Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 3
PD148/11 & PD170/11	OPINION OF LORD DRUMMOND YOUNG in the cause ROSS FRENCH Pursuer; against STRATHCLYDE FIRE BOARD Defenders: and BRIAN DEMPSIE Pursuer; against STRATHCLYDE FIRE BOARD Defenders: ________________

Pursuers: Hajducki QC; Lloyd; Thompsons

Defenders: Mackay QC; Watson, Solicitor; Simpson & Marwick WS

9 January 2013

[1] This opinion relates to two conjoined actions that arose out of the same incident. I will refer to Mr Ross French, the pursuer in the first action, and Mr Brian Dempsie, the pursuer in the second action, as the first and second pursuers respectively, although they are technically pursuers in separate actions. In February 2008 the pursuers were respectively employed as a firefighter and a trainee firefighter by the defenders. The defenders are responsible for the operation of Strathclyde Fire and Rescue. Early in the morning of 1 February 2008 a fire broke out in a garage adjacent to a house at 3 South Dean Park Avenue, Bothwell.

Evidence of fact
[2] Two fire appliances and crews were sent from Hamilton Fire Station. Both pursuers were crew members of one of those appliances. The officer in charge of the operation was Watch Commander James Clark. The appliances arrived on the scene shortly after 4.30 am. Both appliances initially entered Fallside Road, the main road to one side of the property, but the first appliance then moved round the corner into South Dean Park Avenue, from which access to the garage could be obtained by means of a driveway at the side of the house at 3 South Dean Park Avenue. From these locations hose reels were deployed in order to tackle the fire. When the appliances arrived the fire was already well established and there were flames coming through the roof of the garage; all of the witnesses who had been at the scene agreed with that. Part of the roof had disappeared, but there was some disagreement among witnesses as to how much of the roof was affected; I deal with this matter below at paragraph [29].

[3] The garage was built of brick and had a metal cantilevered door at the front. This door was closed and locked when the fire crews arrived. The roof was pitched, and there was a gable at each end, constructed of brick. The front gable was constructed above the main door; the gap accommodating the door was bridged using a type of lintel known as a "Catnic" lintel; this was an L-shaped lintel designed so that bricks could be laid across the front of it, largely concealing the lintel. The garage had a side door, situated towards the rear on the right-hand side facing the main door. This door was locked on the inside. Next to the door was a window, approximately 1m square. When the fire crews arrived, a substantial part of the window appeared to be already broken; evidence to that effect was given by Firefighter Mark Booth, who took charge of the hose reel deployed from the second appliance (the appliance remaining in Fallside Road) and took it to the side window. Water was directed on to the fire from that hose reel and another hose reel taken up the driveway from the appliance in South Dean Park Avenue; the second pursuer was in charge of the latter hose reel. At the side, Firefighter Booth directed water on to the fire through the window, using something between a jet and a spray. Through the window he could see that there was a car in the garage and that it was on fire; he stated that the "whole car" was on fire.

[4] At the front of the garage a number of firefighters, including both pursuers and Watch Commander Clark, approached from the direction of South Dean Park Avenue. The first pursuer stated that he could see that the building was well alight. He could not see much of the roof, nor the roof trusses, but could see the gable end of the building at its peak. He, Watch Commander Clark and the second pursuer walked towards the fire; the second pursuer had the hose reel from the appliance that had moved round to South Dean Park Avenue. The first pursuer and Watch Commander Clark tried to gain access through the cantilevered door. He did not recall any specific instruction to that effect. He and Watch Commander Clark tried kicking the panels of the door to gain access. He thought the door had been in three sections, and he managed to release the bottom section, creating a gap there. Watch Commander Clark then decided that in order to fight the fire it was necessary to open the cantilevered door more fully. He instructed the first pursuer to go back to the appliance to obtain a breaking-in tool known as a Halligan tool. This is a form of crowbar used by firefighters to obtain access through locked doors and the like. The purpose of getting the Halligan tool was to force the door off its hinges in order to obtain full access to the garage. When the first pursuer got back to the garage he used the Halligan tool on the door in an attempt to gain access. The second pursuer, with his hose reel, was towards the right of the door. Watch Commander Clark was standing slightly behind the second pursuer. The first pursuer tried to release a second panel on the door, but had difficulty in getting it open. He tried to pop the rivets on that panel but could not do so. He then attempted to move a connecting piece that he could see behind the door, but again the door would not move. After that he went to the left-hand side of the door and used the Halligan tool between the door and what he believed to be the track for the door, to try to prise them apart. As he did so, the brickwork above the door collapsed; this was the brickwork constructed from the lintel above the door to the ridge of the roof at the gable end. It fell on top of both pursuers. The collapse occurred approximately seven minutes after the fire crews had arrived at the scene.

[5] The second pursuer gave evidence that he had been told to take the hose reel from the appliance in South Dean Park Avenue and put water on the fire. He went to the front of the garage, where he crouched down and put water on to the fire through the gap where the lowest panel of the door had been removed; the gap was about two or three feet in height. He could remember seeing a car inside and flames round it, and he hit the flames with the water from his hose reel. He tried to direct the water upwards as far as possible in order to hit the fire effectively. He recalled the first pursuer's having the Halligan tool, but he had concentrated on fighting the fire. When the gable wall collapsed, he had been hit by the bricks and trapped under them.

[6] Firefighter Mark Booth gave evidence that he arrived at the fire ground with the first appliance, but took the hose reel from the second, which remained in Fallside Road, through the driveway of a neighbouring property in Fallside Road and over a wall into the garden where the garage was situated. There he found that the fire had broken through the roof. He went to the door and window at the side of the property, towards the end away from the main door. Firefighter Booth stated that the front half of the roof had gone. The back half remained. By "front" he explained that he meant the part of the roof next to the main garage door. In cross-examination he was referred to a sketch plan prepared as part of one of the defenders' reports on the incident (no 6/24 of process, page 51). This showed a diagrammatic plan of the garage, and indicated that approximately half of the roof remained intact on the arrival of the fire crews; this consisted of slightly under half at the end of the building away from the main door and a small area, perhaps two feet wide, adjacent to the main door. Firefighter Booth stated that he had not been aware of this plan, but he agreed with the area where it showed that the roof was intact. In particular, he agreed that the area at the front of the garage, adjacent to the main door, was not intact. That evidence is of great importance, and I should record at this stage that I found it to be entirely credible and reliable.

[7] Firefighter Booth then went to the small window at the side of the property; he described this as being about 21/2 feet square. Apart from a small hopper at the top, the window had lost its glass. He put his hose reel through the window and directed water on to the fire, trying to "knock the fire down". This is an expression used by firefighters to denote putting out the main flames of a fire but not extinguishing it totally. When that has been done steps must be taken to eliminate everything that remains, extinguishing the fire completely. Firefighter Booth described the water that he directed on to the fire as halfway between a jet and a spray. He could see a saloon car inside the garage; the whole of the car was on fire. That evidence is of some importance, and I accept it: it is clear that Firefighter Booth had a good view of the car, and I found him to be generally an excellent witness. He directed water over the whole of the car. After he had been about two or three minutes at the window he heard a loud noise and shout, and he dropped his hose reel and went round the front of the garage, where he found that the bricks had collapsed. In cross-examination Firefighter Booth agreed that gaining entry through the front door was a conventional approach to a garage fire. I should record that Firefighter Booth gave clear evidence that he used the window at the side of the garage and directed water towards the fire in the car. It was not suggested to him that he had been told to direct water towards or through the roof, or had actually done so.

