton commented that, in the short time that he had known the deceased, he came over as a very competent, able, mature young man. Dutton also said that voluntary entry would be contrary to Thomson's training. The extent of his training was not entirely clear. He had undergone basic induction training and further basic level training. He had then undertaken further training as a heating and plumbing tradesman. Rowley, who had trained with Thomson, said that they had been trained not to go into holes like that and that to do so was "playing with your life". All the indications are against him doing something so obviously stupid as voluntarily entering the trench without giving any indication to Price.

[31] On the other hand, he was working fairly close to the open, unprotected trench. The final sample had been removed and placed to the side to be bagged. According to Price the deceased was last seen standing one to three metres from the edge of the trench and holding a plastic bag and shovel in his hand. He had not apparently started to bag the final sample. He had, however, just signalled to Price to stop digging. It is likely that the next thing to be done was to take a final measurement. All that is known about how the measurements were taken comes from the evidence of Price who said that he would get out of the digger, drop the tape measure into the hole and the deceased would watch for when it hit the bottom of the trench. He then added: "A measurement would then be taken and I'd assist Rab in placing a sample into the bag". That evidence indicates that the measurement exercise was carried out with both standing fairly close to the edge of the trench. The trench was an ever present danger. There was nothing at or near it to emphasise and remind the men of the danger. The ground was rough and some of the material from the work being done was lying around the trench. A variety of mechanisms could have led to the deceased falling. He could have slipped, tripped, stumbled or slid. [32] Considering the evidence which has convinced me that the deceased did not voluntarily enter the trench and the circumstances in which he was working where he was exposed to the danger of falling into the trench, I am satisfied that it is likely that he fell in while preparing to undertake the next stage of the job following completion of the excavation. That is likely to have been measurement. I was invited by Mr Campbell to infer that the fall caused the partial collapse of the trench wall. In my opinion, there is no basis for so concluding, although it is an obvious possibility.

The Duty of Care

[33] That leads me to the question what, if anything, should have been done to prevent this. When Dutton had first been asked to retrieve soil samples, he had declined to do so because he did not have the resources, in particular a plant operator. When Price was posted to his team, the position changed and he was able to undertake the task. It was a one-off job of which he had no direct experience. He had to work out how the job should be done, having regard to the hazards it would present and the precautions that should be taken. The core part of his risk assessment was a visit to the site with Price. It was significant to Dutton that the trench envisaged would be open for only a short period and that no work would be done within it. He was conscious of checking the site for the presence of services, such as pipes, to ensure that they would not be interfered with. He was also conscious of avoiding working too close to the waterway in case any person or item of plant fell in. He took no account of the possible presence of water within the trench, since he considered the presence of water there to be irrelevant to the task of taking samples. He knew that the digger was probably several tonnes in weight, but did not consider giving any directions about how close to the trench it might be taken since he considered decisions like that to be within the province of Price as an experienced and competent operator. He made no check on whether the deceased had had any training or instruction in relation to working at or around deep trenches, but knew that he had been through a basic combat engineering course, had done basic level three training and was a plumber. For these reasons he thought that he, like all members of Royal Engineers, would have knowledge of trenches. He recognised that a fair amount of material would be deposited near the trench and that it could be wet and gungy, thus creating difficult underfoot conditions, but only if anyone had to work on it which did not appear to him to be the case.

[34] As I have already indicated, I found Dutton's evidence relating to the measurement of the depth at which the soil samples were taken to be unsatisfactory. I am satisfied that measurements were to be taken and were indeed taken. Price's evidence on the matter was clear. In addition there is a record made by the deceased, in a notebook which was in his possession at the time of the accident, of the depth of the final sample, but it is not clear whether that was at the first or second trench. While Dutton could not recollect if the sappers had been tasked to measure the depths, he stated that it was common sense that they should. He had no recollection of discussing measurements. He had given no instructions not to go close to the trench. There was thus no evidence that the sappers were given instructions on how to make the measurements. I consider that, if Dutton had given such instructions he would have remembered, not only because of the events of that day, but also because he was by then a very experienced member of the Royal Engineers with at least 14 years service. The sappers were left to decide for themselves how to measure.

[35] When the issue of how measuring might be done was explored with Dutton, he did not appear to include among the reasonable options simply going to the edge of the trench and dropping the tape down. If it was to be dropped down, he thought that that should be from some distance back. That would probably mean weighting the tape at the bottom. An alternative method was for the person dropping it down to go forward towards the edge of the trench in a leopard crawl, either with or without a line attaching him securely to a fixed or heavy object such as the digger. He also gave the example of measuring depth by using a pencil held in a vertical and then a horizontal position at a certain distance from the eye and in line with the trench. This chapter of evidence was a graphic illustration for me of acknowledgement by Dutton that there were obvious risks associated with measuring the depth of the trench against which it was necessary to take precautions.

[36] As a result of the Board of Inquiry, various lessons for future works were learned. These were set out in a letter of 1 June 2004 to the family of the deceased and included: "excavations greater than 1 metre deep must be marked with posts and tape at 3 metres from the edge of the trench prior to digging commencing. At night or in poor conditions of poor ground and soil quality this distance is to be increased to 5 metres". The evidence of Mr Greasly was that, at the side of the trench where the samples were deposited and bagged by the deceased, there should have been a barrier between his working area and the side and end of the trench. Although his evidence was criticised as less than impartial by Mr Webster, that criticism was confined to his views about how the accident occurred. In his opinion the spoil that was being removed and deposited on the other side would have provided an adequate barrier there. Dutton indicated that he was aware of a Health and Safety Executive information sheet entitled "Safety in excavations", first published in 1997, which drew attention to the risk of people and vehicles falling into excavations and which recommended taking steps to prevent that if the excavation was 2 metres or more deep. He was also aware of the content of a Construction Industry Training Board publication in August 1996 on the subject of Construction Site Safety and in particular of the information in section "10. Excavations" that every year, on average, seven people are killed in excavations, some being actually buried alive, in collapsed tunnels and trenches, and that many others are injured". All of that demonstrates that the risk of the deceased going close to, and falling into, the trench was plainly foreseeable.