[8] Firefighter Calum McKelvie, who was called as a witness by the defenders, was the temporary crew commander for the second appliance to arrive at the fire. He met two firefighters who were bringing a hose reel, and told them to apply water using a hole in the roof and the window at the side of the garage; one of these was Firefighter Booth. He stated that when he arrived smoke and flames were coming through a hole in the roof. The roof had already been compromised. What was coming through was mostly smoke, but there were some flames. The hole was, he estimated, half a metre square. It was situated above the broken window where Firefighter Booth was using his hose reel. The roof itself was not aflame, but steam was coming from the roof timbers. The ridge of the roof had not collapsed; it was a straight line. At the end towards the main door Firefighter McKelvie thought that the roof was completely intact, but steam was coming off it. After instructing Firefighter Booth to direct water through the roof and window and telling another firefighter to secure water, he went to gather information. A neighbour had been concerned about play equipment in his garden, and Firefighter McKelvie reported to Watch Commander Clark to ensure that the latter did not think that this person was the owner of the garage. Watch Commander Clark had, however, already spoken to the owner of the garage. Firefighter McKelvie was asked whether, at the point when attempts were made to extinguish the fire, the garage and its contents had been lost. He replied that that was a hard judgment, because his view had been restricted. He was not, however, able to say that all of the contents had been lost. As far as the building was concerned, he stated that at this stage it could not be said that everything had been lost. Firefighter McKelvie was then questioned in detail about what he had seen of the hole in the roof. He was referred in particular to one of the plans contained in the defenders' report (no 6/24 of process, page 9), which indicated that the seat of the fire was adjacent to the car, halfway between the main door and the window, and not, as the witness had previously indicated, immediately adjacent to the window. The witness stated that he had thought that the seat of the fire was closer to the window, and that the window and door were not as close together as shown in the plan; he accepted, however, that the close proximity of the window and door was clear from one of the photographs (no 6/24 of process, page 10, photograph 1). He finally accepted that the hole that he had seen in the roof was not next to the window but closer to the main door. In relation to the wall above the main door, Firefighter McKelvie accepted that an unsupported wall would obviously be a hazard, and if the roof adjacent to the wall had collapsed he would have cleared all personnel. He had not seen that, however.

[9] Firefighter McKelvie did not think that there had been anything particularly dangerous in the task of fighting the fire at the garage. The only thing that was unusual was the difficulty in opening the main door; usually garage doors open fairly easily. A Halligan tool was entirely suitable for that purpose. Firefighter McKelvie was further asked about the method adopted to fight the fire, in particular opening of the main door. He was asked whether that was a safer method than putting water through the window and the lower part of the door. He replied that, if it were quicker, it would be safer. At this point, however, it appeared to me that the witness was not addressing the overall safety of the method adopted, including hazards presented by the brickwork above the main door, but was rather advancing the general proposition that if a fire can be put out more quickly that has safety advantages. The witness also considered that gaining access to the main door would have the advantage of enabling the firefighters to deal with any hazardous substances within the garage, and indeed the possible existence of hazardous substances, for example gas cylinders, was clearly a major concern of the witness. It was apparent, however, that Watch Commander Clark had spoken to the owner and had ascertained that there were no such hazardous substances in the garage. Thus this concern was misplaced.

[10] In cross-examination it was put to Firefighter McKelvie that Firefighter Booth had given evidence that when the fire crews arrived the fire had already gone through the front half of the roof, with only the rear left. He replied that he did not have a clear recollection. Firefighter McKelvie also accepted that Watch Commander Clark had spoken to the owner about the contents of the garage, but after the point when Firefighter McKelvie had spoken to him about his conversation with the neighbour. As I have indicated, I think that that information negates one of Firefighter McKelvie's main concerns.

[11] Watch Commander Clark also gave evidence. He was clearly an experienced fire officer, having been in the fire service since 1988. He had received detailed health and safety training, which included training on how to look at risks and eliminate or alleviate them. When the appliances were called out to the property in South Dean Park Avenue, he was in the first appliance. When he arrived he went up the driveway of the property containing the garage to look at what was happening. A substantial detached brick built garage was on fire, and he could see flames coming through the roof. These were coming through from approximately the centre of the roof, and a good part at either end was still intact. He could not remember whether the ridge of the roof was straight all the way across, but at the ends the ridge was still straight. He estimated that the size of the hole through which the flames were coming was approximately three feet square; a diagram in one of the defenders' reports on the incident (no 6/24 process, page 51) showed the estimated extent of damage to the roof when the fire crews arrived as extending over a much larger area, but Watch Commander Clark did not think that the hole that was as great as that. (The diagram showed the area where the roof had been destroyed as extending to approximately half of the garage). Fire and smoke were coming through this hole. He did not think that any part of the roof was alight at this point, and apart from the hole the roof was intact. He saw brands coming out; these were portions of combustible material that had been set alight and were being blown by the wind. Watch Commander Clark formulated a plan to deal with the fire. A hose reel was taken off the appliance in Fallside Road and deployed on the fire. The next step was to open the front door. If he had been aware that the gable wall above the main door was unsupported, with a risk of roof collapse, he would have stayed well clear and fought the fire from the side. He had not thought that any such risk existed, however; he had no doubt whatsoever about that proposition. Firefighter Booth was using a hose at the window to the rear of the property, but that was not an effective way to extinguish the fire, which by now was well-developed. Watch Commander Clark managed to see something of what was inside, and formed the view that the contents were not all lost; he could see property inside that was not yet involved in the fire.

[12] Watch Commander Clark explained that he had carried out a proper dynamic risk assessment, in accordance with the instructions issued to firefighters throughout the United Kingdom (Dynamic Management of Risk at Operational Incidents, no 7/3 of process). He contacted the householder, and obtained information from him about the contents of the garage. He ascertained in particular that the garage did not contain any gas cylinders or other dangerous material. Thereafter his plan was to carry on as before, gaining access through the front door. He did not think that this contravened the principles in the instructions, which described the proper manner of carrying out a dynamic risk assessment. Such a risk assessment involved calculation of the benefits and the risks of the proposed course of action. In this case the benefit was that opening the front door would have allowed more hose reels to deal with the fire, and extinguishing the fire would be much faster than if only the window were used. Moreover, with the door open, the firefighters would be able to stand back, which was safer. Not all of the property in the garage had been destroyed, and it was therefore worth while trying to extinguish the fire. While there was a degree of risk, there was no risk to firefighters' lives. The bottom panel was removed from the door, and thereafter a Halligan tool was used to try to remove the remainder of the door. The right-hand side was broken to some extent, and the intention was to lever out the connecting mechanism on the inside of the door. Watch Commander Clark asked the second pursuer to stand back and cover the first pursuer as he attempted to open the left-hand side of the door, in case flames came out. The two pursuers then disappeared as a result of the collapse of bricks. Certain signs can give warning of an imminent collapse, such as the spalling of brickwork, V-shaped cracks in brickwork, steel beams coming out through brickwork and bowed walls. None of those was present before the collapse; Watch Commander Clark had looked for them in his initial risk assessment.

[13] In cross-examination, Watch Commander Clark stated that he thought that the roof was slated, with timber sarking underneath. I should observe that Firefighter McKelvie thought that the roof was made of felt and timber. The important point here is that timber was used, because obviously it will burn. I do not think that anything of importance turns on the question of whether the timber was covered with slates or felt, but I observe that in the photographs after the fire there was no sign of any slates. That suggests that Watch Commander Clark was mistaken on that point. In cross-examination he agreed that the fire was well alight when the fire crews arrived. He was asked about the brands that he had observed, and it was suggested that this indicated that the wood was well alight. He agreed. The brands would not have come from the car, and consequently part of the roof must have been on fire. This evidence is important because it indicates that Watch Commander Clark, like Firefighters Booth and McKelvie, ultimately accepted that the roof was on fire. I return to this point below.

[14] It was suggested that, if the car was burning, most of the other property in the garage would be destroyed or damaged beyond repair owing to exposure to heat and water. Watch Commander Clark disagreed, although he accepted that it was likely that the property would be damaged. Reference was made to conclusions in one of the defenders' reports (no 6/24 of process, page 43), where it was stated that at the time of his assessment Watch Commander Clark had noticed that approximately two feet of roof at the front appeared to be still intact. When referred to this passage, he agreed that figure could well be correct, and that two to three feet of roof at the front of the garage remained intact. He agreed that matters would have been clearer in his mind at the time of the inquiry, which was 41/2 years previously. He further agreed he could have been wrong in saying that the hole in the roof was only three to four feet square. On the basis of these admissions I consider that it is likely that the area of roof at the front of the garage that remained intact at the time of Watch Commander Clark's risk assessment was significantly less than he originally indicated in his evidence, and was probably of the order of two to three feet. Watch Commander Clark then stated that he had seen the guttering on fire when the first pursuer was trying to force the left-hand side of the main entrance. The fire in the guttering was visible not at the corner of the garage but along the side from there. Watch Commander Clark agreed that that indicated that the fire was moving towards the front or side of the roof. He disagreed, however, that he had any concerns about the stability of the roof; if he had he would have raised them. He agreed that there was in fact a problem with the stability of the gable because it had collapsed. He was asked what he would have seen if he had carried out another dynamic risk assessment of the roof after two or three minutes, and he replied that probably more of the roof would have been involved, and that this was going to affect the overall integrity of the building. The garage was a brick box that derived its stability from the roof, and he agreed that that was especially true of the gable ends, in particular at the front, where there was a steel lintel bridging the gap made by the door. Watch Commander Clark accepted that, in considering that the gable was sufficiently stable, he was relying on the structure of the part of the roof not involved in the fire, and in particular the last two feet or so adjacent to the gable. He had carried out a second dynamic risk assessment of the roof when it appeared that the fire was moving, and looked at the overall building, in particular for features such as cracks and bowing which would indicate a risk of collapse.

[15] It was suggested to Watch Commander Clark in cross-examination that it might have been possible to "knock down" the fire through the gap that had been formed in the main door, together with the window at the side. He disagreed, and noted that it was better to have greater access to the garage and its contents, so that the jets could be deployed specifically on to the parts that were burning. In particular, it was possible to see what was happening more easily. On this topic, he agreed that the car was burning, as was the area around it. He was asked about the appropriateness of using a Halligan tool in the circumstances. He agreed that the use of a Halligan tool with "unnecessary" force could make matters worse if the gable end were weakened, but he could not remember the amount of force that had been used.

Expert evidence
[16] For the pursuers expert evidence was led from Dr Michael Dennett and for the defenders from Group Manager Darren Boddy. Both men had great experience of firefighting. Dr Dennett had served in the fire service in various forces in the North and Midlands of England from 1964 to 1994, ultimately as Deputy Chief Fire Officer with the West Yorkshire Fire Service. His experience while in the fire service included responsibility for a number of major incidents, and he held specialist posts in fire safety, fire investigation, training, the preparation and testing of fire attack plans, and equipment procurement. He also served as secretary of the Operations and Research Technical Committee of the Chief and Assistant Chief Fire Officers Association. Since 1994 he has worked as an independent fire engineering consultant. His work in that connection included the investigation of fires, carrying out fire risk assessments of buildings and developments, and acting as an expert witness. Group Manager Boddy had served in the fire service since 1986, and is currently Operational Assurance Manager with Tyne & Wear Fire and Rescue Service. He has served at various ranks in the fire service, and had been involved in fire safety and planning and development as well as operational duties. Latterly he has been the Head of Fire Safety and thereafter Group Manager B, Contingencies and Special Projects Department; in that position he has been responsible for operational assurance, business continuity, the environment and a project known as the Fire Link Radio Project. Both men clearly had great experience in the fire service and were well qualified to give expert evidence. I should record at this stage that I found both to be helpful witnesses. There were, however, certain significant differences in their evidence, and on these topics I have attempted to assess their evidence in the light of the factual evidence in order to reach conclusions about what actually happened and how it compared with the procedures that ought to have been followed on the night in question. I should note in passing that counsel for the defenders criticised Dr Dennett as not having had any recent experience of firefighting. In my opinion this criticism is wholly misplaced. It is clear that Dr Dennett had been very actively involved in firefighting over a period of 30 years, and in the course of that career had tackled several major and difficult fires as well as more routine fires, such as those that regularly occur in garages. He has, moreover, been actively involved in the investigation of fires and fire prevention measures ever since he retired from active involvement in the fire service.

[17] Dr Dennett's evidence was based on a report that he prepared for the purposes of the present litigation. This was in large part based on descriptions of the property and the accident contained in the reports prepared by the Strathclyde Fire & Rescue Service. In his report Dr Dennett referred in some detail to the training and knowledge of firefighters, in particular those in charge of incidents, in relation to building construction and stability. In this connection he referred to the Manual of Firemanship, a series of volumes that are used in the training of firefighters. These indicated the factors that govern the stability of a brick or stone wall, and referred to the fact that such walls can only withstand a comparatively small lateral pressure. Dr Dennett further expressed the view that every experienced fire officer should be aware that domestic garages are often constructed of a single skin of brickwork, often with strengthening pillars; that appeared to be the manner in which the garage in South Dean Park Avenue was constructed. Dr Dennett then considered the application of health and safety standards to Fire Brigades, referring in particular to a publication entitled "Guide to Operational Risk Assessment", published by the Home Office in September 1998. This set out the proper manner of carrying out a dynamic risk assessment. Dr Dennett emphasized the principle, set out in the Guide, that there is no requirement to extinguish a fire or to fight a fire aggressively if circumstances suggest that the risk would be out of proportion to the objective. While the principle is expressed (on page 11 of the Guide) in relation to risk to life, Dr Dennett expressed the view that a considerable risk to the safety of firefighters was taken in the present case, and that no such risk should be run in respect of property that was already lost.

[18] Dr Dennett further expressed the view that the garage was sufficiently far from the nearest building not to pose a risk of fire spread. So far as fighting the fire was concerned, he was of opinion that it could be fought effectively from the side window (by Firefighter Booth) and the lower part of the main door, where the bottom panel had been wrenched off and the second pursuer was able to deploy his hose reel on to the fire. The side window was in the area least affected by the fire and was therefore the safest location from which to fight it. He also drew attention to the fact that firefighters undergo a type of training known as Compartment Fire Behaviour Training. This involves fighting fires in limited compartments, and the standard compartment that is used, equivalent to two transport containers, has a floor area broadly comparable to the present garage. During this type of training a fire is often extinguished using one high-pressure hose reel from a single entrance door. That could have been done in the present case from the window. Significantly, the fire was through the roof on arrival, and could be fought effectively from the side door and window and the gap under the front door. Opening the front door fully would not have saved anything; all of the property in the garage would be either destroyed or damaged beyond salvage. Consequently there was no need to open the front door in order to fight the fire successfully and safely.