[37] For various reasons I have found it unnecessary to rely on the regulations founded upon by the pursuers. Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 relates to the obligation to carry out a risk assessment. I have found it sufficient in this case to apply the common law on that issue. Regulation 12(2) of the Construction (Health, Safety and Welfare) Regulations 1996 requires suitable and sufficient steps to be taken to prevent, so far as is reasonably practicable, any persons from being buried or trapped by a fall or dislodgement of any material. In my opinion it would not have been reasonably practicable, or indeed reasonable, to take any steps to shore up the walls since it was not anticipated that anyone would be in the trench and any measures were likely to interfere with the work. For the same reason I do not consider such measures would have been required by the common law duty on the defenders to take reasonable care. The position with Regulation 12(6) is rather different. Had the task been in the United Kingdom, then that Regulation would have applied and barriers should have been provided. In addition consideration would have had to be given to how to carry out the measurement with barriers in place. However, as I explain in the following paragraphs, I have found it sufficient to address the matter on the basis of the ordinary common law.

[38] Mr Greasly did not consider that simply giving clear instructions not to go close to the trench at any time was adequate in the circumstances. He thought that, while the presence of the deceased as a banksman with instructions also to look out for people passing went towards protecting the public, it did not address the safety of the workplace for those working there. In his view, in addition to clear instructions, the provision of portable barriers which slid easily into concrete feet was an entirely practicable and reasonable measure which should have prevented anyone accidentally falling into the excavation. I agree with Mr Greasly that the fact that the trench would be open for only a short time was of little, if any, relevance to the question whether some visible delineation or barrier should be provided.

[39] In my opinion Warrant Officer Dutton failed to take account of the obvious risk of one of the sappers falling into the trench. Had he done so, I consider that he would have at the very least given them instructions to work at a safe distance from the trench. To give adequate instructions on that point, he would have required to address the question how the depth of the samples was to be measured. A number of options were mentioned by Dutton in his evidence and I have reflected these above. Whether there were safety harnesses readily available was not explored in evidence. However it was obvious that rope was easily accessible, since those involved in the rescue wore safety lines. Dutton acknowledged that compliance with the practice referred to in the letter of 1 June 2004 about marking an excavation with posts and tape some metres from the edge could easily have been complied with. The evidence did not disclose what material was available to provide a fence or barrier, but there was no suggestion that this was a team of the Royal Engineers which did not have access to the wherewithal for that. Since no evidence was presented to suggest otherwise, I draw the inference that material necessary for that purpose was available.

[40] The giving of instructions combined with the delineation of the site by tape or fencing would in my opinion have had the effect of emphasising and constantly reminding the men of the need to avoid going close to the trench. Dutton's opinion of the deceased and the evidence of Rowley indicate to me that he would have treated that delineation with respect and followed the instructions given on whatever means of measurement was decided upon and instituted. But for the failure of the Ministry of Defence to take these reasonable steps to prevent a fall into the trench, the deceased would not have fallen in. That in the circumstances was a breach of the Ministry's duty of care to the deceased at common law. They failed to carry out an adequate risk assessment with the result that they failed to devise and institute a safe system of work for carrying out the task of taking the soil samples. In addition, the workplace was not safe as a result. The Ministry's breach of the duty of care owed to Sapper Thomson caused him to fall into the trench and thus caused his death.

[41] These findings do not depend to any extent on the terms of Regulation 12(6) of the Construction (Health, Safety and Welfare) Regulations 1996. My decision is based entirely on my understanding of the common law rules that apply in Scotland to a place of work such as this, and on my assessment of the evidence relating to the risk posed and the measures that ought to have been taken in the exercise of the ordinary duty to take reasonable care.

The Responsibility of the Dececeased

[42] The defenders advanced arguments in support of a finding that the deceased was solely at fault for his death or at least very substantially to blame, and invited me to make at the very least a substantial finding of contributory negligence should I find in favour of the pursuers. In light of the finding that I have already made about the defenders' responsibility and having regard to the whole circumstances, I do not consider that any finding of contributory negligence could be other than modest. Perhaps the best argument that the defenders have is the evidence of Rowley that the deceased was aware of the risk of falling into such a trench and the potential consequences that that hazard presented. However, the deceased's principal experience was as a plumber and the evidence of Greasly was that trenches and ditches that plumbers normally work in are much shallower than the trench in this case. There was certainly no evidence that the deceased had on any earlier occasion been involved in work of this nature or work at a deep trench. On the other hand, having regard to the training he had been given, to the evidence about his responsible nature, and to the obvious hazard that the open trench presented, he does appear to have let his guard drop when executing the task. Plainly that was principally the result of the defenders' breach of their duty of care. However, I do consider that he must bear part of the responsibility which I have determined should be 20%.

The Interlocutor

[43] I shall therefore pronounce an interlocutor in favour of the pursuers awarding 80% of the agreed damages. I shall accordingly find the defenders liable to the pursuers in the sum of £40,800 in respect of the first conclusion and £1,200 in respect of each of the second and third conclusions.