[19] As to the precise cause of the collapse of the brickwork, Dr Dennett considered that the burning away of the roof would leave the brickwork above the main door weak and unsupported and vulnerable to collapse. If the steel lintel was exposed to the fire, it would expand and could have destroyed the mortar bond between the lintel and the brickwork, again leaving the brickwork above the main door vulnerable to collapse. In evidence, Dr Dennett expressed the view that the temperatures were probably not high enough to cause expansion of the steel lintel. The brickwork was weakened by the loss of support from the roof, and in that situation using the Halligan tool as a lever on the door would create vibrations throughout the door, its frame and the brickwork. That in Dr Dennett's opinion caused the collapse. His conclusions were expressed as follows:

·               The Incident Commander placed the two pursuers in a dangerous position.

·               This was not a suitable and recommended way of fighting such a fire in the conditions that appertained at the time.

·               There ought to have been more training in identifying the risk of building collapse.

·               The accident could have been avoided.

·               A wealth of information is generally available to fire brigades in the form of the manuals.

·               The knowledge of the content of such manuals would have suggested that this fire should have been fought through the side door/window i.e. how it was eventually fought.

Dr Dennett further expressed the opinion that, taking account of the circumstances at the time, it was unreasonable for the incident commander to continue to try to gain entry through the front door. When it was realized that the front door was jammed the incident commander should have realised that any attempt to release it by using force would cause the weakest part of the whole structure to give way (in this case the brickwork). In Dr Dennett's opinion the accident was foreseeable and therefore avoidable.

[20] In his evidence in chief Dr Dennett developed his views on whether the property inside the garage could have been saved. He stated that car fires are very common, both in garages and outside, and that once a fire has been established nothing can be saved from the car. The other property would have been seriously damaged by smoke and heat, if not by the fire. Consequently he could see no purpose in opening the front door of the garage, in what should have been recognized as a dangerous structure. Dr Dennett was further asked what was the likelihood that the brickwork might collapse when it was known that it was unsupported, in the light of the attempt to open the door. He replied that the incident commander should have realized that this was a dangerous structure; it was unsupported, and therefore liable to collapse; he ought to have been aware that the roof had burned away. In those circumstances to use force on the structure was wrong. That was to be understood in the light of the fact that there was no necessity for carrying out the operation to force entry.

[21] In cross examination, Dr Dennett reiterated his basic position. In particular, he stated that the whole contents of the garage would be affected by smoke, heat or flames; nothing would be salvable. In saying that he was speaking from experience. In relation to his view that the attempt to force the door had triggered the collapse, Dr Dennett accepted that he was essentially following the Strathclyde Fire and Rescue report; the brickwork might just have collapsed. Nevertheless, his experience of using levers was that vibrations are transmitted, and if a section of wall is unsafe, using force creates a clear risk. In relation to the lintel, he thought that it would not have expanded because significant heat was required; steel is a heat sink, and a lot of heat is required to produce noticeable expansion. There would in addition be a significant drop in temperature when the roof was breached. In relation to the possibility of putting out the fire using hoses from the side window and the part of the main door that was open, Dr Dennett stated that he was aware of what a high-pressure hose could do in a compartment of this size; it would create conditions like a rainstorm, filling the garage with drops of water.

[22] Group Manager Boddy provided two reports. In these he expressed the view that the dynamic risk assessment carried out by Watch Commander Clark should include factors such as the size and spread of the fire, the condition of the structure, signs of collapse, safe access and egress points, means of access, firefighting tactics and the garage contents and layout. Fighting the fire through the breached roof or the side window or door would mean that longer was taken to extinguish the fire and to some extent luck would be involved as to whether it was in fact extinguished, water could not be applied to all parts of the garage. If the fire were fought from the front garage door, there would be significant advantages in that firefighters could see where the water was being applied and thus extinguish the fire in a more efficient manner. From his experience, Group Manager Body thought that this was the normal method of fighting garage fires. It is, however, subject to considerations of safety and the risk of possible collapse. Observing for signs of collapse is the responsibility of all firefighters. In the present case the unknown element was the condition of the roof structure and whether there were physical signs of collapse at the point when Watch Commander Clark instructed the pursuers to fight the fire at the garage door.

[23] In his second report Group Manager Boddy commented that there was a very short time frame, seven minutes, from the time when the appliances arrived at the time when the gable collapsed. A great deal of activity had taken place during that time. It seemed apparent that Watch Commander Clark was monitoring the situation, as he instructed the pursuers to withdraw when he observed a change in conditions (the flare at the eaves of the garage). The approach to fighting the fire from the main door was in his opinion recognized standard firefighting technique. He did not agree with the suggestion that gaining access in that way put firefighters' lives at risk unnecessarily. Gaining forcible entry into burning buildings is a core task carried out by firefighters on a regular basis, and is one with which they should be conversant. Consequently he reached the conclusion that Watch Commander Clark did undertake a suitable dynamic risk assessment, and that based upon the findings of that dynamic risk assessment his firefighting actions were reasonable in the circumstances.

[24] In evidence Group Manager Boddy commented on the causes of the collapse of the gable. He stated that the structure of the garage, with single brick walls, was not unusual. The catnic lintel, however, could cause problems, as it was designed for cavity walls. If it were used in a single brick wall, the element designed to fit into the inner skin of brick was not properly supported. If high temperatures occurred during the fire, therefore, the lintel would be exposed to the fire and would be liable to expand. This would cause the brickwork to move, and was likely to have triggered the collapse. The movement in the brickwork could be seen in two of the photographs available after the fire (Strathclyde Fire & Rescue report, page 76). These photographs do appear to show that the right-hand wall adjacent to the main entrance to the garage is leaning outwards slightly. Nevertheless, I am somewhat hesitant about this evidence because the available photographs are not of good quality, and the left-hand side of the main door also appears to lean slightly. Group Manager Boddy did, however, state that movement caused by the expansion of the lintel was wholly consistent with Watch Commander Clark's observation of flames coming through at the right-hand side of the roof; a gap would have appeared owing to the movement of the wall.

[25] Group Manager Boddy was also referred to the document Dynamic Management of Risk at Operational Incidents, and in particular to page 13 of that document, on which Dr Dennett had relied. The document advised the weighing of costs and benefits, but stated that the situation should be evaluated and professional judgment must be applied. Different measures were possible, and any such measure might be acceptable. Group Manager Boddy further pointed out that the relevant passage referred to the risking of lives; in the present case, however, he did not think that there was any question of a risk to life. I should state that that is I think correct, and indeed Dr Dennett appeared to accept that the risk in the present case was of injury rather than any threat to life. Group Manager Boddy was of opinion that there were a number of benefits in opening the main door of the garage. It might enable the structure to be saved in part. Inside was a car with a full tank, which might become involved in the fire. Flying brands could possibly threaten adjacent buildings, and it was better to extinguish the fire quickly. There were also operational requirements, in that two appliances would be freed if the fire were extinguished quickly. Finally, there would be environmental benefits.

[26] In cross examination, Group Manager Boddy agreed that the fire was moving, and that continuous assessment was appropriate. He further agreed that the roof was integral to the stability of the building. Nevertheless, the lack of support would only become important if the roof were burned right up to the gable wall. If two or three feet of roof is left, that will provide support. He accepted, however, that if the roof were partly destroyed the structure would become weaker. In relation to the expansion of the lintel, Group Manager Boddy stated that expansion would develop gradually with heat, to the point where side wall was pushed to one side; at that point sudden effects would be seen as the wall moved. He had seen expansion of lintels many times in the past in observing fires. The officer in charge should bear in mind that this is something that can happen.

[27] In relation to the method of fighting the fire suggested by Dr Dennett, using hose reels at the side window and under the door, Group Manager Boddy thought that it would not be effective in knocking down the fire. The fire had spread to the roof, which would have to be brought under control. Moreover, Firefighter Booth could not deploy his hose reel in the area beyond the car, and it would not necessarily be possible to deal with the fire inside the car. It would be safer if it were possible to open the main door to reveal the whole of the contents and then to withdraw to a safe distance to deal with the fire. Doing so would also allow a better assessment of the situation. In relation to Dr Dennett's view that vibration caused by the use of the Halligan tool could have caused the collapse, Group Manager Boddy expressed the opinion that the Halligan tool would create a lateral force, not a vertical force. He could not understand how vibration would occur; the position might be otherwise if a large sledgehammer were used. He was unable to comment on Dr Dennett's evidence that he had seen cases where the use of a lever had caused a collapse.

[28] In re-examination, Group Manager Boddy stated that the officer in charge is entitled to rely on the eyes and ears of the fire crew; that is the practice of the Fire Service, and it is mentioned expressly in the document Dynamic Management of Risk at Operational Incidents.

Conflicts in evidence
[29] Six major conflicts arose in the evidence. The first of these is the state of the roof on the arrival of the fire crews. Firefighter Booth gave evidence that at this time approximately half of the roof had been destroyed in the fire, leaving approximately two feet intact adjacent to the gable. Firefighter McKelvie and Watch Commander Clark, on the other hand, gave evidence that, although the fire had gone through the roof and flames were coming out, the damage was much more limited. On this matter I prefer the evidence of Firefighter Booth. He gave his evidence in a clear and convincing manner, and he had a good opportunity to observe the fire as he approached the garage from the side. His evidence on this matter was quite definite. Firefighter McKelvie, by contrast, originally thought that the flames were coming through a relatively small hole in the roof above the side window. In cross-examination, however, when it was put to him that the seat of the fire was where the car was parked inside the garage, he accepted that he must have been wrong on that point. Watch Commander Clark also thought that the hole in the roof was about three feet square, but he changed his position in cross examination when he was referred to the conclusions in one of the defenders' reports. In that report he was recorded as stating that approximately two feet of roof at the front appeared to be still intact. He agreed that that might be correct, and that matters would have been clearer in his mind at the time of the fire. In those circumstances I prefer the evidence of Firefighter Booth, and I accept that about half the roof had gone at a time when the fire crews arrived. Firefighter McKelvie and Watch Commander Clark both gave evidence that they had observed that the ridge of the roof was intact when they arrived. That is inconsistent with the evidence that approximately half the roof had gone, and I reject the evidence on that point. Finally, all of the witnesses accepted that the roof was on fire. Watch Commander Clark noted the existence of brands, flying pieces of combustible material, and it was not suggested that these could have come from anywhere but the wood of the roof. If the roof was on fire, it is obvious that the fire would tend to spread.

[30] Secondly, there was some conflict in the evidence as to how much support would be available to the wall at the time of collapse. Based on the evidence discussed in the last paragraph, I am of opinion that at most about two feet of roof would have remained adjacent to the wall when it collapsed. Dr Dennett thought that this would have been plainly inadequate to support the wall. On the other hand Group Manager Boddy thought that two feet of roof would have maintained a significant degree of support. Both witnesses, however, agreed that in a building such as the garage that was on fire, constructed of a single skin of brick, the roof plays a vital part in supporting the structure. That is particularly true of gable walls such as that above the front door. It seems obvious that the support must be provided by the totality of the roof structure, including rafters, joists and especially the longitudinal elements in the structure; it is the latter that will give the roof its basic rigidity. If a large part of the roof is burnt away, the support given to the gable wall must in my opinion be severely reduced; that seems very obvious, and is clearly supported by the evidence of Dr Dennett. For that reason, even if a small amount of the roof remained at the time of collapse, support must have been greatly reduced. Moreover, because the roof was on fire, it was obviously likely that the degree of support would be reduced even further.

[31] Thirdly, a conflict arose in the evidence as to whether the garage, and in particular its contents, had been lost by the time that the fire crews arrived. Dr Dennett thought that it had. The car was on fire, and indeed the seat of the fire appeared to be adjacent to the car. He further stated that the other contents of the garage would be irretrievably damaged by heat, smoke and flames; those contents appear to have included a refrigerator, a tumble dryer and some shelving. By contrast, Watch Commander Clark, Firefighter McKelvie and Group Manager Boddy all thought that it would have been possible to save some of the property in the garage. I note, however, that Watch Commander Clark noticed that the car in the garage was on fire. Firefighter Booth gave evidence to similar effect, and he would have had a very clear view of the car as he was trying to put the fire out. In these circumstances I consider that it is probable that none of the property in the garage could have been saved. It can be said with certainty that the car could not, and I accept Dr Dennett's evidence as to the likelihood of serious damage to the other property. As to the garage structure, the roof had clearly been destroyed for all practical purposes.

[32] Fourthly, a further conflict of evidence related to the practicability of fighting the fire effectively through the side window where Firefighter Booth was deploying a hose reel and the gap under the front door, where the second pursuer was deploying another hose reel. That gap extended to about one third of the height of the door, which would be a distance of slightly over two feet. Dr Dennett was adamant that the fire could have been fought effectively through those two openings, at least to the extent of "knocking it down". In his report (paragraph 8.10 in particular) he stated that the side window was the safest location from which to fight the fire, and he also referred (paragraph 8.11 onwards) to the similarity of the garage to the type of spaces used in Compartment Fire Behaviour Training. In such training, he explained, a fire is regularly put out with a single hose reel. The same applied to the present garage fire. He further observed (paragraph 8.14) that the fire was fought from the side door and window and from the gap under the front door. The effect inside would in his opinion have been sufficient to reduce the fire to a state where it posed no danger. In evidence he stated that without forcing open the front door it would still be possible to fight the fire effectively. By contrast, Firefighter McKelvie, Watch Commander Clark and Group Manager Boddy all expressed the view that it was better to open the front door in order to fight the fire effectively. I do not doubt that, all else being equal, it would be desirable to open the front door. It was clear from the evidence that that would give firefighters a better opportunity to see where the fire was and would allow hose reels to be deployed more effectively. Nevertheless, those were merely advantages, and they do not seem to me to have been essential to fight the fire effectively. On this matter I prefer the evidence of Dr Dennett. I was particularly impressed by his reference to Compartment Fire Behaviour Training, which seemed to be very much in point. He further pointed out that garage fires are dealt with effectively on an almost routine basis. Finally, it is significant that the fire was eventually reduced, and this must have taken place using access for hose reels through the side window and underneath the front door.

[33] Fifthly, a conflict arose between the evidence of Dr Dennett and that of Group Commander Boddy as to whether the use of the Halligan tool is likely to have disturbed the unsupported brickwork above the front door, contributing to its collapse. Dr Dennett thought that this was an essential contributory factor. He gave evidence that the use of the Halligan tool would cause vibrations in the brickwork, and in view of the lack of support following the burning away of the roof that would precipitate the collapse. He stated that he had observed cases where attempting to force doors and the like had caused brickwork to collapse. Group Manager Boddy, by contrast, thought that the use of the Halligan tool could not set up vibrations. The Halligan tool operated as a lever, and it would set up lateral forces, not horizontal forces or vibrations. Moreover, much of the force would be taken up by the soft metal of the frame around the door. Counsel for the defenders submitted that that was in accordance with basic physics; a lever set up forces rather than vibrations. In my opinion the evidence of Dr Dennett is to be preferred on this matter. It is no doubt correct to say that the use of the Halligan tool, which is simply a large lever, was intended to create lateral forces, and that these would be transmitted in large part to the frame surrounding the door. Nevertheless, it must be remembered that what was taking place was not a description in the pages of a physics textbook but rather a serious and determined effort to force a door open in an emergency situation. Furthermore, the Halligan tool, of which a description was available in the productions, is a heavy and sturdy crowbar designed to effect forcible entry to buildings. It is described as "a multipurpose tool for prying, twisting, punching, or striking". When a tool of that nature is used in an urgent endeavour to force open a door, it seems obvious in my opinion that there is a likelihood that vibrations will be set up in the structure; at the very least, the tool will be forced against the structure as the firefighter tries to force his way into the door. In my opinion it is probable that that is what happened in the present case.

[34] Sixthly, a conflict arose between the evidence of Dr Dennett and that of Group Manager Boddy as to whether the collapse of the wall was caused or at least contributed to by the expansion of the lintel above the front door of the garage. Group Manager Boddy thought that it was the expansion of the lintel that precipitated the collapse of the wall, combined with the rotating effect that would be produced by the fact that a lintel designed for a cavity wall was used in a wall with only one brick skin. Dr Dennett, by contrast, thought that the heat would not be sufficient to cause the lintel to collapse; that was a general observation about steel lintels, and was supported by the observation that, when the roof burned away, the heat in the garage would be substantially reduced. Group Manager Boddy's reply to this was that the Catnic lintel was relatively thin, and could expand with the heat that would be available. The expansion was in his opinion supported by the photographs, which seemed to show that the right-hand wall of the garage was leaning, and by Watch Commander Clark's observation that he had seen flames shooting out from the eaves of the garage at the right hand side; Group Manager Boddy thought that that could have occurred at the moment when the expansion of the lintel caused the wall to move, leaving a gap between it and what remained of the roof. I have already expressed the view that the photographs are not clear, and consequently I am reluctant to attach great significance to the apparent angle of the wall. In relation to the flames observed by Watch Commander Clark, it seems to me that these could have been caused by a number of events, including the fire that was undoubtedly occurring in the roof. Consequently I do not attach great significance to that observation. Group Manager Boddy further suggested that the bond between the brickwork and the lintel would not have been particularly strong, and would have been less strong than bonds between the courses of bricks. I think that this is probably correct, and I do not rule out the possibility that problems with that bond contributed to the failure of the wall. As to the event precipitating the collapse, however, I am of opinion that it is improbable that the cause was the expansion of the lintel. The probable cause in my opinion was the vibration caused by the use of the Halligan tool, not merely by levering but by forcing a way into the structure between the door and the brick wall.

[35] Before I leave the assessment of evidential issues, I should mention two further matters that were not in dispute. First, the fire posed no threat to any surrounding property; Dr Dennett gave clear evidence to that effect, and I accept that evidence. Secondly, at a fairly early stage Watch Commander Clark established from the owner of the garage that it did not contain any dangerous materials such as gas cylinders. These two facts are important, because they strongly support the view that there was no pressing need to extinguish the fire immediately; I return to this point below.

Discussion: common law case

[36] The pursuers' primary case is based on common law. They aver that Watch Commander Clark, and the defenders as his employers, owed each of the pursuers a duty of reasonable care. This involved foreseeability that the pursuers would face a risk of injury or loss through the negligent acts or omissions of Watch Commander Clark, and that that is what in fact happened. The defenders, by contrast, submit that the pursuers have failed to prove their case; in particular, the type of injury suffered by the pursuers was not foreseeable by Watch Commander Clark, and in any event his actings met the standard of care of a skilled firefighter exercising reasonable care.

[37] In assessing the common law case, two elements are of crucial importance: foreseeability and the relevant standard of care. In assessing these elements, however, it is important to bear in mind that what is involved is an assessment of risk: not of events that are certain but of events that may or may not happen. The probability of an event is clearly important, in the sense of the level of likelihood that it will happen. Also important, however, is the seriousness of the consequences if that event does in fact happen. In the present case, the event to be assessed is the risk of collapse of the gable wall above the main garage door. If the gable wall did collapse, it is obvious that a substantial quantity of bricks would fall on the men underneath it, and would be likely to cause serious injury. That is in my opinion an important factor in assessing both foreseeability and standard of care.

[38] The test for foreseeability has been discussed in a large number of cases. Counsel for the defender made reference to well-known authorities such as Muir v Glasgow Corporation, 1943 SC (HL) 3, per Lord Thankerton at 8 and Lord Macmillan at 10 and, Bolton v Stone, [1951] AC 850. In those cases, reference is made to "probable" consequences, which are distinguished from mere possibilities. The word "probable" must be approached with caution, however; it can mean more likely than not, in the sense of the balance of probabilities. It can also, however, be used in the sense of reasonably likely to occur. It is in my opinion in the latter sense that the word is used. The present state of the law is in my opinion accurately summarized by Aikens LJ in Whippey v Jones, [2009] EWCA Civ 452, at paragraph 16:

"... the court must be satisfied that a reasonable person in the position of the defendant ... would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be sufficient probability of injury to lead a reasonable person (the defendant) to anticipate it".

[39] In the present case, I am of opinion that at the time when the fire crews arrived at the garage and Watch Commander Clark was required to assess the situation, there was a plainly foreseeable risk from the gable wall in view of the current state of the building. For the reasons discussed above, I find that the roof had burned away to the extent that only about two feet remained adjacent to the gable wall. Moreover the roof was on fire, which meant that that amount of support was likely to diminish. It was therefore likely that the wall would be left for practical purposes wholly unsupported. That ought to have been apparent to a skilled firefighter in charge of the operation. An unsupported brick wall is known to be unstable, and that is a fact which in my opinion ought to have been known to an officer in the position of Watch Commander Clark. In so holding I rely on the evidence of Dr Dennett. In these circumstances I am of opinion that Watch Commander Clark ought to have realized that ordering firefighters into the area adjacent to the front door, immediately under the gable wall, was inherently hazardous. There was a significant likelihood that the wall would collapse, and the consequences of such collapse would be very serious for the firefighters underneath it. I am further of opinion that the use of a Halligan tool, essentially a very sturdy crowbar, to force entry through the door was likely to cause vibrations in the structure, at least if the door did not open easily. In view of the inherently unstable state of the gable wall, I am of opinion that it was eminently foreseeable that such vibration might cause collapse.

[40] In relation to the standard of care, it is necessary to balance the likelihood of collapse against the advantages that could be gained by forcing the front door of the garage. In my opinion the advantages of forcing the door were very limited; in so holding I rely essentially on the evidence of Dr Dennett. The fire was not likely to spread to any adjacent property. No lives were at risk. The contents of the garage were already destroyed or seriously damaged, or were likely to be destroyed or seriously damaged before the fire could be extinguished. The fire could be brought under control and "knocked down" by deploying hose reels through the side window and through the gap under the front door. That is how the fire was ultimately extinguished. The result is that the risk to the pursuers brought about by ordering them into positions immediately under the gable was unnecessary, and in my opinion, relying once again on the evidence of Dr Dennett, that should have been apparent to a skilled firefighter in the position of Watch Commander Clark.

[41] The applicable standard of care is in my opinion that of a skilled firefighter exercising reasonable care. In counsel's submissions there was some discussion as to whether the appropriate standard was that of an ordinary employer or a version of the test for professional negligence laid down in in Hunter v Hanley, 1955 SC 200. In my opinion there is no sharp dividing line between these tests; there is rather a spectrum of situations ranging from a case where the person responsible for safety has clear professional or technical qualifications to cases where he has no particular qualifications but is under an ordinary common law duty of care. The extent to which specialist expertise must be brought to bear will vary according to the circumstances of the particular case. In the present case I am of opinion that Watch Commander Clark was required to demonstrate the standard of care to be expected of a skilled and trained firefighter. That is not a professional qualification, and accordingly the Hunter v Hanley test does not apply in its ordinary form. Nevertheless this standard does require the officer in charge to exhibit a special level of skill and care, which differs from that of an ordinary employer. Counsel for the defender suggested that, if it could be established that another skilled firefighter exercising reasonable care might have adopted the course taken by Watch Commander Clark, that excluded any possibility of negligence. In this connection, he relied on the evidence of Group Manager Boddy and Firefighter McKelvie, both of whom said that they would have fought the fire the fire in the manner adopted by Watch Commander Clark. The problem with that argument is in my opinion that the evidence of Group Manager Boddy and Firefighter McKelvie on this matter clearly proceeded on the hypothesis that the property in the garage had not been destroyed or irrecoverably damaged; I have rejected that proposition. In addition, I formed a clear impression that the evidence of the defenders' witnesses on this matter was based firmly on the proposition that opening the main door was the standard method of fighting garage fires. I do not doubt that that is so, and that it is an entirely proper way to proceed in the standard case. In this case, however, the door of the garage would not open; it is that specific situation that confronted Watch Commander Clark, and it is that situation that must be addressed by the court. In my opinion the evidence of the defenders' witnesses did not take sufficient account of the clear and specific risk presented by the unsupported gable wall, nor of the fact that there was no significant benefit to be obtained in fighting the fire through the main door.

[42] In assessing the standard of care, it is therefore necessary to take into account both the serious risk presented by the unsupported gable wall and the lack of any significant advantage in opening the main garage door. The risk presented by the gable wall involved consideration both of the possibility of collapse and the seriousness of the consequences if there were a collapse. It is also necessary to bear in mind that the exercise carried out by the officer in charge, Watch Commander Clark, was carried out under severe time constraints; seven minutes elapsed between the arrival of the fire crews and the collapse. It was also carried out in darkness. Nevertheless, even taking these factors into account, I am of opinion that a skilled officer in charge in this position, exercising reasonable care, would have realized the danger presented by the gable wall and also the danger presented by the use of a Halligan tool in an attempt to force entry. Against that, he would set the lack of significant advantages in forcing entry, in the particular circumstances of the case. In my opinion the actings of the officer in charge fell short of that standard. In the circumstances he should not have ordered the pursuers to fight the fire in a position adjacent to the door and under the gable wall. I accordingly find that the defenders are in breach of their common law duty of care.

[43] I was referred to a number of further cases in this area of the law, but it seemed to me that these were all cases that turned essentially on their own facts. In every case the legal principles applied were consistent with those that I have sought to apply in the present case. In Watt v Hertfordshire CC, [1954] 1 WLR 345, it was pointed out that the risk must be balanced against the end to be achieved, and when this involves saving human life and limb considerable risks are justified. That is clearly correct. In this case, however, I may consider that there was nothing, or very little, to be saved. Consequently risks were not justified. In King v Sussex Ambulance Service, [2002] ICR 1413, it was held (Hale LJ at paragraph 21) that public servants (in that case in the Ambulance Service) accept the risks which are inherent in their work but not the risks which the exercise of reasonable care could avoid. Thus an employer in such a case is obliged to take reasonable care to provide safe equipment and a safe system of work. That is exactly the test that I have sought to apply. The critical point is that there was no need to attempt to force the garage door, and the risks were therefore unjustifiable. In the recent case of Macintyre v Ministry of Defence, [2011] EWHC 1690 (QB), it is pointed out (by Spencer J at paragraphs 69-71) that the likelihood of injury, the seriousness of the injury which might occur, and the social value of the activity giving rise to the risk and cost of preventative measures must all be balanced. I think that that is clear; the balancing exercise is crucial. Finally, in ICL Tech v Johnston, 2012 SLT 667 it is pointed out (by Lord Hodge at paragraphs [21] and [23]) that the law must recognize that difficult decisions may have to be made, and that the principle spondet peritiam artis is not confined to recognized professions. I agree entirely with both of those propositions. The difficulty of the situation confronting the officer in charge in the present case is clearly material. The statement that even those who do not belong to a recognized profession must display a standard of care and skill appropriate to their training and responsibilities is in my view clearly correct; it involves recognition of the fact that there is a spectrum of possibilities running from the classic Hunter v Hanley situation on one hand to ordinary employer's liability on the other.

Discussion: statutory cases
(i) The Personal Protective Equipment at Work Regulations 1992

[44] In the action at the instance of the second pursuer there is an alternative case based on regulation 4 of the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966). So far as material, regulation 4 is in the following terms:

"(1) ... every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.

...

(3) Without prejudice to the generality of paragraphs (1) and (2), personal protective equipment shall not be suitable unless -

(a) it is appropriate for the risk or risks involved, the conditions at the place where exposure to the risk may occur, and the period for which it is worn;

...

(d) so far as is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk;

...".

Regulation 4 imposes strict liability.

[45] Those provisions were considered in Threllfall v Kingston-upon-Hull City Council, [2011] ICR 209, at paragraph 42:

"The concept of preventing a risk is easy to understand. The precaution stops the injury from happening at all. Controlling a risk is a less certain concept. A risk can be controlled either by reducing the likelihood of an adverse event happening or by reducing the harmful effect of the adverse event when it happens. The provision of protective equipment cannot affect the frequency with which an adverse incident occurs. It seems to me therefore that, in the context of providing protective equipment, the legislature must have intended the second meaning to apply in sub-paragraph (d). The objective of effectiveness must be to ensure that, when an adverse event occurs, the protective equipment either prevents any injury at all or so protects the worker that he does not suffer significant injury. Thus, I would equate 'adequate control of risk' with the prevention of significant injury".

The second pursuer avers that he suffered a full thickness burn to the right side of his lower back and buttock, for which he required treatment in the Burns Unit at Glasgow Royal Infirmary. Surgery was required, and he has been left with an area of scarring. Counsel for the pursuers submitted that, in view of the existence of strict liability, there was no defence to this claim. For the defenders it was submitted that the second pursuer led no evidence that the defenders were in breach of the 1992 Regulations. No evidence was led that the second pursuer had in fact suffered any burn injuries.

[46] It is correct that no evidence was led from the second pursuer, or indeed any other witness, that he had suffered burning injuries. Evidence was led that he was wearing protective equipment (in fact the equipment of another firefighter). In the joint minute concluded between the parties it is agreed that, in the event that the court should hold that the defenders are liable to make reparation to the pursuer in terms of the 1992 Regulations, damages of £10,000 should be paid. I think that it is clearly implicit in that provision in the joint minute that the second pursuer has indeed suffered injury falling within the 1992 Regulations; otherwise there would be no reason to agree that any damages were due. In the pursuer's pleadings, the only injury that is averred that could be due to the inadequacies of protective equipment is the burn injury. In these circumstances, with some hesitation, I reach the conclusion that it is agreed that there were burn injuries and that these were caused by the inadequacy of the protective equipment worn by the second pursuer. Evidence was led, from Dr Dennett in particular, that the equipment issued was standard. Nevertheless, under regulation 4 liability is strict, and the fact that the equipment was standard is accordingly no defence. I must observe that matters could have been put beyond doubt if counsel had asked the second pursuer about his burn injuries. In all the circumstances, however, by drawing what seems to me to be a clear inference from the joint minute, I do not consider it necessary to penalize the second pursuer for this omission.

(ii) The Provision and Use of Work Equipment Regulations 1998

[47] Both pursuers make claims based on regulation 4 of the Provision and Use of Work Equipment Regulations 1998. The application of the 1998 Regulations is set out in regulation 3 which, so far as material, is in the following terms:

"(2) The requirements imposed by these Regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work.

(3) The requirements imposed by these Regulations on an employer shall also apply -

...

(b) to a person who has control to any extent of -

(i) work equipment;

(ii) a person at work who uses or supervises or manages the use of work equipment; or

(iii) the way in which work equipment is used at work, and to the extent of his control".

Regulation 4, so far as material, provides as follows:

"(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

...

[(4) In this regulation 'suitable' -

(a) ... means suitable in any respect of which it is reasonably foreseeable will affect the health or safety of any person;

...]".

[48] For the pursuers was submitted that the Halligan tool was work equipment, and that regulation 3(2) accordingly applied to the defenders as employers. The effect of regulation 3(3)(b) was that the obligations in the Regulations were also incumbent upon Watch Commander Clark. The Halligan tool itself was not a problem, as it was a piece of equipment commonly used by firefighters. It was, however, only appropriate to use a Halligan tool in conditions for which it was suitable; that was clear from the terms of regulation 4(4). In the present case the Halligan tool had been used in conditions in which it was reasonably foreseeable that the pursuers would be injured. When it was used in an attempt to lever open the garage door, the unstable gable wall was dislodged. That occurred in conditions where such a result was reasonably foreseeable to a person in the position of the officer in charge. Liability under regulation 4 is strict; what occurred was exactly the type of situation that regulation 4(3) was designed to protect against.

[49] For the defenders it was submitted that, for there to be a breach of regulation 4(3), it must be reasonably foreseeable that use of a Halligan tool would affect the health or safety of any person. There had been no evidence, however, that the use of the Halligan tool to open doors had ever caused injury to anyone before or that any firefighter could have foreseen that its use was likely to cause injury to anyone. Foreseeability was critical, and that must be determined by consideration of all the circumstances following an exercise that might be similar to that of undertaking a risk assessment. It was also critical that the pursuers should establish causation. It was admitted that causation in this case rested on Dr Dennett's theory that vibrations made a material contribution to the collapse of the wall. That, it was said, was a view that could not be supported, and had only been advanced as a possibility by Dr Dennett.

[50] In the course of argument reference was made to a number of cases. In Yorkshire Traction Company Ltd v Searby, [2003] EWCA Civ 1806, it was held that the regulation covered protection from risks created by external forces. Further, in Robb v Salamis (M & I) Ltd, 2007 SC (HL 71, it was held (at paragraph [25]) that regulation 4(2)

"requires that an assessment of risk be carried out before the work equipment is used by or provided for persons whose health or safety may be at risk. The aim is to identify the risks to the health and safety of workers if things go wrong. It is a short and simple step, for example, to appreciate that if a ladder becomes unstable or slips while it is being used the worker is likely to be injured. That is the risk that must be faced wherever and whenever a ladder is provided. The risk of injury if such events occur is reasonably foreseeable. Work equipment that is not so constructed or adapted as to eliminate that risk is not suitable within the meaning of reg 4(1)".

In that case it was further held (at paragraph [29]) that the fact that an accident was caused by a known source of danger but in a way that could not have been foreseen affords no defence. In Spencer-Franks v Kellogg Brown and Root Ltd, 2008 SC (HL) 159, it was indicated (at paragraph [7] that the liability created by what is now regulation 4 is strict; the employer must "ensure" that the work equipment is suitable, and it is not enough to take reasonable steps to do so.

[51] In Pennington v Surrey County Council and Surrey Fire and Rescue Service, [2006] EWCA Civ 1493, a type of hydraulic ram that had been used safely by operatives in practice over a period of many years was held not to be an unsuitable piece of equipment for an operation involving entry to the cab of a vehicle. It was indicated (at paragraph 32) that, operated by properly trained and instructed personnel, the equipment was suitable. That case is different from the present case, of course; there is no suggestion in the present case that the first pursuer lacked training in the use of a Halligan tool or lacked the skill to use it properly. The claim for the pursuer is rather that, in view of the unstable condition of the building, any use of a Halligan tool was foreseeably likely to result in collapse of the wall with a consequent risk of injury. For that reason Pennington can be distinguished. Counsel for the defenders submitted that the absence of accidents, while not conclusive, is a material circumstance. That is no doubt true, but the critical question is still whether the Halligan tool was suitable for use in the particular circumstances of the case.

[52] As indicated above, liability under regulation 4 is strict. Foreseeability of harm must be shown, as must causation. In my opinion foreseeability for the purposes of regulation 4 must be determined in broadly the same way as foreseeability at common law. I have already held that it was reasonably foreseeable to a skilled firefighter that the use of a Halligan tool, a heavy crowbar, in a situation where the gable end was unsupported and hence unstable, was liable to cause a collapse of the gable wall, with a consequent risk of injury. I have further held that, on a balance of probabilities, Dr Dennett was correct in his view that the use of the Halligan tool caused vibrations which were a material cause of the collapse of the gable. These are the essential requirements for liability under regulation 4. I accordingly conclude that liability on this basis is established. I should note one further point. Counsel for the defenders submitted that Dr Dennett had merely stated that it was a "possibility" that the use of the Halligan tool made a contribution to the collapse of the wall. That submission is at variance with Dr Dennett's report, where it is plainly stated (at paragraph 8.23) that "The actions of the crew in firstly kicking the door and then attempting to lever it open caused vulnerable brickwork to collapse".

Contributory negligence
[53] Finally, the defenders have pled contributory negligence. The basis of this plea was that evidence was led that all firefighters are expected to concern themselves with safety and to look out for any developments that might threaten the safety of themselves or anyone else fighting the fire. That evidence was not disputed. The argument for the defenders was that the first and second pursuers had failed to notice that what they were being asked to do was dangerous: that the gable was unsupported and that the use of the Halligan tool was likely to set up vibrations which were liable to cause a collapse. In my opinion the argument for contributory negligence is ill founded. The primary responsibility for safety, and in particular carrying out dynamic risk assessments, fell on Watch Commander Clark as the officer in charge. That was an important part of his job. Both of the pursuers were allocated specific tasks which clearly required their full concentration. In those circumstances it would not in my opinion be reasonable to expect them to double check the overall risk assessment carried out by the officer in charge. I accordingly repel the plea of contributory negligence.

Conclusion

[54] For the foregoing reasons I will hold the defenders liable to make reparation to each of the pursuers both at common law and under the statutory cases. Damages are agreed at £113,000 in the case of the first pursuer and at a total of £332,500 in the case of the second pursuer; this includes £10,000 in respect of the injuries falling under the 1992 Regulations. I was not addressed on the question of interest. If the parties are unable to agree the total sum due, including interest, I will have the case put out By Order in order that the interest due may be determined.